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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for libel. A demurrer was sustained to plaintiff’s evidence, and he appeals.
The district court sustained a demurrer to plaintiff’s petition, plaintiff appealed, the judgment was reversed, and the case was remanded for trial. (Jerald v. •Houston, 120 Kan. 3, 242 Pac. 472.) At the trial witnesses for plaintiff testified concerning how they understood the article: That plaintiff had falsified; that plaintiff was crooked; that plaintiff was getting too much from the railroad company — was trying to collect something which he ought not to; that plaintiff was trying to get the best of-the railroad company— was trying to get more money for his land than it was worth. Plain- ■ tiff testified 'the article made him mad, made him ashamed to meet people, he could not sleep at night, and people shunned him. Early in the trial the court announced that in its opinion the case was one of libel per quod, and not per se. No proof of special damages was offered, and in sustaining the-demurrer to plaintiff’s evidence the court said:
“Under the view I take of'this case and have taken all the way through, as held in the first instance, the article was not libelous per se. I later held that where the article was not libelous per se, specific damages should be proven. I still think that is the law. I don't believe it has been proven in this case and, therefore, there is nothing for the jury to decide. The demurrer will be sustained.”
Unless the article were libelous per se it was necessary that plaintiff prove special damages in order to recover. Plaintiff does not contend to the contrary, and does not contend he offered any proof of special damages. Plaintiff’s contention is the article was libelous per se, and that is the only question to be decided. If the article was libelous per se the case should have gone to the jury for assessment of general damages. If not, the demurrer to the evidence was properly sustained, because special damages were not proved.
Plaintiff contends the article was libelous per se because this court so decided in the former appeal. The contention is not well founded. The ground of the demurrer to the petition was not that the petition failed to state a particular kind of cause of action, but that it failed to state any cause of action. There was some discussion in the former opinion of the question whether the article was libelous per se. One question was whether the article charged plaintiff with a crime in connection with assessment of his land. It was shown there may be defamation without charge of crime, and it was said that, while the offensive language, critically analyzed, did not charge crime, that fact did not make the petition demurrable. The decision of the court on the subject was stated in the second paragraph of the syllabus:'
“Rule followed that a cause of action for libel may be stated although the alleged libelous article did not charge the aggrieved party with the commission of a crime defined by statute.” (Jerald v. Houston, 120 Kan. 3, syl. ¶ 2, 242 Pac. 472.)
The opinion contained other observations bearing on whether the printed words were libelous per se. In one part of the opinion it was said the question whether the article was libelous per se or per quod was academic, because the article plus the allegations contained in the petition made out a cause- of action for defamation'. The decision of the court was stated in the third paragraph of the syllabus:
“In an action for damages for libel, the allegations of plaintiff’s petition, together with the alleged libelous matter, considered, and held to state a cause of action against a demurrer thereto.” (Syl. ¶ 3.)
The writer dissented because he was of the opinion the allegations of the petition added nothing to the article, and the article itself was not actionable.
In the former opinion the need to .allege special damages in order to state a cause of action when the article complained of is not libelous per. se was not mentioned. Defendant did not move in the district court for a specification of items of damage, he did not suggest to this court that the petition was demurrable for want of a proper allegation of special damages, and the court was not authorized to speak on the subject.
Plaintiff contends this court reaffirmed its position that the article was libelous per se in the case of Knapp v. Green, 123 Kan. 550, 256 Pac. 153, wherein the opinion quoted at some length from the former opinion in this case. The quotation consisted of that part of the former opinion devoted to showing it is not necessary for an article to charge commission of crime in order to be libelous. To illustrate that subject, decisions of this court extending from Hetherington v. Sterry, 28 Kan. 426, to Rohr v. Riedel, 112 Kan. 130, 210 Pac. 644, were reviewed, in which the court had held articles to be libelous per se although no crime was charged. It was not necessary to go over the same ground again, and the collation of cases already made was used to show that the article in Knapp v. Green was libelous per se.
There is nothing else in plaintiff’s brief bearing on the question whether the article was libelous per se. A quotation from the opinion in the case of Hanson v. Krehbiel, 68 Kan. 670, 75 Pac. 1041, appears, but it is confined to a discussion of the subject of general and special damages. Plaintiff does not contend the evidence showing how readers of the article understood it may be considered in solving the question whether the article was libelous per se. He says the evidence was introduced to meet the ruling of the district court that the action was for libel per quod, and not per se. If so, the proof was not extended far enough to establish special damages, which are clearly distinguished from general damages in the opinion in the case of Hanson v. Krehbiel. It is not the understanding of one or several readers which determines whether an article is libelous per se. The question is whether the words on their face, without explanation or extrinsic proof, would necessarily, or as a natural and immediate consequence, cause injury. What somebody understood is immaterial (Dahl v. Hansen, 152 Ia. 555, 559; Thompson v. Sun Pub. Co., 91 Me. 203, 207; J. A. & R. A. Reid v. Prov. Journal Co., 20 R. I. 120, 122; Williams v. Hicks Printing Co., 159 Wis. 90, 106), and the question is one of law for the court.
“Whether a publication is libelous per se or the language thereof will bear the interpretation or convey the meaning ascribed to it in, the innuendo, are questions of law for the court.” (State v. Huff, 96 Kan. 632, syl. ¶ 2, 152 Pac. 642.)
The action is one for damages resulting from a tort. The protected interest is good reputation. The claimed invasion is publication of defamatory words. The invasion must cause damages. In the case of Knapp v. Green, 123 Kan. 550, 256 Pac. 153, the definition of libel found in the criminal code was quoted, and the rule was applied that if libel is defined by statute any language fairly included in the definition is libelous per se, citing Schomberb v. Walker, 132 Cal. 224, 226; Stevens v. Snow, 191 Cal. 58, 62; and Guisti et al. v. Galveston Tribune, 105 Tex. 497, 504.
What help does the statute give in determining whether the article was intrinsically of such a character that it must have caused damages as plaintiff asserts?
In Pollock and Maitland’s History of English Law (vol. 2, p. 535) we read that the Lex Salica decreed that if a man called another “wolf” or “hare,” he should pay the other three shillings; and if a man called a woman “harlot,” and could not prove it, he should pay her forty-five shillings. Here are three actionable words, the speaking of which was regarded as causing specified damages. In the same book we read (p. 536) that it was written in the Norman Custumal that if a man falsely called another “thief” or “manslayer,” he should pay damages, and, holding his nose with his fingers, should publicly confess himself a liar — the prototype of modern newspaper retraction. Here are two more actionable words presumably causing damages, but the amount is not fixed. From multiplication of single instances like these our law of slander and libel developed. Other bad words and defamatory expressions caused harm to be repaired by damages to the injured person, and the public interest required protection, which was afforded by public prosecution. When the time came to state a law of libel, attempts were made to. generalize by way of definitions, and as the law grew, definitions became more and more elaborate. The writer was recently presented with an original copy of the second edition of Blount’s Law Dictionary, printed and bound in 1690. The first edition appeared in 1670, 257 years ago. In this dictionary, libel is defined as “A scandalous report of any man cast abroad, or otherwise unlawfully published in writing.”
Blackstone treats slander and libel by definition explained by enumeration:
“Lastly: injuries affecting a man’s reputation or good name are, first, by malicious, scandalous and slanderous words, tending to his damage and derogation. As if a man maliciously and falsely utter any slander or false tale of another; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured; or which may exclude him from society, as to charge him with having an infectious disease; or which may repair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave. Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more henious.
“A second way of affecting a man’s reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous light, and thereby diminish his reputation. . . . What was said with regard to words spoken will also hold in every particular with regard to libels by writing or printing, . . .” (3 Blaekstone’s Com. 123, 125, 126.)
Chancellor Kent adopted the definition of libel found in two Massachusetts cases:
“A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule.” (2 Kent’s Com. 16.)
The Kansas legislature of 1868 framed the definition which is still a part of the crimes act:
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.” (E. S. 21-2401.)
The code of civil- procedure does not define libel. This fact, however, does not set the law of libel at large in civil cases. It may be assumed that whatever is punishable as. libel, in the interest of the public welfare, may be the basis of a civil action of tort for general damages when such damages may be presumed, and for such special damages as in fact resulted. The purpose of the legislature in stating its definition was the same as the purpose of Kent and Blackstone and Blount: to stabilize and standardize the meaning of the term “libel,” in order to indicate the extent to which the law protects reputation. When taken over into the law of torts, the definition is merely an authoritative statement of the meaning of a term. The definition was not confined to those defamations only which the authorities had held to be actionable, such as those in Blackstone’s enumeration, but was extended to include any kind of defamation which might fairly be covered by the language used. But the common law of libel in civil actions was not abrogated, and in particular the common-law rules relating to libel per se and libel per quod were not expunged. If a statement printed in a newspaper on its face defames in any of the ways stated in the definition, it is libelous per se; but if the statement does not on its face defame, and in order to make it defamatory it is necessary to show how it did hurt, it is not libelous per se.
The views just expressed accord with those of the California court. The civil code of California contains a .definition of libel. In the case of Schomberg v. Walker, 132 Cal. 224, cited in the opinion in Knapp v. Green, the syllabus reads:
“The definition of libel in our code is but a statement of the common-law rule, that any words will be presumed defamatory, or libelous per se, which expose the plaintiff to hatred, contempt, ridicule, or obloquy, or which tend to injure him in his profession or trade, or to cause him to be shunned or avoided by his neighbors. . . .
“Language fairly included in the statutory definition of libel is libelous perse. It is only where the meaning is covert that averment and proof of special damage is required.” (p. 224.)
In the opinion it was said:
“The definition of libel in our code is taken from Field’s New York Civil Code (sec. 29), and is but a statement of the common-law rule as given in the cases there cited. (2 Kent’s Com. 17 [and other authorities].) The effect of these and other, cases is thus stated — almost in the language of the code — by Mr. Odgers: ‘In cases of libel, any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, which tend to injure him in his profession or trade, or to cause him to be shunned or avoided by his neighbors.’ ...
“Where there is a statutory definition — it has been said by this court — -‘language which is fairly included in such definition is libelous per se. It is only when the libelous meaning of the publication is covert — not apparent- on the face of the language used — that averment and proof of special damage is required.’” (pp. 226, 227.)
The statement that when language is fairly included in a statutory definition it is libelous per se was taken from the opinion in the case of Tonini v. Cevasco, 114 Cal. 266. In that case the statement was that Tonini had not moved away, but had been discharged by a named firm for conduct not irreprehensible. The syllabus reads:
“The publication of a false statement that the plaintiff was discharged from his employment for reprehensible conduct, is libelous per se, as tending naturally to expose him to obloquy, and to injure him in his occupation, and no averment or proof of special damage is required in such case, such proof being only required when the libelous meaning of the publication is covert, and not apparent on the face of the language used.” (Syl. fl 5.)
In the opinion, after discussing the distinction in gravity between spoken and written words, the court said:
“However, in most of the states there is a statutory definition of libel; and in such case language which is fairly included in such definition is libelous per se. It is only when the libelous meaning of the publication is covert — not apparent on the face of the language used — that averment and proof of special damage is required.
“We think that the language charged, upon its face tended naturally, necessarily and proximately to produce some, at least, of the results mentioned in section 45 of the code above quoted; . . . and that, therefore, no averment or proof of special damage was necessary.” (pp. 271, 273.)
The decision in the case of Stevens v. Snow, 191 Cal. 58, cited in the opinion in Knapp v. Green, was in accord with the earlier decisions of the California court.
The civil code of Texas contains a definition of libel which was interpreted in the case of Guisti et al. v. Galvestion Tribune, 105 Tex. 497, cited in the opinion in Knapp v. Green. In the course of the opinion in the Guisti case the court made these declarations:
“We think it clear .that in the enactment of the law the purpose was not only to make definite what constitutes actionable libel in this state, but to ma terially modify the doctrine of the common law upon that subject. . . . Under the present law it is not necessary to the right to maintain an action for a publication not libelous per se to allege or prove special damages. . . . In this particular the common-law rule has been modified. ... So that we are constrained to hold . . . that the manifest purpose of the legislature in enacting this law was to cover the entire subject of libel as applied to civil actions, without regard to the rules of the common law and holdings of the courts on the subject, and to materially enlarge the rights of those who may be the subject of libelous publications. . . .
•“But, irrespective of the penal code, the present statutory law makes any printed or written statement tending to impeach the virtue of any person in this state actionable as a libel, without regard to the allegation or proof of special damages.” (pp. 504, 505.)
This view of the effect of statutory definition of libel never has been recognized in this state, and was not adopted in the opinion in the case of Knapp v. Green, which was decided according to common-law principles:
“Unless the language used was actionable per se, a cause of action is not stated because special damages are not pleaded.” (Knapp v. Green, 123 Kan. 550, 551, 256 Pac. 153.)
Politics become odious unless those who, in the exercise of their political privileges, assume leadership act upon public considerations. The article complained of in Knapp v. Green pictured Knapp, postmaster, as political boss in action in the characteristic manner which has made the boss system in politics anathema wherever it prevails. The question was, Did t(he article on its face necessarily, or as a natural and proximate.consequence, tend to invade Knapp’s legally protected interest in good reputation? If so, it was not necessary to plead special damages; damages would be presumed. We have the same question in this case.
In the former opinion in this case the statement of facts introducing the article complained of contained an error which gave a wrong cast to the article. It was said plaintiff’s farm was assessed at $35.75 per acre, that 6.06 acres were condemned, that plaintiff was awarded $1,312 as damages “for the land so taken,” that plaintiff appealed, and that the jury returned a verdict for $2,300. The board of appraisers did not allow $1,312 as damages for the 6.06 acres of land taken. The petition alleged the appraisers appraised the damages to plaintiff’s farm at $1,312. The article made the same statement, and what price per acre the appraisers placed on the land taken did not appear in the petition or in the article. At the trial of this case, testimony of witnesses given at the trial of the appeal from the appraisers’ award was read, showing that the jury had before it an abundance of evidence relating to damage to the farm as a whole, and the method of proving damages was to show value per acre of the farm before condemnation, and value per acre after condemnation, considering numerous factors of depreciation caused by the railroad cutting the land in two. The article follows:
“Daniel A. Jerald Gets Judgment Against N. E. O. — Will Probably be Appealed — Jerald Awarded $2,300 by Jury for Railway Company Taking Up 6.06 Acres of Land with Right of Way.
“How much is an, acre of land worth in the eyes of a jury, when the owner swore it was worth $35.75 per acre when the assessor called?
“How much should a street-car company be stung, which puts a line of rails across a farmer’s land, even though it increases the value of every acre of the farm, by reason of bringing the farmer’s family in closer touch of town, and affording him an easier means of transporting his products to market?
“A verdict in the district court yesterday, which the company’s legal representatives say is ridiculously excessive in damages assessed, will be appealed to the supreme court.
“The case referred to is that of Daniel A. Jerald against the Northeast ■Oklahoma Railway Company, in which Jerald appealed from an appraisers’ award of damages.
“The Jerald farm is composed of 150 acres and is located north of the Taylor place, a few miles south of Columbus. The right of way of the N. E. O. ■crosses it on a quarter section line and takes up 6.06 acres of land.
“At the time the right of way was secured through condemnation proceedings ■some time ago, the board of appraisers, consisting of three entirely disinterested parties, placed the actual damage to the farm at $1,312.
“However, the plaintiff evidently considered that his farm had been damaged in excess of the amount given him and he employed the law firm of Stephens ■& Dresia and brought action in the district court.
“Jerald introduced a score of witnesses yesterday to testify that his farm had been damaged in excess of the amount he had been awarded by the board •of appraisers.
“Witnesses for the street-car company also testified in regard to the amount of damages sustained. Their opinion of the amount of damage ranged from '$5 to $7.50 per acre.
“It was brought out in testimony during the trial that the farm had been •■assessed at $35.75 per acre last year.
“The street-car company was represented by a Miami lawyer and Al F. Williams and Don Elleman of this city.”
In determining whether the article had but one fair meaning, and a,s a necessary or natural and proximate consequence would cause •damage, the article must be read as a whole. Each statement must be considered in connection with the others, and the whole must be fairly and reasonably construed. (Dever v. Montgomery, 89 Kan. 637, 640, 132 Pac. 183.) So considered, the article was a report of a judicial proceeding with an account of how it arose and how it ended, captioned by headlines and containing comment. The farm of 150 acres had been assessed the year before at $35.75 per acre, and Jerald had sworn to that valuation when the assessor called. The railroad condemned 6.06 acres for right of way, and the board of appraisers placed actual damages to the farm at $1,312. Jerald employed attorneys and brought action in the district court. At the trial Jerald produced a score of witnesses to testify that the farm had been damaged in excess of the amount awarded by the board of appraisers. Witnesses for the street-car company testified regarding amount of damages sustained, and in their opinions the amount of damages ranged from $5 to $7.50 per acre. The assessed value of the land was shown in evidence. The jury gave Jerald $2,300. The railroad company was represented by certain attorneys.
The article says the board of appraisers placed the actual damages to the farm at $1,312. This language cannot be distorted to mean that the board of appraisers valued the 6.06 acres of land taken at $1,312, or more than $216 per acre. The article said Jerald considered his farm had been damaged in excess of the amount given him, not that he considered he should have more than $216 per acre for the 6.06 acres. The article said Jarrel produced witnesses to-swear that the farm had been damaged in excess of the amount allowed by the board of appraisers. Witnesses for the railroad company testified in regard to amount of damages sustained, and in their opinions the amount was from $5 to $7.50 per acre. From $5 to $7.50 per acre for what? For 6.06 acres taken, making the amount of damages from $30.30 to $45.45, or for the farm, making the damages from $750 to $1,125 — the latter figure in the neighborhood of the appraisers’ award? All that is necessary in order to grasp the-meaning of these portions of the article is to read them — not to read them critically, but just to read them as the story is told. The court declines to assume that readers of ordinary intelligence would give-them the twists which have been indicated, and defendant may not be compelled to pay damages if some superficial or careless reader did so.
The account of the evidence which was introduced at the trial closed with the statement that the farm had been assessed at $35.75 per acre the year before. Then came the verdict for $2,300, and for what? The headlines attracted attention to the verdict for $2,300, not as damages resulting from the railway going through the farm, but as damages for taking up 6.06 acres of land with right of way, and the first sentence of the body of the article focused attention on the value of an acre of land. It is the practice of some newspapers deliberately to put poison in a headline and follow it with a weak antidote in the body of the article. This is done for the consumption of those who do not look below the headlines, and the expedient may go far enough to make a headline libelous, notwithstanding what follows. In this instance the headlines did not contain the news. They merely attracted attention to the news. The body of the article must be read to know what happened. The average reader was obliged to do that, and when that is done, the article as a whole bears but one meaning. Jerald obtained the verdict of a jury for $2,300, not for 6.06 acres of land at a price of $379.53 per acre, but as damages to his 150-acre farm. What was there about that to bring obloquy on Jerald?
The first and second' sentences of the body of the article were not directed against Jerald. The first query was not, How much is an acre of land, which the owner valued under oath at $35.75 when the assessor called, worth in the owner’s eyes after a railway company takes up 6.06 acres of it with a right of way? The query was, How much is an acre of land, which was so valued by the owner, worth in the eyes of a jury? The next inquiry was, How much should a street-car company be “stung” which puts a line of rails across a farmer’s land? Looking further into the article, the witnesses for the railway company estimated damages to the farm. The appraisers were spoken of as “three entirely disinterested parties.” They appraised damages to the farm at $1,312. So far there is not the slightest indication that anybody had not expressed an honest opinion. Then the jury, after listening to a score of witnesses produced by Jerald, awarded approximately one'thousand dollars more as damages to the farm than the appraisers had allowed. The whole tenor of the article was not that Jerald had willfully and corruptly undervalued his land for taxation, but that the jury had returned a verdict for a grossly excessive sum. The article did not suggest that Jerald was a witness at the trial, and the article had no tendency to impute to him the crime of perjury in returning his land for taxation, assuming perjury could be so committed, which was not possible under the law. It would be idle to assert that the statement in the article that Jerald produced a score of witnesses who testified the farm had been damaged in excess of the amount allowed by the appraisers, indicated wholesale subornation of perjury.
The essence of the imputation against Jerald was that, after he valued his land under oath for purposes of taxation, and after he had been awarded damages to his farm by three entirely disinterested appraisers, he proceeded to “sting” the railroad company by a verdict for $2,300, which the attorneys for the company said was ridiculously excessive; and he did this, notwithstanding the fact that putting the line of rails across his farm increased the value of every acre of it, by bringing his family in closer touch with town and affording easy transportation facilities to market. But the article set forth in detail the precise means by which this result was accomplished. Jerald hired attorneys, brought an action in the district court, a trial occurred, at which the railroad company was represented by attorneys, and a verdict was returned by a jury after listening to evidence, the nature of which was summarized. Without debating the matter, this court declines to hold that, as a matter of law, the article would tend to expose plaintiff to public contempt, hatred or ridicule, or deprive him of the benefits of public confidence and social intercourse.
The statutory definition includes defamation which tends to provoke wrath. The provision is reminiscent of days when defamation was followed by use of the horsewhip and pistol. As employed in the statute, wrath means not merely anger, but violent anger (Webster’s New International Dictionary), and the court holds the article was not of a kind to arouse a person to such a pitch that he would likely be distraught with rage and fury.
The judgment of the district court is affirmed.
Dawson, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff prosecutes this action to obtain a declaration of the law concerning the power of a justice of the peace to issue an order of attachment and a garnishee summons without a bond therefor having been first filed. Judgment was rendered in favor of the defendant on his demurrer to the petition of the plaintiff, who appeals.
The only question presented is, Does the petition state facts sufficient to constitute a cause of action? The petition alleges that the defendant is a justice of the peace, and—
“That on the 28th day of November, 1926, the defendant M. H. Flood, acting in his official capacity at the suit of Rudge & Guensel Company as plaintiff against this plaintiff as defendant, issued as a garnishee summons and attachment order as such justice of the peace without requiring the said Rudge & Guensel Company to first execute and deliver a bond for attachment and garnishment as provided by law; that afterwards and on the 26th day of November, 1926, this plaintiff filed his motion in said justice court asking that the attachment and garnishment be discharged for the reason that no bond was given as provided by law; that' said motion was submitted for consider ation before said justice of the peace and the same was overruled and denied. . . .
“That pursuant to the garnishment proceedings and in accordance with the command of the garnishee summons there was and is now restrained of your plaintiff’s property cash on deposit in the Peoples State Bank in Liberal, Kan., in the sum of $225.”
The petition then refers to certain provisions of the statute which are not necessary to be here set out. They concern the power of a justice of the peace to issue an order of attachment or a garnishee summons. No damage sustained by the plaintiff is alleged, and there is no prayer for a money judgment. The petition does not disclose any controversy between the parties except as to what the law is. There is no allegation in the petition that the defendant is invading or denying any right of the plaintiff. The prayer of the petition is—
“That said laws be construed to the end that your plaintiff’s property will be protected in accordance with the laws of this state.”
The statute under which this action is prosecuted, R. S. 60-3127, reads:
“In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, other instruments of writing, statutes, municipal odinances, and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.”
In West v. City of Wichita, 118 Kan. 265, 234 Pac. 978, the court said:
“The statute relating to declaratory judgments (R. S. 60-3127 to 60-3132) is available to a litigant only in cases of actual controversy.”
What is the controversy between the plaintiff and the defendant? It is one concerning the meaning of a statute; in other words, one concerning what the law is. Controversies involving the interpretation of statutes may be settled under the declaratory judgment law, but those controversies must include rights claimed by one of the parties and denied by the other. Here the plaintiff is not claiming any right and the defendant is not denying the plaintiff any right. The controversy is such a one as is likely to arise in the trial of any action. Controversies of that character cannot be determined by this court except on an appeal in the action in which the controversy arises. It is not such a controversy as gives to the party complaining any right of action under the statute against the court who may be making a mistake of law.
For further discussion concerning matters which are justiciable under the declaratory judgment law, see State, ex rel, v. Grove, 109 Kan. 619, 201 Pac. 82, and State, ex rel, v. Kansas City, 110 Kan. 603, 204 Pac. 690.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover from Emery L. Wickizer, as executor, |1,200 which he had received as the rent for real property which the plaintiff claimed to own, and asked to have her rights under an antenuptial contract determined. Judgment was rendered in favor of the plaintiff for $787.85, and her rights under the antenuptial contract were declared. The defendants appeal.
The action was tried on an agreed statement of facts which showed that on April 5, 1921, Asa M. Wickizer was the owner of certain real property, and that on that day he entered into a contract with the plaintiff in contemplation of their intermarriage, by which contract they agreed with each other—
“That after their marriage they shall enjoy the proceeds from the above-described property during the lifetime of Asa M. Wickizer and as long thereafter as she lives or remains the widow of Asa M. Wickizer, and at his death or her ceasing to be his widow then the above-described property is to be sold by Emery L. Wickizer, or administrators of the estate of Emery L. Wickizer, and the proceeds equally divided among the surviving sons and daughters of Asa M. Wickizer.”
The agreed statement of facts also showed that Asa M. Wickizer and the plaintiff were married; that Asa M. Wickizer made a will devising the net income of the property to the plaintiff so long as she remained his widow, but when she ceased to be his widow or at her death, “said money so loaned to be collected and divided among my children as herein provided”; that the defendant Emery L. Wickizer was named as executor and qualified as such after the death of Asa M. Wickizer, which occurred on November 12, 1924; that the plaintiff elected to take under the law; and that Emery L. Wickizer entered into the possession of the property, rented it, collected the rents, paid the taxes for the year 1924 and the first half for the year 1925, paid for repairs made on the property, paid for insurance thereon, and paid $4 for repair cleaning and burning trash.
The court made findings of fact in accord with the agreed statement of facts, and made conclusion of law as follows:
“1. The will has been received and probated by the probate court and accepted by all parties to this action as effectual and is therefore so taken by this court.
“2. The antenuptial agreement between the plaintiff and Asa M. Wickizer is effectual as to the hotel property lots 2 to 8, inclusive, block 19, Quinter, Gove county, Kansas, but does not affect any other property or estate of the decedent and does not limit the rights of the plaintiff, Emma R. Wickizer, in such other property. »
“3. The plaintiff is a life tenant in said hotel property unless she terminates her rights therein sooner by marriage, in which event said property immediately passes in title to the executor, Emery L. Wickizer, to be sold by him and the proceeds disposed of to the children of Asá M. Wickizer in equal parts.
“4. The complete right of possession and control of the hotel property is in the plaintiff and neither the heirs-at-law nor the executor have any right therein or anything to do thei’ewith until the plaintiff’s tenancy terminates by her death or her marriage, except that the buildings may be insured as the-interest of the plaintiff and the executor appear.
“5. The defendant should account to plaintiff for $883.27 rent received, less $24.36 paid out for repairs, and $49.61 paid for 1925 taxes, and $57.77 being one-thii'd of insurance premiums paid. The balance of $752.63 is due from the executor to the plaintiff.
“6. As the taxes of 1924 became a lien on the hotel property on November I, 1924, and Asa M. Wickizer died on November 12, 1924, the taxes of 1924 are chargeable to the estate and not to the pai-ticular ti'act, nor to the plaintiff. The item of $4 for cleaning and burning trash, and repairs, does not separate the repair item fi-om the rest, and the latter is a charge on the estate and not on the plaintiff or the hotel pi’operty. All the items for repairs are small tempoi'ary or tx-ansitory items, and therefore properly chargeable entirely to the property and the life tenant. The taxes for 1925 became a lien after the life tenancy had begun and therefore are propex-ly chargeable to the property and the plaintiff. The insurance was taken in the name of the executor apparently to protect the property and pi'esumably for the benefit of all concex-ned, as their interests may appeal-, and thex-efore without any showing of the age of the plaintiff or her life expectancy, the burden should be divided two-thirds to the estate, for the benefit of the remaindei-men, and the other one-third to the plaintiff as life tenant. The insurance policies now in force should be regarded and held as insuring the property for the benefit both of the plaintiff and of the estate and heirs, as their interest may appear, notwithstanding -that the policies run to the executor only.
“7. The plaintiff as life tenant should pay all taxes until the termination of her tenancy.
“8. Unless the plaintiff and the executor agree upon insurance, such policies should run in the name of the plaintiff and of the executor ‘as their interest may appear.’ And each should pay proportionately for the premium, and until agreement is made, or proof and finding in court, such proportions would be one-third to the plaintiff and two-thirds to the executor.
“9. The plaintiff having refused to take under the will and having elected to take under the law, is entitled, as widow, to one-half of all the estate of Asa M. Wickizer other than the hotel property.
“10. The provisions of the will relative to plaintiff are nugatory because she elects to take under the law, but the provisions, almost identical, in the antenuptial agreement are effectual and valid, independent of the will.
“11. The executor has no power to lease or manage the property as executor and could do so only by being made agent for the plaintiff. For all minor repairs, the plaintiff is liable, but large repairs, in the nature of improvements, that are permanent additions and enhance the value of the property, are chargeable one-third to plaintiff as life tenant and two-thirds to the estate.
“12. Costs are to be equally divided between the parties.”
The judgment followed the conclusions of law.
1. The defendants in their brief say “the principal question in this case is to arrive at the correct interpretation of a certain ante-nuptial contract and incidentally a correct interpretation of a certain will.” At the time of his marriage, Asa M. Wickizer owned the property in controversy. That ownership gave to him the right to the possession of the property, all the rents and profits, and all the proceeds arising out of the property. The contract gave to.Asa M. Wickizer and the plaintiff all the rights in and to the property that Asa M. Wickizer had therein before his marriage. The proceeds given to the plaintiff after the death of Asa M. Wickizer so long as she remained his widow were the same as those enjoyed by Asa M. Wickizer before the marriage, and the same as were enjoyed by him and his wife after their marriage, that is, all rights in and to the property.
What is the effect of the word “proceeds” in the contract? In Hunt, Guardian, et al. v. Williams, 126 Ind. 493, the syllabus reads:
“A testator gave to his wife one-half of the proceeds of his farm from year to year, after deducting taxes and repairs, during her natural life or till his minor son became of age. Held, that the devise vested in the widow an interest in the land.”
The second paragraph of the syllabus in Mayes v. Karn and Others, 115 Ky. 264, reads:
“A devise of the rents and profits of land passes title to the land itself.” (See, also, McCoy v. Houck, 180 Ind. 634, Earl v. Rowe, 35 Maine 414; Reed et al. v. Reed, 9 Mass. 372; Den v. Manners, 20 N. J. L. 142; Drusadow v. Wilds, 63 Pa. St. 170, Beilstein v. Beilstein, 194 Pa. St. 152.)
This rule applies to deeds as well as to wills. In Williams et al. v. Owen et al., 116 Ind. 70, the first paragraph of the syllabus reads:
“The general rule is, that the grant of the income of land carries an estate in the land itself.” (See, also, Grueber v. Lindenmeier, 42 Minn. 99; Wellington v. Janvrin, 60 N. H. 174; 18 C. J. 306.)
The plaintiff is entitled to the possession of the property described in the contract and to all of the rents, issues and profits thereof during her life or so long as she remains the widow of Asa M. Wickizer.
2. Complaint is made of the allowances to the defendant for money paid out by him for repairs, taxes and insurance. The allowances made by the court were on the basis that the plaintiff has a life estate in the property until terminated as provided in the contract. The complaint of the defendant is based on the contention that the plaintiff did not have a life estate in the property, was not entitled to the possession of it, and was entitled to only the proceeds of it after the items paid out by the defendant had been deducted from the rents and profits received by him from the property.
The taxes due at the time of the death of Asa M. Wickizer, in addition to being liens on the property, were charges which had to be paid before anyone was entitled to the proceeds arising from the property.
The amount paid for insurance on the property presents another proposition. In Harrison v. Pepper, 166 Mass. 288, 289, the court said:
“In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other’s policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee.”
A number of cases are there cited to support the rule stated in the opinion.
In In re Cameron’s Estate, 158 Mich. 174, 177, the court said:
“The authorities are not harmonious upon the question here involved. They agree that, where no requirement is contained in the instrument creating the life estate, the life tenant is not bound to insure the interest of remaindermen— also, that either party may insure for his own benefit. (16 Cyc. p. 632.) A line of authorities holds that neither life tenant nor remainderman has any claims upon the proceeds of the policy of the other; that the contract of insurance is a personal contract of indemnity against loss, and the sum paid is in no proper or just sense the proceeds of the property.”
Under these authorities, the amount allowed the executor and the order concerning future insurance may have been erroneous, but the error, if there was any, is against the plaintiff. She is not complaining. Under these authorities, probably each of the parties interested in the property should insure to the extent of his interest, pay the premiums therefor, and collect the insurance thereon if a loss should occur.
Another item of which complaint is made is $4 to “F. B. Probes for repair cleaning and burning trash.” The executor was in possession of the property and paid out this money for a purpose not clearly shown.
There was no error against the executor in the amounts allowed to be deducted by him from what he had received as rents for the property.
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The opinion of the court was delivered by
Harvey, J.:
This is an action brought originally in the city court at Pittsburg, having the practice of a justice court, for a real-estate commission. A trial resulted in a judgment for plaintiff for $25. Plaintiff appealed to the district court, where a trial to a jury resulted in a verdict for defendant. Plaintiff has appealed, and complains of rulings of the city court. Since an appeal was taken to the district court the trial there was de novo (R. S. 61-1003) and the rulings of the city court are no longer material.
At the beginning of the trial in the district court plaintiff moved for judgment on the pleadings. The record does not disclose that any reason was pointed out why that motion should be sustained. It was overruled. The case proceeded to trial on its merits to final judgment. Plaintiff now contends that the court erred in overruling his motion for judgment on the pleadings. This is the sole question presented; the evidence is not before us. The pleadings consisted of the plaintiff’s bill of particulars, which contained allegations usual in an action for a real-estate commission. Plaintiff had verified this by an affidavit that the allegations were true and that defendant was justly indebted to him in the sum for which suit was brought. Defendant had filed nothing. Plaintiff contends that his action was on an account duly verified, as that term is used in R. S. 61-805.
While the word “account” as used in this statute has been given rather a wide meaning (S. K. Rly. Co. v. Gould, 44 Kan. 68, 24 Pac. 352), it would be going further than this court has ever gone to hold that plaintiff in this case sued on an account. No account is attached to his bill of particulars. He evidently framed his bill of particulars to plead a contract between him and defendant and the performance of the contract on his part, but we shall not take the trouble to analyze this feature of the case carefully, since appellee raises no question in this court on this point.
Pleadings in the justice court are permitted to be less formal than those in the district court. Ordinarily allegations of a bill of particulars are deemed denied without written answer. Defendant is not required to file a bill of particulars unless requested by the plaintiff, and no request was made in this case. One who moves for judgment on the pleadings and relies on a lack of verified denial by defendant must make his point clear to the court. He cannot bury it in a motion for judgment in general terms. (Collis v. Kraft, 118 Kan. 531, 532, 235 Pac; 862.) Ordinarily it would be the duty of the court, if the point were distinctly made, to permit a verified denial to be made at that time. Moreover, one who moves for judgment on the pleadings for the reason that his opponent’s answer is not verified must stand on that point to make it available to him on appeal.' (Bowser & Co. v. Bathurst, 91 Kan. 611, 613, 138 Pac. 585.) If he proceeds with the trial as though such motion had not been made, or as though the pleadings in question had been properly verified, he waives the question. (Keizer v. Remington, 71 Kan. 305, 80 Pac. 570; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075.) The purpose of having verified pleadings is to settle the issues and avoid the necessity of trying matters not in dispute. (Blair v. McQuary, 100 Kan. 203, 206, 162 Pac. 1173, 164 Pac. 262.) Where the issues are fully tried out and a party has not been hampered in presenting his case by the lack of his opponent’s pleading being verified, the question of whether it was verified is no longer important.
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The opinion of the court was delivered by
Hutchison, J.:
G. R. and Clifford B. Wellman instituted this action in the district court of Jewell county against the city of Burr Oak and county officers of Jewell county to restrain and enjoin them from assessing, extending and collecting city taxes for the years 1925 and 1926 against a certain forty-acre tract owned by them, lying immediately south of the city limits, as claimed by the plaintiffs. The county officers filed an answer disclaiming interest, and the issues are between the plaintiffs and the city. The trial court heard all the testimony*and without making special findings denied the injunction, and the plaintiffs appeal.
The plaintiffs do not contend that the tax levy in itself is illegal, either as to its character or extent, but assert that the forty-acre tract in question is not within the limits of the city and therefore is not subject to the imposition of city taxes. The evidence shows that when the city of Burr Oak was incorporated as a city of the third class in May, 1880, this tract was included; that one month later, by an ordinance reducing the size of the city to 480 acres, it was probably intended to exclude this forty-acre tract, but the description by metes and bounds apparently left it in the city limits, although the description is very indefinite and quite impossible; that in the year 1895 a special act was passed by the legislature of Kansas excluding this tract from the city limits of Burr Oak; that later, by an ordinance, a small tract fifty-five by seventy-five feet in the northwest corner of this tract, purchased by the Standard Oil Company, was taken into the city limits. The evidence further shows that the city never levied any taxes on this forty-acre tract prior to 1925, except for the years 1897, 1898 and 1899, which taxes were paid by the owner. Plaintiffs attempted to show by several witnesses that this tract had been universally recognized as being outside the city limits, and plead estoppel by continued acquiescence and failure to impose taxes thereon for so many years. Record evidence was introduced by plaintiffs to show that the original incorporation of the city was irregular and not legal and that it was therefore only a de facto city. The plaintiffs further showed that the land in question was agricultural land, resided on by the owners, deprived of city water privileges, and the road or street running by it was worked by the township. They also showed that prior to the commencement of this action requests had been made of the county attorney and attorney-general to bring such an action in the name of the state, and that both such officers declined.
Plaintiffs have apparently brought this action under the provisions of R. S. 60-1121, which permit a private individual to enjoin the levy and collection of an illegal tax, and, instead of showing that the tax is illegal in any way, proceed to show that the city was irregularly and illegally organized and that it has by continued neglect lost all the rights it may once have had as a de facto city. These are questions which are of general interest and cannot be raised by private individuals or private owners of property.
“An action to compel public officials to perform their duty should be brought in the name of the state on the relation of the county attorney or attorney-general, and such action cannot ordinarily be maintained by a private citizen.” (Weigand v. City of Wichita, 111 Kan. 455, syl. ¶ 3, 207 Pac. 651.)
In a very similar case involving agricultural lands many years ago this question was thoroughly discussed and conclusively settled in this state to the effect that the organization of a city cannot be collaterally attacked by a private individual to prevent his land from being taxed for city purposes.
“The corporate character of a city cannot be questioned collaterally by a private citizen, when it has been a de facto city for more than fifteen years, and a law was in force under which it might have been legally incorporated, and it was attempted to have been incorporated, under the provisions of such law.
“A body of land containing 13.34 acres, wholly within the limits of a city, although never divided into blocks, lots, streets, alleys, etc., is subject to city taxation, although a part of it is used for agricultural purposes, when the owner resides thereon and it abuts upon the main street of the city.” (Mendenhall v. Burton, 42 Kan. 570, syl. ¶[¶ 2, 3, 22 Pac. 558. See, also, Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397.)
The same doctrine was strongly sustained in a more recent case.
“Rule followed that a private litigant cannot maintain an action to enjoin the collection of taxes on his property when the only alleged invalidity of the taxes depends upon a collateral question which would involve a judicial inquiry into the legality of the organization of the taxing district or municipality which levied the taxes.” (Pfeifer v. Klug, 114 Kan. 384, syl., 219 Pac. 498.)
Plaintiffs rely strongly upon the special act of the 1895 legislature which specifically excluded this tract of land from the corporate limits of the city of Burr Oak. Without stopping to consider the validity of such legislation, because it appears to be a special act and possibly in violation of section 17 of article 2 of the constitution of Kansas, let us see if it is not directly in violation of sections 1 and 5 of article 12 of the constitution, which prohibit the enactment of special legislation purporting to enlarge or diminish the corporate limits of a city.
“. . . A special act which, among other things, purports to withdraw a tract of land from the city of Wilson, is unconstitutional and void.” (Levitt v. Wilson, supra, syl. ¶ 3. See, also, Bull v. Kelley, 83 Kan. 597, 112 Pac. 133;’ Gray v. Crockett, 30 Kan. 138, 1 Pac. 50.)
Does the fact that the city failed for so many years to levy taxes on this tract and extend to it and its owners the water and other privileges of the city work an estoppel against it as a municipal organization to now claim the right to impose taxes thereon? It was held in the case of Armstrong v. City of Topeka, 36 Kan. 432, 13 Pac. 843, that “the payment of a tax upon land erroneously assessed in a city, is not such an acquiescence by the owner in an attempt to add said land to the city as would prevent him from asserting that such land was no part of said city.” (Syl. ¶ 3.) If the owner of the land is not estopped by having erroneously paid taxes on the land certainly the city for the same reason should not be estopped because of the carelessness and oversight of its former officers in not levying a tax. Estoppel against municipal corporations is little favored, and in order to be enforceable all the usual and necessary elements are required.
“In. no case of course is the application of the doctrine of equitable estoppel justified unless all the essential elements of such an estoppel are present, as in the oase of estoppels against individuals.
“Mere acquiescence, laches, lapse of time, or nonaction on the part of the public or the public agents or officers does not ordinarily work an estoppel, but positive affirmative acts may not be necessary.” (21 C. J. 1187.)
In this case there is no attempt to show that the city derived any benefit by its inaction. On the contrary, it lost the benefit of the taxes for many years. (Stewart v. Adams, 50 Kan. 560, 32 Pac. 122; Jay v. Board of Education, 46 Kan. 525, 527, 26 Pac. 1025.)
The plaintiffs justify their bringing this injunction action in their private capacities on the theory that “there is no wrong without a remedy,” and since the county attorney and attorney-general have declined to use the name of the state on their relation, this is their only remedy. We cannot agree with them on this proposition; and counsel for appellee have pointed out in their brief some o.f the remedies that have been pursued under similar circumstances.
We have considered the evidence and the proceedings had in the trial court on the theory that much, if not most or all, of it was uncontroverted, as claimed by the appellants, rather than to discriminate as to certain parts that should not be considered because no motion for new trial has been filed, recognizing the rule that upon the ascertained and undisputed facts a motion for a new trial is not necessary for a review as to matters of law.
We conclude that the plaintiffs cannot collaterally attack the regularity and legality of the organization of the city of Burr Oak or maintain an action in their private capacities as landowners to enjoin the levy and collection of the city tax not alleged to be illegal in character or extent; that the special act of 1895 is unconstitutional and void because it purports to diminish the. corporate limits of the city; and that the long neglect and failure of the former officers of the city to levy and collect city tax on the property of the plaintiffs will not under the circumstances of this case estop the city from now claiming the right to impose a city tax.
The judgment is affirmed. | [
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The judgment of the court was delivered by
Lockett, J.:
Memorial Hospital Association, Inc., (Association) filed a declaratory judgment action to determine whether the Association was subject to the Kansas Open Meetings Act (KOMA). The district court found that the Association was not subject to the Open Meetings Act. The attorney general appeals.
The following facts were stipulated to by the parties.
Memorial Hospital Association, Inc., of Manhattan, Kansas, a not-for-profit Kansas corporation, operates Memorial Hospital. The hospital and the surrounding real property is owned by Riley County and is leased to the Association by the Board of Trustees (Trustees) of Memorial Hospital.
The Trustees, appointed by the Riley County Commission, are charged with overseeing maintenance and capital improvements of the hospital. The Trustees receive and allocate money for this purpose from a county mill levy.
From 1951 until March 1982, the Hospital was operated by the Lutheran Hospital Association under a lease with Riley County. In March of 1982, the Memorial Hospital Association was formed and succeeded in interest to the corporate structure, assets, and liabilities of the Lutheran Hospital Association. From March of 1982 until November of 1984, both the directors for the Association and the trustees for the county were the same eleven individuals, all of whom were appointed by the Riley County Commission. The Directors and the Trustees held open meetings in compliance with the Kansas Open Meetings Act.
These boards were restructured in November of 1984. The process for selecting directors of the Association was changed. The new by-laws for the Association provided that new directors would be appointed by existing directors. At the November 1984 meeting, all members of the Association board resigned as directors. At the same meeting, five members of the Board of Trustees resigned and subsequently sent letters of resignation to the County Commission. A nominating committee submitted names for all eleven positions on the Board of Directors for the Association, resulting in none of the current Association direc tors having been appointed by a governmental entity. Four current members of the Association’s directors were originally appointed to this position by the county commission. These four individuals were re-selected and elected to the Association’s Board of Directors by the internal procedures of the Association.
Currently no individual serves as both a director of the Association and as a Trustee of the hospital. The hospital Board of Trustees and the Association Board of Directors are completely separate legal entities with separate procedures. The Trustees administer the county mill levy money, and the Association operates the hospital.
The Association does not have taxing powers, eminent domain powers, or legislative powers. The Association is not subordinate to any governmental entity. The Trustees receive the mill levy money and determine how the tax funds will be used to maintain the physical plant and where the funds will be spent for capital improvements. The Association receives the money and spends the funds as directed by the Trustees.
In December 1984, the Trustees and the Association entered into a fifteen-year lease, at $1.00 per year, for the hospital building and grounds. Under the lease, the Association must provide to the Board of Trustees a quarterly report, plus a certified audit and an annual financial report.
During fiscal year 1984, the Association grossed $4,713,000 and received $228,000 in county mill levy money, an amount equal to 4.8 per cent of its total gross revenues. In fiscal year 1985, the county mill levy money equaled 5.08 per cent of the gross revenues of the Association.
The district court found that the KOMA does not apply to the Association. The attorney general appeals.
When the Association originally filed for a declaratory judgment, the Riley County Attorney was named defendant. At the discovery conference the attorney general orally requested that the district court permit him to intervene. The request was denied, but the attorney general was given permission to submit a brief amicus curiae, which was filed.
The attorney general first contends that as a matter of law the district court’s denial of the motion to intervene was incorrect. He contends that K.S.A. 60-224(a)(2) permits intervention upon timely application where the applicant claims disposition of the action may substantially impair or impede his ability to protect an interest and that, because K.S.A. 75-4320 authorizes both the attorney general and the county attorney to enforce, the KOMA, intervention by the attorney general was required to insure proper judicial construction of the act.
Whether a motion to intervene is allowed is normally a matter of judicial discretion. Intervention depends upon the concurrence of three factors: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor’s interests. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976).
K.S.A. 60-224(c)(l) requires the party moving to intervene in an action to serve a motion upon the parties. The motion must state the grounds for intervention and be accompanied by a pleading setting out the claim or defense for which intervention is sought.
A motion to intervene must be properly served on a party pursuant to K.S.A. 60-205, “accompanied by a pleading setting forth the claim or defense for which intervention is sought.” K.S.A. 60-224(c)(l). Wilson & Walker v. State, 230 Kan. 49, 630 P.2d 1102 (1981). Whether the attorney general and the county attorney had similar interests in enforcing the KOMA and, therefore, the attorney general should have been allowed to intervene as a matter of right is not a question for determination under the facts of this case. At the - discovery conference, the deputy attorney general made only an oral motion to intervene. The motion was not served on the parties as required by K.S.A. 60-205. The attorney general did not follow the statutory procedure for intervention. The court did not abuse its discretion in denying the motion to intervene.
After the district court had ruled that the Association was not subject to the KOMA, the Riley County Attorney resigned his office. A new county attorney was appointed. The new county attorney determined not to appeal the district court’s decision. The attorney general then filed a notice of appeal. The Association contends (1) that the attorney general has exceeded his powers by appealing and (2) that the attorney general waived any right he might have to bring the appeal when he failed to intervene in the district court.
The attorney general argues that he had a statutory duty to . appeal this case once the county attorney had declined to do so. He contends that permitting the attorney general to appeal promotes judicial economy, while denying the attorney general the right to appeal would prevent review of the issue because of the principles of res judicata. He also maintains that barring the attorney general from acting would usurp his statutory powers granted by the legislature.
The Association claims that the county attorney’s determination not to appeal the decision of the district court was made in the best interest of the county. If the attorney general is allowed to appeal a decision that the local official feels is correct, the county is deprived of the power to protect its special interest.
K.S.A. 75-702 provides:
“The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested or when the constitutionality of any law of this state is at issue and when so directed shall seek final resolution of such issue in the supreme court of the state of Kansas.”
The attorney general’s powers are as broad as the common law unless restricted or modified by statute. State v. Finch, 128 Kan. 665, 280 Pac. 910 (1929). Our scheme of government provides for a county or district attorney as a law officer for each county and the attorney general as the law officer for the entire state. Heinz v. Shawnee County Comm’rs, 136 Kan. 104, 12 P.2d 816 (1932). It is the attorney general who appears for the state and prosecutes and defends all actions and proceedings, civil or criminal, in which the state is interested or is a party in the supreme court. The attorney general is the chief law officer, subject only to direction of the governor and the legislature.
In State, ex rel., v. State Highway Comm., 133 Kan. 357, 299 Pac. 955 (1931), this court, in discussing the relationship between the attorney general and the county attorney, again emphasized that the attorney general held a superior position to the county attorney and in case of conflict controlled the prosecution. Here, it is the Association, not the Riley County Attorney, who is expressing opposition to the attorney general’s right to appeal the district court’s decision.
The attorney general and the county attorney have a concurrent duty to enforce the KOMA. The attorney general is the superior of the county attorney, and whenever the state and the public interest are involved, the attorney general is a party to the action. Wherever the public interest is involved or the state is a party, the attorney general is primarily the proper counsel to appear. State, ex rel., v. City of Kansas City, 186 Kan. 190, 194, 350 P.2d 37 (1960). It was not necessary for the attorney general to intervene once the county attorney had undertaken to defend the action in the district court, but, because of the concurrent duty to enforce the statute and the statewide interest, once the county attorney determined not to appeal the district court’s decision, the attorney general had a right to appeal.
There is a belief that the public has always had a right of access to the governmental decision-making process in the United States and the State of Kansas. However, the right of access to the decision-making process is not contained in the Constitutions of the Nation or of this State, nor was it included in statutory law until the late 19th and early 20th centuries. The Kansas Open Meetings Act was enacted in 1972. The Act declared a new state policy to ensure the existence of an informed electorate — government meetings for conducting governmental affairs and transacting governmental business must be open to the public.
The attorney general contends that the Association, as a subordinate group of a legislative or administrative body, is subject to the KOMA. The Association argues that it is neither a legislative nor an administrative body nor a subordinate group; therefore, it is not subject to the KOMA.
Here, the case was submitted to the trial court on an agreed stipulation of facts. Therefore, this court is afforded the same opportunity to consider the evidence as the trial court. In such situations, this court on appellate review has the same opportunity to examine and consider the evidence and to determine de novo what the facts establish as the district court. Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, Syl. ¶¶ 1, 2, 582 P.2d 236 (1978). Whether the Association is subject to the requirements of the KOMA is a question of law, not fact. When determining a question of law, this court is not bound by the decision of the district court.
K.S.A. 1985 Supp. 75-4318(a) provides in part:
“[A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public . . . .”
K.S.A. 75-4320a(b) states: “In any action hereunder, the burden of proof shall be on the public body or agency to sustain its action.” First, it must be determined whether the Association was a public body or agency under the KOMA. If the Association is a public body or agency, it must show why it is not subject to the open meetings requirement of the KOMA.
The KOMA is remedial in nature and therefore subject to broad construction in order to carry out the stated legislative intent. K.S.A. 75-4317(a) states that “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.”
In State ex rel. Murray v. Palmgren, 231 Kan. 524, 535, 646 P.2d 1091 (1982), this court said that to determine whether an entity was subject to the KOMA, it must meet the following test:
" ‘First the group of people meeting together must be a “body or agency” within the meaning of the Act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body subject to the Act. Finally, it must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed.’ ”
The parties stipulated in the facts and the trial court found that even though the Association received public funds for maintenance and capital improvements, the Association was not a legislative body. The question is whether the Association, by receiving public funds which must be spent as directed by the Trustees, is an administrative body or a subordinate group of an administrative body subject to the KOMA.
The district court found: (1) the fact that four of the Association’s directors were formerly board members appointed by the county commission did not give the county an element of control over the Association, and the by-laws of the Association provided a method of selection of its members that was free from control by the county commission; (2) that the lease agreement between the Association and the Trustees created the ordinary landlord/tenant relationship; (3) if a county commission chose to provide hospital services, the legislature provided several methods by which it could operate the hospital; and (4) that under K.S.A. 1985 Supp. 19-4611 this method of operating a hospital is excluded by the legislature from the requirements of the KOMA.
The attorney general contends that the Association is a subordinate body of the county commission because (1) some members of the Association’s board were originally appointed by the county commission to the previous “joint” board; (2) the lease agreement between the Trustees and the Association provides a means of “control” by the county over the Association; (3) the Association, in managing the hospital, is providing services which, but for the Association, the county would otherwise provide; and (4) the Association was created merely to avoid the application of the KOMA.
The Association argues that it is not a subordinate group because (1) it is not subject to the authority of any governmental entity; (2) neither the county commission nor the Trustees have authority to take action which would affect the Association, except the money provided from the mill levy to the Association by the Trustees must be spent for maintenance and capital improvements as they direct; and (3) the Trustees have leased the physical plant to the Association and have no authority to take any action béyond the provisions of the' landlord/tenant agreement.
Both parties cite a number of cases from other jurisdictions which they argue support their positions. For an in-depth discussion, see Annot., 38 A.L.R.3d 1070. Because the statutes creating open meetings acts usually contain requirements of liberal construction in favor of open meetings, the majority of courts have found that the various types of agencies or bodies have been subject to their open meetings acts. Whenever a body or group has in any way derived the authority for its existence from a legislative or administrative agency, that body or group so created is also subject to the open meetings act. Where courts have found that the agencies or bodies were not subject to the various acts, they have looked at form and not considered how the entity came into existence or, in some instances, its purpose.
Courts have found two types of entities, whatever form they may take, which are not subject to the open meetings laws: (1) those which are merely advisory and have no decision-making authority, and (2) those which are basically independent entities which have some connection, by contract or other tie to a government entity, but are not actually created by some form of government action.
Where it can be shown that a public body has intentionally, and for the purpose of avoiding the light of public scrutiny, appointed a board of non-elected citizens to' determine for the elected board what course should be pursued, or where the actions of the private citizens are in any way binding upon the elected officials, the meetings of such groups should be open to public scrutiny. Public bodies cannot be allowed to do indirectly what the legislature has forbidden.
Palmgren, 231 Kan. 524, held that the Board of Trustees of a hospital (similar to the combined boards of the Trustees and the Association which ran the hospital from March 1982 until November 1984) was a subordinate group of the county commission and was subject to the KOMA. The district court determined under the facts presented that the legislature, by enacting K.S.A. 1985 Supp. 19-4611 in 1984, intended where the board of trustees leases the hospital property to another entity, the lessee of the hospital property would not be subject to the KOMA. We agree.
In 1984 the legislature enacted Article 46 of Chapter 19 of the Kansas Statutes. K.S.A. 1985 Supp. 19-4601 et seq. provides that a county may establish and maintain a county hospital, Two statutory methods of operating the hospital are provided by the legislature.
K.S.A. 1985 Supp.-19-4605 allows the county commission to establish a board appointed by the commission or elected by the qualified voters of the county on a nonpartisan basis to operate the hospital: The commission or the board may levy an annual tax to operate, maintain, equip, and improve the hospital. K.S.A. 1985 Supp. 19-4612. The board submits its budget for approval to the commission. The board is required to meet each month and maintain a complete record of all its proceedings. The records are available for the commission to inspect. K.S.A. 1985 Supp. 19-4607. Members of the board may be allowed compensation in an amount determined by the commission. K.S.A. 1985 Supp. 19-4609.
K.S.A. 1985 Supp. 19-4611 allows the board to enter into a written lease of the county hospital property. The lease may contain such terms and conditions that the board deems necessary to insure that hospital services are provided. Under 19-4611, the lessee of the hospital is not granted statutory power to levy tax for the operation of the hospital and is not required to hold meetings or maintain and submit records to the board. Nor does 19-4611 provide for the commission to set the compensation of the board members.
The Association, in this case, is not advisory to either the county commission or the Trustees. The Association has no authority to make decisions which involve a community resource. Limited public funds are spent for maintenance and capital improvements only as determined by the Trustees, an administrative body subject to the KOMA. The Association was not created as an alter ego to the county commission or the Trustees to carry out certain duties for which the commission or the Trustees were responsible. The Association was not created to evade the open meetings law. The 1984 legislature intended, where the county commission provides for the management and control of a county hospital by a board under 19-4605, that such board be subject to the KOMA. Where the board under 19-4611 leases the hospital property to another, the lessee is not subject to the open meetings requirement of the KOMA if the lessee: (1) has no governmental decision-making authority to expend public funds, and (2) is an independent entity which by contract agrees to provide hospital services under a lease of hospital property from a board of trustees.
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The opinion of the court was delivered by
Schroeder, C.J.;
This is a contract action in which George Reed (plaintiff-appellee) sued Paul Hess, Anne Oliver Hess, and Maxine Oliver (defendants-appellants) for $16,300. During pretrial discovery, the trial court imposed monetary sanctions totaling $900 against defendants and they appeal from the orders imposing those sanctions. The trial court granted plaintiff s motion for summary judgment and denied the defendants’ motion for summary judgment and defendants appeal those rulings. The case was transferred from the Court of Appeals to the Supreme Court on this court’s motion.
The controlling facts’ are not in dispute.
Under the terms of the will of Earl LaFontaine Hennigh, John Oliver, father of Anne Oliver Hess and husband of Maxine Oliver, was named the executor. In the event the testator’s real estate was to be sold, John Oliver was granted the first option to purchase certain real estate. If John Oliver declined, the second option to purchase was devised to George Reed, plaintiff herein.
John Oliver was very interested in purchasing the property and had inquired into financial arrangements. However, before he could exercise his first option to purchase, John Oliver died March 22, 1978. On April 19, 1978, Anne Oliver Hess was appointed administratrix de bonis non of the Hennigh estate and she filed a petition for sale of the real estate at a private sale on September 18, 1978. A dispute arose between the parties. Plaintiff contended he had the second opportunity to purchase, while the heirs of John Oliver — Anne Oliver Hess, Maxine Oliver, and Rebecca Jane Oliver (since deceased) — contended they had inherited the first opportunity to purchase. This dispute was eventually taken to the Kansas Court of Appeals where, in an unpublished opinion rendered March 27, 1981, the Court of Appeals ruled the heirs of John Oliver did not inherit his first option to purchase and, therefore, plaintiff was eligible to exercise his option under the terms of the will.
Defendants still wanted to buy the real estate and, on October 27, 1981, plaintiff and defendant Paul Hess entered into the contract in question. Both of them signed the contract at that time. Defendants Anne Oliver Hess and Maxine Oliver signed the contract in September 1982. The contract, which is set forth later in the opinion, contained two provisions. For consideration of $16,300, plaintiff first assigned to defendants any and all rights he acquired under the Hennigh will, including his option to purchase. Plaintiff also agreed, for the same amount of consideration, not to sue the defendants over the mishandling of the Hennigh estate.
On October 5, 1982, as administratrix de bonis non, Anne Oliver Hess again petitioned the probate court for sale of the real estate at private sale. In that petition she stated plaintiff assigned his right to purchase the real property in question to defendants for the sum of $16,300, and on September 14, 1982, the probate court ordered the land to be sold to pay expenses. Defendants did not pay plaintiff the agreed-upon sum, and in a separate action, plaintiff sued defendants on March 24, 1983, for $16,300, plus twelve per cent interest from October 12,1981, based on the assignment of plaintiff s rights under the Hennigh will. Subsequently, the probate court ordered the plaintiff to exercise his option to purchase by January 4, 1984. If plaintiff declined, he forfeited his right. The plaintiff never exercised his option to purchase.
In its journal entry filed April 16, 1984, the trial court granted plaintiff s motion for summary judgment on the contract action and denied defendants’ motion.
Other facts relevant to the issues on appeal concern monetary sanctions imposed by the trial court during pretrial discovery.
Defendants had failed to answer plaintiffs interrogatories within the statutory time period of 30 days as provided by K.S.A. 60-233(a) and plaintiff moved to compel and to assess attorney fees as provided by K.S.A. 60-237. The trial court granted defendants another four days in which to answer the plaintiffs interrogatories. When defendants again failed to comply, plaintiff moved for a default judgment or, in the alternative, to compel defendants to answer and to award plaintiff reasonable attorney fees. At the hearing on plaintiff s motion, the trial court found defendants had willfully and intentionally disobeyed previous court orders, had deliberately attempted to frustrate the progress of plaintiff s lawsuit to the prejudice of plaintiff, and awarded plaintiff reasonable attorney fees of $300, as a sanction against defendants for their dilatory tactics.
Defendants filed their answers to plaintiff s interrogatories on August 18, 1983. A hearing on plaintiff s motion for a default judgment was held August 22, 1983, and after examining defendants’ answers to the interrogatories and finding many of the answers to be deficient and non-responsive, the trial court awarded plaintiff an additional $300 judgment for attorney fees as a result of defendants’ failure to comply with 60-233(a).
Finally, on November 10, 1983, a hearing was held on plaintiff s motion to compel defendants to deliver their pretrial questionnaire as ordered by the trial court. Although defendants received notice of the hearing they failed to appear, and the trial court again awarded plaintiff a $300 judgment for reasonable attorney fees as a sanction for defendants’ failure to appear, and comply with court orders. This third sanction, however, was imposed only against defendants Paul Hess and Anne Oliver Hess.
The first issue discussed on appeal is whether the trial court erred in granting plaintiff s motion for summary judgment.
The general rules concerning summary judgments are well established as set forth in Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, 662-63, 684 P.2d 1031 (1984), as follows:
“ ‘Summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact remaining, leaving the moving party entitled to a judgment as a matter of law.” Zehring v. Wickham, 232 Kan. 704, 706, 658 P.2d 1004 (1983).
“ ‘As a general rule, an appellate court, in examining the validity of a motion for summary judgment, should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.’ Stanfield v. Osborne Industries, Inc., 7 Kan. App. 2d 416, Syl. ¶ 7, 643 P.2d 1115, aff'd in part, rev'd in part 232 Kan. 197, 654 P.2d 917 (1982).
“ ‘A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.’ Stanfield v. Osborne Industries, Inc., 7 Kan. App. 2d 416, Syl. ¶ 8; Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 (1976).”
The written contract in question is short and consists of two agreements for the same consideration:
“MUTUAL AND GENERAL RELEASE AND ASSIGNMENT OF RIGHTS UNDER A LAST WILL AND TESTAMENT
“For the sole consideration of SIXTEEN THOUSAND THREE HUNDRED DOLLARS ($16,300.00), which is held by Paul Hess from October 1,1981, at the rate of 12% interest until the District Court of Johnson County, Kansas, makes a determination as to whether the 148 acres (approximately) located in Middle Creek Township, Miami County, Kansas, shall be sold under the terms of the Last Will and Testament of Earl L. Hennigh, the undersigned hereby assigns any and all rights under the Last Will and Testament of Earl L. Hennigh pertaining to said real property and more specifically the undersigned’s ‘second opportunity to purchase’ under said Last Will and Testament to Maxine W. Oliver of Paola, Kansas, her heirs, executors, administrators, agents and assigns, and Paul and Anne Hess of Wichita and Overland Park, Kansas, their heirs, executors, administrators, agents and assigns. Said consideration shall be paid to the undersigned within five days after said court determination is made.
“The undersigned also hereby releases for said consideration and forever discharges Maxine W. Oliver, Paul Hess and Anne Hess, their heirs, executors, administrators, agents and assigns, from any and all claims, demands, actions, causes of action or suits of any kind or nature whatsoever particularly relating to said real property or the handling of the Estate of Earl L. Hennigh.
“The undersigned hereby declare that the terms of this settlement, agreement and mutual and general release have been completely read and fully understood and voluntarily accepted for the purpose of assigning any and all rights under the Last Will and Testament of Earl L. Hennigh to Maxine W. Oliver and Paul and Anne Hess and to release said persons from any and all claims.
“In witness whereof_have hereunto set_hand_and seal this 27th day of October, 1981.”
Defendants raised the statute of frauds as an affirmative defense to plaintiffs contract action. Defendants assert the first agreement concerns an interest in land and therefore the statute of frauds applies. The defendants also assert the second agreement to forego suit could not be performed within one year and, therefore, falls within the statute. Because there is no written contract signed by the parties to be charged, defendants argue the contract is unenforceable. K.S.A. 33-106. Defendants argument is without merit.
First, defendants admit they signed the contract in question. Paul Hess signed it on October 27, 1981, and Anne Oliver Hess and Maxine Oliver signed it around September 30, 1982. The subsequent destruction of the signed contract and failure of delivery is irrelevant to the question whether the statute of frauds is satisfied. Delivery is not necessary to satisfy the statute of frauds. Schwartz v. Greenberg, 199 Misc. 117, 102 N.Y.S. 2d 367 (1951), 2 Corbin on Contracts § 510 (1950).
Second, the statute of frauds was enacted to prevent fraud and the courts refuse to allow it to be used as a shield to protect fraud or to enable one to take advantage of his own wrong. Hazen v. Garey, 168 Kan. 349, 359, 212 P.2d 288 (1949); Rose v. Hayden, 35 Kan. 106, 10 Pac. 554 (1886). Here, defendants wanted to purchase the real estate but plaintiff held a prior option to purchase, granted to him under the Hennigh will. On October 27, 1981, defendant Paul Hess and plaintiff signed a contract whereby plaintiff assigned to defendants any and all rights he had under the will. Anne Oliver Hess and Maxine Oliver signed the contract in 1982. Defendants, then, unilaterally destroyed the signed contract and now argue the copy of the written contract plaintiff has produced is unenforceable because it is not signed by them. To sustain such an argument would be to reward defendants for their wrongdoing.
Having determined the statute of frauds is satisfied, we next turn to defendants’ argument the contract fails for lack of consideration. When granting plaintiff s summary judgment motion, the trial court ruled plaintiff s agreement to forbear suit provided sufficient consideration for the entire contract. While it is true, as defendants argue, plaintiff s petition asserted only the agreement concerning his rights under the will as a cause of action, defendants failed to object to the introduction of the issue of the agreement to forego suit in plaintiffs motion for summary judgment. When issues not raised by the pleadings are tried by the implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. K.S.A. 60-215(b). Defendants impliedly consented to the introduction of the issue not raised by the pleading when they failed to object to the admission of the evidence regarding plaintiff s agreement not to sue defendants. Forster v. Fink, 195 Kan. 488, 493, 407 P.2d 523 (1965).,
Therefore, the trial court could properly look to plaintiff s agreement not to sue defendants in determining whether to grant plaintiff s motion for summary judgment. In Schiffelbein v. Sisters of Charity of Leavenworth, 190 Kan. 278, 280, 374 P.2d 42 (1962), it was stated:
“ ‘Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, if the one who forbears has a reasonable and sincere belief in its validity.
“ ‘The view is taken that a reasonable and sincere belief in the validity of the claim is necessary and sufficient. It is sometimes stated that if an intending litigant bona fide forbears a right to litigate, he gives up something of value. The reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession.’ (12 Am. Jur. p. 581, sec. 87.)”
The contract does not fail for lack of consideration as defendants argue. Their argument is based on In re Estate of Maguire, 204 Kan. 686, 466 P.2d 358 (1970). There, the testator devised an option to purchase certain real estate to Nellie Maguire Idol and Lillian Maguire McNutt. If Nellie and Lillian didn’t exercise their option, then, under the will, the land went to Darlene Maguire Scarbrough. Nellie had died and the question before the court was whether the provision in the will regarding the option to purchase violated the rule against perpetuities. The answer turned on whether a testamentary option, i.e., an option granted or created by will, is personal or survives the death of the optionee. The court ruled the rule against perpetuities was not violated, finding the testamentary option was personal to the optionee and did not survive her death.
Having determined that the trial court did not err in finding the contract was supported by consideration, further pursuit of the defendants’ argument on the assignment feature of the contract is immaterial.
The trial court found that all parties “received a copy of the contract and signed the same and assumed, at that time, the benefits and the burdens thereof.” See 17 Am. Jur. 2d, Contracts § 74.
Having determined the trial court properly granted plaintiff s motion for summary judgment, consideration of the defendants’ motion for summary judgment is moot.
The defendants’ final issue on appeal concerns the sanctions of $300 each, imposed against them at various times during pretrial discovery for violation of the court’s discovery orders.
The defendants properly perfected an appeal from the orders imposing sanctions after final judgment was entered.
The plaintiff contends the monetary sanctions imposed pursuant to K.S.A. 60-237 are interlocutory in nature and appealable only as interlocutory orders under K.S.A. 60-2102(b), citing Skahan v. Powell, 8 Kan. App. 2d 204, 653 P.2d 1192 (1982). It is argued since the defendants did not appeal in accordance with 60-2102(b) the appellate court has no jurisdiction to consider the orders imposing sanctions on appeal. For the reasons hereafter stated, the plaintiff s contention is erroneous.
Under K.S.A. 60-2102(a)(4), jurisdiction of an appellate court may be invoked by appealing as a matter of right from a final decision in any action, except that an appeal to the Court of Appeals may not be taken where a direct appeal to the Supreme Court is required by law. In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable. K.S.A. 60-2103(i).
Interlocutory appeals are embraced under “other appeals” in K.S.A. 60-2102(b). It reads:
“When a district judge or associate district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, said judge shall so state in writing in such order.” (Emphasis added.)
The controlling question of law as to which there is substantial ground for difference of opinion contemplates that it must be material to the substantive issues that resolve the litigation.
The sanctions imposed in this case, while described as interlocutory in nature, are not appealable as interlocutory orders because they are immaterial to the ultimate resolution of the litigation. It is true, some orders imposing sanctions against a party are appealable because they are final orders, such as the entering of a judgment by default or the dismissal of a case. This is illustrated in the recent case of Wenger v. Wenger, 239 Kan. 56, 716 P.2d 550 (1986).
K.S.A. 60-2102(a)(4) is virtually identical to the federal statute 28 U.S.C. § 1291 (1982) in that it permits appeals from a “final decision.” The federal statutes should be read in connection with K.S.A. 60-2101(a) and (b), and K.S.A. 60-2103(i).
Appellate review of discovery orders in the federal courts sheds some light on the subject matter at hand since our Kansas Code of Civil Procedure is modeled after the Federal Code of Civil Procedure. An extensive article on the subject appears in the Southern Illinois University Law Journal. Comment, Appellate Review of Discovery Orders in the Federal Courts, 1980 S. Ill. U.L.J. 339.
The final judgment rule asserted by the federal courts has given rise to some policy conflicts which are not present on the facts before us. Here, the sanctions for failure to comply with discovery orders were imposed upon parties to the litigation. Where sanctions are imposed upon a nonparty for violation of court orders, the federal courts have enunciated the Collateral Order Doctrine which does not concern us on this appeal.
Discovery orders and sanctions in the nature of civil penalties for violation of such orders as to parties are normally deemed interlocutory and thus nonappealable by the parties as interlocutory appeals because these orders can be reviewed and corrected when final judgment is entered by including them in the appeal from the final judgment. There is no need for treating these interlocutory sanction orders piecemeal and cluttering the appellate courts. Johnny Pflocks, Inc. v. Firestone Tire and Rubber, 634 F.2d 1215 (9th Cir. 1980).
In Coleman v. Sherwood Medical Industries, 746 F. 2d 445, 446 (8th Cir. 1984), the United States Court of Appeals said:
“For an order to be ‘effectively unre viewable on appeal from final judgment’ it must implicate rights which could be lost or irreparably harmed if immediate review were denied. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376-77, 101 S. Ct. 669, 674-75, 66 L. Ed. 2d 571 (1981). Review of pretrial discovery orders has generally been denied because they can be effectively reviewed after final judgment. See id. at 377, 101 S. Ct. at 675. Sherwood [defendant/appellant] will suffer no irreparable harm if it must await final judgment before challenging the order requiring payment of $941.68 in costs and attorneys’ fees.
“Denial of immediate review of the order for costs and attorneys’ fees is consistent with the rule requiring that all claims of error be presented in a single appeal following final judgment on the merits. The reason for this rule is explained as follows:
“ ‘It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of ‘avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Cobbledick v. United States, 309 U.S. 323, 325, 60 S. Ct. 540, 541, 84 L. Ed. 783. * * *’
“Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 374, 101 S. Ct. at 673.
“We therefore join the majority of circuits that have held that orders imposing costs and/or attorneys’ fees on a party for failing to comply with a discovery order are not immediately appealable under the collateral order exception. Meche v. Dan-Tex International, Inc., 681 F.2d 264 (5th Cir. 1982); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir. 1981); Eastern Maico Distributors, Inc. v. Maico-Fabrzeugfabrik, 658 F.2d 944 (3d Cir. 1981); Johnny Pflocks v. Firestone Tire & Rubber Co., 634 F.3d 1215 (9th Cir. 1980); Evanson v. Union Oil Co. of California, 619 F.2d 72 (Em. App.), cert. denied, 449 U.S. 832, 101 S. Ct. 102, 66 L. Ed. 2d 38 (1980); but see State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370 (10th Cir.), cert. denied, 439 U.S. 833, 99 S. Ct. 114, 58 L. Ed. 2d 129 (1978). Accordingly, we dismiss this appeal on our own motion for lack of jurisdiction. See 8th Cir. R. 12(a).”
Application of the rule concerning a nonparty is demonstrated in David v. Hooker, Ltd., 560 F.2d 412 (9th Cir. 1977).
If language used in Skahan v. Powell, 8 Kan. App. 2d at 206, is construed contrary to the foregoing, it is disapproved.
We hold the monetary sanctions imposed under K.S.A. 60-237 in the form of civil penalties against the defendants, who are parties in this case, were properly included on appeal from the final decision in this case in accordance with K.S.A. 60-2101; -2102(a)(4); and -2103(i).
A review of the record in this case shows more than an adequate basis for imposing the sanctions here for review. In fact, the trial court was more than lenient. Under its discretionary powers it could have entered a default judgment against these noncomplying parties. Yunghans v. O’Toole, 224 Kan. 553, 581 P.2d 393 (1978); and Wenger v. Wenger, 239 Kan. at 60.
It has been held to be within the trial court’s power of discretion to order a party to pay reasonable expenses including attorney fees incurred by the opposing party for refusal to comply with a discovery order. Independent Mfg. Co. v. McGrawEdison Co., 6 Kan. App. 2d 982, 637 P.2d 431 (1981).
The defendants in this case have by their actions frustrated the orderly administration of justice by disregarding or showing total indifference to court rules and procedures. The defendants have also intentionally disobeyed the direct orders of the trial court and have thereby prejudiced the plaintiff by their dilatory actions. The sanctions imposed by the trial court were reasonable and within the discretionary power of the court.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a jury verdict in a civil case finding appellant, Taco Bell, 51% at fault for injuries received by appellee, Rosie Gould. Gould was injured in a Taco Bell restaurant as a result of an assault by another patron. The altercation occurred as follows.
On the evening of July 13, 1983, Rosie Gould and her friend, Theresa Holmberg, attended a Kansas City Royals baseball game. They left the ballgame about 9:30 or 10:00 p.m. and on the way home, stopped at a local bar. After about half an hour, they left the bar and drove to a Taco Bell restaurant located at 10321 West 75th Street in Shawnee, Kansas. They arrived at the restaurant at approximately 11:30 p.m. There were six people in the restaurant, two at the counter and the rest seated in a booth. Later, all six sat together in the booth. After ordering their food, Gould and Holmberg sat down in a booth across from the group. Karen Brown was one of the individuals in that group.
Brown and her companions began engaging in loud, crude and vulgar conversation, designed to be overheard and to shock Gould and Holmberg. Neither Gould nor Holmberg made any comment to Brown or her companions during this conversation. At one point, a Taco Bell employee told the group to quiet down, but the conversation grew louder.
Eventually, the group got up to leave but prior to reaching the exit, Brown stopped and said, “Those two white bitches over there think they’re hot shit.” Gould was shocked and asked, “Are you talking to us?” When Brown responded, “Yes,” Gould requested her to “please come over here and repeat yourself.”
Brown responded by suddenly dashing to Gould’s booth and striking her in the face with a clenched fist, knocking her sideways and bruising her face and nose. Gould, shocked, called Brown a “nigger.” Brown then began hitting Gould with her fists with renewed effort. This beating continued for about thirty seconds until Holmberg intervened by moving between Gould and Brown. She told Brown, “We don’t want any trouble.” Gould and Holmberg began moving toward the door but Brown kept saying “Come on, hit me, bitch. Come on, I want to fight.” Gould and Holmberg continued to insist they did not want to fight, but when they reached the door of the restaurant Brown began beating on Gould again. She struck Gould four or five times before they moved outside the restaurant.
During this second exchange, Mark Wills, the assistant manager at the restaurant, watched the altercation as he came out from behind the counter. Wills did not try to stop Brown because he did not want to get involved and for fear Brown would strike him for interfering. Nor did he call the police, since he didn’t feel the situation warranted such action. However, Wills did tell Brown, “Why don’t you just leave? You did this two weeks before in here.”
Gould and Holmberg, attempting to escape further trouble, began moving toward their car in the parking lot. Mark Wills and another Taco Bell employee followed the group outside. While in the parking lot, Brown attacked Holmberg, shoving her against the brick wall of the restaurant and hitting and kicking her. Holmberg screamed for someone to call the police. The Taco Bell employees did not respond. Holmberg was finally able to break away and ran inside to the food counter and asked Wills (who had followed her back inside) if she could use the phone to call the police. Wills advised her the phone was not for public use. Holmberg threatened to jump over the counter and use the phone. Wills finally reluctantly called the police.
While Holmberg was inside, Brown again attacked Gould, striking her three or four times on the upper part of her body. When Holmberg returned to the parking lot, she informed Brown the police were on the way. This scared Brown and her companions and they got in their car and left.
Gould filed the present action against Taco Bell, alleging Taco Bell failed to provide security measures sufficient to protect Gould, a business invitee, from injuries inflicted by fellow invitees. She further alleged that Taco Bell, through its employees, could have prevented the conduct of Karen Brown, thereby preventing the injuries suffered by Gould.
The jury found Gould 49% at fault and Taco Bell 51% at fault. They awarded Gould $500 in actual damages and $10,000 in punitive damages. Taco Bell appeals the jury’s findings.
Appellant first argues a premises owner cannot be held liable for injuries sustained in a sudden attack upon one patron by another.
The duty of care owed by a premises owner to an entrant upon the land is dependent upon the status of the person entering the premises. A restaurant patron is an “invitee.” We defined that term and discussed the duty of care owed to an invitee in Gerchberg v. Loney, 223 Kan. 446, 449, 576 P.2d 593 (1978):
“An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee's safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated.”
Thus, Taco Bell owed Rosie Gould an affirmative duty to exercise reasonable or ordinary care for her safety. This duty included an obligation to warn her against any danger that might reasonably have been anticipated.
In Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), we discussed the liability of a business owner for an intentional, harmful assault upon a patron by another patron and set forth the general rule as follows:
“A proprietor of an inn, tavern, restaurant or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault andfails to exercise reasonable care to forestall or prevent the same.” Syl. ¶ 2.
“The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.” Syl. ¶ 3.
This rule is consistent with that set forth in Restatement (Second) of Torts § 344 (1963):
“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”
For an excellent annotation on the liability of an innkeeper, restaurateur, or tavern keeper for injury occurring on the premises to a guest or patron by a third person, see Annot., 70 A.L.R. 2d 628, §§ 13, 14. See also 40 Am. Jur. 2d, Hotels, Motels, Etc. § 112, p. 987.
Appellant compares the facts of the present case to those in Kimple v. Foster, 205 Kan. 415, and argues our holding in Kimple is inapplicable to the facts of this case.
In Kimple, the plaintiffs were injured while guests at a bar owned by the defendant. The plaintiffs were the victims of an unprovoked attack by another group of patrons who had been drinking, harassing patrons, and brawling in the bar for several hours. A jury found the tavern owner liable for injuries sustained by the plaintiffs. On appeal, the tavern owner argued that a proprietor’s duty to protect his patrons does not arise until the impending danger becomes apparent to the tavern keeper, or the circumstances are such that an alert and prudent person would be placed on notice of the probability of danger. 205 Kan. at 417.
The Kimple court concluded the facts present were clearly sufficient to warrant the jury in concluding that the defendant had knowledge of facts which should reasonably have placed him on notice that trouble might be expected which would endanger the safety of the patrons. 205 Kan. at 418. Specifically, the court noted there was evidence to the effect that, before the physical attack commenced, the plaintiffs and other patrons repeatedly told tavern employees to call the police but to no avail. Further, the court cited evidence that the battle had “raged” for a full ten minutes before the police were called. 205 Kan. at 419.
Appellant argues our reasoning in Kimple is inapplicable to the present case because the facts of this case “contrast strongly” with those in Kimple. Appellant claims the assault on Rosie Gould lasted only about five minutes while the assault on the plaintiffs in Kimple consisted of a “five-hour sequence of events.” Appellant misstates the facts in Kimple. As in the present case, the actual assault upon the plaintiffs in Kimple lasted only a few minutes. It is true, however, that in Kimple the assailants had been in the bar for several hours prior to the incident, while in the present case, Karen Brown and her friends had been at Taco Bell only a few minutes. But in this case, there is evidence Brown had been involved in a similar altercation at Taco Bell approximately two weeks before she attacked Rosie Gould. Also, there was evidence Taco Bell management had considered hiring security personnel because of a history of rowdyism on the premises.
In Kimple, we made the following statement regarding notice to the proprietor:
“It is not required that notice to the proprietor of such an establishment be long and continued in order that he be subject to liability; it is enough that there be a sequence of conduct sufficient to enable him to act on behalf of his patron’s safety.” 205 Kan. 415, Syl. ¶ 4.
The evidence in this case was sufficient to establish such a “sequence of conduct.” Thus, we hold the jury’s verdict against Taco Bell for Gould’s injuries is supported by the evidence.
Our holding is consistent with decisions in cases from other jurisdictions. For example, in Eastep v. Jack-in-the-Box, Inc., 546 S.W.2d 116 (Tex. Civ. App. 1977), a case with closely analogous circumstances, the defendant was held liable for injuries sustained by Mrs. Eastep while she and her husband were patrons in the defendant’s restaurant. The Easteps had just placed their order and sat down when they were cursed loudly by a group at another table. After this group taunted plaintiffs for a few minutes, a fight ensued which resulted in Mrs. Eastep sustaining a severe laceration to her right arm. The fight ended approximately five to ten minutes after it began and the police arrived at the scene a few minutes after being called. 546 S.W.2d at 119. The Texas court found evidence to support the jury’s findings that the restaurant, through its employees, was negligent in failing to demand that the assailants leave the premises, in failing to timely notify the police, and in failing to warn the Easteps of the acts and condition of the assailants before the fight began. 546 S.W.2d at 119-20.
Similarly, in Grasso v. Blue Bell Waffle Shop, Incorporated, 164 A. 2d 475 (D.C. 1960), the plaintiff was injured in defendant’s restaurant when he was grabbed and struck by an intoxicated, belligerent customer. The trial court granted a directed verdict in favor of the restaurant but the appellate court reversed, finding there was a jury question whether those in charge of the restaurant should reasonably have anticipated that the assailant might injure a customer and whether they took reasonable means to prevent such injury.
As in Eastep and Grasso, there was sufficient evidence to submit this case to the jury and sufficient evidence to support the jury’s finding of liability on the part of Taco Bell.
For its second issue on appeal, Taco Bell challenges the district court’s denial of its motion to join Karen Brown as a formal party to this action pursuant to K.S.A. 60-258a(c). That statute provides:
“On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person /whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.”
The district court, in denying appellant’s motion, ruled that the intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed by the third party. In so ruling, the district court relied on M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864 (1984). Taco Bell argues that case has no application to and is not controlling upon the facts presented here.
In M. Bruenger, the plaintiff left his truck in the possession of the defendant for repairs. After the repairs were completed, the defendant’s employees parked the truck in the lot with the doors unlocked and the keys in the ignition. Sometime that night the truck was stolen. At trial, the court allowed the comparison of the intentional acts of the thief with the negligent acts of the bailee under the doctrine of comparative negligence.
This court held that the trial court committed reversible error in allowing the jury to compare the negligence of the bailee. We reasoned the thief s level of care in using or abusing the truck did not affect the cause of the loss — the defendant’s failure to exer cise reasonable care to prevent the theft. We further noted that we have never interpreted K.S.A. 60-258a to require the comparison of negligence with intentional wrongdoing. 234 Kan. at 687.
Our holding in M. Bruenger is applicable to the present case. Appellant attempts to distinguish these cases, arguing that M. Bruenger concerned a bailment as opposed to the present case, which concerns premises liability. However, we are not comparing apples and oranges. We look to the nature of the duty owed in each instance. A bailee owes a duty of reasonable and ordinary care to prevent the theft of bailed property. Thé premises owner owes a duty to use reasonable and ordinary care for the safety of invitees. The duty is the same in both cases. Accordingly, our holding in M. Bruenger is applicable to the present case and the trial court did not err in denying appellant’s motion to join Karen Brown as an additional party to the action.
As its final point on appeal, appellant argues the trial court erred in submitting this case to the jury on the issue of punitive damages.
We discussed the nature of punitive damages in Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), and held as follows:
“Punitive damages are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy.” Syl. ¶ 16.
“Punitive damages are allowed not because of any special merit in the injured party’s case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs.” Syl. ¶ 17.
Before discussing this issue any further, we will first set out the general rule regarding the liability of a corporation for punitive damages awarded for a tort committed by its employee: See also Plains Resources, Inc. v. Gable, 235 Kan. 580, Syl. ¶ 5, 682 P.2d 653 (1984).
“A corporation is not liable for punitive damages awarded for an employee’s tortious acts within the scope of employment unless (a) a corporation or its managerial agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its managerial agent was reckless in employing or retaining him; (c) the employee was employed in a managerial capacity and was acting within the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee. Following Restatement (Second) of Toils § 909 (1977); Restatement (Second) of Agency § 217C (1957).” Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, Syl. ¶ 4, 666 P.2d 711 (1983).
In the present case, plaintiff alleges the failure of Taco Bell’s manager, Mark Wills, to call the police or intervene to prevent the fight provided a sufficient basis upon which to award punitive damages. Since Wells was employed in a managerial capacity and was acting within the scope of his employment, the corporation can be held liable if Wells’ failure to act was willful, wanton, or grossly negligent.
Appellant argues it cannot be held liable for punitive damages for negligent omissions amounting to wantonness. Rather, appellant contends punitive damages are recoverable only for affirmative acts, as opposed to a failure to act. This argument is without merit.
57 Am. Jur. 2d, Negligence § 105, p. 457, defines “wanton” as follows:
“Generally speaking, inherent in wanton negligence is the idea of moral fault arising from the doing or failing to do an act with consciousness that the act or omission would probably cause serious injury, and with reckless indifference to consequences.”
We have defined a “wanton act” as something more than ordinary negligence but less than a willful act. It must indicate a realization of the imminence of danger and a reckless disregard and indifference to the consequences. See Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984); Willard v. City of Kansas City, 235 Kan. 655, 681 P.2d 1067 (1984); Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 524 P.2d 1141 (1974). “Wantonness” refers to the mental attitude of the wrongdoer rather than a particular act of negligence. It follows that acts of omission as well as acts of commission can be wanton since reckless disregard and indifference are characterized by failure to act when action is called for to prevent injury.
Appellant also contends its conduct could not be “wanton” because, to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard or complete indifference or an unconcern for the probable consequences of the wrongful act. Britt v. Allen County Community Jr. College, 230 Kan. at 510. Specifically, Taco Bell argues its conduct could not be wanton because it had no reason to know that harm was imminent. This argument is not supported by the facts. The evidence at trial indicated that the shift manager, Mark Wills, saw Karen Brown strike the plaintiff while the plaintiff was still sitting in the booth, but he did nothing. As the parties moved toward the door, Wills came out from behind the food counter to an area within a few feet of the assailant and the plaintiff. He again failed to call the police or attempt to intervene, but instead observed a second attack upon Gould. It was not until Gould’s friend, Theresa Holmberg, broke away from Karen Brown and ran inside and threatened to jump over the counter in order to phone the police that Wills finally called the police.
Evidence was also presented that Mark Wills believed Karen Brown had been the cause of a disturbance in the restaurant a couple of weeks before the present incident occurred, yet he failed to intervene or call the police when she began attacking Gould.
In addition, Mark Walters, the store manager, testified that since he became manager of the restaurant' in August 1981 the late night patrons had been “destructive” and “uncontrollable.” He stated that the late night business in Taco Bell originated in the neighboring bars and that the customers were rowdy and used loud, vulgar, and obscene language, and engaged in verbal fights and occasional physical fights. He also testified there was not sufficient help to handle such crowds and that Taco Bell’s written policy was to call the police in case of disruptive customer behavior.
These facts indicate that Taco Bell was aware of the “imminence of danger” yet failed to intervene or warn plaintiff of such danger. There was substantial evidence to support the jury’s award of punitive damages.
The judgment of the trial court is affirmed.
Schroeder, C.J., Miller and McFarland, JJ., dissenting. | [
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The opinion of the court was delivered by
Holmes, J.:
These are consolidated appeals by defendant Classic Designs, Inc., (Classic Designs) and defendant/intervenor Valley Federal Savings and Loan Association (Valley Federal) from the granting of temporary and permanent injunctions enjoining the appellants from construction of certain types of homes in a Hutchinson subdivision. Appellees are owners of various lots in the subdivision. Case No. 57,608 is the appeal from the temporary injunction granted September 6, 1984, and Case No. 58,231 is the appeal from the permanent injunction granted April 25, 1985.
The controlling facts are not in dispute. In 1979, Richard W. Dillon and Carolyn A. Dillon platted Heritage Estates I, (Heritage Estates or the subdivision) an addition to the City of Hutchinson, Reno County, Kansas, containing thirty-six residential building lots. In the fall of 1979 the property was conveyed to Joe and Marjorie Astle. The Dillons, as a part of the platting of the subdivision, executed “Reservations, Restrictions and Protective Covenants” covering the. entire addition. The actual platting and preparation of the restrictive covenants was done by Joe Astle and his attorney preparatory to a purchase of the property. On November 9, 1979, the Astles conveyed the property to Custom Homes, Inc., their family corporation. The acquisition of the thirty-six lots was financed by Valley Federal. During the next three years Custom Homes sold only three lots upon which single family homes were constructed. The Kennedys, the Diamonds, and the Spaenys, appellees, were the purchasers of the three lots. In 1982 the remaining thirty-three lots were conveyed by Custom Homes to Valley Féderal to avoid foreclosure of the mortgage held by Valley Federal. Since that time the appellee Astle Realty, Inc., another corporation of Joe and Marjorie Astle, has acquired one of the lots from Valley Federal and apparently the Astles live in a home erected on that lot.
The appellant Classic Designs is engaged in the business of engineering and constructing modular homes and commercial buildings. Component parts, or modules, are produced at the company facility in Hutchinson, and then transported by truck to the property site for integration with other component parts which, along with other on-site construction, results in a finished or completed building.
On August 1, 1984, Classic Designs purchased a lot in the subdivision from Valley Federal and obtained a one-year option to buy four'additional lots. Prior to purchasing the real estate, Classic Designs consulted with and obtained approval from Valley Federal for the construction of a modular home on the site. Classic Designs immediately went to work preparing a foundation and basement for the house. On August 20, 1984, the first two components of the living quarters and a paneled garage were transported to the Heritage Estates lot. The construction aroused the attention of Joe Astle and Donald Spaeny, who complained about the construction that was underway. A meeting on August 21, 1984, with Valley Federal officers proved unsuccessful in resolving the complaints regarding the construction. Suit was filed against Classic Designs on August 22, 1984, seeking injunctive relief to halt construction and a ruling that the restrictive covenants prohibited construction of a modular home. The trial court issued a temporary restraining order on August 22, 1984, and construction ceased the next day.
On the 6th day of September, 1984, the motion for a temporary injunction was sustained following a lengthy hearing lasting nearly three days. The trial court found that the house being constructed by Classic Designs violated a provision of the restrictive covenants which provided “no building shall be moved into the Addition”. The court’s order stated:
“It is Therefore Ordered, Adjudged and Decreed by the Court that the Defendant, Classic Designs, Inc., a Kansas Corporation, is hereby enjoined from doing any work towards completion of the house on Lot 9, Block D, Replat of Heritage Estates I, a Subdivision of Hutchinson, Kansas, or from moving a building in or placing a building upon any other lot in Heritage Estates I, a Subdivision of Hutchinson, Kansas.
“It is Further by the Court Ordered, Adjudged and Decreed that the Plaintiffs shall give a Bond in the amount of Ten Thousand Dollars ($10,000.00) conditioned that they will abide by the decision which may be made herein and that they will pay all sums of money and costs that shall be dissolved [sic] in whole or in part together with sufficient sureties as may be approved by the Court, which Bond has been filed herein and is hereby approved.
“It is Further by the Court Ordered, Adjudged and Decreed that this Order and Decree shall continue in effect until the Court’s final decision in the above entitled cause of action.”
Thereafter Valley Federal was permitted to intervene in the case. On November 6, 1984, motions to reconsider the court’s rulings were overruled.
Classic Designs and Valley Federal appealed the trial court’s order granting a temporary injunction. The Court of Appeals, in Case No. 57,608, stayed the appeal proceedings pending a determination of whether a permanent injunction would be issued. At a pretrial conference on April 25, 1985, the parties agreed no further evidence would be presented and the court then rendered a final judgment granting a permanent injunction. Case No. 58,231 is the appeal from the judgment granting the permanent injunction. The two cases were consolidated in the Court of Appeals and subsequently transferred to the Supreme Court.
Appellants attack the trial court’s interpretation of the restrictive covenants, assert the plans and proposed construction of Classic Designs were approved by the architectural control committee, and attack the temporary injunction on the additional ground of an illegal and insufficient bond.
The restrictive covenant which is the subject of this litigation provides:
“2. There shall not exist on any lot at any time more than one residence. No trailer, basements, tent, shack, garage, barn, temporary building, guest house or other outbuilding erected in the Addition shall at any time be used as a residence, temporarily or permanently, nor shall any structure of temporary character be used as a residence. No trailer, tent, shack, barn, temporary building, guest house or outbuilding shall be erected on any of the lots in the subdivision without approval in writing from the Architectural Control Committee hereinafter designated; and no building shall be moved into the Addition except such as shall be used temporarily in connection with the construction of a permanent residence, or structure upon any lot in the Addition.” (Emphasis added.)
The appellees claim that construction of a modular home is a violation of the above covenant. They contend that, since the component units or modules are substantially completed in the factory, transporting the units onto the property site for further assembly entails moving a building into the addition. Appellees claim that such modular construction is prohibited by the italicized language in the above covenant.
The appellants, on the other hand, maintain that the modular home is not a building prior to its on-site assembly. Classic Designs argues that its decision to utilize factory-built components in the construction of the home in Heritage Estates I does not violate the restrictive covenant. Additional facts will be developed as necessary for the issues on appeal.
The restrictive covenants applying to this subdivision are similar to many used throughout residential development projects. In the1 briefs and arguments before this court, the parties repeatedly refer to the isolated language “no building shall be moved into the Addition.” It is a fundamental rule in construing a written instrument that language used anywhere in the instrument should be considered and construed in harmony with all provisions and not in isolation. Heyen v. Hartnett, 235 Kan. 117, 679 P.2d 1152 (1984). Under the section “Use of Land” in the covenants, the first paragraph provides all lots shall be residential lots. It also states that no structures shall be “erected, altered, placed or permitted” other than single family dwelling homes, although it includes a provision for an exception to allow duplexes on certain lots. The third and fourth paragraphs set certain square footage requirements. Subsequent paragraphs cover and restrict construction of detached structures, and control certain activities on the premises, building setback lines, handling of trash and refuse, removal of earth, use of signs and advertising, screening of certain areas and structures, alterations, and so on. The next section of the covenants provides for the establishment of an architectural control committee whose approval appears to be necessary for almost any proposed construction and use of the properties and which also is granted broad power to “make exceptions to these restrictions, reservations and protective covenants” as it deems necessary and proper. Thus, it appears obvious that the original developers sought to insure a quality development of residential homes. With this background, we turn to the principal issue of whether the use of modular construction techniques, as contemplated by the appellants, violates the restrictive covenants.
At the outset it is necessary to distinguish between three different types of dwellings; mobile homes, “stick-built” homes, and modular homes. K.S.A. 79-340 defines a mobile home as follows:
“[T]he term ‘mobile home’ means a factory-built structure or structures more than eight feet in width or more than 36 feet in length, equipped with the necessary service connections and made so as to be readily movable as a unit or units on its own running gear and designed to be used as a dwelling unit or units.”
A stick-built home, in the traditional sense, is one that is constructed completely on the premises from various raw materials including lumber, brick, cement, pipe, wire, roofing materials, etc. It has been noted that in recent years the construction industry has recognized the utility in using some preformed or prebuilt components which are incorporated into what are still considered stick-built structures. See Mathis v. Wallace, 553 S.W.2d 236 (Tex. Civ. App. 1977). These preformed components are manufactured off site and then transported to the construction site to be integrated into the home.
The third type of residence, modular homes, is the subject of the present litigation. This type of housing, whether called modular, prebuilt, prefabricated, preengineered, or something else, utilizes preconstructed components manufactured in a factory. The finished components are transported to the construction site and assembled on a permanent foundation. One court, referring to the Texas Manufactured Housing Standards Act, defined this type of dwelling as follows:
“ ‘Modular home’ means a dwelling that is manufactured in two or more modules at a location other than the home site and which is designed to be used as a residence when the modules are transported to the home site, and the modules are joined together and installed on a permanent foundation system. The term includes the plumbing, heating, air conditioning and electrical systems contained in the structure . . . .” Ussery Investments v. Canon & Carpenter, Inc., 663 S.W.2d 591, 594 (Tex. Civ. App. 1983).
In the present case the appellee landowners brought suit to enjoin Classic Designs from constructing a modular home on its lot in Heritage Estates. Restrictive covenants have long been recognized in Kansas. A person who takes land with notice of restrictions upon it will not, in equity and good conscience, be permitted to act in violation thereof. Such restrictions are enforceable through the equitable remedy of injunction. South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035 (1976).
The crux of the issue here is whether the component parts which were manufactured off site constitute a “building” within the meaning of the covenant. This proposed home was designed by a Hutchinson architectural firm for the specific lot owned by Classic Designs. The components are built in an environmentally controlled atmosphere and, after being transported to the property, are assembled at the site. In the instant case the home consisted of three principal components. Two of the components made up the living portion while the third consisted of the garage. The two components comprising the living quarters were to be permanently attached to the previously constructed foundation and basement, and then the garage was to be attached, making one complete structure or building. After the three components are attached to the foundation and each other, numerous additional tasks are required to complete the residence. The roof must be completed, plumbing and electrical wiring finished, the air conditioning and heating systems installed, the fireplace completed, carpet laid, and numerous other tasks done before the structure is complete. On the outside of the house the driveway and sidewalk were to be poured, brick was to be laid on three sides of the house, and the lot was to be landscaped.
The evidence disclosed that materials comparable or superior to those used in appellees’ homes were utilized in the Classic Design components. The completed property would have an appraised value comparable to or in excess of that of the homes of the appellees. Appellees did not contend that the finished property would be inferior. Their principal objection was their opinion that the public considers modular construction to be inferior to stick-built and therefore the use of such construction would lower appellees’ property values. Mr. Astle did not like the aesthetics of some of the interior cabinets, light fixtures, and the fireplace, although it appears this was based upon his personal preferences and not on any lack of quality.
It does not appear Kansas courts have previously interpreted the meaning of the word “building” in the context it appears in this case. The words “building” and “structure” are often considered synonymous. While cases involving criminal convictions have recognized that a granary, State v. Groning, 33 Kan. 18, 5 Pac. 446 (1885); a buggy house, State v. Garrison, 52 Kan. 180, 34 Pac. 751 (1893); a chicken house, State v. Poole, 65 Kan. 713, 70 Pac. 637 (1902); and a cave, State v. Sanders, 81 Kan. 836, 106 Pac. 1029 (1910), may be buildings or structures sufficient to support a burglary conviction, these cases are not on point in the present case. A building has been variously defined as an “edifice,” a “structure,” a “fabric built or constructed,” and “[t]hat which is built,” and a structure has been defined as, “[t]hat which is built or constructed; an edifice or building of any kind.” Black’s Law Dictionary 244, 1592 (4th ed. rev. 1968). One court has defined the word “building” to mean an edifice, designed to stand more or less permanently and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose. Bennett v. O’Maley Tractor Co., 209 Mo. App. 619, 238 S.W. 144 (1922). Another court has held that the word “building” does not embrace parts or segments of a building or structure. Vogel v. Supply Co., 277 N.C. 119, 132, 177 S.E.2d 273 (1970). From these definitions it would appear that use of the word “building” clearly imports some sort of as sembled or completed structure, rather than various component parts that are intended to be attached together to comprise a finished product. We think it is clear that the restrictive covenant relied upon by appellees contemplated a completed building rather than a method of construction. When the restrictive covenants are considered as a whole, it would appear the intent is to prevent moving used or inferior buildings or structures onto the property as opposed to new construction whether stick-built or modular.
In Ussery Investments v. Canon & Carpenter, Inc., 663 S.W.2d 591, the court was called on to determine whether a modular home was a “structure” within the meaning of a subdivision restriction. The restriction provided:
“2. That no ‘structure’ shall be moved onto any lot, but all buildings erected on said lots shall be of new construction.”
The plaintiffs, adjacent lot owners, obtained an injunction prohibiting construction of modular homes in the development. The court reviewed the construction technique involved, noting that the home was delivered in two components or “modules,” assembled, and attached to the cement foundation. The court observed that after the pieces are joined, the wiring and plumbing is hooked up; heating and air conditioning is installed; the interior is finished, along with carpet and painting; the porch and garage are constructed; outside brick is laid; and the driveway is poured. All of this led the court to hold that the construction of a modular home did not violate the subdivision restriction. The court stated:
“We agree with the appellants that the restrictions prohibiting any ‘structure’ from being brought onto a lot do not preclude the appellants’ modular home construction technique. The term ‘structure,’ as used in the restrictions, clearly means a whole, pre-existing, and habitable building, and its clear purpose is to require that only newly-erected, permanent buildings be placed on the subdivision lots. . . . The restrictions did not require that the structure be ‘built in place’ or otherwise indicate a prohibition against modular construction . . . and we, therefore, perceive no impediment to that modular home system of erecting a new structure on the premises. In Mathis v. Wallace, 553 S.W.2d 236 (Tex. Civ. App.-Austin 1977, no writ), the restrictive covenant provided that no building or structure shall be moved upon the premises. The court held this covenant was not violated by having a house partially pre-assembled off the premises, then cut in half, and each half being moved separately and set down on previously constructed concrete foundation piers. In the case at bar, there is even more reason than in Mathis to conclude that the modular homes were not prohibited ‘structures.’ Here the separate elements were never joined together to form a structure until they were permanently anchored to the foundation at the building site. Until all of the component elements comprising the basic structure were actually assembled, the unit could not be considered a ‘structure’ within the meaning of the restrictive covenant.” 663 S.W.2d at 594-95.
In Werner v. Sofios Constr. Co., 16 Ohio Op. 2d 365, 176 N.E.2d 870 (1961), the court held that a restriction which read, “No house already erected shall be moved onto said property, nor shall any prefabricated house be erected on said property” did not prohibit the construction of a house manufactured in 14 numbered sections and transported to the site for assembly. The court apparently drew a distinction between homes designed for a particular location and those that are mass produced, noting that clearly the latter are “prefabricated.” While the court’s holding in Werner is somewhat unclear, some of its reasoning is persuasive.
“This court finds nothing sacred about on the site construction ... so long as components of a particular home constructed away from the site are of the same or better quality materials and workmanship. Use of the same workmen to shop build components very often results in better finished quality due to the more accurate machinery available, more comfortable working conditions, and the higher degree of control and supervision possible. . . .
“To require a builder to construct all component parts on the site solely to avoid the restriction involved here would be placing an unreasonable and arbitrary interpretation on the words ‘prefabricated house.’ ” 16 Ohio Op. 2d at 367.
In Billings v. Shrewsbury, _ W. Va. _, 294 S.E.2d 267 (1982), the court was faced with the question of whether a factory-built home consisting of two components transported to and assembled on the building site violated a covenant prohibiting mobile homes. In finding the proposed construction did not constitute a mobile home, the court stated:
“The center cap shingles, ventilation and heating systems and portions of the siding were not added until the major prefabricated sectional components had been joined together. Furthermore, the Shrewsbury residence is constructed very much like a coventional stick-built home. Its walls are built of two-by-fours set on 16-inch centers. The roof trusses are built with two-by-twos which are also set on 16-inch centers and the outside walls are covered with lap siding. We also note that the Shrewsbury home is aesthetically acceptable. Photographs admitted into evidence show that this home had the appearance of a conventional, single-family dwelling and compared favorably to other homes in the subdivision.” p. 269.
Appellees contend these cases are all distinguishable from the facts before the court and in some ways they are. However, we find the rationale of the Texas cases and others cited persuasive. Appellees have not cited any authority or cases supporting their position that the proposed modular construction would violate the present covenants and our research has disclosed none.
The use of modular construction is a modern building technique recognized and approved as efficient and satisfactory. It in no way resembles the usual concept of the mobile home and has not been shown to be inferior to stick-built or total on-site construction. The use of modular construction is not a recent innovation and existed long before the restrictive covenants in this case were prepared. If it had been the intent to restrict this type of construction in the subdivision, it would have been very simple to clearly include such a prohibition in the restrictive covenants. The covenants go into elaborate detail limiting the use of the property and providing numerous safeguards for the lot owners. Nowhere is there any indication that use of modular construction is prohibited in building the anticipated private dwelling houses and supporting structures. The construction of the proposed dwelling by utilizing new components built off the premises and then moving those components onto the lot and assembling them into a completed building does not constitute moving a building into the addition. Considering the overall intent of the restrictive covenants, we hold that under the facts of this case the trial court erred in determining that the Classic Design’s construction methods and the proposed finished building fell within the prohibition that “no building shall be moved into the addition.”
As the identical evidence was considered by the court in granting both the temporary and permanent injunctions, we hold both injunctions were erroneously issued. In view of the result reached herein, it is not necessary for us to consider the other issues asserted by appellants.
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The opinion of the court was delivered by
Fatzer, J.:
The action was one by a principal against her agents for damages for false representations which induced an exchange of real estate. The defendants’ demurrers on the ground that the petition did not state facts sufficient to constitute a cause of action were overruled, and they have jointly appealed.
Plaintiff’s petition is summarized as follows: Plaintiff and each of the defendants are residents of Topeka, Kansas. During May, 1955, and prior thereto, plaintiff was the owner of a 120-acre farm in Osage County, Kansas, upon which was located a modern home and certain other appurtenances associated with a farm, together with various growing crops. There was a $2800 mortgage on the farm held by the National Farm Loan Association of Emporia, Kansas.
About the middle of May, 1955, plaintiff decided to sell her farm, and contacted the Foreman Real Estate Agency in Topeka, where she met defendants H. C. Foreman, H. W. Faunce and Grace I. Faunce. At plaintiff’s request H. C. Foreman listed her farm for sale for $10,000, and stated he had sold farm land in the vicinity of her farm and was acquainted with her tenants.
Defendants Katherine Foreman, H. W. Faunce and Grace I. Faunce were present in the real-estate office many times when plaintiff was there and represented themselves as being connected with and working in the office, and talked with her about selling or trading her farm for other property located in or near Topeka.
Plaintiff returned to the real-estate office three or four days after listing her farm for sale and H. C. Foreman, Katherine Foreman and H. W. Faunce were present. Plaintiff advised the defendants she was highly nervous and upset; that she had traded‘for the farm approximately a year before and had moved there with her daughter for the purpose of trying to make a living, but that expenses were high and costly repairs were made. As a result, she was in debt, needed immediate cash to pay her current bills, and requested defendants endeavor to sell her farm as soon as possible.
Defendants attempted to negotiate a trade of plaintiff’s farm for other property listed with them. Plaintiff signed a contract for the trade upon the advice of defendants, but the trade fell through due to financial 'difficulties of the other party.
Defendants H. C. Foreman, Katherine Foreman and H. W. Faunce then commenced talking to plaintiff about an apartment house located at 431 Taylor, in Topeka. Plaintiff was advised that this property would bring in a good income, that it was worth more than her farm, and that it would have an income each month whereas she was never sure of getting any farm income. Defendants stated that H. W. Faunce owned the apartment house. H. W. Faunce left the room, and H. C. Foreman and Katherine ’Foreman stated to plaintiff that it would make a wonderful trade if they could talk Mr. Faunce into trading his apartment house for the farm; that they thought they could get an even trade and they were sure Mr. Faunce would make a loan to plaintiff for her immediate financial needs. Katherine Foreman then drove plaintiff past the outside of the apartment house. Plaintiff was not impressed, and so expressed herself. Mrs. Foreman then stated that plaintiff would really be surprised to see how nice the inside was; that it would make an excellent trade, if she could get a trade; that because plaintiff was in such a tight spot financially she had better take this trade; that it was the best she could do; that it was the only property the defendants had which would bring plaintiff an income, and that she could get a loan of money for her immediate needs. Plaintiff was advised by defendants that she need not worry about the taxes or insurance on the apartment'house as H. W. Faunce would make a loan to her and she could make monthly payments in return.
Plaintiff was returned to the Foreman Real Estate Office where the defendants again informed her that this would make a good trade and give her an immediate income; that the apartment house was worth more than the farm; that she could sell it any time she wanted her money and that this trade was the answer to her problems.
Shortly thereafter plaintiff was told to return to the Foreman Real Estate Agency, which she did; the defendants were present and had prepared a written contract for the exchange of the apartment house for plaintiff’s farm. Defendants Katherine Foreman and Grace I. Faunce took plaintiff to the apartment house, showed her the inside and stated she could easily rent the two apartments for $75 a month each; that if she wanted to trade for the apartment house she should come to their office immediately and sign the papers, if not, H. W. Faunce was thinking of putting it on the market for sale; that because he was a real-estate dealer he could sell it quickly, and that he had agreed to loan plaintiff $1000 in cash for her immediate needs and would place a mortgage on the apartment house to cover the loan.
Relying upon and believing the representations as to the value of the apartment house, plaintiff signed a purported agreement for exchange of property and was then told by the defendants that they would clear the loan on her farm but to do so would necessitate her mortgaging the apartment house for $2800. At that time plaintiff was so upset and confused by the representations and conversations between defendants and herself that she did not understand or realize what she was doing, nor did she realize that defendants were not making an even trade for her farm. Relying upon defendants’ representations plaintiff signed a contract for the exchange of her farm for the apartment house.
Plaintiff was instructed to return to the real estate office and she would receive the $1000 to be advanced to her. She returned June 6, 1955, when she was given a deed to the apartment house signed and executed by H. W. Faunce and Grace I. Faun'ce, and was then advised that defendant H. C. Foreman was charging a real-estate commission of $300, and after deducting costs of sale she would receive only $660.80. Thereupon H. W. Faunce executed and delivered to plaintiff two checks totalling $660.80.
Plaintiff alleged that the reasonable value of her farm was at least $10,500, and the growing crops had a value of approximately $1000.
Shortly before June 6, 1955, H. W. Faunce and Grace I. Faunce purchased the apártment house for $4800 and had expended approximately $600 in repairs, and each of the defendants knew its reasonable and highest market value did not exceed $7500. Defendants H. C. Foreman and H. W. Faunce were familiar with the value of plaintiff’s farm and they were representing her as her agent in the sale of her farm, but notwithstanding, they induced and enticed her through false and fraudulent representations to exchange her property for that of H. W. Faunce, and the defendants knew their statements and representations were false and untrue.
Plaintiff was instructed and directed by the' defendants to sign a promissory note payable to defendants Faunce in the amount of $3800 and to execute a mortgage on the apartment house to secure its payment. Defendants stated it was necessary for her to clear the farm and that defendants Faunce would pay the $2800 mortgage due on it by her executing a promissory note and mortgage to them for $2800 on the apartment house and that they were including therein the $1000 advanced to her for her immediate needs.
The defendants were well acquainted with plaintiff’s mental and physical condition, knew she was upset and highly nervous, and well knew the apartment house was old, in need of paint, the plumbing was in poor condition, and that it was of much less value than her farm with its growing crops, but notwithstanding, through statements and representations which defendants knew were false and untrue, they stated to her that the exchange of property was a fair and reasonable exchange; that the apartment house, even with a mortgage of $2800, was worth more than her equity in the farm, and that unless plaintiff made this trade she would probably lose her farm due to debts which she owed. All of defendants’ statements were made for the purpose of falsely and fraudulently inducing and persuading plaintiff to sign the contract, warranty deed, and note and mortgage for the exchange of the property.
The prayer was for actual damages in the amount of $4,000 and punitive damages of $10,000.
The demurrers raise the question whether the facts stated in the petition constituted a cause of action. Defendants concede the established rule prevailing in this jurisdiction is that the allegations of a petition, when tested by a demurrer, are to be taken as true, the pleader being entitled to all favorable inferences that may be drawn from the facts pleaded. (Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22; Sedan State Bank v. Stephenson, 150 Kan. 210, 92 P. 2d 1; Snyder v. McDowell, 166 Kan. 624, 625, 203 P. 2d 225.) Thus, in determining whether the plaintiff’s petition stated a cause of action, we have concluded that the demurrers admit as true all of the facts pleaded, and it is in this light that we review the sufficiency of the petition.
The demurrers were based upon the contention the allegations of the petition established that (1) the relationship of principal and agent between plaintiff-and W. H. and Grace I. Faunce was terminated; (2) the exchange of properties was an even trade, and (3) statements made by the defendants concerning the properties were merely expressions of opinion as to value and not statements of fact upon which a charge of false representations could be based.
With respect to the first point, defendants argue that when Faunce’s ownership of the apartment house was disclosed, he withdrew from the room and the Foremans alone continued discussing a trade with the plaintiff, which, they assert, was a full and complete disclosure of all facts relating to the subject matter, established a course of fair dealing, effected an immediate dissolution of the relation of principal and agent between the Faunces and plaintiff, and that thereafter they dealt with her merely as prospective traders of property. The defendants cite no authority to sustain the contention, and our research has disclosed none.
As preliminary to discussing the first point, we refer to well-established rules applicable to its disposition: (1) the relation of principal and agent can only be terminated by the act or agreement of the parties to the agency or by operation of law, and an agency, when shown to have existed, will be presumed to have continued, in the absence of anything to show its termination, unless such a length of time has elapsed as destroys the presumption (2 Am. Jur., Agency, § 35, p. 36; 8 Am. Jur., Brokers, § 38, p. 1007; 2 C. J. S., Agency, §§ 68, 70, 81, pp. 1148, 1151, 1170; 12 C. J. S., Brokers, § 16, pp. 43, 44); (2) the relationship existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence which require of the agent the same obligation of individual service and loyalty as is imposed upon a trustee in favor of his beneficiary (Gillies v. Linscott, 94 Kan. 217, 219, 146 Pac. 327; Wolcott & Lincoln, Inc., v. Butler, 155 Kan. 105, 122 P. 2d 720; 2 Am. Jur., Agency, § 252, p. 203; 3 C. J. S., Agency, § 139, pp. 10, 11), and that in all transactions concerning and affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal (Gillies v. Linscott, supra; Wolcott & Lincoln, Inc., v. Butler, supra; 2 Am. Jur., Agency, § 252, p. 203; 3 C. J. S. Agency, § 138, pp. 6, 7); (3) where a fiduciary relation is established between the parties the law views with suspicion and scrutinizes very closely all dealings between them in the subject matter of the agency to see that the agent has dealt with the utmost good faith and fairness, and that he has given the principal the benefit of all his knowledge and skill, and, if it appears that the agent has been guilty of any concealment or unfairness, or if he has taken any advantage of his confidential relation, the transaction will not be allowed to stand (3 C. J. S. Agency, § 145, p. 26; 2 Am. Jur., Agency, §§ 252, 254, 260, pp. 203, 205, 209; 12 C. J. S. Brokers, § 41, pp. 96, 97; 8 Am. Jur., Brokers, §§ 86, 88, pp. 1035, 1937), and (4) one who acts as an agent and also deals with his principal with respect to the subject matter cannot take advantage of his principal by withholding from him any information within his knowledge, including the value of the property, which might have a bearing upon the desirability of the principal to make the trade. (8 Am. Jur., Brokers, § 86, p. 1035; 3 C. J. S., Agency, §§ 139, 145 a., pp. 9, 27; 2 Am. Jur., Agency, § 260, p. 209; 12 C. J. S. Brokers, §§ 41, 47, pp. 96, 113.) See, also, 2 Restatement of The Law, Agency, where tire rule is stated as follows:
“. . . Before dealing with tire principal on his own account, however, an agent has a duty, not only to make no misstatements of fact, but also to disclose to the principal all material facts fully and completely. A fact is material . . . if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into the particular transaction on the specified terms. Hence, tire disclosure must include not only the fact that tire agent is acting on his own account, but also all other facts which he should realize have or are likely to have a bearing upon the desirability of the transaction from the viewpoint of the principal. . . .” (§ 390, Comment: a.)
Inherent in the defendants’ contention is their concession that the relation of principal and agent existed between the plaintiff and all of them when it was proposed that plaintiff trade her farm for an apartment house located at 431 Taylor. At that time the Foremans and W. H. Faunce were present, and represented to plaintiff that the apartment house would bring in a good income each month and that it was worth more than the farm. Those were representations the plaintiff relied upon; they were made by Faunce as her agent before it was disclosed he was the owner of the apartment house. When the defendants disclosed no more to the plaintiff than Faunce’s ownership, they fell short of their duty as agents. It was their duty to fully advise the plaintiff of all facts within their knowledge affecting the value of the apartment house, including the fact that the Faunces had recently purchased it for $4800 and had expended approximately $600 for repairs. Until the relation of principal and agent is terminated by act or agreement of the parties, the relation continues, and partial disclosure of facts within the agent’s knowledge is insufficient to terminate that relation when others associated with the agency continue to deal with the principal for an exchange of his property for that owned by one of the agents. Here, Faunce’s mere withdrawal from the room was insufficient to satisfy the strict requirement of the defendants’ fiduciary duties to plaintiff, or to constitute a termination of the Faunce’s relation with plaintiff as her agents.
Furthermore, defendants’ unfairness in concealing, until after the signing of the contract, that they would require the plaintiff to mortgage the apartment house for $2800 so- they could clear the farm of the mortgage, and also their concealment until after the trade was made, that a $300 commission would be deducted from the $1,000 cash loan are facts which cannot be overlooked. Faunce was the original recipient of the commission and expenses of sale, which negates the assertion that Foreman alone made the charge for the commission, and Faunce’s deduction of that charge from the checks he gave the plaintiff was sufficient to indicate to her that he was still acting as her agent.
Giving the petition the liberal construction to which it is entitled when attacked in the manner indicated, it sufficiently alleged that representations upon which the plaintiff relied were made by the defendants as agents of the Foreman Real Estate Agency and that each of them equally participated in making the exchange of properties.
Defendants’ second point that the exchange of properties was an even trade could be passed as having no merit. Defendants claim an even trade could only have consisted of plaintiff’s farm free of encumbrance to Faunce for Faunce’s apartment house encumbered by the $2800 mortgage. There are other meanings equally applicable for the term “even trade”; for instance, plaintiff’s equity in the farm for Faunce’s apartment house unencumbered, or a trade of equally-valued properties. Either meaning could be accepted in favor of the petition. The point is not well taken.
Defendants’ third point is that statements made by them concerning the properties were merely expressions of opinion as to value and not statements of fact upon which a charge of false representations could be based. They cite and rely upon Ross v. Cox, 93 Kan. 338, 144 Pac. 227; Berridge v. O’Flanagan, 122 Kan. 74, 251 Pac. 175, and Harvey v. Tucker, 136 Kan. 61, 12 P. 2d 847, which held that statements of value or comparative value of real estate made by agents in endeavoring to sell or exchange it are ordinarily regarded as expressions of opinion and not representations of fact upon which an action of deceit can be predicated.
Under the facts alleged we do not think that general rule applicable. The plaintiff was ignorant of real-estate values and employed the defendants as her agents to represent and advise her, and she relied entirely upon their statements and judgment. When they falsely represented to her that the apartment house was worth more than the farm, they violated their duty as agents, and so far as the allegations of the petition are concerned, they intentionally misrepresented the comparative value of the properties. The plaintiff had the right to receive her agents’ opinion, but, clearly, that opinion was not justified by the facts as alleged, hence, it may be regarded as a statement of fact upon which an action for false representations can be predicated. In Subke v. Gonder, 97 Kan. 414, 155 Pac. 793, it was said:
“Speaking generally, the relation between principal and agent is confidential. Its .essence is fidelity, and whenever the principal has the right to receive the agent’s opinion it must be an opinion fairly justified by the facts. In such cases a statement of opinion is regarded in the light of a statement of fact, and a charge of false representation may be predicated on a false and unwarranted statement of value the same as upon a false statement regarding topography, the character of improvements, the amount of rent received, and the like.” (l. c. 419.)
See, also, Jones v. Arnold, 89 Kan. 755, 132 Pac. 1000; Suderman v. Koch, 101 Kan. 708, 168 Pac. 906; Schlesener v. Mott, 107 Kan. 41, 190 Pac. 745, and Deardorff v. Coons, 118 Kan. 747, 236 Pac. 835. Moreover, where a real-estate broker knows that his principal is ignorant of real-estate values and relies entirely upon his statements and judgment he is held to a strict standard of truth and may be held, accountable for statements, made as to value, knowing them to be false. (Griesa v. Thomas, 99 Kan. 335, 161 Pac. 670; Fourth Nat’l Bank v. Webb, 131 Kan. 167, 290 Pac. 1.)
Defendants rely heavily upon Harvey v. Tucker, supra, as not being distinguishable. The instant case contains facts not there present. In the Harvey case, supra, the failure to disclose the listed price of a property for which plaintiff traded was held not actionable upon the ground that a listed price, may not represent value. An example given was that the owner may have been so anxious to sell that he undervalued the property when listing it. In the instant case the statement was made with certainty that the apartment house was of more value than the farm. In the Harvey case there was no showing that the broker was acting in his own interest. Here, the concertive action of all the defendants indicates a joint undertaking for the personal interest and financial gain of some, if not all, of them, and as recognized in the Harvey case, a presumption of fraud will not be deemed to arise against an agent unless it appears he has personal interests conflicting with those of the principal. Further, in the Harvey case the defendants were not shown to have known that the plaintiff was relying entirely upon their statements and judgment. That is a persuasive element here.
We have reviewed the record and conclude the petition stated facts sufficient to. constitute a cause of action and that plaintiff should be permitted to go to trial upon its allegations. The trial court did not err in overruling the defendants’ demurrers.
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The opinion of the court was delivered by
Scbroeder, J.:
This is an appeal in a divorce action from an order of the lower court sustaining the defendant's oral motion to dismiss on the ground that the plaintiff (appellant herein) was not an actual bona fide resident of Shawnee County at the time his action was filed in Shawnee County, Kansas.
The only question presented is whether there was "sufficient evidence for the trial court to conclude that the plaintiff was not an actual bona fide resident of Shawnee County, Kansas, at the time he filed his action.
The facts in this case are not in dispute. The plaintiff and the defendant, husband and wife respectively, lived at Emporia, Kansas, in a housekeeing apartment from sometime in July, 1955, until the summer of 1956. In May, 1956, the wife was admitted to the Topeka State Plospital under a 90-day referral order of the Lyon County Probate Court, and during the month of July, 1956, became a voluntary patient at that hospital. Prior to October 1, 1956, the plaintiff had employment near Emporia working on construction of the Kansas Turnpike. On or about the 1st day of October, 1956, the plaintiff’s employer moved to a job in Colorado. On the advice of the wife’s doctor that plaintiff remain near his wife, plaintiff came to Topeka and rented a sleeping room at 1011 Munson Street. He abandoned the apartment in Emporia and obtained employment as a surveyor with an engineering firm in Topeka to be near his wife. He brought his personal belongings with him and stored his household goods and furniture on his father’s farm at McCracken, Kansas. He took most of his wife’s clothes to the hospital. Plaintiff had not lived in McCracken since childhood and had no living quarters other than the sleeping room at 1011 Munson, Topeka, Kansas, at the time this action was filed. Plaintiff reported for work each day at his employer’s office in Topeka and for sometime traveled to a project in the Olathe area from said office each day.
As to the plaintiff’s intention to make Topeka his residence he testified in substance that after he moved to Topeka he did not have any residence in Emporia or anywhere else; that he intended to stay, continue to live, and make Topeka his home; that he intended to keep on working for his Topeka employer and possibly go back to school next fall. He testified that he desired to acquire a degree in engineering and would have to go to Kansas State College or Wichita University for that purpose.
On the 23rd day of November, 1956, at about 9:00 a. m., the husband filed his action for divorce against the wife in Shawnee County, attempting service upon her at the Topeka State Hospital. The wife left the hospital before service was had upon her and went to Ellis County, Kansas, the home of her parents. On the same day at about 3:00 p. m., the wife filed her action for divorce in Ellis County, Kansas. On the 26th day of 'November, 1956, the wife was served with summons in Ellis County in the Shawnee County action, and at the time of the hearing in the lower court there was no return of service upon the husband in the Ellis County action.
The wife filed a written motion in the Shawnee County District Court to dismiss the husband’s action in Shawnee County on the ground that the Ellis County action was prior in time. At the time of the hearing on this motion, December 21, 1956, the parties stipulated, among other facts, that the Shawnee County action was filed prior in time, as heretofore related, and the trial court so found. The wife then orally moved that the action in Shawnee County be dismissed on the ground that the husband was not a bona fide resident of Shawnee County at the time his petition was filed.
The husband took the witness stand and testified under oath on direct and cross examination and upon examination by the court. The wife was present in court with her attorney and offered no testimony. The foregoing facts are the substance of the husband’s testimony and the stipulations entered into by the parties. In addition to the husband’s testimony the lower court had before it in evidence the allegations of the verified petition filed by the wife in Ellis County (conceded by appellee in her brief), which was attached as an exhibit to her written motion to dismiss. The pertinent portion of the petition recites:
“That the defendant [husband] is a resident of Shawnee County, Kansas, and that his correct post office address is 1011 Munson Street, Topeka, Kansas.
“Plaintiff [wife] alleges the defendant is regularly employed as a member of a survey team by an engineering firm in Topeka, Kansas. . . .”
Upon the foregoing evidence the trial court dismissed the husband’s action in Shawnee County on the ground that the husband was not an actual bona fide resident of Shawnee County at the time his petition was filed, whereupon appeal was duly perfected to this court.
Three statutes have a bearing on the question presented. G. S. 1949, 60-508, provides:
“An action for a divorce, or to annul a contract of marriage, or for alimony, may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition or where the defendant resides or may be summoned."
The pertinent portion of G. S. 1949, 60-1502, reads:
“The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned: . . .”
In the construction of the statutes of this state, G. S. 1949, 77-201, Twenty-third, defines residence as follows:
“The term 'residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed his residence.”
While for many legal purposes there is a clear distinction between residence and domicil, when jurisdiction of a court is under consideration, residence, as defined by the statute, is substantially the equivalent of domicil. (Ford, Adm'x, v. Peck, 116 Kan. 74, 225 Pac. 1054; and Arnette v. Arnette, 162 Kan. 677, 178 P. 2d 1019.)
It is universally recognized that change of domicil involves two things: physical or bodily presence in the locality involved, represented in the statutory definition by adoption of a place of habitation; and the intent to abandon the old domicil and adopt another in the new location, either permanently or indefinitely, represented in the statutory definition by intention of returning when absent. These elements must concur if a new domicil is established. In other words, there must be a concurrence of the fact and the intent, the factum and the animus. The absence of either of these elements thwarts a change of domicil. It is not necessary, however, that the intent be conceived at the same time as the removal to the new locality. A subsequent concurrence of physical presence and intent to adopt the new locality as a domicil is sufficient in this respect, length of time being unimportant, and the character of the place'of abode at the new location is of no importance, except as bearing on the question of intent. (Ford, Adm'x, v. Peck, supra; Roberts v. Robertson, 123 Kan. 222, 254 Pac. 1026; Blair v. Blair, 149 Kan. 3, 85 P. 2d 1004; and 17A Am. Jur., Domicil, § 18, p. 209.)
It is axiomatic that every person must have a domicil somewhere. A domicil once established continues until it is superseded by a new domicil. Therefore, when a home is abandoned, the domicil continues until a new domicil is acquired. (17A Am. Jur., Domicil, § 17, p. 207; and Restatement of Law, Conflict of Laws, Domicil, § 23, P-47.)
Where a trial court makes a specific finding of fact on apparently conflicting, or actually conflicting, evidence, our only function on appeal is to ascertain whether there is substantial competent evidence which supports, or tends to support, the finding made and not whether there is some evidence to support a contrary finding had one been made. (Arnette v. Arnette, supra, and cases therein cited.) It is no different than any other question of fact except that intention must be considered. (Gleason v. Gleason, 159 Kan. 448, 155 P. 2d 465.) The instant case, however, presents an entirely different situation. There is no conflicting evidence.
Ordinarily the trier of the fact is not required to believe the testimony of any witness merely because there is no direct testimony to controvert it. But where the plaintiff produces the only testimony on every material element bearing upon his residence, which is the matter in issue, and such testimony is not inherently improbable or uncandid, the cross examination does not develop any conflict, examination by the court does not develop any conflict, the defendant produces no testimony in opposition, and the plaintiff’s testimony is corroborated by the verified statement of the defendant, the trier of fact is not justified in arbitrarily or capriciously disregarding such testimony. (Gibbs v. Central Surety & Ins. Corn., 163 Kan. 252, 181 P. 2d 498.)
Without further elaboration herein, specific reference is made to the opinion in the Gibbs case, which reviews many of our cases upon the general subject as to when a court or jury is at liberty to disbelieve uncontradicted testimony, and we need not comment further upon it.
While it is recognized that the verified petition of the wife filed in Ellis County does not conclusively establish the residence of the husband, it is a circumstance to be considered along with all of the other circumstances on the question of residence. (Lassen v. Lassen, 134 Kan. 436, 7 P. 2d 120.)
In the instant case the plaintiff must have had a domicil somewhere on November 23, 1956, the day his petition was filed in Shawnee County, Kansas. He had abandoned his apartment in Emporia and he no longer lived there. Surely his domicil was not there. The mere fact that he declared an intention to go to school a year later to study engineering did not establish a domicil in Manhattan or Wichita, the schools he mentioned in his testimony. The mere storage of his household goods at his father’s farm, where he had not lived since childhood, did not establish a domicil there. The plaintiff worked in Topeka and lived in Topeka. While the facts indicate that his plans for the future were indefinite, the only domicil that plaintiff could have under the facts and circumstances, which are not controverted, is Shawnee County. When he came to Topeka, the plaintiff’s wife was in the Topeka State Hospital and had been for several months. The mere fact he rented a sleeping room rather than an apartment loses its significance in light of the change in his circumstances. We therefore conclude that the trial court erred in finding that the defendant was not a bona fide resident of Shawnee County and in dismissing plaintiff’s action.
The judgment of the lower court dismissing the plaintiff’s action is reversed and the cause remanded for trial. | [
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The opinion of the court was delivered by
Fatzeb, J.:
This is an action by a wife for divorce, child custody, alimony and property division. Plaintiff (appellant) joined as parties defendant four members of a family partnership in which her defendant husband, George Gray Breidenthal, allegedly owned a one-fifth interest, and secured an order restraining defendants from altering the partnership interests during the pendency of the action. The trial court sustained a motion of defendants other than George to dismiss the action and dissolve the restraining order as to them, and made rulings on other preliminary motions. Plaintiff appeals from the order dismissing the action and dissolving the restraining order as to the defendants other than George. Defendants other than George have cross-appealed from the order overruling their demurrer and motion to strike certain allegations from plaintiff’s petition and supplemental petition.
The action was commenced May 9, 1956. Plaintiff alleged that the parties were married February 7, 1934, at Olathe; that George was guilty of extreme cruelty and gross neglect of duty; that a son, George Gray Breidenthal, Jr. was born March 22, 1948; that for approximately thirteen years of their married life she had worked and earned wages which were used in their mutual acquisition of property and for their necessary living expenses, and as a result of their joint efforts, as well as by gift and accretion, they had accu mulated certain personal property consisting of household goods and furniture in the possession of plaintiff, a 1956 Oldsmobile automobile in the possession of George, and an equity in a home in Kansas City, Kansas, occupied by her minor son and her. She further alleged they owned certain insurance policies, government bonds, stock in corporations, and that George was the owner of an undivided one-fifth interest in a family partnership known as the Security Investment Company formed in July, 1946, between Willard J. Breidenthal, his wife Mary G. Breidenthal, and their children, Ruth B. Snyder, John W. Breidenthal and the defendant George Gray Breidenthal, for the purpose of investment in securities and real estate; that the major portion of George’s assets consisted of that partnership interest; that the partnership had assets in excess of four million dollars and an annual income of over $200,000; that she was entitled to temporary maintenance in accord with George’s taxable income for 1955 of $50,065.20, and to have the partnership interest considered in determining alimony, property division and child support allowance; and, that it was essential to restrain the defendants from transferring or altering any of the partnership interests during the pendency of the suit and until her rights and the rights of her minor son were fully determined.
Pursuant to the prayer of the petition, the trial court issued an order restraining George and the defendants other than George from disposing of or altering any of the partnership assets or interests during the pendency of the action, and an order directing George to pay certain sums to the plaintiff for temporary alimony, child support money and for attorney’s fees.
On May 22, 1956, defendant George Breidenthal filed a motion to modify the order for temporary alimony. In his supporting affidavit he stated that he had sold his interest in the family partnership on May 6, 1956, and that by the terms of sale he had no right to receive the proceeds until May 6, 1961, and that those proceeds were subject to reduction by the payment of his share of the partnership debts. In addition he stated that his taxable yearly income, including salary and dividends, was then only $6,890, and that in addition to his right to receive the proceeds of the sale of his partnership interest, his property consisted of securities worth about $19,000, a 1956 Oldsmobile automobile, and an equity in real estate of about $6,000 owned jointly with the plaintiff.
On May 23, 1956, the defendants other than George moved to vacate and dissolve the restraining order and for dismissal of the action as to them, on the ground that George was no longer a member of the partnership, since he had sold his interest to his father, Willard J. Breidenthal, in consideration of a credit to him on the books of the partnership of the value of his original interest plus 100 percent profit from July 8, 1946, subject to the debts of the partnership and to George’s debts to members of the partnership, the balance of which was not subject to his withdrawal for five years. They further alleged that they were not within the scope of the provisions of G. S. 1949, 60-1507 and that the petition did not state a cause of action as to them.
On May 23, 1956, plaintiff filed a supplemental petition in which she alleged that the purported sale of May 6, 1956, was not a bona fide transfer of George’s partnership interest; that it was simply a device to put that portion of George’s assets represented by the partnership interest beyond her reach, the reach of her minor child, and the reach of the court; that for several months prior to suit the parties had negotiated for a settlement of their property differences; that the negotiations had reached an impasse and were finally terminated on May 4th or 5th, 1956, before the action was filed; that the negotiations had been carried on in good faith and with the implied understanding that no change in the status ■ quo of the partnership would be made until a settlement was reached or a court determination made. She further alleged that the market value of the partnership assets had increased since the December 1951 statement of account, which she attached; and, that the 1955 partnership income was $320,896.03 as shown by George’s 1955 income tax return, which was attached to the petition. She attached a copy of the original articles of partnership, reduced to writing in June, 1948, which indicated that the purported transfer was not in accord with its terms; that the spouses of each of the partners had given their written acceptance to such articles, and that the original market value of the partnership assets was more than twice the assigned book value. She alleged that the failure of the defendants other than George to furnish her with a current statement of the partnership’s assets and liabilities, and their secretive attitude toward those assets and toward the disclosure of them to her, the agreement to defer payment to George for five years, and the timing of the transfer of George’s interest in the partnership’s assets coincident with the breakdown of negotiations, showed that the transfer was not in good faith and was a collusive arrangement between George and Willard J. Breidenthal for the purpose of defeating the rights of the minor son of the parties and plaintiff and to withhold from the court information which it must have in order to determine fairly and intelligently the rights of the parties. She further alleged that it was necessary to secure information from the defendants other than George in order to determine the property rights of the parties and that a restraining order was necessary to prevent disposal of the property until those rights had been determined.
Plaintiff also filed other motions for appointment of an auditor of the partnership, to increase the temporary alimony and for money for replacement of clothing and furniture damaged by a fire in her home.
On June 8, 1956, the defendants other than George filed a demurrer to the petition and supplemental petition on the grounds that the court had no jurisdiction of the action as to the defendants; that the petitions failed to state a cause of action against them; and that if they did state a cause of action, then several causes of action were improperly joined. These defendants also moved to strike certain allegations from plaintiff’s petition and supplemental petition.
On June 21 and 22, 1956, the trial court proceeded to take evidence upon the motion of the defendants other than George to dissolve the restraining order and to dismiss the action, together with other motions, the substance of which, in view of our conclusions later stated, need not here be detailed. At the close of the hearing, the defendants other than George demurred to the evidence and moved to strike the testimony, renewed their motion to dismiss and their demurrer to the petition and the supplemental petition. The trial court overruled the oral demurrer to the evidence and the motion to strike the testimony, and took the other matters under advisement.
On July 3, 1956, the trial court overruled plaintiff’s motions and sustained defendant George Breidenthal’s motion to modify the order for temporary alimony. The court sustained the motion to dissolve the restraining order and dismissed the action as to defendants other than George, from which orders plaintiff appeals. The demurrer to the petition and the supplemental petition and the motion to strike were overruled, from which orders the defendants other than George cross-appeal.
Plaintiff has assigned four specifications of error, but when this appeal was orally argued she concluded that only the first specification was proper for appellate review, i. e., that the trial court erred in sustaining the motion of the defendants other than George to dismiss the action as to them, and to dissolve the restraining order.
In considering this specification of error we are first confronted with the question of whether under the allegations of plaintiff’s petition and supplemental petition the defendants other than George were properly made parties defendant in this action. It is alleged the parties were made defendants because they were members of a family partnership known as the Security Investment Company in which plaintiff claims George is a member; that it has assets in excess of four million dollars and had an income in 1955 of over $320,-000, and that George was the owner of an undivided one-fifth interest in its assets. In the supplemental petition it is alleged that the transfer of George’s interest on May 6, 1956, was in bad faith and was a collusive arrangement between George and Willard J. Rreidenthal for the purpose of defeating the rights of the minor son and plaintiff.
Generally speaking, the husband and wife are the only proper parties to an action for divorce. (17 Am. Jur., Divorce and Separation, § 312, p. 482; 27 C. J. S., Divorce, § 90, p. 672.) However, the right of a wife to name as defendants third parties to whom the husband has conveyed his property in fraud of her rights, or third parties having, or claiming to have an interest in property involved in a divorce action, is universally accepted as the prevailing rule on the ground that the court, in the exercise of its duty to determine a reasonable amount of alimony to be awarded the plaintiff, must determine whether the property is in fact owned by the husband or by the third parties defendant (See, Annotation 102 A. L. R. 814; 17 Am. Jur., Divorce and Separation, § 313, p. 482). Our decisions support this rule (Wohlfort v. Wohlfort, 123 Kan. 143, 254 Pac. 334; Rumsey v. Rumsey, 150 Kan. 49, 90 P. 2d 1093; Cadwell v. Cadwell, 162 Kan. 552, 556, 178 P. 2d 266) being buttressed by G. S. 1949, 60-411, which provides generally for joinder of parties defendant, and reads:
“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 com píete determination or settlement of the question involved therein.” (Emphasis supplied.)
In Wohlfort v. Wohlfort, supra, this court held that the determination of the worth and extent of the husband’s property is a necessary incident of an action for divorce or alimony, and that third persons are properly made parties defendant where their presence is necessary for the determination of what property is owned by the husband. In the opinion it was said:
“. . . This action cannot be regarded in any sense as a contest of the will. It was brought to obtain permanent alimony and a part of the property owned by her husband. The inquiry as to his property was a mere incident of the action for alimony. It devolved on the court to ascertain and determine what property was in fact owned by the husband in order that an equitable division of it might be made. It was within the power of the court to make such inquiry and order. It having been alleged that other parties than plaintiff’s husband were claiming to own the entire property, it was proper to make these claimants parties defendant. . . .” (l. c. 148.)
In a divorce action the court not only dissolves the marital bonds, but where a divorce is granted by reason of the fault of the husband, it divides the property and makes reasonable allowance for alimony to the wife by taking into consideration the conduct of the parties, the needs of the wife, the social position of the parties, the earning capacity of the husband, the amount of the property owned by the parties, how and when it was acquired and the value of the husband’s real and personal estate at the time of the divorce. (G. S. 1949, 60-1511; Packard v. Packard, 34 Kan. 53, 7 Pac. 628; Imhoff v. Imhoff, 112 Kan. 727, 212 Pac. 886; Flautt v. Flautt, 126 Kan. 21, 266 Pac. 746; Mann v. Mann, 136 Kan. 331, 15 P. 2d 478; Walno v. Walno, 164 Kan. 620, 192 P. 2d 165.)
A final judgment of divorce settles all property and alimony rights, whether or not they have been presented and considered by the court, and after a divorce decree is granted no award of alimony can be made or changed (Roe v. Roe, 52 Kan. 724, 35 Pac. 808; Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409; Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750, and cases cited therein). If the court does not accurately determine the extent of the husband’s property and earnings by resolving disputed questions of ownership in the divorce action, the wife may be stripped of all alimony as a result of later claims of third parties (Cadwell v. Cadwell, supra; Anno. 102 A. L. R. 814), or may be granted an inadequate award.
Clearly, in the instant case, the trial court had jurisdiction of all of the parties having or claiming to have an interest in property in which George was alleged to have an interest. The inquiry as to the ownership and worth of that property was incident to the action for divorce and the defendants other than George were necessary and proper parties defendant for a determination of those issues. Thus, there was no misjoinder of causes of action (Wohlfort v. Wohlfort. supra).
Did the petition and supplemental petition state facts sufficient to constitute a cause of action against the defendants other than George? Implicit in the question is whether George’s purported transfer of his partnership interest as alleged in the supplemental petition and as set forth in his affidavit removed the other defendants as necessary parties to the action. We think not. George’s affidavit stated baldly that his partnership interest had been sold. No purchase price was stated, and the proceeds were declared to be subject to the debts of the partnership, the extent of which was undetermined at that time. The credit to George was to be kept on the partnership books for a period of five years at the expiration of which the credit could be withdrawn by him. On that basis alone plaintiff’s allegation that defendants other than George were necessary parties to a determination of the extent of George’s property, was sufficient.
Assuming, arguendo, that the purported transfer was bona fide, the members of the partnership, in the absence of further facts with respect to its liabilities, were in possession of a substantial credit belonging to George and their presence in the action was necessary to determine the amount of that fund, which the trial court would be required to take into consideration in the event plaintiff was granted a divorce. On the other hand, if the transfer was in fact fraudulent, George was still a member of the partnership and the other partners were proper and necessary parties defendant. The allegations of the supplemental petition when tested by the demurrer were more than sufficient to make out a case of a fraudulent transfer of George’s interest in the partnership. Fraud can rarely be shown expressly, and evidence of the circumstances of the transaction itself must often be relied upon to establish fraud (Dodson v. Cooper, 50 Kan. 680, 32 Pac. 370). Plaintiff’s allegations contained several indicia of fraud: the timing of the transfer just after negotiations for settlement had broken down and before the action was filed, the arrangement to defer payment for five years, the secrecy of the trans fer between George and Willard J. Breidenthal in derogation of the terms of the partnership agreement, and the withholding of information by. the defendants of the partnership assets and liabilities were sufficient to allege a cause of action against the defendants other than George.
We now turn to the. order of the trial court dismissing the action as to the defendants other than George. At the outset, we note that the trial court assigned no grounds for its order of dismissal, and our disposition of this appeal makes it unnecessary to deal extensively with the propriety of the purported transfer of George’s interest in the partnership. We previously indicated the trial court heard evidence on the motion to dismiss and other motions, following which it dismissed'the action as to the defendants other than George. We think that was error. At that stage of the litigation the issues raised by plaintiff’s allegations, heretofore summarized, had not been joined. Neither George nor the other defendants had answered. No justiciable issue concerning the parties or the merits of the action was then pending before the trial court, and it improperly heard evidence in support of the motion to dismiss.
Following the filing of a petition in a divorce action where it is alleged that the husband has conveyed his property in fraud of the wife’s rights, or third parties are alleged to have or claim an interest in the property involved, the procedure recognized by the code of civil procedure to test the sufficiency of such persons being named as parties defendant, is by demurrer (G. S. 1949, 60-705). When a demurrer is filed and overruled, proper procedure requires a trial court to direct that the issues be made up by all the defendants and a trial had on the merits (G. S. 1949, 60-2703, 60-2903). An affirmative defense to be available in a divorce action must be set up by the answer with the facts relied upon to establish the defense set out therein (27 C. J. S., Divorce, § 114, p. 703). Defendants may not contradict the allegations of a petition by a motion to dismiss, and in such manner obtain a decision on disputed questions of fact before a joinder of issues and a trial upon the merits (Billups v. American Surety Co., 170 Kan. 666, 228 P. 2d 731). To allow such procedure would put the plaintiff at the mercy of the defendants for trial of issues "piecemeal” if and when they chose to raise such issues, and whether or not a decision of them was ultimately necessary. The right of a wife to have conveyances or transfers set aside, and disputed questions of ownership and value of her husband’s property decided so that it may be considered by the court in awarding alimony, is dependent upon her being granted a divorce for the fault of the husband (G. S. 1949, 60-1511; 27 C. J. S., Divorce, § 273, p. 1077). Clearly, the motion of the defendants to dismiss the action as to them was not authorized. In view of this conclusion, it follows that all proceedings had with respect to that motion, and the order of the trial court dismissing the defendants other than George from this action, including the findings inherent in it that the transfer of George’s interest in the partnership was made in good faith and for a fair and adequate consideration, were not authorized and are a nullity.
We next consider the order of the trial court dissolving the restraining order. On May 9, 1956, the trial court issued an order restraining George and the other defendants from disposing of or altering any of the partnership assets or interests during the pend-ency of the action. In our opinion the restraining order against the defendants other than George was authorized by G. S. 1949, 60-1507. The statute gives the trial court wide discretion in an action for divorce or alimony to “restrain the disposition of the property of the parties or either of them, and for the use, management and control thereof . . . during the pendency of the action, as may be right and proper.” Orders of this character are clearly within the discretion of the trial court and we do not here purport to trespass upon the wide discretion the statute vests in it with respect to restraining orders such as here involved. However, the record does not indicate the trial court’s reason for dissolving the restraining order as to the defendants other than George, but if that order was dissolved solely because the trial court sustained the motion to dismiss the action as to the defendants other than George, the order should be reinstated.
The defendants other than George cross-appeal from the order of the trial court overruling their demurrer and motion to strike certain allegations from plaintiff’s petition and supplemental petition. The demurrer challenges the petition and supplemental petition on the grounds that the court had no jurisdiction of the subject of the action as to the defendants; that if any causes of action were alleged against them, they were improperly joined; and, that the petitions did not state facts sufficient to constitute a cause of action against them. It is unnecessary to discuss these points since each has heretofore been fully dealt with. As previously indicated, the trial court had jurisdiction of the parties; the several causes of action were not improperly joined; and, the petition stated facts sufficient to constitute a cause of action against the defendants other than George.
With respect to the motion to strike, we think the trial court correctly overruled that motion since the allegations sought to be stricken were properly pleaded in alleging a cause of action against the parties defendant.
This case is reversed with directions to the trial court to vacate and set aside all proceedings had with respect to the defendants’ motion to dismiss this action, including its order dismissing the defendants other than George as parties defendant. In the event the restraining order issued May 9, 1956, was dissolved as a result of the order dismissing the action as to defendants other than George, it is directed to be reinstated; if it was not, but dissolved by the trial court independent of the sustaining of the motion to dismiss the action, it is not ordered reinstated. The trial court is further directed to require all the defendants to make up the issues and to proceed with dispatch to try the merits of the issues joined.
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The opinion of the court was delivered by
Schroeder, J.:
This is an original proceeding in habeas corpus in which petitioner after a final judgment seeks his release from confinement in the State Penitentiary.
The grounds upon which petitioner seeks his release are that— (1) He was charged with first degree murder and no warrant was ever served upon him; (2) The magistrate who conducted the preliminary hearing failed to make a finding of probable cause that petitioner committed the crime; and (3) No coroner’s inquest was conducted to determine the cause of the death for which petitioner was found criminally responsible.
On the 8th day of November, 1952, the county attorney of Finney County, Kansas, filed an information in the district court of Finney County against the petitioner and another person, charging that on the 31st day of October, 1952, they inflicted mortal wounds upon one John Gossman with their fists and with a blunt instrument, to-wit: “a large glass beer mug or other blunt instrument, the exact nature and description of which is to the complainant unknown,” while perpetrating or attempting to perpetrate a robbery, which acts amounted to first degree murder (the information alleged among other things that John Gossman then and there died from such mortal wounds).
The following pertinent facts are taken from the journal entry:
On the 8th day of November, 1952, an adjourned day of the September term, two competent attorneys were appointed by the court to represent the petitioner, and they represented him as counsel throughout the proceedings. The next day, November 9, 1952, a plea in abatement was filed which was heard May 7, 1953. The State denied all allegations of the plea, and, after hearing, the plea in abatement was denied.
On the 11th day of May, 1953, the same being the opening day of the regular May, 1953, term of the district court of Finney County, the defendant, Stanley Uhock, at the calling of the docket announced that he was ready for trial, but the State moved for a continuance over the May term. The court found that the continuance should be granted for cause and ordered the case continued over the term.
On the 26th day of September, 1953, a motion for discharge filed by the petitioner was heard and denied for the following reasons:
“1. That said Stanley Uhock did break the custody of the Sheriff of Finney County, Kansas, on December 13, 1952 and was not again returned to custody in Finney County until April 18, 1953, and that said cause was not at issue until May 7, 1953.
“2. That said Stanley Uhock was not present in Finney County, Kansas, or in the jurisdiction of this Court during sufficient time of the January, 1953 term of said Court to be brought to trial during said term.”
On the 5th day of October, 1953, the petitioner in open court waived formal arraignment and entered a plea of not guilty to the charge of first degree murder and was granted a separate trial. The journal entry discloses that the parties thereupon announced that they were ready for trial, whereupon a jury of twelve was duly and lawfully selected and the case proceeded to trial. On the 8th day of October, 1953, this trial resulted in a declaration by the jury that it was hopelessly divided, and upon the petitioner consenting to the discharge of the jury, the court discharged the jury and set the case for retrial on the 20th day of October, 1953, when the petitioner in the same term again appeared before the court and waived formal arraignment and entered a plea of not guilty. The parties again announced themselves ready for trial and a jury of twelve was duly selected, impaneled and sworn to try the case. On the 22nd day of October, 1953, this trial resulted in a verdict of guilty of murder in the first degree. The jury fixed the penalty as confinement and hard labor in the Penitentiary of the State of ICansas, for life.
A motion for new trial was filed within the time granted by the court on the 26th day of October, 1953, and was overruled after hearing on the 28th day of October, 1953. On that date the court sentenced petitioner to confinement in the Kansas State Penitentiary at hard labor for life pursuant to G. S. 1949, 21-403. Subsequent thereto petitioner was delivered into the custody of the Warden at the State Penitentiary, and at this date he remains confined in that institution in the custody of the respondent.
Petitioner contends that he was placed under arrest for drunken and disorderly conduct and shortly thereafter was interrogated on suspicion of murder. He states that being in a state of intoxication and not being fully aware of the serious nature of the crime concerning which he was questioned, he could not give sensible or coherent answers. He states that while in custody at this time he was charged with murder in the first degree and that no warrant has ever been served upon him.
The second irregularity of which petitioner complains is similar in nature, and may be answered with the first. Petitioner’s complaint stems from the transcript certified to the district court by the county court where the preliminary hearing was conducted. He contends that language in the transcript does not disclose that the judge of the county court found probable cause to believe that petitioner committed the crime. Petitioner adds that he did not waive a preliminary hearing.
On the 7th day of May, 1953, pursuant to a hearing in the district court of Finney County on a plea in abatement filed by the petitioner therein, the following is recited in the journal entry of said court:
“Thereupon, the cause is presented to the Court and testimony of M. C. Schrader, Judge of the Finney County Court, is received by the Court, and the Court, after being fully advised in the premises, finds that the Plea in Abatement filed herein should be denied and that the transcript of the Finney County Court should be amended to speak the truth of the findings of the said Court at the preliminary hearing heard herein, which true findings are as follows:
“ ‘That the crime of First Degree Murder has been committed and there is probable cause to believe that the defendant, Stanley Uhock, committed same’.”
This question was properly raised by counsel for the petitioner in the district court by a plea in abatement. (State v. Finley, 6 Kan. 366; State v. Saindon, 117 Kan. 122, 230 Pac. 301; and State v. Wallgren, 144 Kan. 10, 58 P. 2d 74.) The foregoing recital confirms that a preliminary hearing was conducted in the county court of Finney County and clearly indicates the ruling and disposition made of the plea in abatement prior to the arraignment of the petitioner.
Under the heading of “Habeas Corpus” G. S. 1949, 60-2213, provides in part:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:
“Second. Upon any process issued on and final judgment of a court of competent jurisdiction.”
In James v. Amrine, 157 Kan. 397, 140 P. 2d 362, this court said at page 399:
“It is well settled that a proceeding in habeas corpus is not to be regarded as a substitute for appellate review . . . Where a prisoner is held in custody upon regular commitment after conviction and sentence he may not invoke habeas corpus to secure revision of errors that might have been reached by amendment or appeal, where tire court which imposed the sentence had jurisdiction to impose the sentence. It is only in cases where the information, the indictment, or the proceedings were otherwise void so that the court acquired no jurisdiction of the person or the cause, that the remedy of habeas corpus becomes available. We are here speaking, of course, with reference only to alleged insufficiency of the information or of the proceedings in some other respect and not with reference to alleged denial of counsel, due process, or other constitutional guaranty. To state it in a slightly different way, habeas corpus cannot be used to review nonjurisdictional errors and irregularities leading up to judgment . . . The general rule has been variously stated. In Franklin v. Biddle, 5 F. 2d 19, it was said that the question is whether the indictment was sufficient to give the court jurisdiction to enter upon inquiry and make a decision. Our own decisions are in line with the general rule. . . .” (See cases cited therein.)
Later cases have held that a petition for a writ of habeas corpus by one being under sentence after trial is a collateral attack upon the judgment, and for such attack to be successful it must be shown that the judgment is void. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; and Rutledge v. Hudspeth, 169 Kan. 243, 218 P. 2d 241.)
It is the practice of this court in deciding issues raised by the pleadings in an original habeas corpus proceeding to give verified statements of fact made by the petitioner in his application in support of his position the weight to which they would have been entitled had he been personally present and testified as a witness in his own behalf. (Hartman v. Edmondson, 178 Kan. 164, 283 P. 2d 397.) These statements of fact should be in his verified petition and not in his brief.
Giving the petitioner every benefit as to the interpretation of the facts and conclusions alleged in his petition and stated in his brief, the irregularities on the facts and circumstances presented by the whole record are not jurisdictional. This is illustrated by the following cases which treat the precise questions raised.
A defendant in a criminal action is not tried on the transcript from the county court. He is tried on the information and his plea of not guilty. Therefore, leave to amend or correct the transcript to speak the truth in the district court does not prejudice the rights of the defendant or infringe upon constitutional guarantees. It has been held on appeal that a motion for a continuance under such circumstances was properly denied since an amendment makes no change in the issues. (State v. Wallgren, supra.)
In Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987, failure to receive a preliminary hearing was held to have been waived by entry of a plea of guilty in the district court.
In State v. Grady, 147 Kan. 268, 76 P. 2d 799, it was held that a fugitive from justice against whom an information charging a felony was filed, who voluntarily surrendered to the sheriff, entered a plea of not guilty to the charge in the information, and gave bond for his appearance at the trial, waived issuance and service of warrant. The court there stated that in a felony case one is tried upon the information filed in the district court, and not upon the warrant which may have been issued for him previously. (See, also, Rutledge v. Hudspeth, supra; and Topeka v. Kersch, 70 Kan. 840, 79 Pac. 681.)
In Engling v. Edmondson, 175 Kan. 883, 267 P. 2d 487, it was held that failure to serve a complaint or warrant at the time of the petitioner’s arrest for murder was of no avail in view of his plea of guilty which had the effect of waiving any and all irregularities prior to the entry of such plea.
The petitioner has not challenged the fact that he was represented by competent counsel appointed by the court. Their duties under G. S. 1949, 62-1304, were to inform the petitioner of the offense charged against him and of the penalty therefor, confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for the defendant, and in all respects to fully and fairly represent him in the action. It is presumed in the absence of a showing to the contrary that counsel appointed for the petitioner complied with these provisions of the statute. Certainly, failure to serve a warrant upon the petitioner, even if true, is of no avail to him after final judgment and sentence. Petitioner appeared before the district court and announced himself ready for trial on the 11th day of May, 1953, and at the subsequent term appeared in open court twice and waived formal arraignment and entered a plea of not guilty. Each time he announced that he was ready for trial. After conviction and ruling on the motion for a new trial, which was denied, both he and his attorney informed the court that they knew of no reason why sentence and judgment should not be pronounced “at this time” and advised the court that petitioner was ready to receive sentence and judgment. Under these circumstances any objection for failure to serve a warrant was waived. At no place in the record does it appear that this objection was raised at or prior to the trial.
Complaint that no coroner’s inquest was conducted to determine the cause of death for which the petitioner was found criminally responsible is likewise without merit.
G. S. 1949, 19-1003, has been construed to mean that the coroner shall hold an inquest upon the dead bodies of such persons only as are supposed to have died by unlawful means where the cause of death is unknown. (Engling v. Edmondson, supra; and Stebens v. Hand, No. 40,727, decided this date.) Here it would appear from the information and the journal entry reciting the findings of the magistrate that the cause of death was known, in which event no inquest was necessary. The jury found the petitioner guilty as charged.
The petitioner states that the cause of death was unknown. Actually, at the time petitioner was apprehended, the record does not disclose whether the cause of the death for which the petitioner was held criminally responsible was known. Assuming that the cause of death was unknown, the duty of a coroner under the provisions of 19-1003, supra, is not jurisdictional to a final judgment in a murder case.
A verdict of a coroner’s jury merely authorizes arrest if a person accused by the verdict be present, to be followed by a warrant to take him before a justice of the peace (G. S. 1949, 19-1010), or a coroner’s warrant of arrest if he be not present (G. S. 1949, 19-1011). The coroner’s warrant is a basis for a preliminary examination to determine whether the accused shall be held for prosecution. (Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021.) A coroner’s warrant for the arrest of a person found guilty by a coroner’s jury takes the place of a complaint, and is sufficient authority for the holding of a preliminary examination before an examining magistrate. (State v. Brecount, 82 Kan. 195, 107 Pac. 763; See, also, State v. Tennison, 39 Kan. 726, 18 Pac. 948.)
The journal entry in the instant case discloses that the petitioner was bound over for trial to the district court as a result of a preliminary examination following which he waived formal arraignment and entered a plea of not guilty as heretofore stated.
At best, the errors and irregularities alleged by the petitioner should have been presented by appeal to this court. A proceeding in habeas corpus is not a substitute for an appeal and errors made in the trial court, which are subject to review on appeal to this court, cannot be corrected or reviewed upon a petition for the writ. (Powers v. Hudspeth, 161 Kan. 777, 173 P. 2d 251; Engling v. Edmondson, supra; Richardson v. Edmondson, 179 Kan. 62, 292 P. 2d 705; Wilson v. Hand, 181 Kan. 483, 484, 311 P. 2d 1009; and In re Bundy, 144 Kan. 64, 58 P. 2d 80.)
In an .original proceeding in habeas corpus the burden is on the petitioner to prove the allegations of his petition by a preponderance of the evidence and his unsupported assertions, which were denied by the respondent, are not sufficient to satisfy this burden. The decisions of this court have required a clear and convincing preponderance of the evidence because a judgment of conviction carries with it a presumption of regularity and validity, The rule is well established that the standard of proof necessary to justify the issuance of a writ of habeas corpus is not met by uncorroborated and unsupported statements of the petitioner. (Wilson v. Hand, supra; Hartman v. Edmondson, supra; Hall v. Edmondson, 177 Kan. 404, 279 P. 2d 290; and Engling v. Edmondson, supra.)
A search of the record before us disclosed nothing which would entitle petitioner to his release and the writ is therefore denied. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from a conviction of first degree manslaughter.
William S. Robinson, the defendant, was charged by information in the district court of Shawnee County, Kansas, with the offense of first degree manslaughter. He was tried before a jury and convicted on the 14th day of February, 1957.
The defendant was stationed at the Forbes Air Ease in Topeka, Kansas. On the 5th day of September, 1956, at about 11:00 p. m. he, airman Murray, and their girl friends parked their car near 4th and Kansas Avenues in Topeka. The defendant and Murray went across the street to a tavern which was located on East 4th Street. The defendant noticed a man going by the tavern who appeared to be a person with whom he had some recent trouble. The defendant left the tavern and followed the man west on 4th Street to the southeast corner of 4th and Kansas Avenues. An altercation occurred between the two men. The defendant then turned and walked or ran across the street from the southeast to the northeast corner of the intersection.
The deceased, Herbert Mitchell, was either standing or walking near the northeast corner of 4th and Kansas Avenues. In either event, the defendant struck Mitchell in such a manner as to cause him to fall backward striking his head on the sidewalk. Mitchell died the following day.
The information charged Robinson as follows:
“. . . that William S. Robinson, . . . did unlawfully, feloniously and willfully kill a human being, to wit: Herbert A. Mitchell, without design to effect death, by tire acts of the said William S. Robinson, while said William 5. Robinson was engaged in the perpetration of a crime not amounting to a felony, namely, an assault and battery upon the said Herbert A. Mitchell, which said assault and battery was committed by the said William S. Robinson with his hands and fists, striking said Herbert A. Mitchell upon and about the head and throat, thereby causing the death of said Herbert A. Mitchell, when said killing would have been murder at the common law, . . .”
The defendant makes eight specifications of error on appeal.
Specifications of error 1, 4, and 5 are as follows:
“1. The Court erred in failing and refusing to instruct the jury on matters for their consideration touching upon the voluntary or the involuntary character of the State’s exhibit number 1, to-wit: a written statement made by the appellant.
“4. The Court erred in refusing to permit evidence to be offered in the presence of the jury touching upon the voluntary or involuntary character of State’s exhibit number 1, to-wit: a written statement of the appellant.
“5. The Court erred in the admission of the State’s exhibit number 1, to-wit: appellant’s written statement.”
These alleged errors have reference to a written statement made by the defendant and admitted into evidence.
The defendant was first questioned by the police on September 6, 1956. A detective wrote down tire substance of his answers. A statement was submitted to him and he read and signed it. On the 7th day of September he was again questioned and a formal statement was taken by the assistant county attorney.
During its case in chief the State proffered the second statement as its exhibit number 1.
A recess was called and ihe court, out of the presence of the jury, took testimony upon the admissibility of the statement. The court heard the testimony of the officers of the Topeka Police Department, the court reporter and the defendant.
At the conclusion of the hearing the State renewed its offer to place the statement in evidence and the court admitted it. The court said:
“The Court: As a result of this investigation here I am finding that the statement marked Exhibit I was freely and voluntarily given and was not given under duress, was not given as a result of any promises and that it should be admitted into evidence. I will overrule the defendant’s objection to its admission.”
Counsel for the defendant made objection and the following colloquy occurred:
“Mr. Scott [counsel for defendant]: Just a moment, for the purposp of the record, Your Honor, I want to get this in the record; a showing that this statement was freely and voluntarily given must also be presented in the presence of the jury after there has been a hearing in the absence of it. It’s entirely up to the Court if he wants to listen to it. I think the jury should know the circumstances under which this statement was made.
“The Court: Do you mean by that that everything should be read that we have just heard from the same testimony?
“Mr. Scott: The sam;e evidence,'yes, in order that the jury may properly consider the statement as to its weight; it must be brought to their attention.
“The Court: Your objection in that regard is overruled, sir. . . .” (Emphasis ours.)
In submitting the case to the jury the court did not instruct on the question of voluntariness or involuntariness of the statement. The record does not show any objection or request for such instruction. The court did instruct on the questions of weight and credibility in the following language:
“19.
“There was admitted as evidence in this case, State’s exhibit number one which is a transcript of a statement made by the defendant on September 7, 1956. In this connection you are instructed that it is your duty to consider the truth or falsity of the statements made in exhibit one along with all the other evidence introduced in the case, and the truth or falsity of the statements made in the statement are matters for the jury to determine.”
Defendant also contends the statement should not have been admitted because he was not advised of his constitutional rights. (The State v. Moore, 61 Kan. 732, 60 Pac. 748; State v. Oberst, 127 Kan. 412, 273 Pac. 490; State v. Seward, 163 Kan. 136, 181 P. 2d 478; and other general authorities.)
The record presented on appeal is very complete. There are pages of testimony relating to the defendant’s statement. We have examined it thoroughly and find that the defendant was properly advised of his constitutional rights. There is also no evidence to show coercion, constraint, promise, inducement of the defendant to make tire statement, or that it was brought about by any im proper means. No rules of evidence touching its admissibility wére breached in any way.
The court considered the defendant’s statement as an admission against interest and not a confession. We believe rightfully so.
The distinction between the two has long been recognized in this jurisdiction. (The State v. Campbell, 73 Kan. 688, 85 Pac. 784; State v. Myers, 154 Kan. 648, 121 P. 2d 286; The State v. Turner, 82 Kan. 787, 109 Pac. 654; State v. Aquirre, 167 Kan. 266, 206 P. 2d 118; The State v. Adams, 85 Kan. 435, 116 Pac. 608; State v. Harding, 142 Kan. 347, 46 P. 2d 617; State v. Criger, 151 Kan. 176, 98 P. 2d 133; State v. Smith, 158 Kan. 645, 149 P. 2d 600; State v. Fonts, 169 Kan. 686, 221 P. 2d 841; State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; State v. Fields, 182 Kan. 180, 318 P. 2d 1018.)
And in 20 Am. Jur., Evidence, § 478:
“. . . To give a statement the binding force of a confession, its distinctive feature must be an acknowledgment of guilt without an exculpating statement or explanation, . . .
“A confession, defined as an acknowledgment, in express terms, by a party in a criminal case, of his guilt of the crime charged, does not, properly speaking, comprehend an admission, declaration, or other statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tend to prove his guilt, but which are not in themselves sufficient to authorize a conviction. . . (p. 417.)
And in 20 Am. Jur., Evidence, § 560:
“. . . The majority rule, however, recognizes the distinction between an admission of an independent fact and a confession which amounts to an acknowledgment of guilt and asserts the principle that it is unnecessary fox the prosecution to prove that an admission, as distinguished from a confession, was freely and voluntarily made without improper inducement in order to have it admitted in evidence. . . . Statements in the nature of admissions as distinguished from confessions are not involuntary merely because of the fact that they were given by an accused in court under process, or in obedience to a subpoena, or because of the fact that the accused was not advised of his constitutional rights, such as the privilege against self-incrimination and tlie right to the aid of counsel, or warned that his statements might be used against him, or because of the fact that he was under arrest at the time he spoke. . . .” (pp. 474, 475.)
In a late case, State v. Fields, supra, we repeated the test to be applied in determining the admissibility of statements against interest.
“It has long b.een the rule that such oral admissions against interest in criminal prosecutions are properly admitted as evidence if fully made, without inducement or duress, or brought about by some other improper means, and such admissions do not contravene Section 10 of the Bill of Rights against self-incrimination. . . .” (p. 185.)
Measured by these standards the court was correct in treating the defendant’s statement as an admission and the record substantiates its admissibility as such. The defendant did not acknowledge the guilt of the crime for which he was charged but only facts pertinent to the crime which, in connection with other facts, tended to prove his guilt. The admissions were not in themselves sufficient to authorize a conviction and thus not a confession. As a matter of fact, the defendant testified in his own behalf and his testimony was substantially the same as the admissions in the statement.
The court is not required to place before the jury all of the evidence taken by it concerning the voluntariness or involuntariness of a defendant’s statement.
Defendant relies on State v. Demain, 127 Kan. 716, 275 Pac. 139, where the court said:
“It appears that tire trial court conscientiously discharged its preliminary duty to decide for itself in the first instance whether the confession or admission of guilt was voluntarily made. (State v. Hayes, 106 Kan. 253, 187 Pac. 675.) Once the court had satisfied itself of its voluntary character, the evidence of the confession and the circumstances under which it was given were properly submitted to the jury for such credence and significance as they saw fit to attach thereto. The fact that the trial court had concluded for itself that the confession was voluntary did not bind the jury. Théy were free to decide that question as they saw fit. . . .” (p. 719.)
Sucb has never been the rule. The Demain case did hold that such evidence was properly submitted to the jury but did not decide that it was a requirement.
Likewise, the court did not err in omitting to instruct the jury on the matter of voluntariness or involuntariness of the statement. This is a preliminary duty for the court in ruling upon the admissibility of the statement. Of course, weight and credibility are matters for the jury and the court so instructed in Instruction 19 set out above. (State v. Hayes, 106 Kan. 253, 187 Pac. 675; State v. Demain, supra; State v. Seward, supra.)
Defendant also specifies as error (No. 2) the failure and refusal of the court to instruct the jury on the lesser crime of assault and battery.
The court instructed that under the information in the case, and if the evidence warranted it, the defendant could be convicted of manslaughter in the first degree and fourth degree. The court fully instructed on the elements of these two offenses. The court also defined the words “assault and battery” because they were used in the information. The defendant did not object to these instructions and did not request an instruction on assault and battery.
The defendant contends that he is not barred by reason of his failure to object or request an instruction but that the court should have so instructed as a matter of law. Defendant cites State v. Phelps, 151 Kan. 199, 97 P. 2d 1105; State v. Gloyd, 148 Kan. 706, 84 P. 2d 966; State v. Severns, 158 Kan. 453, 148 P. 2d 488; State v. Smith, 161 Kan. 230, 167 P. 2d 594; State v. Fouts, supra.
G. S. 1949, 62-1447, does provide for the duty of the trial court to instruct the jury on all matters of law necessary for their information in giving their verdict.
On the question of lesser offenses we have said that the court need not instruct on lower degrees of crime included in a charge when the evidence tends to establish the highest degree of crime charged and does not tend to establish guilt of any lower degree of crime included therein. (State v. Hockett, 172 Kan. 1, 238 P. 2d 539; State v. Noble, 175 Kan. 398, 264 P. 2d 479; State v. Mitchell, 181 Kan. 193, 310 P. 2d 1063.)
In the instant case this rule could be applied as the evidence did not clearly require the court to instruct on the lower crime of assault and battery. On the contrary, the evidence clearly established the guilt of the defendant of the crime of manslaughter in the first degree.
Under these circumstances the authorities cited by defendant are not applicable.
We think another rule is more applicable to the case at bar. The defendant was charged with the crime of manslaughter in the first degree and he was convicted of that crime. The court instructed on a lesser degree of the crime, to wit: manslaughter in the first degree and fourth degree. Under these circumstances whether or not the instructions included the lesser crime of assault and battery is not now material and the defendant cannot be heard to complain. Notwithstanding the rule stated above that if there be evidence warranting instructions relating to inferior degrees such instructions should be given as a matter of law, beginning with the case of State v. Dickson, 6 Kan. 128 [2nd Ed.], the court has also applied the rule that when instructions complained of relate to a degree of crime inferior to the principal offense charged in the information, and inferior to that of which defendant was convicted, the instructions will be deemed not to have prejudiced the defendant, whether correct or not. (The State v. McCarty, 54 Kan. 52, 36 Pac. 338; State v. Hardisty, 121 Kan. 576, 249 Pac. 617; State v. Kelly, 131 Kan. 357, 291 Pac. 945; State v. Zakoura, 145 Kan. 804, 68 P. 2d 11.)
The defendant also specifies as error the denial of his motion for dismissal at the close of the State’s evidence (No. 3) and his motion for new trial (No. 8); that the verdict was contrary to the law and evidence (No. 6); that the admission of certain testimony was illegal and prejudicial (No. 7).
We have examined these specifications of error thoroughly and find no reversible error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This appeal raises the question of the sufficiency of the petition to state a cause of action based on the doctrine of res ipsa loquitur. The trial court overruled demurrers to the amended petition by each of the four defendants. This appeal is by defendant Union Gas System, Inc.
Plaintiff (appellee) is the owner of a private dwelling in Olathe. Defendant (appellant) Union Gas owns and maintains underground gas service lines along the alley north of and adjacent to plaintiff’s premises. Across the alley, on premises known as the Snepp property, The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager were engaged in excavation and other activities for the construction of a building. On October 81, 1955, plaintiff’s house was filled with gas or fumes which suddenly and violently exploded, causing fire and other destruction to the house. Plaintiff brought this action against Union Gas System, Inc., The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager, alleging that the gas or fumes escaped or leaked from an opening in the pipe line maintained by Union Gas at a point near or on the premises where the other defendants had been excavating, removing trees and driving their heavy equipment.
Plaintiff alleged that the gas came into her house without any fault or negligence on her part; that it came from premises exclusively and solely within the management, possession and control of each and all of the defendants; and that the escape of fumes was an occurrence which would not have taken place except for some negligence of the defendants. She further alleged that the explosion and damages were the direct and proximate result of some negligent acts or omissions of the defendants; that she did not know and could not allege the specific acts or omissions of the defendants; and that the facts were peculiarly and exclusively within the knowledge of the defendants.
Inasmuch as each of the four defendants filed a separate demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action, a copy thereof, with formal parts omitted, is appended hereto. Each of the demurrers was overruled and from that order Union Gas brings this appeal.
Defendant presents two arguments here. First, it contends that plaintiff did not plead that the instrumentality complained of was destroyed or was inaccessible for inspection by the plaintiff to ascertain what defect existed in it, and that such allegation is essential to invoke the doctrine of res ipsa loquitur on which plaintiff seeks to rely. Johnson v. Latimer, 180 Kan. 720, 308 P. 2d 65 is cited in support of this contention.
Defendant next maintains that the doctrine cannot be invoked where there are several causes which might have produced damage, some of which were under the control of persons other than Union Gas, and that here plaintiff’s allegation of the operations of Skelly Oil, Modern Builders and Trager removes the availability of the doctrine as to Union Gas.
The only question before us is the sufficiency of the petition to state a cause of action based on res ipsa loquitur. This court has repeatedly held that the doctrine is,a rule of evidence, rather than one of substantive law, and that cases dealing with the question of sufficiency of proof are authority on the question of pleading. Therefore, the petition must be held sufficient if it contains allegations of fact which, if proved, would warrant application of the doctrine. (Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases cited therein.)
It is hornbook law that negligence is never presumed but must be established by proof; that the occurrence of injury does not establish liability; and that where direct proof is lacking circumstantial evidence may be used to prove negligence. One type of circumstantial evidence is that which courts have given the name of res ipsa loquitur.. Whether the doctrine, which means simply “the thing speaks for itself,” is to be applied depends on the character of the accident and the circumstances under which it occurred. We stated in Lamb v. Hartford Accident & Indemnity Co., supra, that when a thing which causes injury without fault of the injured person is shown to be under the management and control of the defendant or his servants, and the injury is such as in the ordinary course of things does not occur if the one having such management or control uses proper care, it asserts reasonable evidence in the absence of an explanation, the injury arose from the defendant’s want of care. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., supra, 582; Waddell v. Woods, supra; Sipe v. Helgerson, 159 Kan. 290, 291, 153 P. 2d 934; Waterbury v. Riss & Company, 169 Kan. 271, 288, 219 P. 2d 673; Nichols v. Nold, 174 Kan. 613, 621, 258 P. 2d 317, 38 A. L. R. 2d 887; Waddle v. Brodbeck, 176 Kan. 583, 272 P. 2d 1066; Shain, Res Ipsa Loquitur, p. 1; Prosser on Torts § 43 [1941].) It has been stated repeatedly that the force and justice of the doctrine stem from the consideration that the defendant in control of the instrumentality has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances. (Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P. 2d 601; Wigmore on Evidence § 2509 [3d ed.].)
Measuring the allegations of the petition in the instant case against the three stated requirements for invocation of the doctrine, it is clear that the petition is sufficient to establish a prima facie case based on res ipsa loquitur. Plaintiff alleged lack of fault or contributory negligence on her part; she alleged that exclusive control of all instrumentalities which could have produced the damages was at all times in the defendants, and she plead circumstances which, if proved, indicate that the accident would not have oc curred absept negligence on the part of those in control. The,alleged circumstances of plaintiff’s damage, if proved, warrant application of the doctrine of res ipsa loquitur.
Johnson v. Latimer, supra, upon which defendant relies, is not applicable here; Clearly, the instrumentalities alleged to have produced the damage in the instant case' were at no time in the possession, management or control of the plaintiff, nor were they in any way accessible to her.
Similarly, defendant’s second contention is without merit. It is well settled in this state that the doctrine of res ipsa loquitur is applicable as against multiple defendants. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; Waterbury v. Riss & Company, supra; Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404.) In Nichols v. Nold, supra, plaintiff, who was injured by the explosion of a bottle, of, Pepsi-Cola, sued the manufacturer, distributor and retailer of the drink, relying on the doctrine of res ipsa loquitur to establish negligence. This court held the doctrine properly invoked against all the defendants, declaring:
“The fact that plaintiff did not know which one of the defendants was guilty of the negligence which was the cause of the accident . . . was the reason for naming all of them as parties defendant.” (l. c. 620.)
(See also 65 C. J. S. Negligence § 220 ( 8), p. 1014.) Similarly in this case, if plaintiff’s allegations are proved, she is entitled to redress. If the allegations are proved, it is apparent that the damage could have resulted from a defect in the gas line operated and maintained by Union Gas, or from negligence in the operations of the other defendants in the area of the gas line, or from the negligence of both. It would be beyond the ability of the plaintiff to establish which of these possibilities was in fact the cause of the accident. Since defendants were in exclusive control of all the instrumentalities which could have caused the accident, it was proper to invoke the doctrine of res ipsa loquitur against all of them.
Finally, it must be noted that the issues have not been joined, that this appeal is from the overruling of a demurrer and goes solely to the sufficiency of the amended petition. We determine only that plaintiff’s petition is sufficient and that the benefits of res ipsa loquitur pleading cannot be removed from her. When the issues are joined and plaintiff establishes the allegations of her petition by evidence, it will be incumbent upon this defendant to demonstrate that it was free from negligence in the operation of its gas line. It follows that the judgment of the trial court is affirmed.
It is so ordered.
This case was decided and the opinion written and concurred in by Hall, J., prior to his resignation from the court.
Jackson, J., not participating.
APPENDIX
“Comes now the plaintiff and for her cause of action against the defendants, states:
“1. That plaintiff’s post office address and residence is 2052 Jamaica Street, Aurora, Colorado;
“2. That defendant Union Gas System, Inc., is a corporation organized and existing under the laws of Kansas with its main office at 122 West Myrtle Street, Independence, Kansas, and is engaged in the business generally of purveying, selling, and supplying natural gas and other products, for profit, to its various customers in private homes, and business establishments, in Kansas, including the City of Olathe;
“3. That defendant The Skelly Oil Company is a corporation organized and existing under the laws of Delaware, duly authorized to do business in Kansas, with its agent for service of process at Topeka, Kansas, and is engaged generally in the business of selling for profit to the general public gasoline, oil, grease and petroleum products, for use in motor vehicles, and for that purpose it provides filling stations, and other places for vending its products;
“4. That defendant Modern Builders, Inc., is a corporation duly organized and existing under the laws of the State of Kansas, and it is engaged in the general business of building homes and business establishments for profit, including the excavation of the earth, and the erection of structures;
“5. That defendant Charles P. Trager, is a citizen and resident of the state of Kansas at Route No. 3, Olathe, and is engaged generally in the business of doing excavation and construction work with machinery;
“6. That at all times herein mentioned, defendant Union Gas System, Inc., owned, used, serviced, and maintained main and subsidiary gas lines for the purpose of transporting or conveying gas to its customers, and laid the lines beneath the surface of the earth, under private property, or public ways, and from said main lines said defendant made connections to private and commercial users or customers, to homes and business establishments. On October 31, 1955, and for a long time prior, said Union Gas System, Inc., owned, used, serviced and maintained such gas lines along the alley north of and adjacent to the premises of the plaintiff herein set out, and in the area north of and adjacent to said alley on premises where the other defendants herein were engaged in excavation and building activities as hereinafter set out;
“7. That on and prior to October 31, 1955, defendants The Skelly Oil Company and Modern Builders, Inc., and Charles P. Trager were engaged in excavation and building activities upon premises located adjacent to and at the southwest corner of the public intersection of Kansas Avenue and Loula Street in Olathe, Kansas, at a place commonly known as the Snepp property, and for that purpose drove heavy equipment over the earth, removed trees, and excavated and dug into the ground for foundations for a building, or for tanks, or utilities or other installations;
“8. That at all times referred to herein, plaintiff was the owner of the premises, including a private dwelling thereon, legally described as Lots 11 and 12, Block 60, City of Olathe, Kansas, said premises being located on the south side of an east-west alley, immediately south of and adjacent to the premises on which defendants The Skelly Oil Company and Modern Builders, Inc., and Charles P. Trager were working or operating;
“9. That at approximately 11:30 o’clock P. M., on or about October 31, 1955, the aforementioned private dwelling owned by plaintiff, but occupied at that time by one holding possession under plaintiff, and in the absence of plaintiff, was so filled with gas and gaseous vapor or fumes, which suddenly, forcefully and violently exploded, that the dwelling house was rent asunder, causing fire and other destruction to the damage of plaintiff, as set out hereinafter;
“10. That said gas and gaseous vapor or fumes, which came into the house of plaintiff, escaped or leaked from an opening in an underground pipe line owned, used and maintained by defendant Union Gas System, Inc., and extending from a main or subsidiary line on the north side of plaintiff’s house and adjacent to her premises and from a point near or on the premises where defendants The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager were or had recently been working and operating; that said gas, fumes and vapors escaped and came into the premises and house owned by plaintiff through no fault or negligent acts or omissions of plaintiff;
“11. That the gas, fumes and vapors came directly from the premises which were exclusively and solely within the management, possession and control of each and all the defendants in their respective work, maintenance, service or use; and that the condition and repair of said underground gas lines, the excavation, removal of trees and other operations upon the adjoining or adjacent property where defendants were jointly and severally working and operating are all facts peculiarly and exclusively within the knowledge of defendants and each of them, and are not within the ■knowledge of plaintiff;
“12. That plaintiff does not know and does not attempt to allege or describe specific acts or omissions of negligence of which the defendants may have been guilty, and that may have been the proximate cause of the damages to plaintiff; but plaintiff states that escape of gaseous vapors and fumes, the entrance of said fumes into plaintiff’s residence and the explosion thereof on the premises resulting in the damage to plaintiff, was an occurrence which would not have taken place, except for some negligent acts or omissions of defendants in die use, maintenance, service or work on the premises by defendants near or adjacent to the premises of plaintiff which work, maintenance or service in connection with the gas line, caused it to leak, or permitted the escape of large and dangerous quantities of such gas, fumes and vapors;
“13. That such explosion and the damages to plaintiff were the direct and proximate result of some negligent acts or omissions of defendants while they were in the exclusive possession and control of said premises on which they were working, and over the gas lines upon said premises, the facts of which are peculiarly within the superior knowledge of defendants and each of them;
“14. That as a result of the negligence of defendants, and each of them, acting individually, or through their employees, agents, and servants, the dwelling home owned by plaintiff, as set out herein, rented to another, and the contents of said home, were thereby damaged, bent, broken, destroyed, ruined, and rendered useless, and beyond repair or salvage; that a reasonable market Value of said house or home, separate and apart from the value of the real estate or land upon which it was situated, immediately before said explosion and damage was approximately $10,000, and the reasonable market value of said home or house aside from the land or real estate immediately after the explosion or damage was worth nothing; the reasonable market value of personal property damaged and destroyed in said explosion immediately prior to said explosion was $150, and the reasonable market value of said property immediately following said explosion was nothing.
“Wherefore, plaintiff demands judgment against the defendants, and each of them, in the sum of Ten Thousand One Hundred Fifty Dollars ($10,150.00) and costs.” | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from a conviction of the offense of robbery in the first degree (G. S. 1949, 21-527). Having been twice previously convicted, defendant was sentenced under the provisions of G. S. 1949, 21-107a.
Defendant, who is presently confined in the state penitentiary, filed a brief pro se, and counsel who represented him in the trial court orally argued his appeal. The state prepared and filed a counter abstract of the record and in addition we have been furnished with a transcript of the proceedings in the trial court.
Defendant complains of various alleged trial “errors,” but upon oral argument his counsel stated that the only complaint having any merit is that the verdict is contrary to the evidence.
On the night of May 29, 1956, Florence Evans was the clerk in charge of a retail liquor store in Wichita. About ten o’clock her niece came into the store to pick up a house key. A few minutes later a colored man .entered. His face was “masked” with gauze-like material. He carried a revolver in one hand and a paper sack in the other, told Mrs. Evans that it was a “stick-up” and to “give me the money,” and directed both to lie on the floor. She took the currency, which included one twenty-dollar bill, from the cash register and put it in the sack as ordered. She noticed there was a hat in the bottom of the sack. The robber went out into Mosley Street in front of the store and Mrs. Evans followed him until he waved her back. She immediately called the police.
Right at this moment witnesses Morgan, Redd and Lee were walking west on Eighth Street near the liquor store, and a man passed them running west on Eighth Street and turned on Meade Street and ran north. Also, right at this time, witnesses Johnson and Gibson were sitting on the front porch of a house in the immediate vicinity and saw a man run up Meade Street and turn and run by the south side of their house to the back yard. A few minutes later a police officer who had been in the vicinity drove by the house and was hailed by witness Gibson. The officer went to the rear of the house and saw the defendant starting toward him from the middle of the yard. Instead of obeying the officer’s order to halt, defendant ran to the back of the yard toward an eight-foot fence. As the officer fired several shots in the air defendant climbed the fence and dropped into a warehouse yard and ran to another fence across the yard. In the meantime the officer had been joined by other policemen and as defendant climbed down from the second fence he was taken into custody.
Defendant was searched, and in one of his pockets a roll of currency was found, included in which was one twenty-dollar bill. His explanation was that as he was walking along Meade Street a man passed him, running north, and dropped a paper sack; that he picked up the sack, looked inside and saw the currency, and put it in his pocket.
Defendant was taken immediately to the liquor store, and as he was brought through the door Mrs. Evans exclaimed, “That is the man that robbed me.” One of the officers noticed something in defendant’s hair and removed his hat. It developed that this “something” was three long white strings of cotton yarn of the type used in loosely woven material such as cheese cloth or bandage material. Defendant had no explanation for their presence in his hair. Mrs. Evans also identified the hat that defendant was wearing as the one that was in the paper sack in which she placed the currency. Upon searching the immediate area for physical evidence, police officers found at the southwest corner of the house on the porch of which witnesses Johnson and Gibson were sitting when they saw a man run into their back yard, a cement block under which was hidden a blue denim jacket, a pair of trousers and a revolver. This revolver was identified as being similar to that used in the holdup.
Defendant’s explanation of his attempted flight when the police officers arrived on the scene was that “it was just natural instinct for him to run whenever he saw police officers.” He did not testify at his trial.
It is contended that the testimony given by Mrs. Evans concerning the question whether the hands of the robber were light or dark brown was considerably “shaken,” thus indicating that at the trial she was somewhat “confused” on the question of identity.
We have examined the record and are of the opinion that defendant’s contention may not be sustained. There was ample evidence, both direct and circumstantial, portions of which have been summarized, from which the jury was justified in returning its verdict of guilty. It is the function of the jury, not that of an appellate court, to review and weigh the evidence and pass upon the credibility of witnesses. A verdict will not be disturbed on the ground it is not based upon sufficient evidence or is contrary to the evidence, where there is competent and substantial evidence to support it. (State v. Haught, 180 Kan. 96, 299 P. 2d 573; State v. Osburn, 171 Kan. 330, 232 P. 2d 451.)
We find no error in this record and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
In this case the trial court sustained a motion to strike an insurance policy, which had been attached to and made a part of such pleading, from the plaintiff’s petition. The appeal is from that ruling.
The facts giving rise to this lawsuit and others essential to a proper disposition of the question raised on appeal are set forth in the following quoted and summarized allegations of the petition.
“Plaintiff is a resident of Franklin County in the State of Kansas; the defendant, Capitol Truck Lines, Inc., is a corporation organized according and pursuant to the law of the State of Kansas in the business of transporting property pursuant to permits issued by the State Corporation Commission of the State of Kansas; the defendant, The State Automobile Insurance Association of Des Moines, Iowa, is an insurance corporation authorized to transact business within the State of Kansas; the defendant, Robert Lee Armstrong, is a resident of the City of Ottawa, Kansas.
“On the 23rd day of February, 1956, plaintiff, at approximately the hour of 10:00 o’clock P. M., was riding in a 1956 Studebaker automobile being driven by Ralph Robertson in a Northerly direction on U. S. Highway 50 South approximately three-fourths of a mile North of the city limits of Ottawa, Kansas. At said time and place, Roger Williams, for and on behalf of the defendant, Capitol Truck Lines, Inc., was driving a 1950 International 211 ton tractor pulling an Over the Road trailer in a Northerly direction. The said tractor and trailer, being driven by Roger Williams, was and had been following the automobile in which the plaintiff was riding at a distance of several hundred feet. At said time and place, the defendant, Robert Lee Armstrong, was operating a 1955 Ford sedan in a Southerly direction upon U. S. Highway 50 South. The road was wet, the night was dark and a light rain was falling.
“As the Studebaker in which the plaintiff was riding, going North, was about to pass the Ford, going South, the Ford suddenly and without warning moved from the West lane of the said highway, upon which it had theretofore traveled, to the East lane of said highway upon which the said Studebaker was traveling, and directly in the path of the Studebaker. As a result thereof, a collision occurred between the Studebaker and the Ford, and the Studebaker came to a stop on the highway.
“After the collision of the Studebaker and Ford, and after the interval of a few seconds, and before the plaintiff could alight from the Studebaker, the 2K-ton International Tractor and Over the Road trailer crashed into the rear of the Studebaker and as a result of said collisions, the plaintiff suffered painful, permanent and lasting injuries as hereinafter set forth.
“At said time and place of the collision, Roger Williams was an agent, servant and employee of the defendant, Capitol Truck Lines, Inc., and was then engaged in the course of his duties for and on behalf of the defendant, Capitol Truck Lines, Inc.
“Prior to the 23rd day of February, 1956, the defendant, Capitol Truck Lines, Inc., had applied to, and received from, the State Corporation Commission of the State of Kansas, a certificate as a carrier entitling it to transport goods over routes and highways as designated in the State of Kansas, including routes in Franklin and Wyandotte Counties, Kansas. At the time of the said collision hereinabove described, Capitol Truck Lines, Inc., by and through its agent, servant employee, Roger Williams, was engaged in operation pursuant to and in accordance with the permit and certificate so issued by the State Corporation Commission of the State of Kansas.
“That in accordance with the law of the State of Kansas, the rules and regulations of the State Corporation Commission, the defendant, The State Automobile Insurance Association, issued to the Capitol Truck Lines, Inc., its policy of insurance, copy of which is attached hereto and marked ‘Exhibit A’ and hereby made a part hereof. Said policy of insurance was in full force and effect on the date and at the time of the collision hereinabove described, and the defendant, The State Automobile Insurance Association, is obligated by the terms of said policy of insurance, the statutes of the State of Kansas, the rules of the Corporation Commission and the rider attached to said policy, to the plaintiff for such sums, within the coverage afforded by the policy, as the plaintiff may be entitled to recover as the result of the negligence and carelessness of Roger Williams, his employer, the defendant, Capitol Truck Lines, Inc. Said policy is the policy referred to in a certificate filed with the State Corporation Commission of the State of Kansas, which certificate is attached hereto, marked Exhibit B and hereby made a part hereof.”
Further allegations of the petition are of little consequence to the appellate issues involved and all that need be said regarding them is that they describe in detail the acts of negligence on the part of defendants relied on by plaintiff for recovery; the injuries and damages sustained by her ás a result of the collision; and a prayer for judgment against each and all defendants for the amount of damages so claimed.
The only question raised by appellant’s sole specification of error is that the trial court erred in sustaining appellees’ motion to strike and in striking the insurance policy (Exhibit “A”) from her petition. However, appellees raise a question which must be disposed of before that issue can be given consideration. It is that the ruling of which appellant complains is not an appealable order, hence it is not reviewable. We therefore turn directly to that question, mindful, as we do so, the universal rule of this jurisdiction is that rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable unless they affect a substantial right and in effect determine the action. See Meek v. Ames, 175 Kan. 564, 266 P. 2d 270, and cases there cited. See, also, Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 20; West’s Kansas Digest, Appeal & Error, §§ 78 [3], 93.
■ For what is perhaps our last pronouncement on the subject see Sherk, Administratrix v. Sherk, 181 Kan. 297, 310 P. 2d 899, where, after supporting the principles announced in the opinion (pp. 299, 300) with numerous decisions, it is held:
“The established rule in this jurisdiction is that motions to quash, dismiss, strike and make definite and certain rest in the sound discretion of the trial court, and orders overruling such motions are not appealable under G. S. 1949, 60-3302 and 60-3303 unless they are final, affect a substantial right, or, in effect, determine the action;
“Although the parties have not raised the question this court may and has the duty to raise and determine its jurisdiction to hear an appeal.” (Syl. ¶¶ 2, 3.)
We believe the answer to all arguments advanced by appellant in support of her position the ruling of the trial court in striking the involved insurance policy from her petition resulted in depriving her of rights so substantial as to make such ruling an appealable order, notwithstanding the established rules to which we have heretofore referred, is to be found in our own decisions.
See Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945, involving an action somewhat similar to the one here involved, where it is held:
“The petition in an action for personal injuries against the operator of a truck line, the driver of a truck and the company in which the operator had a public liability insurance policy, pursuant to the provisions of G. S. 1935, 66-1,128, after pleading the circumstances of the collision, alleged that the operator had a public liability policy in the defendant insurance company, pursuant to the above statute — held, the petition stated a cause of action against the insurance carrier and it was not necessary that it have a copy of the insurance policy attached or set out its terms more fully.” (Syl. f 1.)
Of a certainty, resort to our more recent decisions leads to the inescapable conclusion that in actions of the character involved in the case from which we have just quoted, as well as the case at bar, a trial court's action in striking a liability insurance policy from a petition does not affect a substantial right or in effect determine the action. See Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387, where it is held:
“Under our statute (G. S. 1949, 66-1,128) the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier of property or passengers to obtain a certificate or license as such, is a tort liability for the negligent operation of such carrier, and if the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy pursuant to the statute, it states a cause of action against the insurer.” (Syl. ¶ 2.)
See, also, Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756, which holds:
“Under our statute (G. S. 1935, 66-1,128) the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier of property or passengers to obtain a certificate or license as such, is a tort liability for the negligent operation of such carrier.” (Syl. 2.)
and where it is said:
“The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from the negligent operation’ of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.
“If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury in his person or property by the negligent operation under the permit of the permit holder may sue both the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.” (pp. 90, 91.)
For other decisions of like import see Billups v. American Surety Co., 170 Kan. 666, 228 P. 2d 731; Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557.
The fact G. S. 1949, 66-1,128, now G. S. 1957 Supp., 66-1,128, was amended in 1953 (L. 1953, Ch. 296, Sec. 1) to permit insurance companies to file a certificate with the State Corporation Commission, certifying that there is in effect the liability insurance required by statute, in lieu of the insurance policy itself, does not change, alter or impair the rules announced by this court in the decisions to which we have just referred.
In conclusion it should be stated we have disregarded, not overlooked, many arguments advanced by appellant, founded on the erroneous theory, that the effect of the trial court’s ruling is to change this case from an action upon the insurance policy to an action upon the certificate on file with the Commission. The foregoing decisions make it clear this action is in tort, not in contract, and if appellant is to recover she must do so upon the basis of appellees’ liability for negligent operation of their tractor-trailer, not upon the extent of their insurance coverage. (Lamb v. Hartford Accident & Indemnity Co., supra; Fitzgerald v. Thompson, supra.)
Based on what has been heretofore stated, and the decisions cited with respect thereto, we are forced to conclude the record discloses no appealable order and that the appeal must be dismissed.
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellant), Edwin Dill, Sr., was charged, tried and convicted of driving a vehicle while under the influence of intoxicating liquor, contrary to the provisions of G. S. 1949, 8-530, and of illegal transportation of an open bottle of intoxicating liquor, contrary to the provisions of G. S. 1949, 41-804. At the conclusion of the state’s evidence, defendant moved for a directed verdict of not guilty and for his discharge on the ground that the evidence produced did not prove either charge. His sole contention on appeal is that the trial court erred in overruling this motion. Defendant elected to stand on the court’s ruling and offered no evidence. The case was submitted to the jury on instructions to which there was no complaint. The defendant was found guilty on both counts.
We will examine the record to determine whether there is an entire absence of substantial evidence proving or tending to prove the essential elements of the crimes charged. If from all of the facts and circumstances disclosed by the evidence the jury might have reasonably drawn an inference of guilt, defendant’s motion for discharge was then properly overruled and the verdict of guilty will not be disturbed. (State v. Long, 148 Kan. 47, 79 P. 2d 837; State v. McCoy, 160 Kan. 150, 160 P. 2d 238; State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573.) In State v. Goetz, 171 Kan. 703, 704, 237 P. 2d 246, we stated that if the evidence tended to disclose that the offense charged was committed and the defendant committed it, the question was for the jury to decide, even though the evidence was weak.
It must also be kept in mind that in criminal prosecutions any of the essential elements of the crime charged may be proved by circumstantial evidence. (State v. Rhoten, 174 Kan. 394, 398, 257 P. 2d 141; State v. Ragland, 170 Kan. 346, 349, 226 P. 2d 251; State v. Hupp, 154 Kan. 410, 118 P. 2d 579.)
Moreover, the established rule in a circumstantial case is that it is the function of this court, as well as of the trial court, to find whether there is a basis in the evidence for a reasonable inference of guilt. (State v. Mitchell, 181 Kan. 193, 196, 310 P. 2d 1063, and cases therein cited.)
A brief résumé of the state’s evidence follows. Mr. Snavley, a farmer living east of Neodesha, observed an automobile parked on Highway K-37 and reported it to the Neodesha police, who in turn, notified the sheriff of the county. The police and the under-sheriff arrived at the scene shortly thereafter. Snavley testified that the car had been stopped in the middle of the highway, with the front end extending over the center line, headed in a southwesterly direction. Car tracks disclosed that the car had gone off the slab and then back onto the highway and had stopped at an angle just past the center line. He further testified that defendant was sitting in the car with a partially empty bottle of whiskey between his legs and he considered him to be intoxicated.
Police officer Fenner testified that he found the vehicle sitting in the middle of the road and headed in a southwesterly direction. The switch was on and the car was in high gear. Defendant was in a state of physical disorder, intoxicated and slumped over the steering wheel with an open bottle of whiskey, half empty, between his legs. The bottle cap was lying on the right side of the seat. The officer capped the bottle and later turned it over to the under-sheriff. He pulled defendant from under the steering wheel and practically carried him to the police car, placing him therein, where defendant “flopped over.”
The undersheriff testified that on arriving at the scene he found defendant in an intoxicated condition in the back seat of the police car. He observed defendant’s car in the center of the highway and, without difficulty, moved it off the road. He also testified that defendant told him on the way to the county jail he had been driving the car and had been in Parsons and was returning to his home in Neodesha.
A somewhat similar situation arose in State v. Hazen, 176 Kan. 594, 272 P. 2d 1117, and we said, “For all the record shows, the jury reached the obvious conclusion that defendant drove the vehicle to the place where it was found, and that at the time was under the influence of intoxicating liquor, on the theory that a sober person would not park his car in the middle of the highway . . .” We held that the circumstantial evidence was sufficient to withstand defendant’s motion for a directed verdict and to support the verdict of guilty.
Furthermore, the fact that defendant was found in an intoxicated condition, slumped over the steering wheel of his car with an open, half-empty bottle of whiskey between his legs, the cork thereof lying on the seat beside him, constituted sufficient circumstantial evidence to warrant the trial court’s overruling defendant’s motion and submitting to the jury the question of whether defendant was guilty of transporting a bottle of intoxicating liquor on which the seal had been broken. (G. S. 1949, 41-804.) When the direct and circumstantial evidence adduced by the state in the instant case is considered, we have no difficulty in holding that there was ample basis for a reasonable inference of guilt on the part of defendant on both counts of the information, and the trial court did not err in overruling defendant’s motion for a directed verdict of not guilty. The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is an original action in quo warranto by the State of Kansas on the relation of the county attorneys of Russell, Barton, McPherson, Stevens, Greenwood and Wilson counties, to oust de.fendant Director of Revenue and defendant State Treasurer from carrying out the terms and provisions of Chapter 516, Laws of 1957, found at G. S. 1957 Supp. 79-4201, et seq., known as the Oil and Gas Severance Tax.
' The act became effective on July 1, 1957. Due to the urgency and necessity of an early decision, the hearing of the case was advanced on our docket at the request of all parties. Issues were joined and the case was briefed arid argued orally to the court. •On Jariuary 30, 1958,- judgment was entered for plaintiff, and our decision was announced in a brief opinion filed on that date, and is found at State, ex rel., v. Kirchner, 182 Kan. 437, 321 P. 2d 183. The purpose of this opinion- is to state more specifically the reason for our decision.
It'is contended by plaintiff that the act is unconstitutional,. and 'therefore void, on any one or all of seven different grounds, the first of which is that the subject of the act is not clearly expressed in its title, as required by Art. -2, Sec. 16, of our Constitution, which reads:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and- no law shall be revived or amended, unless the new act co'ntain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” (Emphasis supplied.)
The title of the act reads:
“An Act providing for the assessment, levy and collection of a tax upon the gross value of certain products and providing for the disposition of revenues received from such tax; and providing penalties for the violations of the act.” (Emphasis supplied.)
The basic subject matter of the act is found in Sec. 2 (G. S. 1957 Supp. 79-4202) thereof. It reads:
“From and after July 1, 1957, there is hereby levied and imposed, an annual privilege tax upon every person engaging or continuing within this state in the business of producing, or severing oil or gas from the soil or water for sale, transport, storage, profit, or for commercial use. The amount of such tax shall be measured by the value of the oil and gas produced, and shall be levied and assessed at the rate of one percent (1%) thereof at the point of production.” (Emphasis supplied.)
Specifically, the question, insofar as this ground of attack is concerned, is this:
Is the subject of the act, which is the imposition of an annual privilege tax upon every person engaging or continuing within this state in the business of producing, or severing oil or gas from the soil or water for sale, transport, storage, profit, or for commercial use, clearly expressed in its title in compliance with the constitutional mandate?
Notwithstanding the rules of liberal construction applicable when the constitutionality of an act of the legislature is attacked (State, ex rel., v. Board of Education, 173 Kan. 780, 252 P. 2d 859; City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317; State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198; State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P. 2d 656; Marks v. Frantz, 179 Kan. 638, 643, 298 P. 2d 316), and to which we adhere, we nevertheless are forced to the conclusion that the question must be answered in the negative.
On the specific question of the sufficiency of the title of an act to comply with the mandate of the constitution this court, in the recent case of Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, had occasion to review many of the earlier decisions on the subject, and on pages 9 and 10 of the opinion are found statements to the effect that the purpose of a title is to direct the mind to the contents of a bill so that members of the legislature and the public may be fairly informed and not deceived or misled as to what it embraces; that it is not necessary that the title be a synopsis or abstract of the entire act in all its details, and it is sufficient if the title indicates clearly, though in general terms, the scope of the act; that the title of an act will be liberally construed for the purpose of upholding a law; that all provisions of an act must be directly related to the subject expressed in its title, and that the constitutional provision in question is an imperative mandate to the legis lature commanding it that no bill shall contain more than one subject which shall be clearly expressed in the title. (See also syl. 2 of the opinion.)
Defendants contend that under the “germane test” rule of the Board of Education, the City of Lawrence and the Turnpike cases, supra, the title of the act before us is valid, that is, the words “a tax upon the gross value of certain products,” are germane to the subject matter of the act — the levy and imposition of a severence tax on oil and gas. On the precise point in issue what was said and held in those cases is of little or no help to defendants’ position for the reason that reference to the facts of the mentioned cases discloses that the question in each, insofar as the sufficiency of the title of the act there under consideration was concerned, was whether certain provisions of the act were germane to the subject expressed in the title, and reference to each of the titles discloses that each was far more broad and comprehensive than the one here under consideration.
The constitutions of some states provide merely that the subject of an act be “expressed” in the title. Ours provides that the subject shall be clearly expressed. The use of the word “clearly” is entitled to significance and weight, and it means just what it says. The use of the word requires greater precision and clarity in the title of an act than would be necessary were it omitted, and when, as here, the constitution requires the subject of an act to be clearly expressed in its title the subject matter is not to be dubiously or obscurely indicated, but rather, the connection must be so obvious and clear that resort to ingenious reasoning aided by superior rhetoric will not be necessary in order to ascertain it. (See 50 Am. Jur., Statutes, § 174, p. 156, and 82 C. J. S., Statutes, § 219, p. 364.)
Entirely aside from what we are advised in the briefs as to the legislative “history” surrounding the passage of this act as reflected in the legislative journals, but which we consider unnecessary to set out, there is no question but that the subject of this act is not clearly expressed in its title. The title merely refers to the levy of “a tax upon the gross value of certain products.” As to what products are to be taxed, and the nature of the tax, the reader is left to his imagination, and resort must be had to the body of the act in order to discover that in reality the subject matter is a privilege tax on those persons engaging in severing oil or gas. By no stretch of the imagination can it be said the subject of this act is clearly expressed in its title. Expediencies of the moment, or the exigencies of a situation — political, economic or otherwise — afford no ground for disregarding the express mandate of the Constitution.
The title of the act being fatally defective, the entire act is unconstitutional and void. That being the case, questions relating to other grounds of alleged invalidity become moot and require no discussion.
Judgment is therefore entered for plaintiff.
Fatzer, J., dissents. | [
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The opinion of the court was delivered by
Wertz, J.:
This appeal presents the basic question of whether the district court had jurisdiction of an appeal from the probate court by the executor of the estate of the deceased administrator of Gustafva Bengston’s estate for approval of the administrator’s final settlement and accounting, when concededly no appeal bond had been filed.
The facts, insofar as are pertinent to the determinative issue involved herein, are as follows:
Gustafva Bengston died intestate on May 31, 1939. Her son Martin J. Bengston was appointed and qualified as administrator of her estate. Martin, as administrator, soon thereafter filed an inventory in his mother’s estate. No further action with reference to an accounting was taken by him. On August 6, 1955, upon petition of Rhoda Swensson, one of Gustafva’s daughters, the probate court ordered and directed Martin to file a final accounting of his administration in Gustafva’s estate. On September 12, Martin filed his “Petition for Allowance of Final Account and Distribution.” Rhoda filed her written defenses, challenging the correctness of the accounting, alleging that Martin as administrator claimed credit for items and disbursements to which by law he was not entitled and that he failed to show all the assets of the estate, and asking that an examination be made of all of Martin’s accounts.
Martin Bengston died on September 19, 1955, before a hearing could be had. E. L. Johnson (appellee herein) was appointed executor of Martin’s estate, and the hearing on Martin’s petition for final accounting was continued until November 9. On that day, Johnson, as executor of Martin’s estate, appeared, in accordance with the provisions of G. S. 1949, 59-1712, to prove the petition for final settlement and allowance and for final distribution previously filed by Martin. A full hearing was had, and on July 26, 1956, the probate court entered its order and judgment approving the accounting and final settlement, with the following exceptions:
The court disallowed and charged to Martin an item of $1211.11 and another item of twenty-five dollars, and charged Martin with $500 interest for his use of the estate funds.
The court further found that Martin had commingled the estate funds with his own and had otherwise breached the duties of his trust, and that, therefore, he was not entitled to compensation for his services or an allowance for attorney fees.
Johnson, as executor of Martin’s estate, and several of Gustafva’s heirs, not including Rhoda Swensson, filed notices of appeal to the district court from the probate court order charging Martin and his estate with the mentioned items. No appeal bond was filed in the probate court by either Johnson or any of the appealing heirs.
When the case came on for trial in the district court, Rhoda M. Swensson moved to dismiss the appeal on the grounds that it was not brought on behalf of Gustafva’s estate but for the personal benefit of Martin J. Bengston and his estate; that Johnson, as its executor, was not a fiduciary of Gustafva’s estate; and that the court had no jurisdiction of the matter for the reason that there had been no appeal bond filed. The court took Rhoda’s motion to dismiss under advisement and proceeded with the hearing. At the conclusion of the evidence, Rhoda renewed her motion to dismiss, which the court again took under advisement. On January 8, 1957, during the October, 1956, term of court, Rhoda’s motion was sustained and the appeal was dismissed. Thereafter and within the same term, Johnson filed a motion for a new trial. The October, 1956, term of court expired on January 13, 1957, the new term opened on January 14, 1957, and a new judge took the bench. On March 9, the court sustained Johnson’s motion for a new trial. It is from this order that Rhoda M. Swensson appeals to this court.
Appellant Rhoda contends that Johnson’s appeal to the district court was for the sole benefit of Martin’s estate and that since no appeal bond had been filed, the district court obtained no jurisdiction of the cause.
G. S. 1949, 59-2405, insofar as is pertinent, reads as follows:
“To render the appeal effective: . . . (2) The appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the probate court a bond in such sum and with such sureties as may be fixed and approved by the probate court, conditioned that he will without unnecessary delay prosecute the appeal and pay all sums, damages, and costs that may be adjudged against him.” [Emphasis supplied.]
From the wording of the statute, it is clear that, subject to the specified exceptions, an appeal bond is essential to render effective an appeal from the probate court to the district court and to confer jurisdiction on the latter. The statute was designed to relieve á fiduciary from giving bond only when appealing in his representative capacity for the benefit of the estate. (Elliott v. Baird, 102 Kan. 317, 169 Pac. 1149.) If the appeal is taken for the personal profit and advantage of the fiduciary or in opposition to the interest of the estate, the appeal bond is required.
In the instant case, the appeal was essentially from an order of the probate court disallowing certain credits claimed by Martin as administrator, charging him with an interest fee and disallowing his claim for personal compensation and attorney fees. As a result of the probate court order, Gustafva’s estate was augmented by the mentioned sums and Martin’s estate was correspondingly charged therewith. It is apparent that the purpose of the appeal was to protect and benefit Martin’s estate.
The great weight of authority appears to hold that where a fiduciary appeals to protect his individual interest, which interest is in opposition to and antagonistic to the interest of the estate he represents, he must give an appeal bond, as must any other litigant. (Elliott v. Baird, supra; Estate of Mallory v. B. & M. R. Rld. Co., 53 Kan. 557, 36 Pac. 1059; 3 Bartlett “Kansas Probate Law and Practice” [Rev. Ed.], § 1571, p. 374; 104 A. L. R., Anno., pp. 1192-1197; 41 A. L. R. 2d, Anno., p. 1363.) In the present case, the appeal was taken for the personal profit and advantage of the administrator and in opposition to the interest of Gustafva’s estate, and the statutory exemption from the appeal bond requirement did not apply.
This result is not changed by the fact that Johnson, as executor of Martin’s estate, actually processed the appeal. The statutory exemption (59-2405) for fiduciaries appealing on behalf of the estate can apply only to fiduciaries of the estate before the probate court from which the appeal is taken. Martin was the fiduciary of the estate before the probate court. In appealing from the judgment of the probate court, Johnson, as Martin’s executor, could have secured no greater rights than Martin would have had, had he lived to process the appeal.
One phase of the mentioned appeal statute (59-2405) was thoroughly discussed in In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642, wherein we 6said that in order for an appeal from the probate court to the district court to be effective, thus vesting the district court with jurisdiction, it is necessary that the party appealing comply with the requirements of subdivisions (1) and (2) of the appeal statute, G. S. 1949, 59-2405. One of these requirements is posting a bond. Jurisdiction of the subject matter of an action is vested by statute and cannot ordinarily be conferred on a court by consent, waiver or estoppel. In the instant case, the subject matter of the action was the administrators petition for allowance of final account and distribution, over which the probate court had sole and original jurisdiction. (G. S. 1949, 59-301.) The district court could acquire jurisdiction of the cause only under and by virtue of the appeal statute, supra. In this case, the statutory bond was essential to render the appeal effective. Without the bond, the district court acquired no jurisdiction to try the case.
Inasmuch as no appeal bond was filed, the district court obtained no jurisdiction of the subject matter of the appeal and it was properly dismissed. Any further orders made by that court would have of necessity been nullities. Consequently, it had no jurisdiction to grant a new trial. The case is reversed and remanded with directions to the trial court to set aside its order granting a new trial.
It is so ordered.
Schroeder, J., not participating. | [
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiff sued the defendant insurance company to recover upon a health insurance policy for the period he was wholly disabled to perform his usual duties by reason of barber’s itch. After a trial by jury he was given a judgment for $330, from which the insurance company appeals.
In his bill of particulars plaintiff claims $650 for house-confinement, twenty-eight weeks at $25 a week, $190 for non-house-confinement, 19 weeks at $10 a week, and $100 for hospital indemnity. The abstract and briefs do not disclose the component parts of the verdict or whether it contains an allowance for hospital indemnity. If it does, that part of the verdict is not reviewed, the main controversy being whether the insured is entitled under the facts in the case to recover under the house-confinement provision of his policy. The insurance company demurred to the evidence of the insured, and when the demurrer was overruled rested without introducing any evidence. The jury found specially -that the insured was under the care of a physician from June 3, 1925, to September 1, 1925, and was compelled to refrain from performing every act of business for ten weeks from June 20, 1925, to August 28, 1925.
The evidence shows that the insured was a farmer living just north of the town of Mulvane about a half mile from the physician’s office; that the physician never called on him at his home, but the insured went regularly to see the physician every other day at first, and later every day; that he was driven to the physician’s office by his brother or his hired man mostly, but a few times drove the car himself; that he regularly went out of the house to the toilet; that otherwise he remained in the house until about September 1, 1925.
The two provisions of the insurance policy under which recovery is sought — the house- and non-house-confinement provisions — are as follows:
“If as a result of such disease the insured shall bo continuously confined within the house under the constant treatment of a regular physician, the association will pay for a period not exceeding thirty weeks, that such disease shall compel the insured to be so confined and treated, a weekly indemnity of $25. . . .
“If as a result of such disease the insured shall not be confined to the house, but shall be .compelled to refrain from performing every act of business, and be under the constant treatment of a regular physician, the association will pay for a period not exceeding eight weeks, a weekly indemnity of $10.”
This court has had this identical question before it, and has decided that when parties contract as to recovery of different amounts, depending upon house-confinement and non-house-confinement, “the court is not warranted in ignoring or eliminating an unambiguous provision included by the parties in their contract.” (Sheets v. Life Insurance Co., 116 Kan. 356, 358, 225 Pac. 929.) The syllabus of this decision is as follows:
“A health insurance policy which stipulates for full indemnity for a disabling sickness for a period during which the insured is necessarily and" continuously confined to the house, and a lower specified rate for such a sickness when he is not so confined, does not warrant the payment'of full indemnity for the time the insured is able to leave the house and make visits to his physician.
“Under such a contract mere disability of the insured to work or pursue his ordinary avocation does not entitle him to the higher rate, but to recover full indemnity the degree of his disabling sickness must be such as to confine him to the house.”
In the above-cited case the insured was sometimes confined to the house or hospital for a few days during and after an operation-, but in the case at bar he was never so confined. In that case the word “continuously” had to be construed. Not so here. We are aware there is a lack of uniformity upon this question, some of the courts holding in favor of a more liberal construction of the term “house- confinement”; but, as stated in the above quotation from the opinion in the Sheets case, we are at' a loss to know why a liberal construction is' wafratttéd when there is no possible ambiguity in 'the meaning of the words used. If there were any ambiguity the liberal construction would be justified against the company, which undoubtedly constructed the phrase. (Hoskins v. North American Accident Ins. Co., 123 Kan. 731, 256 Pac. 981.) Could there be any language framed more nearly to cover and fit the fáctá in this case than that of the non-house-confinement clause above quoted? If it fits exactly under that clause, how can it be construed to fit under the former clause, which is substantially the opposite with reference to house-confinement? In reading the opinions of some of the cases cited by appellee and other similar cases we observe the reasoning is often based upon the disabling feature of the illness, and the conclusion is suppoi’ted because of such disability. If disability to perform the usual avocation was to be the ground for the payment of the indemnity, nothing could have been easier than to have so stated in the contract or policy. In the case at bar nothing whatever is said in this part of the contract about disability, the only question being whether or not the insured was confined to the house. We think he was not. Of course there are other features in this provision, such as being under the constant treatment of a regular physician and the confinement being the result of the disease, but these points are not here controverted. We adhere to* and follow the decision in the Sheets case.
Three other points are argued in the briefs: First, failure to give required notice of the sickness within ten days; second, the right of the company to apportion with other insurance companies when insurance is carried in them without notice to the defendant company; and, third, error in the language of instruction No. 5, defining confinement to house as depending upon whether or not the plaintiff was able by his own efforts to leave the house. A reference to section 4 of the policy requiring notice to be given it of the sickness, shows it must be given within ten days after the commencement of disability. The evidence shows the insured worked in his harvest until June 20, although he was sick before that time. He sent the notice June 30.
As to section 17 of the policy, requiring notice to be given the company if other insurance is carried we would hesitate to con- elude, as contended by appellee, that notice after the illness was that which was intended, but, aside from the natural conclusion that this is usually a matter of defense, the jury has disposed of this issue by a special finding to the effect that they had no information as to whether plaintiff carried insurance covering the same loss with any other company, corporation or society.
With reference to the third point, as to the instruction making house-confinement depend upon whether or not defendant was able with his own efforts to leave the house, what has heretofore been said in this opinion as to house-confinement being an unambiguous term and needing no special definition will dispose of that question. We think it is a question of fact easily applied and readily comprehended without qualification; not forgetting, however, extreme exceptions as mentioned in the Sheets case like the burning of a dwelling on order of the board of health.
We conclude that the insured is not entitled to recover anything under the house-confinement provision of the policy, but is entitled to recover the full amount under the non-house-confinement provision, or eighty dollars for eight weeks at ten dollars per week; and if any allowance for hospital indemnity was included in the judgment and was within the limits of the policy, such allowance is approved.
The judgment is reversed in part and affirmed in part, and the cause is remanded with direction to render judgment for the insured in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a proceeding brought by E. E. Wulf, executor of the will of Mary Fitzpatrick, deceased (and certain beneficiaries named in the will), for a declaratory judgment to construe a decree of the district court rendered in 1914, in an action for divorce brought by Mary Fitzpatrick against James Fitzpatrick, in which an absolute divorce was not granted but the property was divided, and to determine the effect of a will later made by Mary Fitzpatrick without the consent of her husband, James Fitzpatrick, by which she disposed of the property given her by the decree above mentioned. Plaintiffs contend that under the decree the will disposed of full title to the property to the legatees and devisees therein named, while defendant contends he is the owner of the property — thus presenting an actual controversy within the meaning of our statute (R. S. 60-3127) relating to declaratory judgments. The trial court held in accordance with the contentions of plaintiffs. The defendant has appealed.
Appellant has filed a brief p>'o se, which is not helpful to this court in understanding and determining the legal questions involved. Therefore we sent for the original papers. By examining these and considering the brief of appellees we are able to understand what this case is about and to discover the legal questions presented for our determination.
The facts disclosed by the record are substantially as follows: James Fitzpatrick and Mary Fitzpatrick, his wife, were residing on a farm consisting of 160 acres in Harper county. The title to the land was in the name of James Fitzpatrick. It was encumbered by a mortgage of $4,000, and there was other indebtedness of about $1,000. Eleven children had been born to them, seven of whom were living. In 1914 Mary Fitzpatrick brought an action for divorce against her husband on the grounds of extreme cruelty, gross neglect of duty and habitual drunkenness. On the hearing of the case she offered evidence supporting the allegations of her petition, and the court found that such allegations were true. At the time of the trial the plaintiff made it known to the court that because of her religious faith she did not desire an absolute divorce. As it relates to the separation of the parties, the decree provides:
“That the marriage bonds heretofore existing between the said Mary Fitzpatrick, plaintiff, and the said James Fitzpatrick, defendant, be and the same are hereby suspended and rendered inoperative, but not dissolved, but a decree of separation is hereby granted; that the said plaintiff is granted the right of separation from the said defendant and his bed and board, the same being after the nature of a divorce a mensa et thoro, by reason of the faults of said defendant; all to the end that said parties shall live separate and apart until the further order of this' court; and their rights in the property of each other as husband and wife shall now cease and determine, and henceforth neither party shall have any right or interest in the property of the other, and neither shall have any interest in or inherit property from the other by reapin'of the death 'of either party. In event of death the property of each shall pass as if the survivor had previously died; all to the end. that this, separation be complete and effective as a divorce and distribution of property and rights, except that the marriage bonds are suspended and rendered inoperative, but not dissolved.”
The decree further provides that the care, custody and education of the children of the parties be confided to the plaintiff exclusively. It further provides “that the said plaintiff have and possess, with fee simple title and ownership, as and for alimony, the home farm (describing it). And the court does hereby grant and vest in the said Mary Fitzpatrick, plaintiff, the fee simple title to the said real property hereby set apart and decreed to her, and she has full and complete right and power to convey, devise and dispose of same without the consent of her said husband, the said defendant. . . .”
Appellant here complains of this decree. It was not appealed from and has become final. Complaints concerning it made now are unavailing.
Mary Fitzpatrick died in 1925, leaving a will, by which she devised and disposed of all of her property, including the real property set off to her by the decree above mentioned. James Fitzpatrick had not consented to this will; no provision was made for him in it, and he was not called upon to elect whether he would take under it.
The legal question presented by this record may be thus stated: In an action for divorce, when a divorce is not granted and the parties remain husband and wife, but the court for good cause shown decrees that the parties may live separate and apart from each other, and divides the property, setting off specific property to the wife to be hers absolute, can the wife thereafter devise or dispose of by will all the property given her by the decree to persons other than her husband without his consent? (The same question would arise if the will in question were that of the husband, disposing of property set off to him by the decree.)
Our statute of wills provides:
“No man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other .may bequeath more than one-half of his or her property from the one so consenting.’,’ (R. S. 22-238.)
Our statute does not provide for the granting of a divorce mensa et thoro, and the use of that term in the decree under consideration may be disregarded. By’ our constitution (art. 2, § 18) .all power to grant divorces is vested in .the district courts, subject to regulation by law, and the legislature has by statute (R. S. 60-1501 to '60-' 1518) regulated the granting of divorces. The only divorce provided for by our statute is an absolute divorce. Realizing, however, that in some cases where an absolute divorce should be refused, orders should be made respecting the custody and maintenance of children, and the property rights of the parties, the legislature has provided:
“When the parties appear to be in equal wrong, the court may in-its di&: cretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education- of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties, and in such case the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.” (R. S. 60-1506.)
The decree here in question was rendered under the authority of this statute, and vested the fee-simple title in plaintiff to the property set apart and decreed to her, and specifically decreed in her the right “to convey, devise and dispose of the same without the consent” of her husband.
The only legal question of importance in this case is the.apparent conflict between the statute of wills (R. S. 22-238) and the statute pertaining to the authority of the court to make a division of property in a divorce case, when the divorce is not granted (R. S. 60-1506). These statutes should be construed harmoniously, so that each has a field for its operation, if that can reasonably be done. This can be done. The statute of wills states the general rule with respect'to a will made by a husband or wife; it does not attempt to deal with the power of the court to render an appropriate decree respecting the property of the parties in an action for divorce, even when for good cause a divorce is not granted. The statute regulating the granting of divorces (R. S. 60-1506) does deal with that specific circumstance, and with that alone. Following the general rule that a statute pertaining to a specific thing takes precedence over a general statute which might be construed to relate to it, we hold that R. S. 60-1506 is valid and applicable to the specific circumstances to which it relates, notwithstanding the statute of wills (R. S. 22-238). Since the decree here being considered was rendered under and in accordance with this statute (R. S. 60-1506) it necessarily follows that Mary Fitzpatrick had a fee-simple title to property set apart and decreed to her, with full power to convey, devise and dispose of it without the consent of her husband, James Fitzpatrick, and that he now has no title or interest in such property.
Perhaps it should be noted that we are not called upon to consider in this case what would be the right of James Fitzpatrick under our statute of descents (R. S. 22-108) in this property if Mary Fitzpatrick had not conveyed, devised or disposed of it within her lifetime. We have no such situation before us.
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The opinion of the court was delivered by
Johnston, C. J.:
Orville Owens was prosecuted under what is called the white-slave act. In the- information he was charged in three counts with procuring Diana Hughes to go from one place to another within the state for the purpose of prostitution, fornication or concubinage. The trial resulted in the verdict of guilty on each of the counts, and he was sentenced to the state reformatory.
It is contended that the prosecution was a frame-up to charge the defendant, who had left the state, with an extradictable offense so as to secure his return where he might be compelled to marry Diana Hughes or to furnish money to support her and her child, born to her as the result of intercourse with defendant months before the transactions involved in this prosecution. In this case Diana testified that when she was about eighteen years of age she began keeping company with defendant; that he induced her to have sexual relations with him, with the result that she became pregnant. About three months before the birth of her child she said that the defendant took her out in his automobile and invited several boys to go along with them, and when a secluded place was reached he not only required her to submit to intercourse with himself, but also with the boys he had brought along. On three separate trips the defendant took her into the country and each time procured boys to go along with them, and there was no concealment that the purpose of the trips was indulgence in sexual intercourse. The boys who accompanied them finally testified that they were invited by the defendant, and they verified the testimony of Diana that the trips were made and the acts committed that were charged in the information. She also testified that, after the transactions in question the' defendant' said he had her where he wanted her and that he would do nothing to help her. In answer to a question,she testified that “he said that he couldn’t do anything for me because he had these other boys do it, and he thought he would get out of it.” Whether or not the prosecution was instituted for purposes other than to vindicate the law, it must be said that the information contained a specific charge of violations of the white-slave act, and was supported by abundant and practically uncontradicted evidence. The facts brought out in the evidence showed such grossness and depravity that we do not feel warranted in reciting them here. It is enough to say that the verdict and judgment are well sustained by the proof.
Some procedural objections are raised by the defendant. There is complaint that the court did not permit full cross-examination of some of the witnesses as to whether they had previous acquaintance with Diana before the acts in question or had sexual relations with her prior to the acts charged. The ruling was based on the theory that they did not relate to the offense for which the defendant was prosecuted. For instance, Diana was asked if she did anything to fight off the defendant and the boys when the transactions in question occurred. This was properly excluded. It was not a case of rape or bastardy, and whether or not the acts were committed with or without consent were not material to a white-slave charge. An objection was sustained to a question asked Diana, if she did not anticipate that she would obtain money for the support of her child as a result of the prosecution. She answered “no” before the ruling was made holding it to be incompetent. There was no error in the ruling. It did not relate to the charge that defendant had procured her to go from one place to another for the purpose of prostitution, fornication or concubinage, and even if it had been a bastardy case, the fact that the female seeks to make the father of the child pay money towards its support would not be discreditable. When one of the boys was a witness and giving testimony as to what occurred on one of the three mentioned trips into the country, he was asked on cross-examination if he had ever had intercourse with any other than Diana. He said he did not remember. He was then asked if he had not signed a statement procured by Howard Owens, a brother of the defendant, to the effect that he had intercourse with Diana in August and September, 1924, and that it had been procured with the consent of Diana. The witness admitted that he had signed the statement, which was in the form of an affidavit, but was not sworn to, and this was offered in evidence by the defendant. The court hesitated about receiving it, but finally admitted the statement, telling ’the jury that it was admitted and could only be considered as affecting the credibility of the witness. A like statement had been obtained from another of the boys who testified in behalf of the state, and it was admitted in evidence with the same limitation. Both said that they had made the statement to help the defendant, but that they were untrue. There was no error in limiting the scope and application of this testimony.
Another instance was the offer by the defendant to prove that Diana had said she hoped to get some money to help raise the baby. Diana stated that she did not remember any such conversation with the proposed witness, and the evidence was rejected. Defendant offered to prove that Diana had told the witness that she hoped to get some money out of the litigation, and added that already defendant had offered $2,000 to drop the suit. There was no error in excluding the testimony.
Some other rulings of the same character were made as to questions asked on cross-examination, and also upon offers of testimony in contradiction of statements of witnesses for the state. Matters that were deemed to be material as affecting credibility were admitted by the court, and while some others, not all of which have been mentioned, might have been received, the exclusion of them cannot be regarded as material error, as the code provides that only errors which affect substantial rights of defendant furnish grounds for reversal. (R. S. 62-1718.) The extent to which a cross-examination may go is largely within the discretion of the court and depends always on the circumstances of the case (State v. Allen, 98 Kan. 778, 160 Pac. 795), and after a reading of the record we find nothing in the limitations imposed or in the exclusion of evidence which approaches material error.
Complaint is made of the refusal of an instruction in respect to the weight to be given to the testimony of accomplices in the commission of a crime. It is assumed and argued by defendant that the boys taken out by defendant on the trips mentioned were accomplices in the white-slave act, and that the rule applicable to accomplices should have been applied to the consideration of their testimony. We think they cannot be regarded as accomplices in the offense charged. It was the defendant who took the girl in his automobile from one place to another for criminal purposes, and not the boys. He also took the boys with him. They did not participate in the taking, and although they were guilty of criminal conduct during the trip and subject to prosecution for another offense, it was not the offense with which the defendant is charged, and they were not accomplices of defendant in that offense. There is no error in the refusal of the requested instruction.
Complaint is made of an instruction to the effect that some evidence had been received tending to show illicit relations between defendant and Diana prior to the criminal acts in question, and that this evidence might be considered in determining the motive, if any, the defendant had for-doing the acts charged in the information. It is not open to question that such testimony is admissible for the pur-' pose named, and it may be stated that the court took care to admonish the jury as follows:
“However, and in this connection, you are cautioned that such acts of illicit commerce, if any, between the defendant and Diana Hughes, prior to the acts complained of in the information as hereinbefore explained to you, constitute no part of the crime charged against the defendant, but you may ■consider the same in showing the relations of the parties.”
Another ground of error assigned is misconduct of counsel for the state in the argument of the case to the jury. It is claimed that he violated the provision which forbids an attorney prosecuting the •case to refer to the fact that the defendant had failed to testify. (R. S. 62-1420.) There was no direct reference by the attorney to the neglect of the defendant to testify, but it is argued that the language used by him pointed clearly to that neglect. This is the language used:
“For the sake of this argument let us say they were equally guilty; but because they are equally guilty of being out there with that girl does not excuse the defendant, who hauled them out there. Who is it that says that ■didn’t take place? Who is it that contradicts the evidence of Diana Hughes and Tom Sawyer and Earl Watkins and Chester Drennon? Who is it that says that isn’t so? We find Diana Hughes saying that on the way out there her sweetheart told her she would have to submit to the attentions of these men. Where is the evidence which contradicts that? Where is the evidence from that chair which says that isn’t so? If you were the defendant, Mr. Rumford; if you were the defendant, Mr. Fleming; if you were the defendant, Mr. Matile; if you, Mr. Newman, were the defendant; or you, Mr. Lawrence; or you, Mrs. Currier; or you, Mrs. Barker; if you were the defendant, Mr. Mohr; or you, Mr. Bonnett; or you, Mr. Davis; or you, Mr. Cannon; or if you were defendant, Mr. Erpelding; and the evidence given by these boys and this girl was not true, what would you do about it? If you were on trial, what would you do about it? Would you go down to John Calvin Jones, and Mr. Hugh Jones, and Mr. Pitts, and Miss Henderson, and bring them on the witness stand and say, ‘What was my general reputation for being a. peaceable, industrious and law-abiding citizen?’ Is that all you would do on a felony charge that would take away your liberty? What right would you have to say, if you were the defendant in this case, that Diana Hughes and these three boys were guilty of perjury and conspiracy, and then ask a jury of twelve men and women to clear you?”
The inquiry made of jurors as to what they would do about it if they were on trial for the offense, and thé evidence of witnesses was not true, would they do no more than to offer evidence of their general reputation for being peaceable and law-abiding citizens, was open to the inference that evidence of good reputation was the extent of that offered for the defense. By a process’of reasoning the minds of the jurors might be led to the fact that défendant had not chosen to take the witness stand in his own behalf. The argument was a. close approach to a statement that the defendant had not testified' in the case, and cannot be approved. Of course, if the jurors were awake, they knew as well as counsel did that defendant had not-testified, and even a direct reference to it would not have been any information to them; but so long as the law exists it should be faithfully observed, and no reference to the neglect or refusal to testify should be made directly or indirectly by counsel for the-prosecution. However, every departure from the rule does not require or justify a reversal of a judgment of conviction. In the. recent-case of The State v. Peterson, 102 Kan. 900, 171 Pac. 1153, it was-held that:
“In an argument to the jury in a criminal action it is error for the county attorney to refer to the fact that the defendant’s wife did not testify, but before a judgment of conviction will be reversed it must appear that some-substantial right of the defendant was affected by the error.”
In that case rulings in earlier cases holding that such references were reversible error were disapproved and overruled. In view of' the evidence in the present case we are unable to say that the questioned statement of counsel influenced the jury or any of them in the verdict returned or prejudicially affected any substantial right of the defendant. It may be said that no objection was made by defendant when counsel made the statement, but at the conclusion of the argument counsel for defendant called attention to it. The court thereupon instructed the jury as follows:
“Counsel for defendant seem to think that something may have been said in the closing argument of Mr. Samuel that in some way challenged your attention to the fact that the defendant did not take the witness stand. In your instructions you will find an instruction that directs your attention to the fact that it is the legal right of the defendant to take the witness stand or not to take it, as he sees fit, and should you have drawn any inference from the closing argument of counsel upon that subject you will dismiss that inference from your consideration in this case.”
Other parts of the argument were challenged, but- in those we find no error nor occasion for discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of feloniously keeping lottery tickets for sale in violation of R. S. 21-1502.
It appears that in 1925, in Wyandotte county, defendant was engaged in selling, offering and keeping for sale various sorts of sealed lottery tickets, priced at 25 cents and upwards, which purported to give the purchasers a chance to win a prize of $25 or other sum up to $500 if certain results were achieved by various baseball teams in their computed weekly scores of games as printed in the sporting pages of -the daily press. The tickets were sealed so that the purchaser could not tell on what baseball teams he was hazarding his money, and his own judgment of the merits of the teams had nothing to do with his chance of winning. The scheme, if indeed it actually did give the ticket holder a gambler’s chance to win, was more complicated than a quadratic equation, but the court will not undertake to expound its intricacy.
Defendant hung about the business establishment of the complaining witness in Kansas City apparently seeking to ply his trade, and notwithstanding he was repeatedly ordered away he persisted in plying his unlawful business thereabout to the annoyance of the complaining witness, who eventually caused his arrest, and his conviction followed.
He appeals, contending first that the trial court erred in overruling his motion to quash the information because it did not sufficiently show what sort of lottery ticket defendant was offering for sale. It was characterized by the pleader as—
“A certain writing, token or device, consisting of a slip of paper with certain numbers written thereon and commonly known as a lottery ticket, intended to evidence the right of the holder to a chance to receive money as the result of a lottery drawing, commonly called a baseball pool, thereafter to be held.”
The rule as to the sufficiency of an information is that if it fairly apprises the defendant of the crime charged against him and is definite enough so that the court will have no trouble in ascertaining the correct sentence to impose upon a verdict or plea of guilty (State v. Hutzel, 108 Kan. 456, 195 Pac. 887), the information is good against a motion to quash. Within that rule, the trial court did not err.
It is next urged that the defendant was entitled to be discharged because there was no evidence, direct or circumstantial, to support the charge. That contention lacks merit. The testimony of the prosecuting witness, and that of the policeman who arrested defendant, and of a third witness who had bought a lottery ticket from him, and of a fourth witness who had seen defendant carrying around a cigar box filled with the sort of lottery tickets he was charged with offering for sale, supplemented by other significantly probative circumstances, quite sustained the charge as against a motion to discharge.
Error is also assigned on the admission of evidence tending to show that it was at some other time or times than the date alleged in the information that defendant offered the lottery tickets for sale. Such a basis of error cannot be sustained. The particular date was not a vital matter. So long as defendant was not misled by the allegation as to the date — and this record discloses nothing to that effect — proof of such an offering within two years prior thereto would suffice. Such is the usual and often-applied rule in various sorts of criminal cases. (R. S. 62-1006.) In State v. Reno, 41 Kan. 674, 682, 21 Pac. 803, it was said:
“The general rule of law is that it is not necessary to prove that the offense was committed at the time at which it is alleged to have been committed, but it may be proved to have been committed at any time within the period prescribed by the statute of limitations within which the action might be commenced.”
Another error is based upon the trial court’s refusal to give an instruction requested by defendant concerning the crime of bookmaking as defined in R. S. 21-1510 which has to do with the recording of bets on games of skill, speed and endurance. Defendant was not engaged, nor charged with having engaged, in any violation of that section of the crimes act; and it would have been improper for the trial court to have permitted that subject to be brought into this case since it could only have served to confuse the jury, with the consequent possibility or likelihood of causing justice to miscarry. While baseball is a game of skill, speed and endurance played by young men and boys, and bets might be made thereon, and an offender might unlawfully act as recorder or bookmaker of such bets, the lottery tickets offered for sale by defendant had none of the characteristics of betting. In so far as the lottery tickets offered for sale by defendant were not altogether a downright swindle, they dealt wholly with matters of pure chance which in turn were themselves dependent on other remoter matters of chance, and their printed terms so provided. One witness testified:
“Q. Well, can you tell what is the general scheme of a baseball lottery? A. Yes.
“Q. Well, what is it? Just tell the jury. A. The general scheme is, you get a certain number of teams when you buy one of these tickets. You add the score of those teams on certain days on the daily tickets, and if those teams have a larger score than any other combination of teams the same size then you win the grand prize. If it has the lower, you also win a prize.”
Pertinent provisions of the statute under which defendant was prosecuted read:
“The term ‘lottery,’ as used in this act, includes schemes for the distribution of money or property among persons who have given or agreed to give a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.” (R. S. 21-1506.)
“In any prosecution under the preceding sections it shall not be necessary to prove the actual existence of any lottery, gift enterprise, policy or scheme in the nature of a lottery, or the authentication of ány such ticket, pretended ticket, certificate, token, device or thing, or the genuineness of any signature thereto, or that the same was issued by authority of the manager of any such lottery, gift enterprise, policy or scheme in the nature of drawing.” (R. S. 21-1503.)
The other matters urged against the judgment have been duly noted, but they suggest nothing worthy of discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Gustave Bernard, a stockholder in the Emmett State Bank, sued the bank and the receiver thereof in the district court of Pottawatomie county to recover as a trust fund the $500 he had paid as an assessment on his stock, because, under the instructions of the deputy bank commissioner and the oral agreement between the stockholders at the meeting when the assessment was made to the effect that the funds so raised were not to be used until all assessments were paid, his funds were illegally used, as the owners of seventy-one shares of stock never paid the assessment and the bank soon after closed its doors. A demurrer to the petition was sustained. The petition was amended and the demurrer was again sustained. Plaintiff elected to stand on his demurrer and appealed. The original petition asked for a judgment for $500 and a finding that this payment was a special deposit or trust fund and in lieu, thereof the payment be applied on his double liability. This alternative feature both in the pleading and prayer was omitted in the amended petition; otherwise they were substantially alike. It is only fair to the learned counsel for the appellant to say that the original petition in this case was filed a few months prior to the rendition of the decision in the case of Citizens Bank v. Needham and four other cases consolidated and reported in 120 Kan. 523, 244 Pac. 7.
The two statements in the amended petition on which the plaintiff relies to make this payment of his a special deposit or trust fund are, first, the following clause contained in the letter of the deputy bank commissioner to the cashier'of the bank, namely: “You are hereby instructed to call a special meeting of your stockholders in accordance with your by-laws for the purpose of levying an assessment of 100 per cent against your stock of record, as of this date, the proceeds of said assessment when collected to be deposited in a stockholders’ account to be used when paid in full to take care of certain losses in your assets as set out in the examiner’s report;” and second, “the oral agreement between the stockholders that in the event all of the stockholders did not pay the assessment the amount advanced by the stockholders should be returned to them, including this plaintiff,” on which agreement the petition alleges he relied.
Both these matters, and particularly the first, we think are disposed of by the decision in the Needham case, above cited, on the theory that a bank assessment is absolutely voluntary. It is entirely voluntary with the stockholders whether or not any assessment be made. The bank commissioner cannot compel or coerce one to be made. He may close the bank if it is not made. It is an assessment on the stock and not on the stockholder, and further, if it is made by vote of the stockholders it need not be paid. The stockholder pays the assessment only because he thinks the stock is worth more than the assessment.
“Whenever it shall appear that the capital stock of any bank doing business under this act has been impaired, the bank commissioner shall notify such bank to make such impairment good within ninety days; and it shall be the duty of the officers and directors of any bank receiving such notice from the commissioner to immediately call a special meeting of its stockholders, for the purpose of making assessment on its stock sufficient to cover the impairment of its capital: Provided, That such bank may reduce its capital to the extent of the impairment, if such reduction will not place its capital below the amount required by this act.” (R. S. 9-145.)
It was held in the Needham case, above cited, concerning an assessment under this section of the statute, as follows:
“Payments made by stockholders to a bank in consequence of impairment of capital, with purpose or effect to repair breach in capital or to keep the bank a going concern, are voluntary payments, however induced. . . .” (Syl. H 2.)
The instances to which references are made as to inducements in said case are where the deputy bank commissioner told the stockholders the assessment would put the bank in good condition and they would not need any more assessments, and where two deputy bank commissioners were said to have told the stockholders that the assessment would keep the bank going and would avoid the double liability. These were the circumstances involved in the above case where the court held the assessment was voluntary nevertheless— voluntary as to the stockholders collectively in making the assessment, and voluntary as to the individual stockholder in paying it or letting his stock be sold without any personal liability being involved. “The obligation to pay an assessment runs to the bank, and the stockholder who pays does so for the benefit and security of the bank as a going concern, and to keep it in operation.” (Citizens Bank v. Needham, supra, p. 539.)
The stockholders in the present case passed the following resolution:
“In compliance with the requirement of Deputy Bank Commissioner Rhodes of January 19, 1926, and supplemented by the letter from Assistant Bank Commissioner Kennedy on January 23, 1926, we the stockholders of the Emmett State Bank of Emmett, Kansas, at a meeting called on February 6, 1926, do hereby levy an assessment of 100 per cent on the capital stock of said bank payable on or before April 19, 1926.
“The proceeds of the above assessment is to be used first to pay one certain note given by the directors of said bank to Mr. Beeler of St. Marys, Kansas, for $8,000, and the balance, together with the $5,000 derived from the reduction of capital stock voted at the annual meeting, is to be used to charge off paper listed by the examiners as worthless and questionable at the examination held on January 19, 1926.”
The plaintiff says at the same time this resolution was passed there was made an “oral agreement between the stockholders that in the event all of the stockholders did not pay the assessment the amount advanced by the stockholders should be returned to them, including this plaintiff.” Such an agreement would be wholly inconsistent with the terms of the resolution, which says how the funds shall be used in the payment of the debts and charging off worthless paper. That is very different from a special deposit or trust fund, and evidence under such an allegation would be inadmissible because it would be attempting to contradict and vary the terms of a written document — the resolution — not ambiguous in itself or needing any extrinsic evidence to explain it.
“Few of the rules of evidence are of wider application than that which declares extrinsic evidence not to be admissible either to contradict, subtract from, add to or vary a written instrument.” (10 R. C. L. 1016. See, also, Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625; Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37; Knote v. Bense, 94 Kan. 294, 146 Pac. 363.)
The purpose of this resolution and payment of the assessment was to make good impaired capital. There is no sacred trust about that. One of the five instances in the Needham case was where the stockholders informally raised $40,000 to make good impaired capital, but it was not a special deposit or trust fund — it just went to the bank to take up bad paper.
Careful consideration has been given to all the cases cited by the appellant in his effort to show the assessment paid in this case to be a trust fund, but we think they apply to facts and circumstances quite different from those in this case. One is a deposit under an agreement to purchase new stock about to be issued by the bank, but the bank failed before it was issued; another is an escrow agreement between the owner of land and an oil-well driller, the agreement providing that the money deposited is to be paid to the oil-well driller when he completes the well or returned to the owner in case the well is abandoned; and another, where a man paid a note at the request of the bank a few days before it was due and took a receipt for the payment because the note had been assigned to another bank. In all of these cases the funds were held to be trust funds, and the relation of principal and agent rather than debtor and creditor existed. The relation of principal and agent between the plaintiff and the bank is hard to recognize in this case, neither do we think the alleged misconduct of the cashier or other bank officers in putting said payment in the general fund instead of a special fund will make it a trust fund.
“A claim against the receiver of a bank cannot be declared a trust fund where the claim arises out of the wrongful acts of the bank’s cashier by which the money of the claimant was deposited in, the bank in an account belonging to the bank and all the funds in that account had been dissipated at the time the receiver was appointed.” {City of Spring Hill v. Paxton, Receiver, 115 Kan. 412, syl. H 3, 223 Pac. 283.)
We conclude that there was no error in the sustaining of the demurrer to the original petition or to the amended petition in this case.
The judgment of the trial court is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This case involved a prosecution of defendant, S. Newton Bowser, for causing the death of Claude R. Anderson on August 22,1926.
Anderson had been riding westward on an interurban street car on Main street in the city of Parsons, and had just alighted therefrom at a street intersection (Twenty-eighth and Main) and was proceeding northwesterly across the intersection when Bowser came from the east driving a Cadillac car which struck and tossed Anderson toward the north curbing. Anderson died in two hours, and Bowser was prosecuted under R. S. 21-420. The state’s evidence tended to prove that Bowser was guilty of culpable negligence in driving his car at a high and unreasonable rate of speed — twenty-five to forty miles per hour, according to the state’s witnesses.
Bowser was convicted of manslaughter in the fourth degree and sentenced to one year’s penal servitude. He appeals.
The pertinent statute reads:
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” (R. S. 21-420.)
The first error presented relates to the overruling of defendant’s motion to quash the information on two rather inconsistent grounds —first, that it charged three distinct crimes, and second, that it did not allege any crime. The information followed closely the language and allegations in the information set out in State v. Bailey, 107 Kan. 637, 193 Pac. 354. Perhaps it paraphrased that information too closely, because the statute governing the speed of automobiles in' cities has been changed somewhat since the Bailey case. At the time Bailey ran down and killed Geraldine Ransom the law (Laws 1917, ch. 74, § 5) forbade the operation of any motor vehicle—
“ . . . Within any city or village . . . at a speed greater than twelve miles an hour, nor at a rate of speed greater than is reasonable and proper, and having regard for the traffic and use of the road, and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person.”
In the present statute (Laws 1925, ch. 84, § 1) the specific in hibition of any speed “greater than twelve miles an hour” does not appear. It now reads:
“Within any city or village no motor vehicle shall be operated at a rate of speed greater than is reasonable and proper, and having regard for the traffic and use of the road and the condition of the road, nor at a rate of speed such ns to endanger the life or limb of any person.”
Counsel for the state contend that the inclusion of the allegation that Bowser was driving at a greater speed than twelve miles an hour was merely nonprejudicial surplusage. However that may be, the objection that the information did not charge a criminal offense is not good. In State v. McCarthy, 124 Kan. 20, 257 Pac. 925, it was said:
“The rule as to the sufficiency of an information is that if it fairly apprises the defendant of the crime charged against him and is definite enough so that the court will have no trouble in ascertaining the correct sentence to impose upon a verdict or plea of guilty (State v. Hutzel, 108 Kan. 456, 195 Pac. 887), the information is good against a motion to quash.” (p. 21.)
Neither is there merit in the contention that the information charged three distinct offenses. The fact that the necessary allegations included in the information to perfect the charge of manslaughter in the fourth degree recited facts and incidents which, standing separately, would have sufficiently charged penal infractions of the speed law is immaterial. (State v. Meade, 56 Kan. 690, 44 Pac. 619; State v. Bryan, 120 Kan. 763, 245 Pac. 102; State v. Robinson, 124 Kan. 245, 248, 259 Pac. 691.)
The next error urged relates to the trial court’s instructions to the jury. Under this assignment appellant quotes liberally from the instructions and makes numerous criticisms thereon. For example, the trial court gave this instruction:
“You are instructed to disregard the statements of counsel made during the progress of this trial, as to what they expected to prove or disprove, unless such statements have been substantiated by evidence admitted by the court,
The point is made that from this instruction the jury might infer that if the statements of counsel were substantiated by evidence, such statements of counsel were not to be disregarded, but given a measure of credence. The literal text of this instruction might well be revised. It would be more precise to tell the jury that statements of counsel are not in any sense to be considered as evidence; and that counsel are merely permitted to make such statements so that the court and jury may be advised as to counsel’s theory of the case and what they will attempt to prove by evidence. However, we think the possibility that the jury were misled by this instruction is too remote to justify an inference that defendant was prejudiced thereby.
Fault is also found with the trial court’s instructions concerning culpable negligence, but they were not subject to serious criticism unless the inclusion of a reference to the speed ordinance of the city of Parsons as an element of such negligence may have prejudiced the defendant. That point still requires special consideration.
Defendant also contends that he was entitled to an instruction touching the effect of the contributory negligence of Anderson. The court correctly instructed that the negligence of Anderson, if any, was no defense to the alleged crime of Bowser, but the instruction was somewhat lame in failing to state that the decedent’s negligence, if shown, should be. considered with all the other evidence to determine whether some negligent act or omission of defendant’s was or was not the proximate cause of Anderson’s death, or whether under the circumstances defendant’s act was negligent at all. In the’ analogous case of State v. Campbell, 82 Conn. 671, 136 A. S. R. 293, 296, it was.said:
“The court properly said to the jury that the state must clearly shew that the deceased’s death was the direct result of the defendant’s negligence, but that the injured man’s conduct became material only as it bore upon the question of such negligence of the accused.” (p. 675.)
In Dunville v. State, 188 Ind. 373, the defendant was convicted under the motor vehicle act for inflicting mortal injuries on a small child who darted out into the street on which defendant was driving at an excessive rate of speed. In reversing the judgment, the court said:
“Counsel for the state . . . wholly deny that the conduct of this child in suddenly coming into the street has anything to do with this case. Their contention is, if we understand them, that if it was shown that appellant was violating the speed law, and that, as some of the evidence shows, he was looking back, or looking to the side at some men who attracted his attention on the east side of the street, and for that reason did not see the child, that he is therefore guilty of manslaughter. Counsel for the state say that contributory negligence .of the child has nothing to do with the case. This is true in a sense. It is not a question of contributory negligence. Of course, we know that a child two years and nine months old is not sai juris and cannot be guilty of negligence, or contributory negligence, in the ordinary sense of those terms; but' the conduct of this child, in the cricumstances shown by the evidence, is just as cogent in breaking down the intent which the law imputes to appellant after the event, as like conduct on the part of an adult in like circumstances would be in repelling such imputation. It is not a question of contributory negligence, but it is one of proximate cause.
“So the question is, Did appellant conduct himself at the time and place in such manner as to show a willful and wanton disregard for the rights of others, from which the law infers an intent to cause death, and did his conduct cause the death? It will be conceded that, if appellant were driving his motorcycle down the street, and the facts showed that he saw, or had reason to know that' little children were upon the street who were of such tender age as not to know the dangers or heed warning signals, it would be his duty so to conduct himself as not to injure them, and in the event that he willfully and wantonly disregarded that duty and his conduct resulted in the death of one of them, he would be guilty of involuntary manslaughter. Circumstances could well be conceived in which he would be guilty of involuntary manslaughter if he drove the motor vehicle even at one mile an hour in a street crowded with little children — or even crowded with adults.
“The most the evidence discloses is negligence on the part of appellant. For aught that appears in this case, the proximate cause of Frances Held’s death was the fact that she ran in front of appellant’s motorcycle and suddenly stopped. For aught that is shown by the evidence the accident would have occurred had appellant been proceeding in the most careful manner.
. . . The judgment is reversed, with instructions to sustain appellant’s motion for a new trial.” (p. 378.)
Another error urged relates to the trial court’s failure to instruct the jury concérning the consideration to be given to the evidence of good reputation adduced in defendant’s behalf. However, in arguing their motion for a new trial his counsel admitted that they had failed to ask for such an instruction, and under the circumstances of this case — neither malice nor similar vice constituting an element of the offense — its omission was not error. (State v. Nichols, 117 Kan. 630, 232 Pac. 1058.)
Appellant hlso complains of impertinent matter in the instructions. The case was a very simple one, easy to charge and easy to prove, and the pertinent instructions touching the law of the case might well have been given in small compass. Those given fill twelve closely printed pages of the abstract, and it must be said they do contain irrelevant matter. Thus the instructions contain that paragraph of the crimes act, R. S. 21-419, which defines the offense of the involuntary killing of a human being by a weapon, and treats of the legal consequences to follow if they find Bowser—
“With which means, to wit, an automobile, defendant inflicted or created on the body of said Claude R. Anderson certain mortal injuries or wounds; that from the wounds or mortal injuries so inflicted the said Claude R. Ander son then and there died in the county of Labette and state of Kansas, all as charged in the information,” etc.
It seems superfluous to say that Bowser was not charged under this section of the statute; the automobile was not a “weapon” with which Bowser involuntarily killed Anderson in the heat' of passion.
The instructions also' included full quotation of R. S. '21-404 and 21-405, which cover justifiable and excusable homicide in all their manifold aspects, not one of which had the slightest relevancy to the case at bar. There was no suggestion of a defense to this prosecution based upon some theory of justification or excuse under either of these provisions of the statute. Bowser’s defense was simply this: He was not driving fast, but slowly and carefully; the street car did not stop, nor did anybody get off where it should have stopped, on the east side of Twenty-eighth street; that he had no reason to take precautions against the possibility that the street car would stop and Anderson get off the car after it had passed the center- of the intersection and at some distance beyond the usual stopping place; that his consequent striking of Anderson with its fatal result was purely an accident so far as defendant was concerned; and..that Anderson’s getting off the car when and where he did and startiug for the curb without looking to see if-an automobile was coming— whether negligent or not — was the proximate cause of the tragedy. In view of this kind of a defense the inclusion of the statutory provisions concerning justifiable and excusable homicide were irrelevant if not altogether prejudicial.
Defendant also complains because the court included in his instructions the paragraph of the crimes act, R. S. 21-423, which prescribes the punishment for the crime charged in this prosecution. Of course that matter was not the jury’s concern; it should not have been given (State v. Bell, 107 Kan. 707, 193 Pac. 373), but its inclusion was not prejudicial.
But we come to a matter of graver consequence than anything yet discussed. The trial court permitted the state to introduce in evi-' dence in extenso the city ordinance of Parsons governing the use of automobiles. Among other matters that ordinance made it unlawful to drive an automobile on the streets of Parsons at a greater speed than twelve miles per hour, and unlawful to drive across an intersection at more than six miles per hour, and required that all vehicles stop and not proceed past a street car while passengers are being loaded or discharged, and many other matters of no present concern in this prosecution. We have already noticed that the information also contained an allegation that defendant drove his automobile “at a rate of speed greater than twelve miles an hour.” In his opening statement to the jury the county attorney said:
“That the city ordinances of Parsons make it unlawful and illegal for anybody to drive an automobile on the streets of Parsons at more than twelve miles an hour, and on an intersection of more than six miles per hour.”
So, too, the city clerk was placed on the witness stand and testified in detail concerning the city speed ordinance. Moreover, in the trial court’s instructions reference to the city speed ordinance is repeatedly made. One instruction reads:
“The state has introduced in evidence ordinance No. 2,483 of the city of Parsons, commonly known as the traffic ordinance of said city, passed and approved April 19, 1920, published April 22, 1920, and effective after its publication.
“Section No. 12 of said ordinance, fixing the speed of automobil.es when being driven over the streets of the city of Parsons, reads as follows:
“ ‘Sec. 12. That no person shall operate a motor vehicle of any kind on any street, avenue or public highway within the city of Parsons, Kansas, at a rate of speed greater than 12 miles an hour nor at a rate of speed greater than is reasonable and proper, having due regard for the traffic and use of the streets, avenues, alleys, or public highways, considering the condition of the same, nor at a rate of speed such as to endanger the life or limb of any person.’
“Section 14 of said ordinance provides, among others, that an automobile on approaching an intersection of a street or avenue in the city of Parsons shall not be driven at a speed exceeding six miles per hour, except emergency calls of physicians or surgeons, police or fire vehicles, or ambulances, when answering emergency calls demanding excessive speed.
“Section No. 11 of said ordinance provides that all street or interurban cars operated within the city of Parsons shall when stopped be stopped before crossing the intersection street and before reaching the cross walk. Said section No. 11 also provides, that all vehicles, including automobiles, shall stop and not proceed past street cars while passengers are being loaded or discharged.
“You are instructed that it is the duty of all drivers of automobiles on the streets within the city of Parsons to observe the provisions of said ordinances; but before you would be warranted, if at all, in finding defendant guilty, as charged in the information, for a failure to observe the provisions of said ordinance, or any of them, such failure, if any, must have been the proximate cause of the killing of said Claude R. Anderson.”
It is quite manifest, we think, that this case was tried from first to last on the theory that the infraction of the city speed ordinance by Bowser, if proved, was a material fact in establishing Bowser’s guilt. We think that matter was given far too much significance in this prosecution. The “twelve railes per hour” feature of the information might be disregarded as surplusage as the state contends, but its inclusion therein does give a keynote to the whole theory of the prosecution, as well as to the elaborate treatment of the city speed ordinance in the instructions. We may pass by the introduction of the speed ordinance and the testijnony of its custodian, the city clerk, especially as counsel for the state make the point that that evidence was not objected to. But the significance given to the city speed ordinance in the instructions cannot be overlooked. . The breach of a city ordinance subjects the offender to a fine and possible jail sentence in the police court of thé city. It has nothing to do with the matter of determining whether or not a crime has been committed in violation of state law. In Parsons it is a breach of police regulations for a driver not to stop his automobile when he comes to a place where a street car is loading or unloading passengers. In a dozen other Kansas cities there is no such requirement. In Parsons it is a misdemeanor to drive an automobile over a street intersection at a greater speed than six miles an hour, or anywhere on the streets-of Parsons at more than twelve miles per hour. An autoist in many Kansas towns would be in danger of arrest for delaying the traffic if he dawdled in a busy street in such a fashion. •
The culpable negligence of an offender under R. S. 21-420 is not ascertained by consideration of the variable element involved in the local speed ordinances of the different cities of this state. The offense of manslaughter in the fourth degree is the same in every city, and cannot be permitted to vary because one city may have a six-miles-per-hour speed limit at street crossings and another eight miles, and still others ten, twelve, or other number of miles per hour.
So far as Bowser’s culpable negligence depended upon the fact of the speed at which he drove his automobile,, it was completely and exclusively covered by state law as already quoted in this opinion.
The culpable negligence with which the crimes act, R. S. 21-420, is concerned pertains to some breach of duty imposed by statute or general principle of law, not by city ordinance. This is clearly pointed out in the analogous case of State v. Collingsworth, 82 Ohio St. 154, 28 L. R. A., n. s., 770, where it was said:
.“The unlawful act being committed, which results in the death, must be an act prohibited by law, as distinguished from an act forbidden by an ordinance of one of the municipalities of Ohio. . . . There are many municipal corporations in this state, and each may have its ordinances, appropriate to its-local'needs, and therefore there cannot be any uniformity in such local laws, if they should be entitled to the name of laws. Many of the counties of the state contain several municipal corporations. What may be an-unlawful or prohibited act in one may be lawful in another, and so throughout the state. We are not permitted to say that wliat may constitute an essential element of manslaughter in one city or village need not be present in the ordinances of other cities' or villages of the state. If the act of killing a person, which ensues from violating a municipal ordinance; constitutes manslaughter, then we have a-law of a general nature, which perhaps is not of uniform operation throughout even Franklin county. Neither is it of uniform operation throughout the various municipalities of the state. The unlawful act contemplated as an essential element of manslaughter must be uniformly unlawful throughout the state.' Otherwise, what might be that crime in Columbus might not be such in Dayton, Toledo, Cleveland, or any other city or village in the state.” (p.1590
In Commonwealth v. Adams, 114 Mass. 323, the defendant was prosecuted under the state law for assault and battery because in driving a sleigh across a street intersection at a rate of speed prohibited by city ordinance he ran against a boy and knocked him down. Defendant had pleaded guilty to a complaint for fast driving, in violation of the city ordinance. The state also asked for a verdict’ on the ground that the intent to violate the city ordinance supplied the intent necessary to sustain the state’s charges of assault and battery. The trial court so held, but the supreme judicial court 'ruled:
“One who negligently drives over another is not guilty of a criminal assault and battery, although he does it while violating a city ordinance against fast driving.” (Syl.)
In the opinion it was said:
“It is true that one in the pursuit of an unlawful act may sometimes be punished for another act done without design and by mistake, if the act done was one for which he could have been punished if done willfully. But the act, to be unlawful in this sense must be an act bad in itself, and done with an evil intent; and the law has always made this distinction; that if the act .the party was doing was merely malum prohibitum, he shall not be punishable for the act arising from misfortune or mistake; but if malum in se, it is otherwise. (1 Hale P. C. 39; Foster C. L. 259.) Acts mala in se include, in addition to felonies, all breaches of public order, injuries to persons or property, outrages upon public decency or good morals, and breaches of official duty, when, done willfully or corruptly. Acts mala prohibita include any matter forbidden- or commanded by statute, but not otherwise wrong. (3 Greenl. Ev., § 1.) It is within the last class that the city ordinance of Boston falls, prohibiting driving more than six miles an hour in the streets.” (p. 323.)
In People v. Pearne, 118 Cal. 154, the defendant was convicted of the crime of involuntary manslaughter. It was claimed that while intoxicated he drove his team of horses on a public street at a great and unusual rate of speed, and in so doing ran over and fatally injured a feeble old woman. The prosecution introduced in evidence at the trial an ordinance of the county of Butte, which declared it a misdemeanor to drive at a greater rate of speed than six miles an hour in any unincorporated town or village of that county which contained five hundred inhabitants. This evidence was offered for the purpose of showing that the defendant was guilty of a misdemeanor in driving at a greater rate of speed than six miles an hour in the town of Biggs, and for this reason it was claimed by the prosecution that he was engaged in the commission of an “unlawful act” when the killing was done. In reversing the judgment on other grounds the court said:
“We suggest that upon a retrial of this case, if the officers of the law deem a retrial advisable, the whole question of ordinance be omitted from the evidence. We do not see how the case is strengthened by it. . . .
“ ... In arriving at the verdict, we cannot tell whether the alleged violation of this ordinance of the county of Butte was considered by the jury in their deliberations.” (p. 158.)
And so here. We cannot tell to what extent the alleged violation of the speed ordinance of the city of Parsons entered into the deliberations and verdict of the jury. Presumably the city clerk’s testimony, the reading of the ordinance as evidence in the case, and its inclusion in the instructions with the court’s dissertation thereon, had all the significance the prosecuting attorney and trial court intended they should have. The result was prejudicial. The judgment will have to be reversed; and in another trial all consideration of any breach of the ordinance as a factor in establishing the culpable negligence of the defendant should be omitted.
Some other matters are raised in defendant’s brief which present nothing to justify further discussion. We have noted certain affidavits filed in this court intimating, and counter affidavits denying, the occurrence of certain irregularities pertaining to the trial below, but as these affidavits were not presented to or ruled on by the trial court they cannot be considered in this appeal. (Woodburn v. Harvey, 107 Kan. 422, 191 Pac. 468; State v. Hobl, 108 Kan. 261, syl. ¶ 11, 194 Pac. 921; State v. Brecheisen, 117 Kan. 542, 232 Pac. 244.)
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles Buseman was convicted upon a charge of stealing chickens in the nighttime and founded his appeal upon two grounds, first, the insufficiency of the evidence to sustain the •conviction, and second, misconduct of a member of the jury.
Concerning the first ground there is testimony that W. J. Finley owned and kept a flock of well-bred Buff Orpington chickens; that on the evening of the last day of December, 1926, and after his chickens had gone to roost, he closed the door of the chicken house, and on the following morning he found that thirty-five of them were missing. Later he learned that a dealer in Clay Center had purchased that number of Buff Orpington chickens, and when he visited the dealer, who had kept them apart from others, he insisted that they belonged to him, and he then learned that the chickens had been purchased from defendant on the night of the day they were taken from his chiicken house. A warrant for the arrest of defendant was promptly issued, and when he was taken into custody he claimed he had purchased them from one Craig, but on the trial he testified that he bought them from his brother, who lived in an adjoining county. It appears that he had purchased a mixed bunch of chickens from Craig, but had sold themi to another dealer before the Finley chickens were taken. The controversy on this branch of the case relates to the identification of the chickens and the ownership by Finley.
Defendant claims that they were not shown to be the chickens of Finley, that the testimony was wholly circumstantial, and that the identity was based wholly on the habits of chickens. It was further shown that when the chickens were taken back to Finley’s farm, a marker was attached to each of them and all were then released a considerable distance from the chicken house. The testimony is that when turned loose they went to the end of a pipe leading from the milk house and drank milky water found there. When roosting time came, they went to roost with other chickens as if they were familiar with the place. Mixing with the other ichickens on the farm there was no fighting between those brought in and those left on the farm, and it was in -testimony that when strange chickens are brought to a chicken yard containing others there is fighting, and further that strange chickens do not go into a chicken house with which they are not familiar, but go to roost in trees- and other places outside. The chickens in question did not hold back or act as strangers, but went to roost as if they were at home.
A further test was afterwards made by taking two of the marked chickens after they had gone to roost, carrying them some distance from the chicken house, and'when they were turned loose they ran back at once to the chicken house. Both parties produced testimony on this phase of the case relating to the habits of chickens.
This testimony, although not strong, was competent and could be taken by the jury for what it was worth. The instructions are not preserved in the record, and hence we must assume that the court properly instructed the jury as to the force and consideration to be given that kind of testimony. It cannot be said that there was no testimony of identification except that relating to the habits of chickens and their action when they were returned to the Finley farm. One of the chickens was positively identified by two witnesses by a broken spur. While Finley and his wife said they were familiar with the appearance of their chickens and claimed that they belonged on the farm, they were compelled to state that there was no distinguishing mark on them other that the one mentioned, and also conceded that it was difficult to identify chickens of the same breed and color.
After the arrest of defendant, he called on Finley and proposed to settle the matter, stating that the trouble would kill his wife and mother, and if Finley would settle and buy his stuff he would go so far away that Finley would never hear of him again.
The testimony related, including the conflicting statements of defendant as to the person from whom he purchased the chickens in question, is deemed to be sufficient to sustain the conviction.
The remaining point, that error, was committed in denying defendant’s motion for a new trial because of the misconduct of the members of the jury, is founded on the following testimony: An affidavit of a juror was filed to the effect that upon the adjournment of the court upon the evening of the first day of the trial, the jurors returned to their homes, and that Lou Holliday, one of the jurors, while at his home, was told by his wife that she had been informed by some one else that defendant had stolen wheat from one Goodin, and that on the following morning while he and Merrill Johnston, another juror, were traveling back together in an automobile to resume their duties as jurors, Holliday told Johnston of the statement made to him by his wife. The trial had proceeded to near the close of the evidence, and then that morning after the completion of the evidence, the instructions of the court and the argument of attorneys, the jury retired to deliberate on their verdict. In his affidavit Johnston said that the statement of his fellow juror Holliday “affected the verdict of this affiant and helped to cause him to change his vote from not guilty to guilty.” Holliday’s affidavit was to the effect that he had told Johnston what his wife had told him, but did not state that the rumor had affected his verdict. After considering the affidavits and some other testimony not material here, the court overruled the motion for a new trial.
The state insists that the affidavit of Johnston was not competent in that it tended to impeach his verdict. It is a general rule founded on sound public policy that jurors are not permitted to impeach a verdict to which they have deliberately agreed under the sanction of an oath. There would be little virtue or finality in verdicts if they could be impeached and overthrown by the evidence of dissatisfied or unduly influenced jurors. It has been said that: “It would result in perjury and bribery and there would be no end of litigation in cases tried before juries.” (27 R. C. L. 897.) We have held that verdicts cannot be destroyed by the affidavits of jurors stating a ground which essentially inheres in the verdict itself. (State v. Horne, 9 Kan. 119.) In that case the court approved a rule announced in Wright v. Telegraph Co., 20 Ia. 195, that a juror will not be permitted to impeach his verdict by a statement that “he was unduly influenced by the statements (or otherwise) of his fellow jurors.” (See, also, State v. Bowman, 80 Kan. 473, 103 Pac. 84; State v. Keehn, 85 Kan. 765, 118 Pac. 851.)
In Ohlson v. Power Co., 105 Kan. 252, 182 Pac. 393, it was said:
“A juror may testify as to what transpires in a jury rocim (Barber v. Emery, 101 Kan. 314, 318, 319, 167 Pac. 1044), but he may not tell what considerations constrained him to his decision, nor give the reasons for his -verdict. In short, he cannot be heard to confess his own recreancy in order to impeach his own verdict.” (p. 254.)
Again, if the statement of Holliday could be treated as something not included in the verdict, it is not of the character which requires the setting aside of the verdict. The statement of Holliday was not a fact within his own knowledge. It was not even an expression of his own opinion. It was nothing that could have been received in evidence if it had been offered on the trial. It was a mere rumor, something the juror heard from one who had heard of it by another, who in turn had been told of it by still another unidentified person, none of whom had asserted the truth of the report. It has been decided that before extraneous statements can amount to ground for reversal—
“It must be shown that such prejudicial statements so made were of positive facts within the knowledge or asserted to be within the knowledge of the juror making them and such as the jury might receive as evidence of the fact asserted and not as the mere expression of opinion of the juror.” (Hulett v. Hancock, 66 Kan. 519, syl., 72 Pac. 224; Madison v. Railway Co., 88 Kan. 784, 129 Pac. 1157.)
Defendant cites State v. Lowe, 67 Kan. 183, 72 Pac. 524, in support of his contention, but in that case as in others cited the statement deemed prejudicial was one made by a juror to his associates based upon his own personal knowledge. The remark made to the juror was a hearsay statement, was not made as a fact, nor was it made as being within the knowledge of the informant. It came through the mouths of several persons, no one of whom had spoken of it as authentic or worthy of belief. The cases cited where the extraneous statements were received were based upon personal knowledge of a juror to his associates, and stated as facts, and hence are not applicable to the present case. Some of these are reviewed in State v. Farrar, 103 Kan. 774, 176 Pac. 987. Moreover, a -juror of average intelligence acting under his oath and presumably under an instruction of the court, that the verdict must be based alone on the evidence produced at the trial, could not have been led astray by the mentioned rumor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover against the surety on the bond of a city treasurer for a claimed shortage of funds in the treasurer’s official accounts.
On issues joined the cause was presented on evidence-at length.before a referee, who made findings of fact and conclusions of law, all favorable to the defendant. Judgment was entered accordingly, and the city appeals.
The first error urged pertains to the adverse rulings of the court on plaintiff’s motions to set aside the findings of the referee and to render judgment in favor of plaintiff upon-the “material” findings. To determine the correctness of the rulings on the first of these motions, we have submitted to us an abstract of sixty-three pages and a counter abstract of sixty-eight pages, both of which we have perused with diligent care, but which it would serve no purpose to abridge and reproduce here; and it is not possible for us to say with assurance that the referee’s findings lacked support in the evidence or that the trial court erred in sustaining them.
As a general rule it should be said that before a shortage of a public officer’s accounts and the extent of such shortage can be determined — and the same rule would apply to any custodian of other people’s money — it is necessary to show three specific facts: (1) the amount of money the officer had on hand at the beginning of the accounting period, (2) the amount of money that came into the officer’s hands during the period covered by the accounting, and (3) the amounts of disbursements lawfully made by the officer during the accounting period. From these three facts or factors, the amount for which the officer is responsible can be computed, and the shortage, if any, determined. However much work the ascertainment of these factors may entail, without them any accounting is worthless. Here, a most painstaking study of the record fails to disclose the first of these factors with either definiteness or certainty. Indeed, the accounting period itself is not indicated. It cannot be confidently ascertained whether it was for the treasurer’s last official term or for his entire three and a half terms, or other period covered by his incumbency of the office. Appellant inveighs against certain credits allowed the treasurer because, according to its interpretation of the admittedly muddled accounts, he had been given credit for those items a number of years ago, during one of his earlier official terms. Another insoluble puzzle in this case, which prevents an appellate court from reversing the judgment, is the fact that apparently the city clerk’s and city treasurer’s official records have been out of balance for years, and apparently they were more nearly in accord at the close of defendant’s last official term than they were at the beginning. Moreover, the clerk’s records were shown to be inaccurate, partial, and incomplete, and however far from an accurate approximation of the treasurer’s accounts was reached by the referee and the trial court, who were the exclusive triers of the facts, it is altogether beyond the functions of this court to make an independent accounting of the fiscal affairs of the city of Oswego to determine the status of the treasurer's accounts. It must suffice to say that no manifest or demonstrable error is disclosed in the findings and they will have to stand.
Touching the so-called “material” findings, plaintiff’s motion that it be given judgment thereon was properly denied. The findings, twenty-five in number, were all in accord with the last, which was controlling and conclusive. It reads:
“25th. That on. the 6th day of April, 1923, and after the said city treasurer, Wilbur H. Condon, had turned over to his said successor in office the sum of seventeen thousand seven hundred fifty and 83/100 ($17,750.83) dollars, he, the said Wilbur H. Condon, was not and he is not now indebted to the said city of Oswego in any sum whatsoever.”
Error is also assigned because of a peculiar incident which arose after the hearing before the referee was concluded, and after his findings of fact and conclusions of law had been reported to the trial court. The referee was A. J. Curran, for many years presiding judge of the Crawford county district court, now retired, and who had been appointed referee pursuant to an agreement of the litigants. On receipt of the referee’s findings, the trial judge, Hon. W. D. Atkinson, wrote to Mr. Curran, stating that he had read the referee’s report, expressing a compliment on the quality of the referee’s work, and stating that judgment thereon would be entered in due course. The trial judge, with his well-known attention to such details, also dictated a stereotyped form of journal entry of judgment to be signed as soon as the matter of entering judgment was dispatched. Meantime, however, counsel for appellant, who also has a creditable record for diligence and zeal, filed various motions attacking the referee’s report; and on the day these motions were to be heard he chanced to discover in the files a carbon copy of the trial judge’s personal, complimentary letter to the referee, and the prepared form of journal entry approving the referee’s report and decreeing judgment thereon. Counsel for appellant seized on this incident to' demand that the trial judge vacate the bench on the ground that he had prejudged the appellant’s motions, and moved for the appointment of a judge pro tempore to hear and rule on those motions. But of course the trial judge refused to budge. He ruled, “No reason for it, none whatever.” He patiently heard appellant’s arguments and overruled his motions seriatim. Appellant’s counsel, with true last-ditch loyalty to his client declines to waive this point, but in his brief we note the following:
“I wish the court to understand that I do not impugn the motives of Judge Atkinson. No one has a higher opinion of Judge Atkinson as a man than myself.”
In view of this concession, as well as the trial court’s ruling, “No reason for it, none whatever,” which was the equivalent of a finding of fact that he was not prejudiced and that he had not intended to prejudge appellant’s motions, the existence of which he was unaware of when he dictated what he conceived to be a suitable form of journal entry of judgment, it is quite apparent that no reversible error can be predicated on this incident. A motion to vacate the bench and give place to a judge pm tempore, except in cases expressly covered by statute, is largely addressed to the trial judge’s conscience, and ordinarily his considered ruling thereon leaves no practical basis of error. (Bank v. Grisham, 105 Kan. 460, 473, 185 Pac. 54.)
The record contains no prejudicial error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action arose out of a breach of contract concerning the purchase and sale of a quantity of pipe. It appears that in September, 1925, one Nathan J. Cohen, doing business' under the name of the United Pipe and Supply Company, purchased from the defendant, Roy Neel, a supply of pipe for use in oil and gas wells, which Neel was to deliver f. o. b. Dearing, Kan., within a reasonable time. The agreed price was 16 cents per foot. Cohen made a payment of $300, and settlement was to be made in full when the pipe was loaded on board cars and tallied.
Neel failed to deliver the pipe, and this action followed for the recovery of the $300, and for damages for breach of contract.
On issues joined, the cause was tried before a jury which rendered a verdict for plaintiff in the sum of $728, which the trial court reduced to $650 and entered judgment accordingly.
Defendant appeals, contending chiefly that the judgment in plaintiff’s favor should not exceed the amount of the down payment, $300, and that there was no evidence on which an award of damages can stand.
It seems to us that even a cursory reading of the record refutes this contention. Cohen showed that on two different occasions he lost a sale of the pipe at 18 cents per foot because of defendant’s de linquency, and there was testimony that the reasonable value of the pipe when it should have been delivered was 18 cents per foot. Defendant endeavored to show that these sales were lost because the pipe was not, of the kind or quality the buyers desired. But the pipe which defendant sold and agreed to deliver was good pipe, of a kind and quality plaintiff's buyers would have accepted readily. The fact that plaintiff's prospective customers declined to buy other and inferior pipe which Cohen might have supplied was no defense to this action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a creditor of a corporation to recover from its managing officers the amount of a mercantile account due from the corporation. Plaintiff recovered against Leppellman and Edwards, and they appeal.
The Edwards-Leppellman Mercantile Company was a corporation doing a merchandising business in the city of Independence. C. E. Leppellman and J. H. Edwards were its managing directors. In the early part of the year 1924, the plaintiff, a New York corporation, sold goods on account to the mercantile company in the sum of $420.76. In May, 1924, the mercantile company sold its stock of goods and store fixtures for $8,000, ceased doing business, and proceeded to wind up its affairs. The proceeds of the sale were deposited in the Commercial National Bank of Independence, which applied $3,911.15 to payment of the mercantile company’s overdue promissory note. After payment of taxes and some items of expense, the remainder was distributed pro rata among some forty creditors, each one of whom received approximately fifty per cent of his account. The method of distribution was this: The bank issued a certificate of deposit to each creditor, the mercantile company gave a check to'cover the total sum, and defendants forwarded to each creditor his certificate. The certificate issued to plaintiff was for $197.51. Plaintiff refused to accept the certificate, .returned it, and threatened litigation. The certificate was afterwards turned into cash, and the money was used in closing up the company’s affairs. After the certificates of deposit were issued, a small sum remained in the bank. Some collections were made on accounts due the mercantile company, and the proceeds were deposited in the bank. Checks were drawn on the bank, and at the time of trial the mercantile company had a bank balance of $7.20. The mercantile company then had outstanding accounts receivable amounting to approximately four hundred dollars, and these accounts and its bank balance constituted its total assets. In making distribution to creditors, one creditor was omitted. This creditor afterwards sued on his account. What became of the suit is not disclosed.
Plaintiff sued C. E. Leppellman, J. H. Edwards and the bank, asserting they had appropriated the mercantile company’s assets to themselves, or to themselves and others, as they saw fit. The prayer was for an accounting and proper distribution of corporate assets, for an injunction against further disposition of corporate assets, and for personal judgment against all defendants for the amount of plaintiff’s claim. The answers made full disclosure of the conduct of Leppellman, Edwards, and the bank, in winding up the mercantile company’s affairs. The court relieved the bank of liability, but rendered personal judgment against Leppellman and Edwards for an amount equal to the amount of the certificate of deposit which was sent to plaintiff and which plaintiff refused to accept.
The action was commenced in November, 1924. There was no allegation in the petition that the mercantile company as a corporation was dissolved for any reason or at any time. There was no evidence that the corporation was dissolved for any reason or at any time. There was no evidence that the corporation had given ground for dissolution by abuse of its corporate privileges. While it sufficiently appeared the corporation was insolvent, insolvency alone does not'dissolve a corporation. Insolvency is a ground for dissolution by judgment of a court in an action brought for the purpose, but the corporation was not a party to the action, its dissolution was not prayed for, and the court did not dissolve it. The result is, in what they did Leppellman and Edwards were not statutory trustees for benefit of creditors and stockholders (R. S. 17-808). They were simply managing directors of a live corporation, and could not be called to account or held personally liable except for conduct in that capacity.
There was no evidence of mismanagement of the corporation’s affairs, or of misappropriation of any of its assets. The only challenged item was one of attorney fees, and objection to that item is groundless. The corporation could prefer creditors, and could pay the bank in full, if it so desired. It undertook to distribute the remainder of its funds available to pay creditors equally among its creditors. Plaintiff preferred litigation to its distributive share. It now holds an unsecured, overdue and unpaid account against the corporation. The action was not predicated on violation of the bulk-sales law, and that subject was not referred to in the proceedings in the district court.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment in favor of Leppellman and Edwards. | [
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The opinion of the court was delivered by
Harvey, J.:
In this action plaintiff seeks to enjoin the Zurich State Bank and the sheriff from further proceeding with a sheriff’s sale of certain real property, and also seeks a declaratory judgment construing the will of her grandfather. The bank’s demurrer to plaintiff’s petition was sustained, and plaintiff has appealed.
The facts alleged, so far as necessary to our consideration, are substantially as follows:
I. P. McCauley owned 480 acres of land in Rooks county, where we assume he made his home, and which he had stocked and equipped for farming. He executed his will September 15, 1914, by the first paragraph of which he provided for the payment of his debts, and by the ninth and tenth paragraphs he nominated four of his sons and one daughter as executors. The other provisions of the will follow:
“2d. That my real estate, consisting of the north half and the southeast quarter of section eight (8), township ten (10), range nineteen (19), Rooks county, Kansas, and any other real estate that I may own, shall be held in trust until my youngest child shall become of age, I mean by this youngest child living, or to make it plainer, all my living issue to become of age, and then the said real estate shall be divided equally between my heirs at law.
“3d. That all of my stock and other personal property shall be kept on the above place, and the residue from same and all proceeds from the said real estate and said personal property shall be used for the support and schooling of my children, as it may require, and if there be any surplus, the same is to be held as required above and be divided in the same way and at the same time as the real estate, except otherwise provided for hereafter.
“4th. That my farm shall be worked by my sons that are under age if ' they choose to do so and as fast as they become of age, I instruct my executors to give them a team, harness and wagon and let them start out for themselves and the place taken on by their younger brothers, who shall carry on the said farm, and all profits that shall be made over and above the support and schooling of my children, and the running expenses of the farm, shall be held by my estate and the same as the other property stated above and divided in same manner and time.
“5th. I instruct my executors shall pay my daughters twenty-five dollars per year from the time of my death (as pin money) until they are married, and on that day they will be given a cow, and the expenses of their wedding shall be paid from the estate.
“6th. That my executors shall see that the buildings and improvements on the above land shall ’be kept up in good repair, and that the place be not allowed to run down.
“7th. In case that any of my children or heirs shall try to break this will, or make any litigation in the courts from trouble arising over my estate, the same shall be cut out from receiving any benefits from this will, and his or hers or their share in this estate shall be divided equal between the balance of my heirs.
“8th. My executors shall have charge of the finances of my estate and shall care for and look after the same without any pay or compensation.”
The testator died July 10, 1915, and his will was duly admitted to probate. His wife’s death preceded his. He was survived by ten children, all of whom are now living. The youngest son will be 21 years of age May 28,1931.
A daughter, Ethel B., married George Thompson. They borrowed money from the Zurich State Bank, both signing the note. The note was not paid. The bank sued, and on January 9, 1922, recovered a personal judgment against George and Ethel B. Thompson. An execution was issued on this judgment and levied on the undivided one-tenth interest of Ethel B. Thompson in the 480 acres of land above mentioned, and the same was sold at sheriff’s sale to the bank for $2,900. The sale was confirmed and a certificate of purchase issued.
This action was brought by Marceline May Thompson, the eight-year-old daughter of Ethel B. and George Thompson, by her father as guardian and next friend. As a basis for her right to maintain the action, it is alleged that by the will the title to the land is vested in the executors, as trustees; that plaintiff’s mother has no title in the land, and can have none until her youngest brother reaches his majority and the land is then divided, and in the event plaintiff’s mother is not living at that date, title to an undivided one-tenth of the land would pass to plaintiff. This last contention is, of course, based on speculation, for the reason, as is commonly said, no one is an heir to the -living. 'Plaintiff’s mother may, and so far as the record discloses, likely will, live until her youngest brother reaches his majority, in which event, even under plaintiff’s interpretation of the will, she becomes vested of an undivided one-tenth of the title to the land, with full power to encumber or convey it without regard to plaintiff’s wish. We might affirm the ruling of the trial court on this question alone; but since the trial court may not have based its ruling solely on this point, we shall consider the other questions presented.
The principal question argued is: Did Ethel B. Thompson have an interest in the 480 acres of land which could be levied upon and sold under execution, at the time of the levy and sale in this case? And this is divided into two questions: (1) Had the title to a one-tenth interest in the land passed to her at that time, and (2) if so, could it be sold under execution? As to the first of these, it will be noted that the testator did not devise the land to anyone. It is true the executors have active duties to perform, but these duties pertain to the personal property and to the operation "and maintenance of the farm. Title to the land was not specifically vested in them; they were given no express authority to sell it, and no such authority can reasonably be implied from the will as a' whole. The will did not operate on the title to the land. As to the land, the will fixed a time when it should be divided. This means the land should be handled as a whole, as one farm, until the time for division. The division was to be made among his “heirs.” Who were his heirs? The statute (R. S. 22-118) determines that question. His heirs were his ten children who survived him. The result is, each of his children became vested of the title to an undivided one-tenth interest in the land at the death of the testator.
Counsel for appellant has made an extended argument and cited many authorities in support of the view that the will created an active trust which necessarily vested the title of the land in the executors as trustees. We have examined all of these authorities from our own state, and many of those from other jurisdictions. In each case, of course, the court dealt with the instrument before it. It is not necessary to review them and point out similarities and differences.
Appellant contends that if Ethel B. Thompson had any interest or title to the real property in question, it was not of a character that could be sold on execution; that the proper procedure- to subject it to her debts was by a creditor’s bill. In this state, by statute (R. S. 60-3403), lands, tenements, goods and chattels, not exempt by law, may be taken on execution and sold, and by R. S. 77-201 the words “lands” includes lands, tenements and hereditaments and all rights thereto and interest therein, equitable as well as legal. It has been repeatedly held in this state that any interest in real property not exempt, whether that be legal or equitable, may be sold under execution. (Poole v. French, 71 Kan. 391, 80 Pac. 997; Robertson v. Howard, 82 Kan. 588, 109 Pac. 696; McCartney v. Robbins, 114 Kan. 141, 147, 217 Pac. 311.)
The judgment of the court below is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
In a motion for a rehearing appellant complains that his defense of fraud was insufficiently treated in our opinion. That defense was unavailing because he did not take timely steps to repudiate the alleged fraudulent transaction. He acquired the over-valued Wyoming lands and a mortgage on Nebraska property in one transaction, one bargain. He did not rescind that bargain. He ratified it, in part at least, by foreclosing the mortgage on the Nebraska property. Having bought in that property at the foreclosure sale, it was quite within his power to restore or offer to restore all he acquired in the alleged fraudulent transaction. But he made no tender of any sort. This situation would have defeated him even if the litigation had been between the original parties, appellant and Thomas C. Howe. He could not be heard to complain of one part of the bargain, nor permitted to repudiate it while he hung on to another part which was to his advantage.
This principle runs through all the cases where obligors have sought to be excused from performing their contracts when induced thereto by fraud. (Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Sylvester v. Lynde, 113 Kan. 450, 454, 215 Pac. 305; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429; Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420; 39 Cyc. 1424 et seq.)
The rehearing is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a certificate of life insurance issued under what is known as the group insurance plan. Plaintiff prevailed and defendant appeals.
On May 7, 1923, the Kansas City Southern Railway Company made application to defendant for a group policy of insurance on the lives of its employees. The application was granted and such a policy issued May 8, 1923. Thereafter, and on April 19, 1924, the defendant issued its individual policy of insurance to plaintiff’s husband, since deceased, in the sum of $1,000. Previous to the date last mentioned, the railway company had made application to the •defendant for additional insurance for its employees. The application was accepted and terms agreed upon', to be effective May ,16. On'May 5, 1924, the deceased applied for one thousand dollars additional insurance and was issued a rider or certificate increasing, his insurance one thousand dollars, effective May 16. The deceased last worked for the company on May 7, and after May 9, 1924, was confined in a hospital and died January 28,1925. He was not working for the railway company on May 16. William Moran, an employee of the railway company, delivered the policy of insurance, or rider, to plaintiff sometime in June, 1924; talked with her at that time and knew her husband was in the hospital, but continued to receive payments from her on her' husband’s policy until notified by the company in October, 1924, not to receive any further payments. The defendant first learned of the deceased’s illness the latter part of September, 1924, through claim made by him for total and permanent disability benefits, and thereupon canceled the rider providing for the additional insurance. There is no controversy as to the original policy for $1,000. The defendant paid benefits for disability on the basis of $1,000, amounting to $51.04 per .month until the time of insured’s death, and thereafter paid-thcbalance of the $1,000 due-The controversy concerns only the additional insurance.
Various questions are raised and argued, but the main one around which the controversy turns is whether in making the contract it. was the intention of the parties that the policy for additional insurance should cover one who was not actively engaged at work for the railway company at the effective date of the new policy.
Under provisions of the original application, the insurance was to become effective May 8, 1923, and was to apply to employees actively at work on that date and who had been in the continuous service of the railway company for six months. It was to become effective when seventy-five per cent of the eligible employees of the railway company made application thereunder. Employees wlm were eligible, and who made .written application for insurance, were' insured for one, two or three thousand dollars, according to the annual salary each received. The insurance was to be automatically increased or decreased on April 1 of each year if the salary of the employee was increased or decreased. The term of the insurance was to be for one year from the date of the group policy, and renewals thereof from year to year, such renewals being granted by the defendant upon the application of the employer, the insurance company reserving the right to decline to renew the policy on any . anniversary when the number of the employees insured was less than seventy-five per cent of those eligible for insurance. It was provided that—
“All employees of the employer who are actively at work and who have ' completed six months’ service shall be eligible for the insurance under this policy. .
“All new employees of the employer who are actively at work are entitled to apply for the insurance after completing six months’ continuous service. . . '.
“The company will issue to the employer, for delivery to each employee whose life is insured hereunder, an individual certificate setting forth a statement as'to the insurance protection to which such employee is entitled, the beneficiary to whom payable,”'etc.
The certificate issued to the deceased certified that it was under and in accordance with the group policy.
The group policy provided that the premiums should be payable by the employer; that the insurance company would issue to the employer, for delivery to each employee insured under the group policy, an individual certificate setting forth a statement as to insurance protection, etc.; that the group policy, the application of the employer and the application of the employees should constitute the entire contract between the parties; that the employer would report to the insurance- company each month the names of the employees insured and not previously reported, the names of the employees whose insurance is discontinued on account of termination of employment, etc., the-names of new employees applying for insurance, the names of the employees not insured, etc.; that upon proof of total and permanent disability the insurance company would pay to the employee certain amounts per month in lieu of the payment at death; that upon written election by the employer the amount payable upon the death of the employee insured would be withheld by the company and paid out in equal monthly installments or equal weekly installments.
The application for additional insurance, among other things, stated:
“Employees now insured may apply for additional life insurance in accordance with the amount of insurance now in effect as follows:
Class 1. Those insured for $1,000 may apply for $1,000 additional life insurance.
2. Those insured for $2,000 may apply for $1,500 additional life
insurance.
3. Those insured for $3,000 may apply for $2,000 additional life
insurance.
“This insurance will become effective on the date when seventy-five per cent of all eligible employees have made written application.
“As of and from May 16, 1924, these amendments and changes are to be taken and considered as part of the said application and subject to the agreements and covenants therein contained, and the said application, together with these amendments and changes, are to be taken as a whole and considered as a basis and as a part of the contract of insurance.”
The defendant accepted the amendments in this language:
“The above amendments and changes under application for group policy No. 1856G are hereby accepted, and payments under the policy will be in accordance with such amended application on and after May 16, 1924.”
Was it the intention of the parties that an employee, in order to procure the additional insurance, must as a condition precedent be actively at work on the effective date of the new policy? An answer to the question must be found by a reasonable interpretation of the written instruments. When that intention is ascertained the parties are bound. We are of opinion the writings must be considered and construed together. (1 Bacon Life & Accident Insurance (4th ed.), p. 395, ¶ 226.) The language of the application for additional insurance—
“These amendments and changes are to be taken and considered as part of said application and subject to the agreements and covenants therein contained, and the said application, together with these amendments and changes, are to be taken as a whole and considered as a basis for each part of the contract of insurance,”
indicates clearly that understanding. That the deceased was not actively at work for the railway company on May 16, 1924, or at any time subsequent thereto is not disputed., The jury found that he was not actively at work for the railway company on May 16, or at any time thereafter; that the last day he was actively at work for the railway company was noon of May 7, 1924. The jury also found that the defendant did not learn that the deceased was not so actively at work until September 26, 1924; that defendant received no premiums from the deceased after the date last mentioned, and that it refunded the premiums paid by or on his behalf for the additional insurance,
It is clear that in making the arrangement now under consideration the parties understood that the defendant was to insure employees of the railway company, and not those who had been employed and whose employment had ceased.
Group life insurance differs from ordinary old-line life insurance. Group insurance is similar in many respects to workmen’s compensation insurance. Each is secured by the employer for the benefit of the employee. Employment is a condition precedent for each to be effective. The employer and employee stand closer together in group insurance than in workmen’s compensation insurance. Ordinarily under group insurance the employer pays part of the premiums and all of the costs of handling the insurance for his employee, without deriving any direct financial benefit therefrom and without relieving himself from the payment of any legal obligation he owes his employees. Under workmen’s compensation insurance the employer pays the premium and cost of handling the insurance, not so much for the benefit of his employees, but in order that he may be indemnified for the payment of his legal obligations to his employees under the workmen’s compensation law. The employer, under a workmen’s compensation policy of insurance, has no authority to bind the insurance company so as to make such insurance company liable to an employee for an injury not received in the course of employment. Nor has the employer, ordinarily, under a group policy of insurance the authority to bind the insurance company so as to make such insurance company liable to an employee not actively at work for such employer on the effective date of the insurance.
The plaintiff contends that Moran and the railway company were defendant’s agents, and that by their acts all irregularities were waived. We think not.
“To make out a case of waiver of a legal right there must be a clear, unequivocal and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part.” (27 R. C. L. 909. See, also, Green v. Insurance Co., 106 Kan. 90, 93, 186 Pac. 970; Cure v. Insurance Co., 109 Kan. 259, 261, 198 Pac. 940.)
A similar group policy of insurance to the one in question was considered in Duval v. Metropolitan Life Ins. Co., (N. H.) 136 Atl. 400. The court among other things said in the opinion:
“The acts of the employer in forwarding the application and delivering the (Certificate to the employee are claimed to be on behalf of the defendant. No reason is perceived why this should be treated as an agency for the defendant rather than for the employees.
“The certificates issued to employees are in a brief form, and refer to the master policy issued to the employer for further information. It is urged that this makes the employer the insurer’s agent to give such information. The employer holds the master policy, not for, but rather against, the insurer. The reference for information is to the policy, not to the employer. If it wore conceded that a false representation by the employer as to the content of-the policy could be charged to the insurer, it would not affect the result. There is no claim of any such misrepresentation. The position taken is that the employer had authority to act for the insurer in dealing with its known and acknowledged rights under the policy.
“The claim that the employer is the agent of the insurer in the collection and forwarding of premiums is wholly .without foundation. By the express terms of the policy the company looks to the employer for the payment of the premiums. It has no concern with whether it collects part of them from the employee or not. The employee is insured because he had made application, and because the employer promises to pa3r the insurer the premiums. The promise to pay is for the benefit of the employee.
“Again, it is urged that as the provisions as to notice of claim, proof of Joss, etc., are contained in the master policy, therefore the employer is the insurer’s agent to give information on-these subjects. It is said that the 3vhole purpose of the group insurance scheme 3vould be frustrated unless the employer cooperates with the employee as agent ‘by implication’ for the insurer.
“That the employer is expected to cooperate 3vith the employee is erddent. The whole scheme is paternalistic.. The error of counsel, here and elsewhere, is in failing to appreciate that the paternalism is that of employer towards employee. It does not have the effect of making the benevolent parent the agent' of the party with 3vhom he inaugurates a contract for the benefit of his children. The line dividing the three parties to the contract according to their interests and real position in these transactions puts the employer with the employee, as opposed to the insurer.
“Much is made in argument of the proposition that the whole plan and scheme was to furnish protection to the insured. Of course, this is true, but it does not follow that the insurer is made chargeable 3vith the conduct of the intermediary who sought to bring the insurer and insured into relation, 3vho offered and bound itself to pay to the insurer the price demanded for the insurance, and who agreed to perform the office of keeping the insurer informed as to 3vho had accepted, and came under the terms of, the offer.
“It may be noted in passing that there is here no claim of any fraud or deception practiced upon the employee, or of any right lost because full infor mation was not given to him. The supposed difficulties of his situation are here set up as evidence that the employer must be treated as the general agent of the insurer if the contract is to afford the employee the reasonable protection it is to be assumed the parties intended that he should have. As before stated, the answer to the whole argument is that this is an arrangement instituted by the employer for the- benefit of the employees. The employer sought and obtained from the insurer a contract for their benefit. Naturally the employee looks to the employer for guidance and information. There is nothing sinister in such a situation. Their interests are not adverse, but common. The outstanding fact that the employer has interested itself in this matter and has undertaken a part of the financial burden for the benefit of the employees, shows that in the ordinary coürse of events the employee would be expected to place reliance in his benefactor, and would think of. the employer in that light rather than consider it to be the representative of the insurer. The insurance was something the employer and employees were to obtain by their joint efforts. It was not something the employer was engaged in'getting as a representative of the insurer.” (p. 404.)
In the instant case deceased’s eligibility lapsed before issuance of the policy. The policy was issued by the defendant under the mistaken idea that the deceased was eligible. The defendant took immediate means to correct the mistake when knowledge of the facts was brought home to it. The conclusion at which we have arrived renders unnecessary any discussion of other questions raised in the briefs.
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
Dawson, J.:
The defendant was prosecuted on a charge of arson for the burning of a barn on a farm which he held as tenant, the title to the farm being one-half in his mother and one-sixth each in defendant’s brother, sister, and himself.
The barn was burned in August, 1925, and defendant was arrested therefor some time later. His first trial was without result. At the second trial, defendant’s mother, Blanche Craig, called as a witness for the state, testified that she and her mother and the defendant lived on the farm, a short distance northeast of Wichita; that defendant leased the farm from her and paid her one-third of the grain grown thereon as rent; that defendant had possession of the farm, including the barn; that her husband had died seized of the farm five years previously, and in consequence an undivided one-half of the farm had devolved on her and a one-sixth interest on each of her three children, one of whom was the defendant. She further testified that at no time prior to the burning of the barn, which was on August 20, 1925, did she authorize the defendant to burn it. On cross-examination and over the state’s objection, she testified that she “now [March 2, 1927] ratified the burning of the barn by the defendant.” Thereupon a motion to discharge the defendant was sustained; and the state reserved an exception to that ruling and the case is here for review.
The section of the crimes act under which the defendant was prosecuted, in part, reads:
"Every person who shall willfully set fire to or bum in the nighttime, any . . . barn, . . ■. of another, . . . not the subject of arson in the first or second degree, shall on conviction be adjudged guilty of arson in the third degree.” (R. S. 21-507.)
The state discusses three propositions suggested by this statute and the facts testified to or stipulated by the litigants— (a) the fact that defendant owned a one-sixth interest in the property did not exempt him from the condemnation of the statute; (b) the mother’s belated ratification of the defendant’s incendiary act did not relieve him of its penal consequences; and (c) the fact that defendant was lessee of the farm and in possession of the barn was immaterial so far as concerned his criminal responsibility.
We have not been favored with a brief by defendant’s counsel, which in a case of this sort is hardly fair to the courts — particularly to the trial court which they induced to make such a questionable ruling.
It will be noted that the statute quoted above declares it to be arson in the third degree to burn the barn of another person in the nighttime. This barn was partly the property of other persons, defendant’s mother, sister and brother. The fact that defendant himself also had an undivided fractional interest in the barn was of no consequence in considering the question of his guilt. In this state a husband has a certain statutory interest in the real property of his wife, but nevertheless he may be guilty of arson if he sets fire to her house. (State v. Shaw, 79 Kan. 396, 100 Pac. 78.) One of the purposes of the statute is the protection of property; it is a paragraph of article 5 of the crimes act which deals altogether with offenses against property; and it must be held that defendant’s ownership of an undivided, fractional interest in the farm did not relieve him from liability.
Nor can it be held that the mother’s ratification or condonation of the burning of the barn purged defendant’s act of its criminal attributes. So far as shown by the record, when the defendant burned the barn his conduct and intent were criminal; the status of his act was then fixed; and it was beyond the power of his mother to purge that act of its criminal character by her maternal leniency, subsequent ratification or condonation. (16 C. J. 92.) Indeed the doctrine that offenses may be purged of their criminal character by subsequent ratification of the injured party is one of decidedly narrow scope in this jurisdiction; all our crimes are statutory and are considered as offenses against the state itself rather than against some private party who may incidentally have been injured in person or property by the criminal act or omission of the wrongdoer. In Matter of Galbreath, 24 N. D. 582, 585, it was said:
“We must remember that a criminal offense is an offense against the sovereign state, and not against an individual; and that no individual, not even the complaining witness, has the power or authority to control the action of his sovereign, whose dignity alone is sought to be vindicated.”
Where the offense has been willfully committed, it is difficult to see how subsequent ratification could have any effect upon its reprehensibility. An act which is prima facie criminal may indeed be shown to be otherwise if the intent to commit the wrong was wanting. In Holsey v. State, 4 Ga. App. 453, the defendant drove his employer’s horse without first having obtained the latter’s consent. When the owner found it out, he constrained the defendant to buy the horse at a full price. Afterwards the defendant was prosecuted and convicted under a statute which declared that “if any person shall willfully ride or drive the horse of another without his consent, he shall be guilty of a misdemeanor.” The judgment was reversed. The court said:
“Indeed, we think it may be said, as a general rule, that in no event will a prosecution under section 225 of the penal code lie, where, before the institution of the prosecution, the owner of the animal, either for or without a consideration, has given acquiescence, or, so to speak, ex post facto consent to the previously unauthorized use of his property. This ruling is to be taken, however, with the understanding that the principle is applicable only in that class of cases where the offense involves no crime against society or good morals, but relates solely to the redressing of private property wrongs. Of course the ex post facto consent of the owner could not render a larceny, with all its elements complete, any the less a crime; but as to the offenses of the nature in volved in section 225 of the penal code there is a different principle.” (p. 454. See, also, State of Iowa v. Engle, 111 Iowa 246.)
In May v. The State, 115 Ala. 14, it was held that where a person removed or sold personal property for the purpose of hindering delaying or defrauding any person who had a claim or lien thereon, with a knowledge of the existence of such claim or lien, as prohibited and made criminal by the Alabama criminal code, the mere fact that the person having the claim or lien on the property removed or sold ratified the act of selling or removing, did not purge the act of criminality, and constituted no defense.
In Fleener v. State, 58 Ark. 98, the defendant was convicted of embezzling funds of his employer, an -express company. The guarantee company which served as his bondsman made good his defalcation, and he contended ineffectually that neither the express company nor the state has any interest in the matter. The court said:
“In this the defendant is mistaken. This is no longer a controversy between himself and the two companies, or either of them, and has not been since he fraudulently appropriated the money of the express company, if indeed he did so appropriate it. It is now a controversy between the state of Arkansas and himself, which the state will not permit either one of the said companies to determine at present or in the future, nor will the state acknowledge the validity of any settlement of it, by anything they both, or either of them, have done in the past.” (p. 105.)
Where a wrongdoer has made reparation or restitution to the person sustaining private damages by his wrongful act or omission, a situation may sometimes arise where the question of commencing or discontinuing a criminal prosecution may address itself forcibly to the county attorney’s discretion, or after conviction will similarly invoke the trial court’s discretion in fixing the punishment so far as the flexibility of penalties is permitted by our crimes act; and such a situation may present a strong appeal to the pardoning power of the governor (State v. Newcomer, 59 Kan. 668, 670, 54 Pac. 685), but once the machinery of the criminal law is set in motion against an offender, neither its principles nor processes can be judicially swayed or stayed because the compassion of the prosecuting witness is then moved in behalf of the wrongdoer. In this case, the fact that the mother of defendant, while testifying on cross-examination at a second trial of defendant held eighteen months after the crime had been committed, avowed that she then condoned and ratified it had no legal effect upon the character or gravity of defendant’s criminal delinquency. (1 Bishop on Criminal Law, 9th ed., 672; I Wharton Criminal Law, 11th ed., 572; 16 C. J. 92.)
In this case, also, it must be noted that property rights in this barn of two other persons, defendant’s brother and sister, were feloniously violated by defendant. Certainly the mother’s ratification of the burning of the barn could not be held to affect in the slightest degree the criminal character of defendant’s act so far as concerned the property rights of his brother and sister.
Touching the point that defendant was in possession of the barn as lessee of the farm at the time of the burning, we do not see what that fact had to do with its criminal character. Arson in the third degree is-a statutory offense; defendant’s act was an offense against property, not mainly or particularly one against another’s possession or occupancy of the property; and his criminal responsibility for his act was not diminished by any rights attaching to his leasehold.
The state’s appeal is sustained and the judgment.of the district court is reversed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover a balance due on a promissory note after foreclosure of mortgages on Nebraska land and chattels securing its payment. A demurrer to plaintiff’s petition was sustained, and he appeals.
The parties are residents of Kansas. On December 23, 1920, defendants executed their promissory note to the plaintiff for $1,350, payable September 1, 1921, to secure the payment of which they executed a real-estate mortgage on certain lots in Hubbell, Neb., and a chattel mortgage on certain shares of stock in the Frontier Telephone Company of the same place. On September 23,1921, defendants paid $150 on the note, and the balance due was extended to September 1, 1922. Four years later plaintiff brought suit in Nebraska to foreclosure the mortgages. An order of sale was issued, the property sold and $758.85 realized; $1,011.79 remained due plaintiff on the note. No personal service was had upon the de fendants. Service was by publication and default was entered. Plaintiff then obtained an order of the district court in Nebraska allowing him to withdraw the note on which the clerk of the district court indorsed the amount realized by the sale of the property. The present action was brought to recover the deficiency. The facts were stated in the petition, to which the court sustained the demurrer. The question is whether the note was merged in the decree rendered in the foreclosure action in Nebraska barring further action thereon in this state.
The defendants contend that when plaintiff filed suit upon the note in Nebraska and secured an adjudication or finding that defendants were indebted to the plaintiff, the note was merged in the judgment and therefore could not be made the. basis of an action in this state. In support of their contention they cite and rely on Price v. Bank, 62 Kan. 735, 64 Pac. 637; Rossiter v. Merriman, 80 Kan. 739, 104 Pac. 858, and City of Topeka v. Richey, 102 Kan. 384, 170 Pac. 1003. The cases are not applicable and the contention cannot be sustained.
To constitute a merger there must be a valid and subsisting judgment rendered on the cause of action. (Cackley v. Smith, 47 Kan. 642, 28 Pac. 617.) In the instant case there was no personal judgment rendered against the defendants in the Nebraska foreclosure proceeding; no judgment on which an action might be maintained in this or any other state. Personal service was not had on the defendants and they made no appearance in the Nebraska case.
“A judgment in personam against a nonresident without actual service or' voluntary appearance but based on constructive service by publication will not be given force and credit in the courts of another state.” (15 Standard Proc., 655.)
The law of merger was quoted from Black on Judgments, section 674, in the Cackley case, as follows:
“ ‘But in order that the principle of merger may apply, it is necessary that the identical cause of action should, have passed into judgment, in a litigation between the same parties or their privies, and that the plaintiff should have had a full and complete opportunity to recover his whole demand. In a case in Arkansas, it was held that a judgment against a steamboat — that being a judgment in rem and not enforceable against the property of the owners— if unsatisfied, could not be pleaded as a bar to a subsequent action against the owners of the boat on the same contract. In reaching this conclusion, the court said it was evident that a judgment against the vessel was not even substantially a judgment against the owners, and consequently that the former recovery relied on was no bar to the present action.’ (Toby v. Brown, 11 Ark. 308; Freeman Judgm., §606.)” (p. 645.)
In Randerson v. McKay, 77 Okla. 238, 188 Pac. 323, it was said;
“The foreclosure of a mortgage on lands situated in another state, given to secure certain notes, is not a bar to an action brought by the holder of such notes in this state, where the makers of such notes as defendants in the foreclosure action were nonresidents of the state where such foreclosure action was brought, and were not served with personal service, nor appeared in such action, since no personal judgment was rendered against them.
“A judgment, foreclosing a mortgage on lands situated in another state, where the maker of such mortgage was a nonresident of such state and did not appear, and no personal judgment was rendered on the notes seemed by said mortgage, is not a merger of the notes as a cause of action, and a subsequent action, brought to recover upon said notes, may be maintained in the state of the maker’s residence.” ' (Syl. HIT 1, 2. See, also, Wixom v. Stephens, 17 Mich. 518; 15 Standard Proc. 654; 19 Standard Proc. 1067; Blumberg v. Birch, 37 A. S. R. 67; 27 Cyc. 1758; 15 R. C. L. 789, §244; Howard v. McNaught, 9 Wash. 355, 43 A. S. R. 837.)
The judgment is reversed and the cause remanded with directions , to overrule the demurrer. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover from the indorsers of a promissory note. Plaintiff prevailed and defendants appeal.
On December 20, 1923, McClure executed his promissory note to defendants doing business as partners under the name of Kyser Brothers. The latter, for a valuable consideration, indorsed, sold and delivered it to the Citizens State Bank of Grenola. The note was due six months after date. In February following $200 was paid thereon. Before the due date of the note, the Citizens State Bank transferred its assets to the plaintiff under an agreement which provided that the stockholders of the Citizens bank would pay an assessment of twenty thousand dollars levied upon its capital stock by the state banking department; that certain shares of its stock should be transferred to the stockholders of the Grenola State Bank, and that the stockholders of the Citizens bank were to receive at the end of one year the sum of $49,531.08 in cash or paper, optional with plaintiff. Under the agreement a consolidation of the two banks was effected and Lewis Kyser, one of the partners, was taken into the plaintiff bank to assist in the consolidation. He continued there for some nine months, during which time the original note came due and McClure applied to him for an extension. A new note was drawn, but the name of Kyser Brothers was omitted therefrom. At the expiration of the year mentioned in the consolidation agreement the plaintiff elected to turn back to the stockholders of the Citizens bank, notes and other commercial paper in approximately the amount of fifty thousand dollars. A meeting of those who had been stockholders in the Citizens bank was called and Mr. Coffey, managing officer of the plaintiff, presented a list of notes plaintiff had elected to turn back. The new note from McClure was objected to because it lacked Kyser’s indorsement, was kept by Coffey for plaintiff, and later this action was filed.
At the trial defendants demurred to plaintiff’s evidence. The demurrers were overruled and defendants elected to stand thereon. Thereupon plaintiff moved for an instructed verdict. The motion was allowed and the court instructed the jury to return a verdict for plaintiff.
The defendants contend that the evidence was insufficient to warrant the overruling of their demurrers or a directed verdict for plaintiff. It is argued that there was no evidence that the Citizens State Bank was dissolved; that its shares of capital stock were transferred to plaintiff, nor that the $20,000 assessment provided by the contract was ever paid; that the only part of the agreement upon which there is evidence of performance is that a portion of the stockholders of the Citizens bank met with Coffey at the time he tendered some fifty thousand dollars in notes, which included the renewal note in controversy.
There was sufficient evidence of the transfer from the Citizens bank to the plaintiff, the Grenola State Bank. The written contract providing for' the transfer of the stock was before the court, and its interpretation was a matter for the court and not the jury. The original note which had been indorsed by the defendants was transferred to the Grenola State Bank; was surrendered to McClure on-execution of the renewal note; was afterwards procured by the plaintiff and the action was actually based upon it. The evidence was clear that the renewal note itself, after the meeting between Mr. Coffey, managing officer of the plaintiff, and the stockholders of the Citizens bank, was kept by Mr. Coffey; that while it was on the list and was tendered back to the stockholders, they refused it and it was never actually delivered back to them, and that the note and the indebtedness it represents had never been paid. The trial court asked Coffey this question:
“After you stated there that you would investigate it — or after something was said about investigating it — -was- anything further done about delivering this (renewal) note to the stockholders of the other bank? A. No, sir. I turned around to Lewis Kyser and asked where the original note was. He said he had'returned it to McClure. After we started this suit, went to McClure and got the original note — the old note. In the meantime the year in which to turn it back had expired.”
A contention that it was not shown that plaintiff was the real party in interest and that the stockholders of the Citizens State Bank may still sue and recover upon the note cannot be sustained. The evidence, in our opinion, was sufficiently clear to show that the plaintiff retained the renewal note and both the original and the renewal note were before the court and, undoubtedly, merged in the judgment. Therefore it is clear that no further action would lie by the stockholders of the Citizens bank against the defendants on the note in question.
The judgment is affirmed.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
The board of education of the city of Hutchinson sued the Reno community high school to recover tuition for each student attending the high school in the city of Hutchinson whose residence was in the Reno community district for a period' of nine weeks commencing on March 20, 1923, and ending with the close of the school session of that year in June, at the rate of $2 per week. This action was brought under the provisions of chapter 187 of- the Laws of 1923, which took effect March 20,1923. The defendant district filed a general denial, and the case was tried before the court without a jury and judgment rendered in favor of the plain-' tiff for $1,188 for 66 students at $2 a week for 9 weeks. The defendant school district appeals, and contends that plaintiff should not recover because of the failure of the county superintendent to approve the attendance of these students as the law requires. Section 1 of said law is as follows:
“That upon the taking effect of this act, all county high schools in the state of Kansas, regardless of acts under which created, shall be disorganized and in their stead shall be created community high schools whose territory shall include all the territory in said counties not included in the territory of other accredited high schools. Such schools so organized and established shall be known and styled ‘community high schools.’ ” (R. S. 72-2501.)
A part of section 5 is as follows:
“That instruction in said community high schools shall be free to all pupils living within the boundaries of said community high-school districts. If any pupil, living within the boundary of said community high-school district, Shall, with the approval of the county superintendent, attend any other high school, either approved or accredited, outside the boundaries of said community high school, the board of trustees of said community high school shall pay or cause to be paid into the treasury of the said high school which said pupil attends a tuition fee of two dollars per week for the time such pupil is in actual attendance at said high school.” (R. S. 72-2505.)
The evidence upon the trial shows that all these sixty-six students were before March 20, 1923, attending the Hutchinson high school and were paying their tuition of two dollars per week themselves, and that immediately after this law took effect on March 20, 1923, the students and their parents in great numbers interviewed the county superintendent for the purpose of being relieved of this payment and having the responsibility shifted to the Reno community district. The county superintendent accordingly within a few days-after March 20, called up the superintendent of the city schools of Hutchinson and told him: “You must not chárge tuition any more to the students who are in the community district,” and told him of the new law going into effect, and further said, “I wish you would prepare a list of the names and legal description of their residences.” In accordance with such instruction no further collection was made for any of these sixty-six students, and the list was duly prepared by the clerk of the board of education and sent to the county superintendent, but not until near the close of the school year in June. -The-list showed not only the names and exact location of their residences ' but also the number of weeks each student had attended the school after March 20, and was summarized as a statement or bill to be presented to the defendant community district. The county superintendent indorsed his approval on the back of this statement and sent it to the proper officers of the defendant community district. This statement was lost, and the court heard oral evidence as to ■ its contents. The defendant community district contends that this statement with the approval of the county superintendent indorsed thereon was not the nature and character of the approval designed. and intended by the statute; that the approval necessary was of- a , preliminary character when the student or his parents wanted him to have the privilege of attending the Hutchinson city high school; that before he could have that privilege at the expense of the com munity district itself he must get the sanction and approval of the county superintendent, and until that was obtained he was attending the city high school on his own responsibility and at his own expense; and that he should on his own motion have procured for himself the sanction or. approval of the county superintendent before he should Continue in his attendance upon the city high school after March 20 if he expected the community district to pay his tuition; and because there was no such formal and written approval at the beginning of this period the defendant school district disallowed the claim when it was presented. It is further contended in this appeal that the lower court in his written opinion did not find that there was the approval contemplated by the statute; and a portion of the opinion of the trial judge is set out in the brief for the purpose of showing that the trial judge was not satisfied with what was done as being sufficient approval as contemplated by the statute, the portion quoted being as follows:
“In this case I find for the plaintiff. It is probably true that the law under which the plaintiff claims was not strictly complied with, and if the matter had arisen at a subsequent school year I would be inclined to hold against the city; but the law itself and the regulations and compliance therewith have to be considered and determined in the light of the peculiar circumstances and surrounding conditions that existed when the law went into effect. . . .”
If there should be any doubt in the mind of anyone as to the satisfaction of the trial court with the proof in this case he need go no further than to read two other paragraphs in the opinion, which are as follows:
“Now it would not be reasonable or common sense to say that those scholars had to quit school upon the passage of this law and remain out until the county superintendent could secure advice and formulate rules and comply strictly with the requirements and all the details of the act before they could go back into school. ... I believe, and therefore find, that the law in all respects was complied with and that the various pupils received the proper approval of the county superintendent to attend the high school in the city of Hutchinson to make the Reno community high school district of Nicker-son subject and liable for their tuition, and judgment will be rendered accordingly.”
If it is to be seriously contended that the written approval was made later than was contemplated by the statute we think no one can be harmed or even inconvenienced by the report being made at the close of the session instead of at the beginning, especially, as the trial judge says, when the beginning of the period under consideration was in the midst of the school year, starting at an arbitrary date having no connection whatever with the beginning or ending of a term or semester or other school division period. Again, the statute does not require that the approval be in writing, and the telephone message given by the county superintendent to the superintendent of city schools almost immediately after the law took effect would in itself surely be an approval of those students in attendance at that time; and to base this act of approval by telephone upon substantial facts he asked at that time for a list of the names and residences of all such students so that he could confirm his act of approval by eliminating therefrom any that should be so eliminated, as was afterwards done by him in the written approval at the close of the school year.
There is nothing strange or unusual about the word “approval” that would call for any special definition as used in this connection. The statute says, “if any pupil, living within the boundary of said community high-school district, shall, with the approval of the county superintendent, attend any other high school. . . .”
“To ‘approve’ is in its essential and most obvious meaning to confirm, ratify, sanction, or consent to some act or thing done by another.” (1 Words and Phrases 260.)
Surely the act of the county superintendent in telephoning to the superintendent of the city schools was an approval within the meaning of the statute. It certainly would confirm, ratify, sanction or consent to these high-school students attending the city high school, and if this was not sufficient in itself then we have the later approval in writing in connection with the statement rendered showing-all the details as to name, residence, time of attendance, etc. We think the acts of the county superintendent constitute a sufficient compliance with the requirements of the statute with reference to approval.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one to recover under the workmen’s compensation law. The plaintiff recovered judgment, and the defendant appeals.
The plaintiff, an employee of the defendant, both operating under the workmen’s compensation law, sustained an accidental injury by which he lost a part of one of his fingers, thereby permanently partially disabling him. An arbitrator was appointed. He was ordered to make findings of fact on and arbitrate certain questions submitted to him. On evidence introduced, he made findings of fact as follows:
“1. That the plaintiff, Montee C. Everitt, sustained injuries.
“2. That the injuries sustained were accidental.
“3. That the said injuries arose out of and in the course of the plaintiff’s employment by the said defendant.
“4. That both plaintiff and defendant, being respectively, employee and employer, were at the time of the said injuries working and operating under and governed by the Kansas workmen’s compensation law.
“5. That the injuries sustained by the plaintiff are compensable.
“6. That the injuries are such as to render the plaintiff partial disability for a period of eight years.
“7. That the plaintiff’s disability has not terminated.
“8. That the said plaintiff, Montee C. Everitt, was not continually employed by the said defendant for a year next preceding the date of his said injury, and the average wages paid to workmen by the same employer, for the same grade of employment, at the same work for the year next preceding the 17th day of December, a.d. 1924, was $9 per week, or $468 per year.
“9. That notice in writing of said injury was. not served on the said defendant, but that said defendant had actual notice of the same.
“10. That plaintiff made demand on the said defendant for compensation within ninety days after said injury.
“11. That medical service and hospital attention was rendered and furnished the said plaintiff.
“12. . . .
“13. That compensation is allowed plaintiff in the total sum of $2,610.
“14. That plaintiff is allowed compensation for partial disability in the sum of $2,490.
“15. That no compensation is allowed plaintiff for total disability.
“16. That plaintiff is allowed compensation for a period of eight years from and after the 17th day of December, a. d. 1924, less one week.
“17. That the plaintiff has been paid compensation by the said defendant for a period of eleven weeks and in the total sum of $66.
“The arbitrator further finds that the defendant, The Haldeman-Julius Publishing Company, made an offer and tender, in words and figures as follows, to wit:
“ ‘The defendant, the employer, The Haldeman-Julius Publishing Company, at this time offers plaintiff an operation such as has been described by Doctor McNaught, who testified on behalf of'the plaintiff, and by Doctors Moberg and Fain, who testified on behalf of the defendant, that is, an operation for the removal of the second joint of the injured finger of the plaintiff; that is, an operation for the removal of the finger at the second joint from the distal end of said finger. The defendant offers to pay all the necessary expenses in connection with the said operation, including the surgeon’s bill and any necessary assistants and hospital bills and for medicines and everything necessary in connection with said operation.’
“And the said plaintiff refused to submit to said operation as offered by the said defendant.
“In this regard the arbitrator finds that the operation as offered by the said defendant would be a minor operation, with very slight danger to the life or health of the said plaintiff, and that said operation as offered is a proper operation, but that said plaintiff’s refusal to submit to said operation was and is not unreasonable, for the reason that the same would dispossess the plaintiff of a member of his body and all benefit he derives therefrom. And further, for the reason that said operation would not restore the plaintiff to his former condition.
“The arbitrator therefore awards the plaintiff compensation at the rate of $6 per week from the 24th day of December, a. d. 1924, to the 10th day of March, a. d. 1926, a period of sixty-three weeks, and in the total sum of $378, less the sum of $60 paid the plaintiff by the defendant, leaving a balance in the sum of $312 past due and owing the said plaintiff, and to be paid in a lump sum on the next regular pay day of the said defendant after the filing of this award.
“The arbitrator further awards the plaintiff compensation for the loss of the first phalange and a part of the second phalange of the second finger of the plaintiff’s right hand, two-thirds of fifty per cent of the plaintiff’s average weekly earnings for a period of thirty weeks, in the total sum of $20 [$120], which said sum is past due and owing the said plaintiff, and to be paid by the said defendant in a lump sum at the first regular pay day of the defendant after the filing of this award.
“The arbitrator further awards the plaintiff compensation at the rate of $6 per week from the 10th day of March, a. d. 1926, to the 17th day of December, a. d. 1932, or a period of 352 weeks, and in the total sum of $2,112, to be paid at the same time, place and in the same manner as the plaintiff received his wages while in the employ of the said defendant.”
The court on an application to modify the award found “that the award of the arbitrator made herein should be ratified, approved, and adopted by the court," and denied modification of the award.
1. The principal question argued concerns the offer of the defendant to operate on the plaintiff by removing a part of the remainder of his finger, which offer was refused. The defendant cites Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182, where the court said:
“The unreasonable refusal of an injured employee to.permit a surgical operation where the danger to life from the operation would be very small, and the probabilities of a permanent cure very large, justifies a court in-refusing compensation under the workmen’s compensation law from and after the trial.” (Syl. H 1.)
That declaration by this court was made from findings of the trial court as follows:
“The court finds that defendant has offered and still offers plaintiff a surgical operation, by surgeon of his own choosing, and to defray all expenses thereof-. That plaintiff refuses said operation, and that his refusal is unreasonable; that the operation would not be attended with danger to plaintiff’s life, but would, in all probability result in a complete removal of present disability, as well as the congenital weakness which induced hernia. That the chances for recovery are so fair and the danger so slight that an ordinary person would readily submit to the operation.” (p. 119.)
The distinction between that case and the present one is this: In that case, the operation would have effected a complete recovery. In the present case the operation could not bring about a complete recovery, because a part of the finger was gone; that part could not be restored. An operation would have removed more of the finger. There was evidence which tended to prove that after the accident the plaintiff had some use of the injured finger. Its removal would deprive him of that'use. An examination of the abstract discloses that the finding of the arbitrator concerning the reasonableness of the refusal of the plaintiff to submit to the operation was fully sustained by evidence. The court by the approval of the award of the arbitrator found that the refusal of the plaintiff to submit to the operation was not unreasonable.
In Strong v. Iron & Metal Co., supra, the court said:
“The unreasonableness of the refusal of an injured employee, who is seeking to recover compensation under the workmen’s compensation act, to permit an operation to be performed, is a question, of fact to be determined from the evidence.” (Syl. ¶ 2. See, also,. Gilbert v. Independent Construction Co., 121 Kan. 841, 250 Pac. 261.)
2. It is argued that the award was grossly excessive. The defendant contends that only $420 should have been allowed as compensation — $120 for the loss of part of the plaintiff’s finger and $6 a week for fifty weeks. There was evidence which tended to prove that as a consequence of the injury to the finger there was pain in the hand and arm when he attempted to use his hand. That matter was not specifically referred .to the arbitrator, but his conclusion necessarily included a finding concerning it. That consequent pain brings this case within Lane v. Sonken-Galamba Corporation, 119 Kan. 256, 237 Pac. 875, where this court said:
“Following Stefan v. Elevator Co., 106 Kan. 369, it is held that a workman who sustained an injury making it necessary to amputate two phalanges of a finger, and also caused disabilities to the hand, wrist and arm, permanent in character, is entitled to compensation beyond the scheduled allowance for the loss of a part of the finger for the additional permanent partial incapacity.”
In Trowbridge v. Wilson & Co., 102 Kan. 521, the court declared that—
“Under the workmen’s compensation act, compensation can be recovered where inability to labor is caused by pain resulting from an injury received in an accident arising out of and in the course of the employment.”
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The opinion of the court was delivered by
Marshall, J.:
This is the second time this case has been in this court. (Robertson v. Labette County Comm’rs, 122 Kan. 486, 252 Pac. 196.) The plaintiff was employed by Labette county in the construction of a hard-surface road in that county and was accidentally injured while working for the county on the road. The Federal Surety Company had issued a policy of insurance to indemnify the board of county commissioners against personal injuries sustained by employees, and—
“To pay promptly to any person entitled thereto, under the workmen’s compensation law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due—
“(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under such of certain statutes as may be applicable thereto, cited and described in an indorsement attached to this policy, each of which statutes is herein referred to as the workmen's compensation law; and
“(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such workmen’s compensation law. . . .
“To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.” •
The former appeal was taken from judgments rendered in favor of the defendants, the board of county commissioners and the Federal Surety Company on their separate demurrers to the petition of the plaintiff. The judgment was affirmed so far as the board of county commissioners was concerned, and was reversed so far as the Federal Surety Company was concerned. The action was sent back to the district court, was again tried, and judgment was rendered against the Federal Surety Company, from which that company has appealed.
1. All the questions presented to this court on the former hearing and disposed of in the opinion reported at 122 Kan. 486 are reargued. The defendant urges that the court was then wrong in the interpretation of the contract and in the decision of the questions presented. The rules declared in that opinion became the law of this case, were followed by the district court on .the retrial of the. case, and must be adhered to at the present time. ...
In Headley v. Challiss, 15 Kan. 602, the court said:
“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and'will not be made a subject of reexamination.” (Syl. ft 2.)
That rule has been followed in the following eases: Central Branch U. P. B. Co. v. Shoup, 28 Kan. 394; Norton v. Huntoon, 43 Kan. 275, 22 Pac. 565; Modern Woodmen v. Gerdom, 77 Kan. 401, 94 Pac. 788; Railway Co. v. Stone, 80 Kan. 7,101 Pac. 666; Buck v. Vickers, 80 Kan. 29,101 Pac. 668; Griffin v. Brick Co., 90 Kan. 375, 133 Pac. 574; Dyson v. Bux, 92 Kan. 154, 139 Pac. 1159;. Cornwell v. Moss, 99 Kan. 522, 162 Pac. 298; Ingalls v. Smith, 101 Kan. 301, 167 Pac. 1040; Kinkel v. Chase, 107 Kan. 55, 190 Pac. 618; Gratney v. Wyandotte County, 118 Kan. 101, 233 Pac. 795.
While the Federal Surety Company recognizes this rule, it contends that it is sometimes modified. The court said in Central Branch U. P. R. Co. v. Shoup, 28 Kan. 394 as follows:
“While this rule may not be a cast-iron rule, incapable of relaxation under any circumstances, yet it must be adhered to where the question is one of great doubt, has been thoroughly considered, and is one whose decision involves no serious injury to general' rights.” (Syl. ¶ 2.)
The rule is not always followed, as is shown by the case just cited and by Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358; Lorimer v. Fairchild, 68 Kan. 328, 75 Pac. 124; and Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005.
The court, has reexamined the questions thus presented and has reached the same conclusions that were reached on the former presentation of this case.
2. After the action had been heard in this court and. the judgment of the district court had been reversed in part, the Federal Surety Company filed an answer in the district court, in which answer it alleged—
“2. Defendant states that by said contract of insurance, a substantially correct copy of which is attached to plaintiff’s petition, defendant agreed to pay the employees of the county of Labette, Kansas, engaged in the work described in the schedules which were a part of said contract, only such sum or sums of money as were due such persons because of the obligation for -any' injury received by any of such persons imposed upon or accepted by said Labette county, Kansas, under the workmen’s compensation law of the state of Kansas; that neither the compensation law of the state of Kansas, nor any other law of the state of Kansas, imposed any obligation upon Labette county; Kansas, for the payment of any sums of money to the plaintiff because of any injuries sustained by the plaintiff while engaged in the work aforesaid, or otherwise, and that, therefore, defendant is not liable to the plaintiff in any sum whatsoever under said contract or policy of insurance.
“3. For further answer, .defendant states that it issued the policy of insurance, of which the copy attached to plaintiff’s petition is substantially a correct copy, to the county of Labette, Kansas, for the consideration therein named, paid and to be paid by said county of Labette; that the sole considera tion for said contract was the premium, paid and to be paid, by said county of Labette, in accordance with the terms of said contract; that on or about the 27th day of November, 1925, said Labette county, Kansas, through and by its board of county commissioners, brought suit against this defendant in the district court of Labette county to recover back the moneys which it had paid to defendant in part payment of the premium due under said policy of insurance on the ground that said board of county commissioners of Labette county was without power and authority under the law to make said contract and that said contract of insurance was void from the beginning; that said suit is still pending and undetermined, and that if it be adjudged that said contract of insurance was void because of want of power in the board of county commissioners to make the same and that said county of Labette is entitled to recover the premium paid for it, the consideration for said contract will have wholly failed and said contract will be and is without consideration, and void as to plaintiff or any other person, firm or corporation.”
The plaintiff filed a motion to strike out the quoted paragraphs of the answer, the motion was allowed, and of that order the defendant complains. The attempted matters of defense set up in the paragraph numbered two of the answer raised a question of law which was embraced within the demurrer to the petition sustained by the court, and from which the first appeal was taken to this court. Those matters were decided against the defendant on that appeal and come within the rule just declared concerning those questions presented by the defendant at this time and which were presented on the former appeal.
Did the facts presented in the third paragraph of the answer constitute a defense or any part of a defense to the petition of the plaintiff? If true, they present a question of law, not a question of fact. That question of law was properly disposed of on the motion to strike, considering it as a demurrer to that paragraph of the answer.
Section 19-101 of the Revised Statutes in part reads:
“That each organized county within this state shall be a body corporate and politic, and as such shall be empowered for the following purposes: ... to make all contracts and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporate or administrative powers . . .”
Section 19-212 of the Revised Statutes provides that—
“The board of county commissioners of each county shall have the power, at any meeting: . . . Fifth, to represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law. . . . Eighth, to lay out', alter, or discontinue any road running through one or more town ships in suoh county, and also to perform such other duties respecting roads as may be provided by law. . . Eleventh, t'o perform such other duties as are or may be prescribed by law.”
Section 68-520 of the Revised Statutes in part reads:
“That the board of county commissioners may, in constructing, surfacing, repairing or maintaining the county roads, let contracts for all or any part of such work, or said board may buy the materials and contract all or any part of the labor, or may purchase or rent machinery and other equipment, and employ labor, under the direction of the county engineer. . . .”
The last quoted section of the statute gives to the board of county commissioners authority to do the work of constructing a road without letting a contract for such construction. The statute impliedly gives to the board of county commissioners authority to do all things reasonably necessary to be done when the county itself employs the labor and buys the machinery with which to do the work of constructing a road. In constructing a hard-surfaced road, it is necessary to use heavy machinery and employ a large number of men. In connection with such construction, there is always danger of injury to workmen engaged therein. In all construction operations, involving danger to workmen, it is customary, and in most instances, necessary, that insurance be carried by the employer covering his liability to his workmen for damages caused by negligence or for injuries that may arise for which compensation must be paid under the workmen’s compensation law. There can be no question that such insurance is a reasonable precaution for the employer to take. When the county under the law undertakes to engage in the dangerous work of constructing roads, it may very properly provide for insurance to its employees covering injury to them whether caused by negligence or otherwise when the injury arises in the performance of the work in which they are engaged. Although there is no statute specifically and directly authorizing the board of county commissioners to purchase such insurance, yet under the authority given to the board of county commissioners to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers, to have the care of the county property and the management of the business and concerns of the county in all cases where no other provision is made by law, and to contract for the labor necessary to construct a hard-surfaced road, implied authority is given to the board of county commissioners to pur chase such insurance, because that insurance is reasonably necessary in order to carry into execution the specific authority given to them. We are not unmindful of the fact that the county is not liable under the workmen’s compensation law, or for negligence.
3. Complaint is made of the refusal of the court to give the following requested instruction:
“You are further instructed that if you find and believe from, the evidence that plaintiff’s disability as a result of this injury is permanent in time and partial in quality, and if you find that as a direct result of the injuries sustained by the plaintiff while in the employ of Labette county, Kansas, on August 12, 1925, the plaintiff has permanently lost the use of his left arm, then under the law he cannot in any event recover more than he might have recovered had he actually lost his arm as a result of 'said injury, to wit: the sum of the product of 210 weeks at $12 per week, or $2,520, plus such amount as you may believe from the evidence the plaintiff has paid or obligated himself to pay for medical treatment rendered to him within fifty days following the date of the injury, not to exceed the sum of $150, less such sum as you shall find and believe from the evidence has heretofore been paid to plaintiff by defendant.”
The policy provided that compensation should be paid as provided in the workmen’s -compensation law of the state of Kansas. In Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Emry v. Cripes, 110 Kan. 693, 205 Pac. 598; Anderson v. Oil and Refining Co., 111 Kan. 314, 206 Pac. 900; Burchett v. Manufacturing Co., 114 Kan. 138, 217 Pac. 284; Smith v. Packing Co., 115 Kan. 874, 225 Pac. 110; Lane v. Sonken-Galamba Corporation, 119 Kan. 256, 237 Pac. 875; and Snopkoski v. Home Riverside Coal Mines Co., 120 Kan. 747, 244 Pac. 849, this feature of the workmen’s compensation law was considered by the court, and the proposition presented by the surety company was there determined against the contention of the company. It was not error to refuse to give the instruction.
4. The surety company argues that the answers to the special questions were inconsistent with each other and with the general verdict, that the verdict was the result of a compromise, and that “one of two amounts should have been returned by the jury, either for total permanent disability in the sum of $6,330, or for partial permanent disability in a lesser amount had plaintiff pleaded or introduced testimony on partial permanent disability, as the jury might determine.” For these reasons, the surety company argues that the verdict should be set aside and that a new trial should be granted. The verdict was for $4,225, and special questions were answered as follows:
“1. State whether you find that plaintiff is permanently partially disabled. A. Yes.
“2." State whether or not you find that plaintiff, as a result of his injury, has permanently lost the use of his left arm. A. No.”
“1. Do you find that the plaintiff, by reason of the injuiy of his arm, is disqualified from performing the usual tasks of a workman to the extent that he is unable to procure and retain employment? A. Yes.
“2. Is the plaintiff permanently disabled by reason of the injury to his arm? A. Yes.
“3. What were the ‘average weekly wages’ of the plaintiff prior to his injury as such term is defined by the court? A. $40.
“4. What expenses did the plaintiff incur for medical and surgical attention within fifty days after his injury? A. $65.”
It is not apparent wherein the special questions were inconsistent with each other "or with the general verdict. There is nothing to show that the verdict was the result of a compromise. The surety company is in error when it assumes that the jury found total permanent disability. The argument based on that assumption necessarily fails, because the jury found permanent partial disability. The briefs do not show why the verdict should have been either for $6,330, the amount claimed by the plaintiff in his petition, or for a different amount less than that sum. The court is unable to see why the verdict should have been for $6,330, and is unable to discover why the verdict returned is not for the correct amount.
The surety company has not shown a condition which justifies a reversal of the judgment. In Bartlett v. Feeney, 11 Kan. 593, it was declared that—
“Error is never presumed; it must always be shown; and if it is not affirmatively shown it will be presumed that no error has been committed.” (Syl. ¶ 5.)
Numerous cases might be cited in support of that rule, down to and including Albrecht v. Friedrickson, 119 Kan. 242, 237 Pac. 649.
The Federal Surety Company requested that the court instruct the jury to return a verdict in favor of the defendant. The questions argued in support of this proposition are substantially the same as those that were argued under the motion to strike, and have been disposed of.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to compel specific performance of a contract for the purchase and sale of real estate; in effect, a suit by the vendors for the purchase money and a defense by the vendee grounded on his contention that the plaintiffs could not and did not furnish him with a good and merchantable title to the property.
It appears that on and prior to the death of one James W. Cross, which occurred on August 30, 1907, he was seized in fee simple of a certain eighty-acre tract of land, to wit: S. %, SE. %, 8-12-25 east, in Mission township, Johnson county, Kansas, of which township and county Cross was a resident and in which he died testate.
By the terms of his will, Cross devised to his second wife, Sarah Jane Cross, a life estate in this eighty acres with remainder to his three children by his first wife, James, Charles and Letha, share' and share alike, with certain qualifications of more or less significance which will require two paragraphs of the will to be set out verbatim:
“Third: I give, devise and bequeath to my wife, Sarah Jane Cross, a life estate in all the' real property of which I may die seized, said life' éstate to be without, the power of sale. That is to say, I give and bequeath and devise to my -wife ,the use and occupation of all my lands, tenements and hereditaments, without the power of sale to the end of her natural life, or so long as she may live, with the remainder in fee to said real property to my three children, hereinafter named, or their issue, at my wife’s decease when her life estate shall have determined, subject to the conditions hereinafter named.
“Fourth: I give, devise and bequeath to my three children, James R. Cross, Letha N. Cross and Charles E. Cross, to be divided equally among them, share and share alike, all the real property of which I may die seized, subject to the life estate in same, hereinbefore devised and bequeathed to my wife, Sarah Jane Cross. The said lands to be held intact and undivided until my wife, Sarah Jane Cross’s decease and until my youngest living child has attained his or her majority, at which time said real estate may be divided or sold and each of my said children or his or her issue come into possession of his own. Should one of my children die without leaving issue, then said property shall be divided equally between the surviving two. Should two of my said children die without leaving issue, then said property shall fall to the remaining one. Should any of my said children die leaving issue, then said issue should take said child’s part.”
With the lapse of years, James, Charles and their sister Letha attained their majority. Later, on July 14, 1914, James borrowed $1,000 from one John G. Sheldon, and to evidence and secure its repayment, James, Charles and Letha executed to Sheldon their note and a mortgage on the undivided one-third remainder interest in this eighty acres vested in James by their father’s will. On September 1, 1918, James borrowed a further sum of $1,650 from Chris Yoos, Jr., and gave the latter a similar mortgage on his interest in the same property.
On October 3, 1917, Letha borrowed $750 from Sheldon, and she and her two brothers executed to him a mortgage on her one-third interest in the eighty acres to secure its repayment.
On January 28, 1923, Charles borrowed $407.35 from one G. A. Burgdorfer, and mortgaged his one-third interest in the remainder estate to secure its repayment.
Meantime, Sarah Jane Cross, life tenant of the eighty acres, mar ried a man named Ballard, who later died. She therefore appears in this record as Sarah J. Ballard. Letha married and divoreed a man named Scott, and later she died intestate, leaving as her sole heir a son of tender years, Emmett S. Scott Ballard, who has been adopted by Sarah, his step-grandmother.
Sarah, the life tenant, expended several thousand dollars on permanent improvements, but meantime the taxes on the property fell in arrears, and default in payment of principal and interest on their borrowings was made by James, Charles and Letha.
Foreclosure proceedings were instituted by Sheldon; all the parties concerned in the property, including the other mortgagees Yoos and Burgdorfer, were properly impleaded; Letha’s infant son was represented by a guardian of his estate; the construction of the testator’s will was properly drawn in question; and the trial court held:
“The court further finds that the defendants, James R. Cross; Charles E. Cross; Charles C. Hodge, administrator of the estate of Letha N. Scott, deceased; Emmett S. Scott Ballard, a minor, and Sarah J. Ballard have in their answers filed herein asked the court to interpret and construe the provisions of the last will and testament of the said James W. Cross, and to ascertain and determine the fight, title, interest and estate of said defendants in said real property devised under the will of the said James W. Cross, and the court finds that said will should be interpreted and construed by the court, and finds that by the terms of said will the title to said real property described in said will, at the time of the death of the testator, James W. Cross, vested in remainder in his three children, in fee simple, namely, James R. Cross, Letha N. ■Cross, now Letha N. Scott, deceased, and Charles E. Cross, to be divided equally among them share and share alike, subject to the life estate therein devised to the said widow, Sarah Jane Cross, now Sarah Jane Ballard; that the clauses in said will which provide that ‘should one of the children of the testator die without leaving issue then the property should be divided equally between the surviving two; if two of them die without leaving issue then the property should fall to the remaining one,’ means the death of said children in the lifetime of the testator; that the clauses contained in said will which refer to the restriction of the right of the widow, Sarah Jane Cross, now Sarah Jane Ballard, to alienate or sell her life estate in said real property are void; that all of the said children of said deceased, and who are devisees under the will of said James W. Cross, reached their age of majority several years prior to the date of the commencement of this action, and that it was not the intention of the testator that said land should be held intact and undivided after his youngest child mentioned in said will had attained his or her majority, and until the death of the widow and even with consent of the widow it could not be disposed of until the youngest child became of age, but with her con sent it might be disposed of after the youngest child became of age and before the death of the widow.”
Foreclosure of the mortgages was decreed, a lien declared in favor of Sarah for the improvements and that lien foreclosed, priorities declared and the eighty acres ordered sold to satisfy this judgment, which was rendered on March 29, 1926.
On July 3, 1926, Sarah, James, Charles and the boy Emmett, son of the deceased Letha, by his. guardian, who had duly obtained the approval and sanction of the probate court thereto, made a contract to sell this eighty acres in question to the defendant Frank Hodges. The agreed price was $32,000. Hodges paid $5,000 in cash and agreed to satisfy all the judgments and liens then incumbering the property and pay over to the vendors the balance of the purchase price. The contract of sale also provided that the vendors were to deliver to Hodges an abstract showing a good and merchantable title in the vendors subject to the judgment in foreclosure outlined above.
Pursuant thereto the plaintiff vendors executed and tendered to Hodges a deed of general warranty, thus combining and conveying the interest of the life tenant and the several interests of the remaindermen. The abstract showed good title in the testator James W. Cross, and the devolution of the property to the vendors, Sarah, James and Charles by virtue of the will, and to the boy Emmett as sole heir of Letha, deceased intestate. Hodges’ objections to the title were based on the limitation imposed by the will on the right of Sarah to sell her interest in the property; and that James, Charles and Letha had only a contingent interest in the property not subject to alienation because of the possibility that they or some of them might die without issue prior to the death of Sarah, the stepmother and life tenant; and that there could be no certainty as to the absolute disposition of the remainder estate until the death of Sarah, under the rule announced in Purl v. Purl, 108 Kan. 673, 197 Pac. 185.
The trial court held that these objections to the title were without merit; that the interpretation of the testator’s will had been properly in issue in the foreclosure suit and the interests of the remainder-men James, Charles and Letha had been ascertained and adjudicated therein; likewise that the limitation imposed by the will upon Sarah’s right to sell her life interest had been' properly and conclu sively adjudged to be void in that suit; and that all parties having any possible interest in the property had been given their day in court, and that the judgment-in the-foreclosure suit with all its incidents and consequences was a finality.
It has taken some space to state this case, but with that done there remains nothing to discuss. Whether the judgment construing the will was '.correct or not, it was not appealed from, and consequently in six months after its rendition (September 29, 1926) it became binding. on- all concerned. (R. S. 60-3309.) And since everybody who could possibly have had a claim on this eighty .acres of land was impleaded and bound by the judgment, the court’s adjudication-of-'the fights of the widow, the children and the grandchild, as well as the mortgagees and judgment creditors, is res judicata. Defendant, of course, was not bound by the judgment in the prior litigation, but all the vendors were effectively bound thereby. They are the only parties in existence who have any concern with this property and who, if not bound by that judgment, might call in question the character of the devise to James, Charles and Letha, or their right to mortgage their interest before the death of Sarah, or the validity of a sale by Sarah of her life interest. The result is the plaintiff .vendors tendered to the defendant a good and merchantable title, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a habeas corpus proceeding brought by Homer C. Peters, to release him from imprisonment under an order of the court adjudging him to be in contempt and confining him in the county jail for neglect and refusal to obey the orders of the court previously made and an appeal from the order of the court refusing to release him. On June 11, 1920, Homer C. Peters brought an action to obtain a divorce from his wife, Blanch Iva Peters, and the defendant filed an answer resisting the granting of a divorce and ask ing for alimony on the ground of gross neglect of duty. The case was tried on May ¡22,1922, when the court denied a divorce to plaintiff and found him guilty of gross neglect of duty towards his wife, and thereupon entered a decree in her favor awarding her alimony in the sum of $5,000, $600 to be paid in cash at once, the remainder to be paid $150 on the first day of October, 1922, and $150 thereof on or before the first day of March and October each and every year thereafter until the whole sum of $5,000 had been paid, and the court made the judgment a lien on the real estate and personal property of the plaintiff then owned by him or thereafter acquired. In May, 1922, a complaint was made charging Peters with contempt of court in failing to make the payments due on said judgment. On that accusation the plaintiff was tried, found guilty and committed to the county jail for a period of thirty days, which time he served. On September 28, 1926, another accusation was filed charging Peters with contempt, in which it was stated that he had continued his neglect and refusal to comply with the orders of the court for making the payments required under the decree. It was alleged that several small payments had been made between February 23 and December 27,1923, amounting to $109. On that application a hearing was had in which the failure to make payments was admitted and the court, upon the admission and the evidence, found Peters to be guilty of willful neglect and refusal to comply with a decree of the court as charged in the accusation, and it was adjudged that he be confined in the county jail of Leavenworth county for a period of ten months from the date of the order unless in the meantime he complied with the decree by making payment of the sums then due under the terms of the decree, or is otherwise discharged by due course of law.
In this proceeding the petitioner insists that the court was without jurisdiction to punish him for contempt, for the reason that the term of court at which the judgment was rendered had expired, and that the only way it could be enforced was by execution. It is argued that as the judgment directing payment of alimony had been made a specific lien upon real estate and personal property, it could only be enforced in the same manner as an ordinary judgment for debt.
This contention cannot be uphéld. Granting that judgments awarding alimony may in some instances be enforced by execution or other ordinary process, that does not deprive the court rendering the decree of authority to attach a party for contempt for willful disobedience or evasions of its order requiring payments of alimony. It is a recognized method for enforcing the provisions of a decree for alimony and the power to employ it inheres in a court of general jurisdiction since it is essential to a due administration of justice. It is not necessary that there should be a statute specifically providing that this remedy may be employed. The silence of a statute in this respect does not deprive the court of the power. It has been held that a lien or execution is illy adapted to enforcement of such an order, and that an attachment for contempt is always available. (Scott v. Scott, 80 Kan. 489, 103 Pac. 1005; In re Groves, 83 Kan. 238, 109 Pac. 1087; Andrew v. Andrew, 62 Vt. 495; In re Cave, 26 Wash. 213; 99 Am. St. 736 and note; 19 C. J. 305.) And it has also been said that payment may be enforced by a contempt proceeding after the expiration of a term at which a decree for alimony was granted. (1 R. C. L. 960.) Orders made in decrees for divorce and alimony can hardly be regarded as final, as they are subject to modification upon application, a power frequently exercised where changed circumstances require modification. (Miles v. Miles, 65 Kan. 676, 70 Pac. 631; In re Petitt, 84 Kan. 637, 114 Pac. 1071.) Nor can the order to pay alimony be treated as an ordinary judgment for debt. It does not arise upon contract, but is based on the duty of the husband to' support the wife, an obligation which he owes not only to his wife, but to the public as well. Neither can it be regarded as a debt within the constitutional provision prohibiting imprisonment for debt. In a period of five years he has paid only $109 towards the support of his wife, and has made no payments during the last four years. He offered testimony as to ill health and inability to raise the money with which to make the payments. He is living with his father, who pays him small wages, but his attitude as revealed by the testimony shows a lack of purpose to pay anything more on the alimony awarded. The court, after hearing the evidence, manifestly found that he was not endeavoring to comply with the order, but on the other hand was seeking to evade further payments. Even if he is actually unable to make the payments as ordered, his willful and contumacious refusal to make compliance to any extent with the order affords ground for attachment for contempt. If through illness or other reasons he should in good faith offer to and make such payments as he was reasonably able to do, but through the causes mentioned he was unable to pay the decreed amounts at the times specified, the court upon application, we may assume, would modify the judgment and grant an appropriate relief. It may be further said that this is a collateral proceeding, and is not available to review mere errors or irregularities that occurred in the trial. It may be used to inquire into the jurisdiction of the court to make the order. The court had jurisdiction to render the alimony decree and jurisdiction to punish willful disobedience of its order to pay alimony, and a finding that there was jurisdiction practically ends this proceeding.
This opinion disposes of the appeal No. 27,605, as well as the application for release of the petitioner on habeas corpus.
It results that the writ is denied and the judgment on appeal is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by the named beneficiary of a policy of fraternal insurance. Plaintiff was defeated on the ground that she was disqualified under the statute and under the rules of the defendant society.
In plaintiff’s third amended petition she alleged that for more than ten years she and her husband had a home in Independence, and that in October, 1916, one Huston Beasley, an illiterate negro, without a home or family, whose health had failed and who was physically unable to do hard work—
“Appealed to John and Parlee Rollins, his wife, that each permit him to make their home his home, even until death; that if they would he would be as a child in the home so long as he lived; that there was no one cared for him since the death of his wife and child; that he longed for a home that he could feel would be his own while here on earth. That John and Parlee Rollins considered together the said appeal of Huston Beasley; and then taking the matter up with him it was agreed between the three,'that Huston Beasley should make his home with John and Parlee Rollins. That John Rollins was to be as a father, and Parlee Rollins as a mother to Huston Beasley; and he should live in and occupy their home and house as a child of their own, even until death; and he would work and earn money, raise garden vegetables, do housework and all for support of Parlee Rollins. That Huston Beasley continued to live in the home of John and Parlee Rollins as a member of their family from October, 1916, to February 20, 1925, when he died, leaving the amended certificate in full force and effect, keeping and performing every part thereof on his part to be performed.”
Plaintiff also alleged that on March 14,1921, Huston Beasley was a member of the defendant corporation in good standing and held a beneficiary certificate issued by it for $300 payable at his death to “his estate,” and that in June, 1923, the Grand Master of the defendant company, at Beasley’s request, changed the named beneficiary, “his estate,” to plaintiff, by inserting in lieu thereof the following:
“I do hereby name and designate as my sole beneficiary or beneficiaries: ‘Parlee Rollins for support, changed 27th June, 1923.’ ”
The certificate thus amended was delivered to Beasley and he paid all dues and assessments thereon until his death on February 20, 1925. A copy of the certificate was attached to plaintiff’s petition, and appropriate references were also made in the petition to an 80-page book containing defendant’s constitution and by-laws filed with the clerk of the court, which constitution provided:
“Section 1. The beneficiaries shall be confined to the families, heirs, blood relatives, affianced husband or wife, or to persons dependent upon the member.”
The beneficiary certificate provided that the defendant—
“Will pay to the legal beneficiaries, heirs, blood relatives, etc., in compliance with the fraternal beneficiary laws in each state in which the I. O. B. & S. of C. may operate, of Bro. Consolation Huston Beasley at his death an endowment of three hundred dollars.”
Other exhibits showing correspondence of the litigants, a con tract of merger between defendant and a similar society and related proceedings of.no present consequence were also attached to the petition.
The petition further alleged that plaintiff, Parlee Rollins, was dependent upon Huston Beasley. Defendant’s default of payment, plaintiff’s demand, and the amount due were sufficiently pleaded and judgment prayed for.
Defendant’s demurrer was sustained, and judgment entered in its favor.
Plaintiff appeals. She gives some space to the merger contract between the defendant society and another, “The Knights and Ladies of Protection,” effected in 1922, and contends that by the terms of that merger defendant was bound to carry forward the business of the two societies according to the constitution and by-laws of the latter society. This point may be conceded, but no substantial difference between the constitution and by-laws of- the two societies is discoverable, nor did the merger contract add to or alter the original obligation of the defendant, so far as governs the legal capacity of plaintiff to take as a “dependent” of Huston Beasley, and that is the only question we have to consider.
Under the by-laws of both organizations beneficiaries were confined to the families, heirs, blood relatives, affianced husband or wife, or to persons dependent upon the member.
Under the facts recited in plaintiff’s third amended petition can it be said that Mrs. Rollins, the designated beneficiary, was a dependent on Huston Beasley under the provisions of defendant’s constitution and by-laws and as defined by the statute? The pertinent statute which governed the contract at the time it was executed reads:
“ . . . The payment of death benefits of such an association shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member thereof. ...” (Gen. Stat. 1915, § 5401.)
Plaintiff cites a decision of the St. Louis court of appeals, Peterson v. Knights & Ladies of Security, 189 Mo. App. 662, which in its facts was much like this case, and in which a recovery was permitted — not because the designated beneficiary was a dependent upon the insured but on the ground of estoppel. The controlling section of the syllabus reads:
“The holder of a benefit certificate in defendant fraternal beneficiary association, which limited beneficiaries to the ‘family, heirs, blood relatives . . . or the persons dependent upon the member,’ after the death of his wife, when he was alone and practically destitute, moved his trunk and personal effects to the home of plaintiff, who had always known him and regarded him as a brother and who invited him to make his home there. Thereafter, he continued to live as a member of the household, paying no board, until his removal to a hospital, where he died, except for a few days, when he rented a room near- a factory where he had obtained employment, during which time he did not move his trunk from plaintiff’s home and continued to take part of his meals there. After moving to plaintiff’s home, insured communicated to an officer of defendant’s local lodge his desire to have plaintiff named as beneficiary in his certificate, and the officer, after the situation had been explained to him, stated to insured, in plaintiff’s presence, that it would be necessary to designate plaintiff as a dependent, although plaintiff explained that she was not dependent upon insured. A new certificate was thereafter issued, in which plaintiff was named as beneficiary and designated as a ‘dependent,’ and thereafter plaintiff paid the assessments due on the certificate. Held, that it would seem that defendant was estopped to assert as a defense that plaintiff was not within the enumerated class of persons entitled to receive benefits.” (Syl. ¶ 5.)
This court, however, is committed to a contrary doctrine. In Modern Woodmen v. Comeaux, 79 Kan. 493, 101 Pac. 1, one Carl W. David held a beneficiary certificate issued by a fraternal insurance society, in which a hotel keeper with whom Davis made his home was named a beneficiary thus: “Robert L. Comeaux, who bears relationship to myself of dependent.” The by-laws of the society, as well as the pertinent governing statutes, were substantially the same as in this case; and so, too, were the material facts. The syllabus reads:
“1. D. was an unmarried man, without living relatives. He held a benefit certificate for $1.000 in the Modem Woodmen of America, of which order he was a member in good standing. He was sick and without a home. To secure a place where he could live and be cared for he entered into an agreement with a neighbor who was keeping a hotel, whereby it was agreed that the name of the hotel keeper should be placed in the benefit certificate as beneficiary, and he should also have all the property then owned by D., in consideration of which D. during his lifetime was to have a home at the hotel as' part of the hotel keeper’s family. In pursuance of this agreement the name of the hotel keeper was inserted in the certificate as stipulated, being designated as a ‘dependent.’ D. made a will by which his property was bequeathed to the wife of the hotel keeper, and he then went to the hotel to live, and remained there until his death, which occurred a few months afterward. Held, that the hotel keeper was not a dependent upon D. within the meaning of the law relating to the fraternal associations, and had no valid claim against the order as a beneficiary.
“2. Where the name of a person who does not belong to the class which by the rules of the order and the statute regulating such associations is entitled to become a beneficiary is inserted in a benefit certificate, such person has no right to receive any part of the benefit fund, and’the acceptance of assessments paid, after his name has been so inserted, will not confer such right.”
To the same effect were Gilliam v. Dale, 69 Kan. 362, 76 Pac. 861; Johnson v. United Workmen, 91 Kan. 314, 137 Pac. 1190.
It will be noted that under our statute quoted above the beneficiaries of fraternal insurance societies are confined to a definitely enumerated class; and it ought not to require discussion that the provisions of the statute cannot be rendered nugatory on some sophistical theory of estoppel; and so in Johnson v. United Workmen, supra, this court has said:
“Decisions from other courts are cited by the plaintiff, but without examination of the authorities we assume that they were not controlled by an express statute. If the cases cited were decided upon any theory that a statutory provision such as we have is not controlling upon the courts,' we should decline to follow them.” (p. 321.)
It will also be noted that our own case of Modern Woodmen v. Comeaux, supra, which is controlling on the question of estoppel although it is at variance with the decision in the Missouri appeals case relied on by appellant; also leaves nothing to discuss so far as the facts are concerned. Mrs. Rollins was not a dependent on the poor, sickly and homeless Beasley; on the contrary, under the facts alleged she was his charitable benefactress; and what chores in and about her house and garden his limited physical capacity enabled him to do in return for the privilege of having a home with her and her husband did not create any such relationship as dependency of Mrs. Rollins on Huston Beasley under the controlling statute and the constitution and by-laws of the defendant.
The demurrer to plaintiff’s petition was properly sustained and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this proceeding two electric power, companies are contending for the right to supply a cement plant at Mildred, a large user of electric current, with the power necessary to the op eration of the plant. The Kansas Utilities Company, hereinafter spoken of as the utilities company, was organized on September 19, 1919, and has been engaged in manufacturing, distributing and selling electric current to consumers in five countiés near its headquarters at Fort Scott, to wit: Bourbon, Allen, Woodson, Coffey, Anderson and Linn counties. It applied to the public utilities commission, now called the public service commission, and hereinafter designated as the commission, for a certificate or permit to carry on the business for which it was organized, and this was awarded on August 4,1920. Later, and on March 15,1923, by an amendment it changed its corporate name to the name now used, and obtained from the commission a certificate of convenience and necessity to do business in the zone composing the counties named. It has transmission lines in this territory, and one of its lines reaches a point within thix-teen miles of the current plant mentioned, and it had asked the commission for authority to extend the line to the cement plant. The plant, it appears, is close to the load center of the utilities company.
The Kansas Gas and Electric Company, hereinafter designated as the electric company, was duly ox-ganized in 1910, and was authorized by the chax'ter board of the state to carry on the business of manufactux’ing, distributing and selling electric current in Kansas. It engaged in business and sold and distributed electric curx-ent to consumer's in a number of counties in the state, but principally in Sedgwick and Butler counties. It appears to have a line to Bluff-ville, Wilson county, which was about forty-eight miles from the cement plant, and it applied for permission to construct a transmission line to Mildred with a view of furnishing electx’ic current to the cement plant, but it had not obtained a certificate of convenience and necessity for the extension or the furnishing of current in that zone. It further appears that the cement plant was x-eady and willing to buy current from either of the power companies which it found was able to supply sufficient cux’rent for the operation of the plant at a reasonable cost. A hearing was had before the commission on January 3, 1925, nominally for authority of the utilities company to build a traxxsmission line to the cement plant, and.at the same time the electric company applied to the commission for permit to build a transmission line from Bluffville to Mildred.
Elaborate pleadings and statements were filed and made and much testimony produced before the commission by the parties, but there was a broadening of the issues, and both of. the contending parties joined in asking for a decision as to the power of the commission to limit the territory in which a utilities company may operate. The electric company contended that the commission had no jurisdiction to define limits or to prevent duplication of service in a community, and in particular had no power to exclude it from supplying electric current to consumers in any territory within the state. The utilities company contended that the electric company should not be allowed to invade the territory for which the commission had granted it a certificate of convenience and necessity, it being shown that it was able, ready and willing to supply current to all consumers within the zone or district over which a certificate of convenience and necessity had been granted to'it by the commission. At the end of the hearing the commission decided that it had power to regulate the service and define the limits in which a public service utility may do business in the state; that the utility has and should have the present and exclusive right to operate in the territory for which a certificate had been granted, and that the electric company should refrain from interfering with the public service already established and maintained by the utilities company in the territory defined until authority to do so had been given by the commission. Later, the electric company brought this action in the district court to enjoin the enforcement of the order, and upon a demurrer setting forth the facts, the court held that where—
“One utility is attempting to enter territory occupied and served by another utility of the same character, and where such competition would have the effect of duplication service to the injury of the users of the commodity furnished, that the public service commission has the jurisdiction and authority to exclude the applicant company.”
Judgment was accordingly given for the defendants.
The question first argued relates to the interpretation and effect of a section of the public utility act, which provides :
“No common carrier or public utility governed by the provisions of this act shall transact business in the state of Kansas until it shall have obtained a certificate from- the public utilities commission that public convenience will be promoted by the transaction of said business and permitting said applicants to transact the business of a common carrier or public utility in this state. This section shall not apply to any common earner or public utility governed by the provisions of this act now transacting business in this state.” (R. S. 66-131.)
It is contended by the plaintiff that the last clause of the section made it unnecessary for it to obtain a certificate or permit to extend its business into territory not occupied by it when the public utility act was passed, and that in fact it was entitled to occupy new territory and carry on its business without permission or any interference or interruption by the state or the public service commission. The plaintiff, as well as some other, utilities, had obtained authority and were already engaged in business when the public utilities law was enacted. The status of these companies as going concerns was recognized by the legislature and a permit to enter the state and do business was deemed to be unnecessary. As to new utilities or those not yet authorized to do business in the state, it was provided that they could not come in and begin business until they had obtained from the commission a certificate that the public convenience would be promoted by allowing them to enter the state and transact business as a public utility. A company already in the state which had an established business and was then giving service to the public was exempted from obtaining a permit, but the new company applying for admission was required to satisfy the commission that public convenience would be subserved by permitting them to transact business in the state. When that permit was granted to the new company it was placed on a par with those already in the state and engaged in serving the public. We think it was not the purpose of the legislature to relieve any public utility doing business in Kansas from the regulatory powers, supervision and control of the commission. It could not have been the intention, we think, to discriminate as between utilities admitted to and doing a like business in the state, supervising and regulating one and allowing another to run at large, doing business as it chose, free from regulation or control. The public utilities act is an elaborate one, giving the commission full power and authority to supervise and control all public utilities, and nothing in it indicates a purpose that any of the utilities can escape this supervision and control, or can claim a preference over another utility engaged in the same public service. Such a discrimination, if it was intended, could not be upheld. The first section of the act provides:
“The public utilities commission is given full power, authority and jurisdiction' to supervise and control the public utilities and all common carriers, as hereinafter defined, doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.” (R. S. 66-101.)
Looking over the different provisions of the act, it seems reasonably clear that the legislative purpose was to subject all utilities operating thereafter in the state to the same supervision and control. One already in the state and serving a community is allowed to continue such service to that community without the permit required of a utility entering the state after the law was enacted. If it desired to extend its service to other communities, a certificate of convenience and necessity for such extension must be obtained from the commission, and as to extensions it was subject to the same restrictions as utilities admitted to do business in the state after the public utilities law was enacted, and to the same control as to regulations and service. If the commission is vested with the power to regulate and limit the extent of territory in which a utility may extend its operations and thus prevent wasteful competition and duplication of service, which would tend to cause inconvenience to the public and increase the cost of electric current to consumers, the plaintiff has no reasonable cause of complaint.
Plaintiff contends that such power has not been vested in the commission by the legislature, and if exercised would be an unconstitutional invasion of its rights. It is argued that the provision relating to certificates of convenience and necessity should not be applicable to utilities “now transacting business in the state,” is an added right to its franchise which cannot be constitutionally taken from it. Counsel says:
“By specially exempting the old companies from the new law all their rights were preserved, and this provision went much further than merely relieving the old companies from applying for a certificate from the new commission. Whatever may be the powers of the commission to create or protect a monopoly under the new section of the law, such powers by express enactment of the legislature do not extend to the old companies nor control their activities and property rights. The commission is given no power of any kind to curb or limit corporate or franchise powers existing at the time the law went into effect. It has been asserted by the state at certain stages of these proceedings that the exemption contained in the section under consideration should be construed to apply only to such parts of the state as were actually occupied by plaintiff at the time of the law's enactment. But we assert that the more reasonable view is that the legislature must have known that franchises and public engagements are commonly accepted in entirety and not by piecemeal and intended to protect such franchises as had been accepted and were then being acted upon in their entirety.”
It was further said that—
“The grant and the acceptance by a chartered company includes what could reasonably have been held in prospect by the company and all that could fairly have induced the incorporators to make their investments and assume the public duties imposed by the franchise, and that such rights whether rising to the dignity of contracts or not will not be forfeited or repealed, except upon a clear and unmistakable declaration of the legislature showing an intent to forfeit or repeal rights and privileges so acquired.”
The regulations in question cannot be considered a part of the charter rights of the plaintiff, but constitute an exercise of the police power which the state retains for the protection of the public safety and welfare. It is too late to insist that utilities organized and chartered under our general .law are not subject to the police power designed for the protection of the public and the utility as well. In Atlantic Coast Line v. Goldsborough, 232 U. S. 548, 558, the court said:
“It is settled that neither the ‘contract’ clause nor the ‘due process’ clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise.” (See, also, Union Dry Goods Co. v. Georgia, P. S. Corp., 248 U. S. 372.)
The public utilities act in terms is made to apply to “all companies for the production, transmission, delivery or furnishing of heat, light, water or power.” (R. S. 66-104.) In a case where one telephone company was seeking to enter territory occupied by another and was enjoined from doing so, it was said, among other things:
“The enactment of the public utilities law was an extension of the police power of the state over such utilities, but it did not grant any additional rights to such utilities as were established and maintained before the adoption of that act, and the Baxter Telephone Company procured no rights thereunder which it may maintain against possible competitors. The public utilities law was not enacted as an extension or enlargement of the powers and privileges of an existing telephone company.” (Telephone Co. v. Telephone Association, 94 Kan. 159, 166, 146 Pac. 3214.)
The power contested here has been recognized as existing in a number of our former decisions. In Janicke v. Telephone Co., 96 Kan. 309, 150 Pac. 633, a party had established a telephone system in a city, and another company proposing to enter the city and transact a like business made application to do so, which was denied by the city council. A contract was made between the established company and the invading utility for an exchange of business, with tbe stipulation that the new utility should not put in telephone service within the city. . The new company, however, undertook to install phones in the city, which was a violation of the contract and of public policy. An injunction against its action was granted. In an appeal it was said:
' “Two telephone systems serving the same constituency place a useless burden upon the community, cause sorrow of heart and vexation of spirit, and are altogether undesirable. The public utilities commission, with its power over rates and sufficiency and efficiency of service, can quickly suppress any evil consequences of monopoly, and good public policy favors rather than discountenances a single system. In this instance the public was distinctly benefited by the arrangement whereby subscribers to each system, each operating in a different field, acquired the free use of the other.” (p. 311.)
In treating of the policy of regulating and limiting the service to a single utility and its effect on the utility and the public, the court said:
“Moreover, in passing under the jurisdiction, of the state commission the defendants are not going to be subjected to some malignant influence. The commission may require some more formality in the conduct of their business, but there are compensations. It will be defendants’ duty to give adequate service at reasonable rates, but in return their business will be protected from wasteful and ruinous duplication and competition. Note the plight of one defendant in this action which has made some effort to obey the law, the Wakeeney company. Its service has been interfered with by a new company, the Trego, for whose benefit the connection between the lines of the Wakeeney company and of the other defendants was severed in January, 1922. If the Wakeeney company and the other defendants were giving efficient and sufficient service, the Trego company should have kept out of the field or developed a field of its own. It had no right to interrupt the public service being performed by the other defendants. It was to prevent such mischievous rivalry that the law made a certificate of convenience to be issued by the commission a prerequisite to engage in a public utility business.” (State, ex rel., v. Telephone Co., 112 Kan. 701, 705, 212 Pac. 902.)
The question was the subject of consideration in Telephone Co. v. Telephone Association, supra, in which it was remarked that—
“We can see no fundamental difference between the telephone business and any other business except that owing to its importance and general use one telephone system is likely to be more satisfactory and less expensive than where two or more such companies occupy the same field. This the legislature has recognized and has provided that as a matter of public policy no public utility like a telephone company, excepting one strictly mutual, will be authorized to do business until it has obtained a certificate or a license of authority as a public convenience ■ and necessity within the community where it seeks to do business. . . . Prior to the passage of the public utilities act any number of telephone companies which would persuade a city government to grant a franchise for the use of the streets and alleys, might establish a telephone system within such city. The competition of these would affect the business and affect the revenues of other utilities of the same character which had previously been established.” (p. 166.)
In view of these decisions it is hardly necessary to refer to outside authorities, but we may refer to Weld v. Gas & Electric Light Commissioners, 197 Mass. 556, wherein it was said:
“In the first place, in reference to this department of public service, we have adopted, in this state, legislative regulation and control as our reliance against the evil effects of monopoly, rather than competitive action between two or more corporations, where such competition will greatly increase the aggregate cost of supplying the needs of the public, and perhaps cause other serious inconveniences. . . . The state, through the regularly constituted authorities, has taken complete control of these corporations so far as is necessary to prevent the abuses of monopoly. Our statutes are founded on the assumption that, to have two or more competing companies running lines of gas pipe and conduits for electric wires through the same street would often greatly increase the necessary cost of furnishing light, as well as cause great inconvenience to the public and to individuals from the unnecessary digging up of the streets from time to time, and the interference with pavements, street railway tracks, water pipes and other structures. (Citing authorities.) In reference to some kinds of public service, and under some conditions, it is thought by many that regulation by the state is better than competition.” (p. 558.)
In Pond on Public Utilities, 3d ed. § 901, the subject of supplanting competition with state regulation was discussed and it was said that—
“The theory of the regulation of municipal public utilities by the state through such a commission is to avoid competition which is now generally recognized as a needless economic waste and an entirely insufficient method of ■securing the necessary regulation and control. Under this method the state through its commission takes the place of competition and furnishes the regulation which competition cannot give, and at the same time avoids the expense ■of duplication in the investment and operation of competing municipal public utilities.”
We think the commission had the power to regulate the service .and define the limits prescribed, that its exercise operates beneficially to the public and is not inimical to the interests of the utilities. Such an order is really advantageous to an invading utility whose application was denied, where the admission of a second utility would be a serious inconvenience to and burden upon the public, and where the duplication of service would necessarily result in an increase of expense in the production and delivery of the current. The plaintiff, as we have seen, had an established business in several communities when the law was enacted. It was entitled to protection as against another competitor which was proposing to invade a community the former was already sei'ving. By the act it was given the right to appeal to the commission to exclude the invading utility from constructing and establishing a duplicate system which would result in wasteful competition and the reduction of its revenues. If the invading utility had, like the plaintiff, been engaged in business when the utilities law was enacted and was insisting on the right to operate in the community already occupied by plaintiff, without a permit, because it was in business when the act was passed, would the plaintiff concede that the invading company could enter and operate-therein without a certificate of convenience and necessity from the commission? Would it concede that the invading company was outside of the regulations of the act? In the circumstances the plaintiff would need protection, and the commission upon application would have the power, we think, to investigate and determine whether there was necessity for the duplication or whether it would be wasteful and a useless burden upon the community. The plaintiff would have the right to insist that the invading company, doing business when the law was enacted, must procure a permit from the commission before-installing a second system the same as is required of a utility organized since the enactment of the law.
Our conclusion is that the decision of the district court was correct... and its judgment is affirmed. | [
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The opinion of the court was delivered by
Burcpi, J.:
The action was one to recover the price of sand sold for use in constructing an improved highway, from 'the construction company and the surety on its bond. Plaintiff prevailed, and defendants appeal.
Plaintiff was engaged in producing and marketing sand. The Walnut Grove Sand Company was also a producer of sand, whose equipment was leased to Harry T. Warden. G. M. Smith and Matt Graham, Jr., partners under the name of the Smith-Graham Construction Company, were road-building contractors. The construction company contracted with the board of county commissioners of Butler county to furnish material and perform labor necessary to construction of federal-aid project No. 90, section A, and the Fidelity and Deposit Company, of Maryland, became surety on the construction company’s bond. The bond guaranteed payment of indebtedness incurred for material used in constructing the highway. The contract required material should be analyzed, tested, and approved, in accordance with federal regulations governing the subject. The laboratory was maintained at the state agricultural college at Manhattan, and tests made were numbered. Warden supplied the construction company with sand to. be used on the highway under laboratory test No. 3269. Graham, on behalf of the construction company, arranged with plaintiff for sand to be used on the highway and, because the construction company had been using Walnut Grove sand, Graham requested plaintiff to ship in the name of the Walnut Grove Sand Company as consignor, which was done. Deliveries were made between June 12, 1922, and August 8, 1922, amounting to $1,208. Plaintiff was supplying the construction company with sand for other jobs, and an account was kept for each one separately. The construction company did not keep a separate account on its books of sand billed to it by plaintiff in the name of the Walnut Grove company. Warden was paid by the construction company, became financially embarrassed, and left the state. Plaintiff was not paid, and sued the buyer of its sand and the buyer’s bondsmen.
Sale of the sand, delivery of the sand, and use of the sand on the highway, were contested at the trial, and a feeble effort was made to show an accord and satisfaction by payment of another account by means of a check which stated acceptance constituted settlement in full. These matters were disposed of by special findings of the jury, returned under proper instructions.
The principal defense was this: (1) Plaintiff’s sand did not meet the specifications or requirements of the builders of the road, nor of the federal government, nor of the engineers and inspectors passing on materials used in constructing the road. (2) The Walnut Grove sand did meet such requirements. (3) With knowledge of the facts, plaintiff fraudulently, corruptly, and with intent and design to deceive the contractor and the inspectors and engineers, shipped its sand as the sand of the Walnut Grove company.
The burden rested on defendants to establish this defense, and they offered no evidence to sustain proposition (1). Plaintiff’s sales manager, who negotiated with Graham, testified plaintiff’s sand was regularly tested to keep it up to the requirements of the state highway department, the sand delivered to the construction company had been approved for this kind of public work, and a test was made during the period of delivery. This testimony was not disputed, and the major premise of the defense failed.
It was true, as alleged, that the Walnut Grove sand had been tested and approved, but the date of laboratory test No. 3269 was not shown, and there was no evidence the Walnut Grove sand had been specially tested and specially approved for use on the particular project.
As indicated, the contract to supply the sand resulted from a conversation between plaintiff’s sales manager and Graham. The sales manager testified to this effect: Graham requested that the sand be shipped in the name of the Walnut Grove company, because, Graham said, the Walnut Grove sand had been approved for the job, and plaintiff’s sand had not. The sand was shipped in that way because Graham asked that it be done. Graham did not testify. Smith testified as follows:
“Q. You say that the sand of the Empire Sand and Material Company did go into that project in question — that is correct? A. Yes, sir.
“Q. But you still say to the jury that the sand of the Empire Sand and Material Company did not meet the specifications and was rejected? A. I didn’t say that; no, sir.
“Q. You don’t mean to imply that? A. No, sir.”
The sales manager testified he knew sand must be approved for use in public work of this kind, but he did not know it had to be specifically approved for a particular job, and defendants offered no evidence charging him with such knowledge. Mr. Phil Doane was the engineer of the state highway department present while project No. 90 was under construction. He testified sand must be tested, and when tested is given an acceptance number. As long as sand comes from a plant whose product has been tested, it is accepted on the job in reliance on the shipper. Sand that has not been tested at Manhattan cannot be accepted knowingly, and no sand not approved would have been used on the work. The Warden sand had been' approved, and the engineers had no knowledge that any of plaintiff’s sand was used until they received an acceptance of plaintiff’s sand on August 10, 1922. Doane did not testify,, and nobody else testified that a special test must be made and a special acceptance must be issued for each particular piece of work, of sand which has been duly tested and approved for that kind of work. The result is, the charge that plaintiff sought to deceive Smith and Graham was disingenuous, and the charge that plaintiff, knowing its sand had not been approved, engaged in a corrupt scheme to deceive the highway engineers, was not sustained by any evidence.
Defendants say a.question of public policy is involved. A question of public policy was raised by the answer, but disappeared when the evidence was in. If any deception were to be accomplished by billing plaintiff’s sand in the name of the Walnut Grove company, the design was Graham’s, and the sales manager’s information was not proved to be such that he became an active agent in promoting it. (Surety Co. v. Lime Co., 76 Kan. 914, 92 Pac. 1111.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
James Kennedy was charged with and convicted of the larceny of a hog of the value of more than $20. He appeals and his principal complaint is that the evidence was insufficient to warrant a conviction.
When the owner discovered that the hog was missing he made a search of his premises and found tracks of a hog and also of a man leading from the yard to a gate which opened on a highway. There was snow on the ground at the time and where the tracks ended the snow was beaten down, and there were marks indicating that the hog had been turned over on its back. There were tracks indicating that an automobile had turned around at the place where the snow had been mashed down on the road and the tracks of the automobile showed that there were three smooth tires and one nobby one. It was discovered that the defendant’s automobile had three smooth tires and one nobby one on it. When officers had been notified and came to examine the premises, they found along the tracks made a written receipt made out in the name of the defendant, acknowledging the receipt of $10, and the defendant acknowledged that this receipt belonged to him. On an examination of de fendant’s automobile .they found hog manure in it and also hog bristles, as well as a rope with hog bristles on it. The track of a man found at the owner’s premises showed that there were heels on the shoes worn, and there were also heels on the shoes of the defendant when he was arrested, but on the next day when he was brought in for preliminary examination, the heels of the shoes had recently been removed, and he stated that the shoes were the same as he had worn the previous day. The defendant admitted that he went past the premises of the owner on the day the hog was taken, but denied that he had stolen it, and explained that he had been out on a hunting trip and lost the receipt while on that trip.
It is not necessary to analyze the evidence produced. While no witness testified that he saw the defendant taking the hog, the circumstances and evidentiary facts well established pointed convincingly to the defendant as the one who committed the larceny. A fact may be established and a conviction of the gravest offenses may be sustained upon circumstantial evidence. The circumstances adduced were sufficient to convince the jury that the accused had committed the offense charged, and we deem them to be sufficient to uphold the verdict and judgment.
Defendant contends that error was committed in permitting the arresting officers to testify that they measured the tracks in the snow made by shoes with heels on them, and that they corresponded with the shoes worn when defendant was arrested, and that the next day when he came into court he wore shoes from which the heels had been recently removed. The officers testified that in their opinion the shoes were the same that he wore the preceding day. If there was any fault in the evidence it could not have resulted in prejudice to the defendant, as he testified that the shoes worn on the day of the trial were the same he wore the day before.
Another matter of complaint is that the state offered evidence to the effect that while the defendant was being taken to the courthouse he threw a bottle of whisky from the car on the pavement. The evidence was of course not admissible, and the court upon objection promptly struck it out. No prejudice could have resulted from the offer.
The instructions of the court are not included in the record, and it may be inferred that the jury were properly advised as to the rules of law applicable, including the evidence to be- considered.
Finding no error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The Citizens State Bank, of El Dorado, as assignee of a school-district warrant, sued school district No. 115 in Butler county, which issued it, and one A. H. Murphy, the assignor, to recover the amount of such warrant when the district failed to pay it. The school district answered alleging the invalidity of the warrant because the issuance thereof had not been authorized by the district board at any legal meeting thereof; that the signatures thereto of the three officers were procured by misrepresentations to the effect that it was to take the place of a former warrant for substantially the same amount that had been lost; and that there was no liability or obligation on the part of the board to pay for either of the items claimed by the plaintiff as the consideration for said warrant, because as to one item the assignor of plaintiff had agreed to take the merchandise back and as to the other item there never was any agreement to engage or pay for the services of the assignor. A jury was waived and the court, after hearing the evidence, rendered judgment in favor of the plaintiff and against the defendant district for the amount of the warrant with interest and against the assignor as indorser of the warrant. The school district appeals.
The district board was improving the school property, and at a full meeting of the board agreed to purchase from Murphy, agent for the Kaustine Company, of Buffalo, N. Y., a two-unit toilet outfit for $236. This outfit -came and was partly installed when the schoolhouse burned, only slightly injuring the toilet outfit, however. The board at once decided to rebuild upon a larger scale and contracted with Murphy for a six-unit toilet outfit, at which time Murphy promised to help them dispose of the smaller outfit. The purchase price of the larger outfit was $576.10, for which a warrant was issued to Kaustine Company. The clerk of the district was a woman, and she complained at a meeting of the board that she did not have time to look after the notices and other work in connection with the voting of bonds for the new schoolhouse, and asked Murphy if he would do it and if that would be agreeable to the board. There is no record of any action' of the board on any of the questions here involved. The warrant sued upon was dated December 10, 1923, was for $577.80, and was composed of the following items: two-unit toilet outfit, $236; interest on same for 10 months, $11.80; twenty-two trips to El Dorado or to the schoolhouse at $15 each, $330. It was written up and signed by the clerk after figuring up these items and was delivered to Murphy, being made payable to him, which was agreeable to Kaustine Company. Murphy took it to the treasurer and director at different places and secured their signatures thereto, and later sold it to the plaintiff bank.
The matters involved in this case are more of fact than of law, and our main duty will be to determine whether there was evidence to support the judgment and the necessary findings of the court. It is not contended by anyone that the warrant was issued, authorized or allowed at a regularly called or any other kind of a board meeting. If that is fatal to its validity it will necessarily be invalid, but that question we will consider later in connection with some of the facts. The answer in this case avers the signatures to the warrant were procured by representing that it was to take the place of a warrant that was lost, which was given for the six-unit toilet outfit, and then avers if issued for the two-unit outfit and interest and trips of Murphy there is no obligation or liability of the district therefor. The allegation as to its being represented as a substitute for a lost warrant is not at all supported by the evidence. The clerk and director both say there was nothing of the kind mentioned to them. Murphy -says he never said that to anyone. The treasurer testifies that he did, but there was an incident which evidently confused him and led to his so testifying. The words warrant and order are used interchangeably, and one of the orders given by the board for the purchase of one of the toilet outfits had been lost and its loss discussed. At any rate, that allegation of the answer was not established. The contents of the warrant itself was sufficient to refute such a representation, aside from the difference as to date, amount, and payee, it specifically stating on its face that it was “for Kaustine toilets and legal services.”
Now as to these items, it is admitted that the two-unit outfit was regularly ordered by the board, that it was received, partly installed before the fire, and that it is still in possession of the board. The evidence differs as to whether Murphy agreed to take it back or to help the board dispose of it. The members of the board did not agree as to that. As to the $330 item for 22 trips of Murphy in connection with the bond election and other business matters for the' board, the evidence is conflicting. All three of the officers say it was talked of and they all knew Murphy was making the trip and doing the things that one of them should be doing. The director said he did not want him to do such work. The treasurer heard it mentioned at different meetings. The clerk proposed it and later agreed on the number of trips and reasonable compensation. All knew these trips were being made by him and knew the several matters about the notices and bond election were being performed by him, and no one objected or tried to prevent him from doing the things they knew should have been done by them. The warrant they signed showed it was partly for services, called legal services. The director long after tried to purchase the warrant from the bank. Nearly two years have elapsed after the signing of this warrant be fore this objection is interposed. The members of the board availed themselves of the experienced help he afforded them in the matter of voting the bonds. The clerk was in the hospital a part of this time, and the treasurer was out of the state a part of this time. The director did not want him to do it, but did not do it himself. There is such a thing as a district being bound by permitting things to be done for it and receiving the benefits thereof, even without the making of a valid and binding contract at a regularly called meeting of the board.
“Numerous authorities are cited in support of the proposition that a binding contract with the officers of a school-board district can be made only when they are in session. Notwithstanding this rule, a district may be required to pay the value of material received by it when it has knowingly permitted it to be furnished and has received and used the same and enjoyed its benefits.” (Watkins v. School District, 85 Kan. 760, 764,. 118 Pac. 1069.)
We think the evidence is strong enough to justify a finding that both these items included in the warrant were furnished or performed by actual or implied contract with the board, but as concluded above there was no legal authorization by the board for the issuance of the warrant. Can the board under such circumstances be bound without such authorization? We think it can by accepting the benefits of material furnished and labor and services performed, and thereby ratifying the action, however irregular, that brought to the district a benefit.
“A contract for building a schoolhouse, void because made only by one member of the school board, may afterward be ratified and made binding upon the school district by the full school board, or by the school district.” (Sullivan v. School District, 39 Kan. 347, syl. ¶ 1, 18 Pac. 287.)
“A contract for building a schoolhouse, void because made only by one member of the school board, may be ratified and made binding by the action of the school district in completing the building left unfinished by an absconding contractor; by furnishing the same with seats, desks, and other necessary schoolhouse furniture; by occupying the same for school purposes, and by insuring the same.” (School District v. Sullivan, 48 Kan. 624, syl., 29 Pac. 1141.)
Again, even if the warrant is invalid, it represents an indebtedness of the district as the evidence shows, and a recovery can be had for the indebtedness it represents.
“It is conceded that the claims for which these warrants were issued were valid and that the county got value received therefor. The present holders of the warrants are therefore subrogated to the rights of the original claimants. Although the warrants are void, the claims are valid. (School District v. Dudley, 28 Kan. 160, syl. ¶ 2; Irvine v. Board of Comm’rs [of Kearny Co., Kan.], 75 Fed. 765.) The county must pay its valid debts. It did not pay them by issuing void warrants. The indebtedness is still outstanding.” (Bank v. Reilly, 97 Kan. 817, 826, 156 Pac. 747. See, also, Watkins v. School District, supra.)
Such indebtedness goes with the assignment of the warrant, and when Murphy, in this case,-assigned the warrant to the plaintiff bank he also assigned the indebtedness to which the bank would be subrogated in case the warrant is invalid.
“By the assignment of a school warrant the assignee becomes the owner of whatever claim the original holder had against the district for the indebtedness evidenced by the warrant.” (Bank v. School District, 102 Kan. 98, syl. ¶ 4, 169 Pac. 202. See, also, School District No. 78 v. Dudley, 28 Kan. 160.)
But it is claimed by the defendant district that the plaintiff in this case cannot recover because it brought its action upon the warrant only, and not upon the indebtedness represented by the warrant, and cites School District No. 73 v. Dudley, supra, where the court permitted the plaintiff to amend his pleading so as to show the indebtedness represented by the warrant, and concludes that-because no such request for amendment was made in this case the plaintiff cannot recover on the strength of the indebtedness of the district. In the case of Furniture Co. v. School District, 50 Kan. 727, 32 Pac. 368, the plaintiff’s petition consisted of two counts, first, a claim upon the warrant, and, second, a claim for the indebtedness which the warrant represented, and the court said:
“A school district which has received, retained and used for a long period of time school furniture bought for it by the members of the school-district board, acting separately, without any board meeting, must be deemed to have ratified the purchase, and must pay for the property so obtained for its use.” (Syl.)
Although the plaintiff in this case did not plead the indebtedness represented by the warrant, nor ask leave to amend its petition by doing so, yet we are not without sufficient pleadings in the case to make the question of indebtedness an issue. As stated above, the defendant district, in addition to general denial, pleaded the invalidity of the warrant because it was not authorized by a meeting of the board, and a further defense that the indebtedness represented by the warrant, naming the two items, was not a legal obligation of the district, and to this the plaintiff replied by general denial, which put in issue the question of the indebtedness of the district as to these items, and such issue was decided by the trial court in favor of the plaintiff. (See Irwin v. Paulett, 1 Kan. 418; Bank v. School District, supra, syl. ¶ 3.)
Notwithstanding the want of proper authorization by the board for the issuance of the warrant sued on, we think the whole matter of the indebtedness of the district for the items contained in the warrant and the ratification of the board and the district by accepting and retaining the benefits of the merchandise furnished and services rendered were properly before the court and a fair and just determination reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding is one to require the clerk of the district court of Sherman county to show cause why she should not be considered in contempt for declining to enter releases of certain judgments for costs appearing of record in the district court of Sherman county.
In three actions for damages commenced in the district court of Sherman county, entitled Berry v. Dewey, personal judgments were rendered in favor of plaintiffs and against Chauncey Dewey for sums of money and costs of the actions. Subsequently an action was commenced in this court by the state on the relation of the attorney-general against The C. P. Dewey Company, a corporation. Chauncey Dewey was a party to the action, and the Berrys, as judgment creditors of Chauncey Dewey, intervened. The parties to the litigation, including the interveners, entered into stipulations, settling their controversies. One stipulation was that Chauncey Dewey was to pay the attorney for the Berrys the compromise sum of $15,000 in final settlement of the judgments in the Berry-Dewey cases, the same to be in full settlement of the judgments, and all costs made by the Berrys in those cases. The Berrys agreed to receipt the judgments in full. Dewey agreed to pay the costs made by him. The Berrys duly authorized L. W. Colby, as their attorney, to settle the cases and to satisfy the judgments and costs in favor of the Berrys. Pursuant to this authority, Colby, acting as attorney in fact and of record for the Berrys, executed a release and ■satisfaction of the judgment in favor of plaintiff in each Berry-Dewey case, and deposited the three releases with the clerk of this court. The releases were identical in form and substance, and a copy of one of them follows:
“Comes now the plaintiff, by L. W. Colby, his attorney of record and in fact, duly authorized in the premises, and hereby acknowledges the receipt and satisfaction of the judgment rendered in said cause, and of plaintiff’s costs therein, and said judgment and costs are hereby receipted and satisfied in full, and this will discharge the same of record in said court.”
The stipulations were carried out, the sum of $15,000 in settlement of the Berry-Dewey cases was paid by Dewey, and the money came into the hands of Colby. The stipulations were presented to this court for approval, and were approved. The court directed all parties to abide by the terms of the stipulations, and made the following order relating to the releases of the Berry-Dewey judgments:
“And it is further ordered that the releases of the said judgments in favor of the said interveners be and they are hereby approved as to form and as to the authority for their execution, and the clerk of this court is directed to forward the same to the clerk of the district court of Sherman county, Kansas, with directions to enter the same of record in the discharge of the said judgments of record in said court as provided in said releases.” „
The clerk of this court forwarded the releases to the clerk of the district court of Sherman county, with directions as indicated. The costs to which the releases referred had not been paid, and have not yet been paid. The clerk, acting on the advice of counsel, declined to file the releases.
Dewey’s contention is this: A judgment for damages and costs is an entirety; costs follow the judgment as an incident to it, and are collectible by execution in the same manner as the amount allowed for damages (15 C. J. 310); payment made to an agent or attorney having express authority to receive payment binds the judgment-creditor and constitutes satisfaction (21 R. C. L. p. 19, § 13); and Dewey is entitled to have the judgments satisfied of record. The clerk does not dispute the soundness of these principles as applied to the relation of judgment debtor and judgment creditor. She contends, however, that upon rendition of the judgments third persons acquired interests in them; costs were taxed for services rendered by officers of the court, the sheriff and the clerk, and are due the county; other costs were taxed as witness fees, and are due the witnesses; the obligation of the judgments to these persons may not be shifted or impaired by bargain between the parties to the action; and she ought not to be required to enter upon the records of the court releases of obligations which have not in fact been discharged by payment.
The authorities cited by Dewey announce sound general principles, but they determine nothing bearing on the present controversy. The theory is that each party to a lawsuit pays expenses of the litigation as he makes them, and the successful party is given judgment “for costs,” to reimburse him for his expenditures. The practice is quite different. Witness fees may be demanded, and it may be necessary to pay them in order to obtain testimony. Depositions are usually paid for by the party taking them, and in other instances advancements may be made in accordance with the theory. The plaintiff who commences an action does not, however, pay the clerk’s fees for filing the petition and issuing the summons, or pay the sheriff’s fees for serving the summons, and may not pay other items which, at the conclusion of the litigation, are taxable as costs made by him. Following out the theory, a judgment for the subject of action, damages, and for the incident to the litigation, costs, is an entirety, and the judgment creditor may enforce the judgment by execution. The judgment is, however, only nominally an entirety. When the sheriff brings in money realized by execution to pay the judgment, the theory yields to reality. The judgment cred itor receives nothing from the costs portion of the fund except what he has advanced. He did not enforce collection of the remainder on his own account. He did so, in a remote sense, as a trustee holding legal title but acting for beneficiaries — the clerk, the sheriff, witnesses, and others. Such persons have a property interest in costs taxed for their benefit, of which they cannot be deprived without their consent. Formerly county officers were compensated in large part by fees. They are now compensated chiefly or entirely by salary, but the statutory fees are taxed as costs, and when collected are paid into the county treasury. The change in the law did not affect the principle, and fees included in a cost bill which were formerly property of officers are now property of the county.
The fee and salary act contains the following provisions:
“All fees and sums paid by either party for fees of witnesses and other necessary expenses in any civil action or proceeding shall be proved by the affidavit of the party, or of some person knowing the same to have been paid; and all such fees shall be taxed and collected from the party ordered or adjudged to pay the costs.
“It shall be the duty of the sheriff or other officer collecting costs on execution in this state, after retaining his own fees, to pay the residue of such costs collected to the clerk of the court from which the execution issued, or to the justice, and take a receipt therefor.
“It shall be the duty of the clerk of the court or justice receiving any costs belonging to any other person to hold the same subject to the order of the person entitled thereto, and to pay the same over on request; and if such fees shall not be called for within one year after having been received, the officer shall pay the same into the county treasury and take a receipt therefor.” (R. S. 28-141, 28-145, 28-146.)
The civil code contains the following provision:
“After final judgment has been rendered in an action in which security for costs has been given, as required by article 24, the court, on motion of the defendant, or any other person having a right to such costs, or any part thereof, after ten days’ notice of such motion, may enter up judgment in the name of the legal defendant or his legal representatives, against the surety for costs, his executors ór administrators, for the amount of costs adjudged against the plaintiff or so much thereof as may be unpaid. Execution may be issued on such judgments as in other cases, for the use and benefit of the persons entitled to such costs.” (R. S. 60-3701.)
Interpreting the code provision the court said:
“The only object that was expected to be accomplished, or that could properly be accomplished by the notice and its succeeding motion and order, was to have the judgment, which had already been rendered in favor of Ingle and the other defendants against Morrell for costs, so extended as to make it a judgment for costs against Morrell’s sureties also, to wit: Sanford, Rogers and McDonald. And any person interested in such judgment or costs had a right to give the notice, and to make the motion, and to procure the necessary order of the court to be rendered. And when the order was made, if made properly, it would inure to the benefit of all persons interested in the costs; . . .” (Sanford v. Fmnkhouser, 24 Kan. 98, 100.)
The result is, the judgment creditor is less than a figurehead with respect to costs due persons not parties to the action. It is not necessary to procure his consent to use his name in collecting such costs. Because he has no interest in them, he can do nothing which will prejudice interests of those who are entitled to them. Payment to him does not satisfy the judgment, and his agreement to pay them does not satisfy the judgment. The case of Ranck v. Hill, 3 Pa. St. 423, is precisely in point. In that case the supreme court approved the following instruction given the jury ,by the trial court:
“The plaintiff was undoubtedly liable to the officers for any costs he put on the action during its progress. The judgment recovered, carried with it the costs against the defendant; and when the judgment was obtained, and the defendant thus rendered liable to the officers, the plaintiff and defendant could not, without the consent of the officers, discharge the defendant from his liability to them, and thus oblige the officers to look to the plaintiff alone for payment, and take from them a security which they had by the judgment for the costs against the defendant, in addition to the liability of the plaintiff. The costs belonged to the officers, and not to the plaintiff; and the agreement of the- plaintiff with the defendant to pay them, when he did not do so, will not discharge the defendant from his liability under the judgment to the officers for the amount of costs due them, and for the recovery of which they may proceed in the name of the plaintiff.” (p. 424.)
The decision was approved and applied in the case of Hoysradt v. Delaware, L. & W. R. R., 182 Fed. 880.
The conclusion is that Dewey in legal effect merely constituted the attorney for the Berrys his agent to pay costs and satisfy the judgments, and the judgments for costs cannot be satisfied except fey payment, or by release by those to whom the costs are due.
The order of this court added nothing to the efficacy of the releases which it directed the clerk of the district court of Sherman county to file. The order did not bind and could not bind anybody except the parties to the stipulation pursuant to which the order was made, and their agents and attorneys.
Since the releases will not have the effect which the clerk feared they would have, that is, will not stand in the way of enforcement of the judgments for costs, the clerk should file the releases. Since Dewey caused the citation to issue on the untenable ground that filing the releases would satisfy the judgments for costs, the clerk is discharged, and the costs of the proceeding are taxed to Dewey.
Harvey and Hopkins, JJ., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
In a petition for a rehearing the appellees press the contention that by accepting the lease purchased by Gill from Mrs. Craft the Greenland Oil Company ratified all the instrumentalities by means of which Gill obtained that lease. Quite true. It did. But, given its largest possible significance, the Smith-Gill agreement was not one of those instrumentalities. It cannot be said that but for the Smith-Gill agreement Gill could not have purchased the lease, nor that but for that agreement Smith would have acquired it. The Smith-Gill agreement was a merely collateral one, if it amounted to that much; and it is elementary law that collateral agreements are not ratified merely by the ratification of a principal contract. Still less are collateral agreements with third parties, like the Smith-Gill agreement, ratified by the ratification of extraneous contracts with other parties like the Craft-Gill lease.
Moreover the doctrine of ratification of an agent’s unauthorized agreements implies the existence of at least two essential elements: (a) that the party contracting with the agent did not know the agent lacked authority to make the agreement, and (b) that the principal had the privilege of repudiating the unauthorized agreement if he did not choose to ratify. Both these were wanting. Smith knew Gill did not have authority to bind his principal to an agreement to let plaintiffs have a quarter interest in the lease; and the principal did exercise its privilege of repudiating that agreement as soon as it had an opportunity to do so. The Greenland Oil Company was not bound to repudiate Gill’s agreement with Sherman nor with Mrs. Craft in order effectively to clear its skirts of the unauthorized compact of Smith and Gill.
The other arguments urged by appellees to uphold the trial court’s judgment have had our most deliberate and painstaking consideration, but now after several repeated consultations on this case we can discern no logical basis for that judgment, nor does the petition for a rehearing suggest anything which might lead this court to a different conclusion from that already reached. It would therefore serve no purpose to grant that rehearing. Consequently our judgment of reversal must stand.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a widow and sole dependent of a deceased workman under the workmen’s compensation act. From a judgment in her favor defendant has appealed. The sole complaint is that the court erred in rendering a lump-sum judgment. It is contended that under the proceedings in this case the court was without power or jurisdiction to render a lump-sum judgment in view of the fact that there had been an arbitration in the case and the arbitrator’s award provided for periodical payments, and there had been no proceedings to review or modify the award.
The facts are substantially as follows: On September 21, 1925, Sam Shumona, while in the employ of Armour & Company, and both operating under the workmen’s compensation act, sustained an injury by accident, arising out of and in the course of his employment, which resulted in his death four days later. He left the plaintiff, Sophia Shumona, his widow, as his sole dependent. On October 13, 1925, she made written claim for compensation. The writing also stated:
“You are further notified that I, the undersigned, object to submitting my claim as a dependent of Sam Shumona for compensation to any committee, representative of Armour & Company, organized for the purpose of settling disputes under the ‘workmen’s compensation act of the state of Kansas.’ You are further notified that unless you do within five (5) days consent in writing to the arbitration of my claim for compensation as sole dependent of Sam Shumona under said compensation act of the state of Kansas, I -will take as true said failure as being a refusal of Armour & Company to consent to arbitration of my claim for compensation and will institute suit in the district court of Wyandotte county, Kansas, against said Armour & Company as defendant on account of any claim hereinbefore referred to.”
On October 19 defendant replied as follows:
“This is to advise you that in the claim of Sophia Shumona for compensation under the workmen’s compensation act of the state of Kansas, Armour & Company consents to the appointment' of an arbitrator to determine such questions as the workmen’s compensation act of the state of Kansas provides shall be submitted to an arbitrator.
“However, in so consenting, Armour & Company does not admit that Sam Shumona received any injury by accident arising out of and in the course of his employment with Armour & Company which in any way caused or contributed to the death of said Sam Shumona, and expressly denies that Sam Shumona received any injury by accident arising out of or in the course of his employment, which caused or in any way contributed to the death of Sam Shumona.”
On November 9 plaintiff filed in district court the following application :
“Comes now the above-named petitioner and prays the court to appoint an arbitrator for the purpose of ascertaining the amount of compensation due to the above-named widow as claimed by her against the above-named respondent and in this application alleges that on or about September 21, 1925, at about 10 o’clock p.m., her husband, Sam Shumona, now deceased, received personal injuries by accident, arising out of and in the course of his employment, and as a direct cause of said personal injuries received as aforesaid, said Sam Shumona died on Friday, September 25, 1925, and that she has given notice to said respondent that she would, on this date, apply to this court for the appointment of an arbitrator, to hear and determine her claim for Compensation under the ‘workmen’s compensation statutes,’ ‘where death results from injury.’
“Wherefore: Petitioner prays this honorable court to appoint some suitable person as arbitrator, to hear and determine her .claim for compensation under the death-benefit statute of the ‘workmen’s compensation law,’ to fix the amount of such death benefit she is entitled to, if any, and to determine such other matters as may properly come before said arbitrator, arising out of said claim.”
Thereafter the following answer to such application was filed:
“Armour & Company, for answer to the application for the appointment of an arbitrator herein by Sophia Shumona, says that it consents to the appointment of an arbitrator to determine such questions as the workmen’s compensation act of the state of Kansas provides shall be submitted to an arbitrator, but it expressly .refuses to consent to the submission to the arbitrator of any questions other than those questions which the workmen’s compensation act provides shall be determined by an arbitrator.
. “For further answer to said application for the appointment of an arbitrator, Armour & Company says that in so consenting to the appointment of an arbitrator, it does not admit that Sam Shumona received any injuries by accident arising out of and in the course of his employment with Armour & Company which in any way caused or contributed to the death of said Sam Shumona, and it expressly denies that Sam Shumona received any injuries by accident arising out of and in the course of his employment, which caused or in any way contributed to the death of Sam Shumona, and suggests to the court that before the appointment of an arbitrator herein, the claimant should, by proper proceedings, be required to establish the fact that Sam Shumona received an injury by accident which arose out of and in the course of his employment with Armour & Company which caused or contributed to the death of said Sam Shumona.”
On November 10, both parties appearing, the court made an order appointing James T. Cochran, as arbitrator in the above-entitled matter, “to hear said claim for compensation under the ‘workmen’s compensation statute,’ to fix. the amount of compensation she is entitled to, if any, and to determine such other matters as may properly come before said arbitrator arising out of said claim.” On November 16 the hearing was had before the arbitrator, both parties appearing. It was admitted that the average yearly earnings of Sam Shumona for three years preceding his death were $1,560. The employer requested that the arbitrator determine the period, for which payments for compensation should continue. The arbitrator’s report, filed November 24, states:
“. . . . the arbitrator determines the amount of compensation to be the sum of $3,800, payable $9.15 each week, commencing October 2, 1925, one week from the death of Sam Shumona. There being due at this time seven (7) weeks compensation, or $64.05, for which amount a lump-sum award is made, payments of compensation to continue until the entire amount awarded is paid in full. .
“This award is made subject to the further disposition of the case by the court, assuming that the judgment of the court or jury shall hereafter be made on the other questions reserved by the court and not before the arbitrator, and if such questions should be decided and adjudicated in favor of the claimant, then and only then will this award be in full force and effect.”
On January 19, 1926, Sophia Shumona filed her petition in the district court to recover compensation. It contained the usual allegations for such an action, and concerning the matter of arbitration it was averred:
. “That petitioner has offered and proposed to arbitrate her claim for compensation under said ‘workman’s compensation law’ but respondent, by and through its attorneys, Thomas M. Van Cleave, Edwin S. McAnany and Maurice L. Alden, has refused to arbitrate any part of said claim except the amount of wages that Sam Shumona earned for fifty-two weeks prior to the happening of the accident and death as hereinbefore referred to. That petitioner desires and has heretofore requested and demanded that the question which respondent refused to submit to an arbitrator, be heard and determined by a jury as the ‘workman’s compensation act of the state of Kansas’ provides.”
The prayer was for a decree for plaintiff—
“. . . . and that all other questions arising out of and under the ‘workmen’s compensation act of the State of Kansas’ excepting the amount of wages earned by Sam Shumona, deceased, for fifty-two weeks prior to the happening of the accident and death, referred to herein, which was submitted to arbitration, be adjudicated in this action, and for the petitioner’s costs herein expended.”
The employer’s answer admitted the employment of the workman, his death, that the parties were operating under the workmen’s compensation act, that claim for compensation had been made, and that plaintiff had “offered and proposed to arbitrate such claim for compensation under such workmen’s compensation act,” denied all other allegations of the petition, and—
“. . . . specifically denies that it has refused to arbitrate any part of petitioner’s claim for compensation, except the amount of wages Sam Shumona earned for fifty-two weeks prior to the happening of the death of Sam Shumona, and states that it has consented to arbitrate such matters as the workmen’s compensation act provides shall be submitted to an arbitrator, and that such arbitration has been had.”
A jury was called and answered special questions submitted to them as follows:
“Q. 1: Was the husband of the plaintiff, Sam Shumona, injured by an accident arising out of and in the course of his employment while working for the defendant, on or about September 21, 1925? A. Yes.
“Q. 2: If you answer question No. 1 ‘Yes,’ did said Sam Shumona die as a direct and natural consequence of such injury so received? A. Yes.
“Q. 3: Is the plaintiff the sole and only dependent of the said Sam Shumona? A. Yes.”
Thereafter the plaintiff filed a motion “for an order entering judgment in her favor in a lump sum, in conformity with the special findings of the jury heretofore rendered in this cause.” This motion was by the court considered and sustained, and judgment was rendered—
“. ... in a lump sum of and from defendant, Armour & Company, the sum of $3,800, plus interest thereon at the rate of six per cent per annum from September 24, 1925, amounting to $194, and that said total sum of $3,994 bear interest from this date at the rate of six per cent per annum.”
Defendant’s motion for a new trial was overruled.
In enacting the workmen’s compensation act the legislature recognized that the remedies afforded by common law and statutory modifications thereof for injuries sustained by workmen in certain hazardous industries were inadequate, unscientific, and at times unjust, and therefore a substitute was provided by which a more equitable result could be more promptly reached. (McRoberts v. Zinc Co., 93 Kan. 364, 366,144 Pac. 247.) One of the purposes was to avoid protracted and unnecessary litigation. (McCracken v. Bridge Co., 96 Kan. 353, 150 Pac. 832; Truman v. Railroad Co., 98 Kan. 761, 767, 161 Pac. 587.) By the provisions of the act the parties may agree (R. S. 44-521) upon the amount of compensation and the manner of its payment. This, of course, is only a recognition of the rights of parties to agree upon any business matter. When the parties agree there is no litigation concerning the matter unless it involves claims for attorneys’ fees (Graham v. Elevator Co., 115 Kan. 143, 222 Pac. 89), or unless there is a claim that the agreement should be set aside for some equitable reason, such as fraud or mutual mistake. (Allen v. Kansas City Fibre Box Co., 122 Kan. 178, 251 Pac. 191; Powell v. Kansas-Mo. Rly. & T. Co., 121 Kan. 622, 249 Pac. 675; Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118; Crawn v. Packing Co., Ill Kan. 573, 207 Pac. 793.) In the event th'e parties do not agree as to compensation, the act provides three methods of determining (Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530) — perhaps more accurately, three forums in which may be determined — the rights of a claimant to compensation, the amount thereof, and how paid, (a) The matter may be settled by a committee representative of the employer and the workman, if one exists (R. S. 44-522), but either party may object to having the matters determined before such a committee. (See Villalobos v. Packing Co., 105 Kan. 106, 181 Pac. 599.) (6) The matters may be determined by a single arbitrator agreed upon by the parties, or- appointed by the court upon the application of either party. (R. S. 44-522.) All matters pertaining to the right of the claimant to compensation may be submitted to such an arbitrator. Full arbitration was had upon claims of workmen in Wilson & Co. v. Ward, 110 Kan. 117, 202 Pac. 862; Guison v. Hamilton Coal Co., 120 Kan. 329, 243 Pac. 301; Potocan v. Hamilton Coal and Mercantile Co., 120 Kan. 326, 243 Pac. 537; Villalobos v. Packing Co., supra; Railway Co. v. Fuller, 105 Kan. 608, 186 Pac. 127; Roper v. Hammer, 106 Kan. 374, 187 Pac. 858; Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182; Casebeer v. Coal Co., 110 Kan. 728, 205 Pac. 626; Gilmore v. Mining Co., 111 Kan. 158, 205 Pac. 1018; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793; Kinzer v. Gas Co., 114 Kan. 440, 219 Pac. 278; Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332; Albertsen v. Swift & Co., 117 Kan. 337, 230 Pac. 1057; Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056; and upon claims of dependents in Boyd v. Mining Co., 105 Kan. 551, 185 Pac. 9; Casebeer v. Coal Co., 110 Kan. 728, 205 Pac. 728; Dunnigan v. Coal Co., 115 Kan. 57, 222 Pac. 109; McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071; Young v. Shellabarger Mill and Elevator Co., 123 Kan. 628, 256 Pac. 992. The decision of the arbitrator upon the questions submitted to him is final (see cases last above cited), except for the limited review provided by statute. (R. S. 44-528.) This method of determining the right of a claimant to compensation, the amount thereof, and how paid, is a special proceeding (Tidwell v. Schaff, Receiver, 114 Kan. 255, 217 Pac. 702), as that term is defined by our code (R. S. 60-103 and 60-105). Another state not provided with appropriate judicial machinery is not compelled to undertake to administer it. (Mosely v. Empire Gas & Fuel Co., 313 Mo. 225.) But the parties are not required to submit to such an arbitrator all questions pertaining to the right of the claimant to compensation. Unless the parties consent, or the court’s order of appointment expressly refers other questions, only the question of the amount of compensation shall be deemed to be in issue before the arbitrator. (R. S. 44-522.) Such a limited arbitration does not determine the claimant’s right to compensation. Other questions upon which plaintiff’s right to compensation depends must be determined by an action in court.
(Tidwell v. Schaff, Receiver, supra; Hobson v. Wilson Bros. Coal & Mining Co., 120 Kan. 338, 243 Pac. 314; Williams v. Wilson, this day decided.) (c) A claimant’s right to compensation under the act,' in default of agreement, or if the employer shall have refused to consent to an arbitration of the workman’s claim for compensation, may be determined and enforced by an action in a court of competent jurisdiction. (R. S. 44-534.)
As to how the compensation shall be paid, if found to be due the claimant, and the amount ascertained, the statute provides that the arbitrator cannot make an award for payment of compensation in a lump sum, except as to such portion as is found to be due and unpaid at the date of the award. (R. S. 44-525.) As to the portion of the compensation not due .and unpaid at the date of the award, the arbitrator shall provide that it be paid in periodical payments. In the event of the death of the workman, and his dependents are claimants for compensation, the amount of compensation is due at the date of the death of the workman in the sense that the dependents may proceed to collect the same and may, if arbitration be refused, maintain an action therefor (Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259), and in the sense that it bears interest from the death of the workman (Johnson, Guardian, v. Milling Co., 116 Kan. 731, 229 Pac. 359). But when all questions relating to the right of a dependent claimant to compensation are submitted to an arbitrator, he cannot allow a lump-sum judgment (Boyd v. Mining Co., supra; Young v. Shellabarger Mill and Elevator Co., supra) any more than he could if the claimant were a workman (Roper v. Hammer, supra). If the rights of a claimant to compensation, whether such claimant is the workman or the dependents of the workman, are determined by an action in court, the judgment may provide for payment in a lump sum, or for periodical payments, as in an award (R. S. 44-534), in the discretion of the court. (McCracken v. Bridge Co., 96 Kan. 353; Messick v. McEntire, 97 Kan. 813, 156 Pac. 740; Galemore v. Cement Co., 103 Kan. 336, 173 Pac. 913; Francis v. Refining Corporation, 116 Kan. 723, 229 Pac. 357; Michael v. Jacob Dold Packing Co., 120 Kan. 684, 244 Pac. 1050.)
In this case the rights of the claimant to compensation were not determined by the limited arbitration proceeding. (Williams v. Wilson, supra.) The claimant was compelled to bring an action in court to determine her rights to compensation. (R. S. 44-534.) It was then within the discretion of the court to determine how the payments should be made.
Appellant stresses the language of R. S'. 44-522, relating to arbitration, “but either party shall have the right to require that the arbitrator shall also find the-character and quality of the disability and the period for which payments of compensation shall continue in accordance with the provisions of this act.” It is difficult to see how a finding can be made as to “the character and quality of the disability” of a deceased workman. But, passing this thought, the phrase relied upon cannot well apply when the arbitrator does not determine the right of a claimant to compensation. To hold that this phrase authorizes the arbitrator to determine the manner of payment when the court in an action determines the right of the claimant to compensation would, in such a case, produce a conflict between the authority of the arbitrator under R. S. 44-522 and of the court under R. S. 44-534. We cannot presume that any such conflict was intended; we must interpret the different provisions of the statute harmoniously, if possible. That can be done by holding that the arbitrator fixes “the periods for which compensation shall continue” only in the event the arbitrator determines the rights of the claimant to compensation. If such rights have to be determined by an action, the court in .its discretion determines whether payment shall be made in a lump sum or in periodical payments. And this construction is in harmony with our previous decisions.
The workmen’s compensation act nowhere intimates, nor does it contemplate, that the sum ultimately paid to a claimant for compensation shall be less, if the claimant’s rights to compensation, or some question relating thereto, be determined by an arbitrator, than if such rights are determined by the court. When an employer forces the claimant for compensation to bring an action in court to determine his right to compensation, he cannot be heard to say that the court does not have jurisdiction to render the kind of a judgment the statute authorizes the court to render.
It is the design of the workmen’s compensation act that claims for compensation be promptly settled by agreement or by arbitration, or be determined as speedily as possible by an action in court. The record in this case discloses no meritorious defense. On the issue before the arbitrator, the amount of compensation, no evidence was taken. The employer admitted that the workman’s annual earnings were $1,560, which in a death claim fixed the amount of the compensation at $3,800. (R. S. 44-510.) When the
action was brought the only questions put in issue by the pleadings were, (a) whether the workman was injured by an accident arising out of and in the course of his employment with defendant, (6) whether he died as a direct and natural consequence of such injury, and (c) whether plaintiff was the sole dependent of the workman. The jury answered these questions in favor of plaintiff. There is no contention in this court that these answers were not proper under the evidence'. These things tend to show that there was no merit from the first in any of the defenses to plaintiff’s claim for compensation. Had the spirit and design of the workmen’s compensation act been carried out, plaintiff’s claim would have been settled by agreement, or all questions relating to her right to compensation would have been submitted to arbitration. They also tend to demonstrate that the course pursued by defendant was with the hope that the sum it would ultimately be required to pay might be reduced by the procedure taken. Procedure is designed to furnish a means for the just and prompt settlement of controversies; it is not designed, and should not be used, for the purpose of aiding a litigant in reducing, or avoiding, his contract or statutory obligations.
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The opinion of the court was' delivered by
Harvey, J.:
This is an action to foreclose a mechanic’s lien and for the determination of the rights of the several parties to the action, as raised by the respective pleadings. In order to state the specific questions for our determination it is necessary to make a brief statement of the facts disclosed by the record, which are substantially as follows: William Zweifel and Emma May Zweifel, his wife, decided to build a residence on a lot in Lawrence, the title to which was in the name of Emma May Zweifel. William Zweifel entered into a written contract with T. W. Robinson by which Robinson agreed to build the residence in accordance with the plans and specifications for the sum of $4,900, and to pay for all labor and material. After the work had started, and $1,400 had been paid to Robinson, in order to obtain the money for the completion of the residence, William Zweifel and wife borrowed $3,000 from the Lawrence Building and Loan Association, and secured the same by a mortgage on the lot. This association required that a bond, as provided by R. S. 60-1412, be given to secure payment of claims of laborers and materialmen and to prevent mechanics’ liens from being filed against the property. William Zweifel and T. W. Robinson made application to the Detroit Fidelity and Surety Company for such bond. In this application they agreed to indemnify the surety company for any loss it might sustain by reason of signing the bond. The bond, in the statutory form, in the penal sum of $3,500 (the amount yet to be paid on the contract), was executed by William Zweifel and T. W. Robinson, as principals, and the Detroit Fidelity and Surety Company, as surety, and filed with the clerk of the district court. The building and loan association then completed the loan, and under a supplemental agreement deposited the amount of the loan, $3,000, in the Watkins National Bank, to be checked out as the work progressed on the joint check of William Zweifel and the attorney in fact of the surety company. T. W. Robinson constructed the residence and was paid the full contract price, $4,900, but he did not pay for a part of the material and labor used in the construction of the building. Ralph C. Lindenberger, J. W. Shaw, E. C. Friend, Olson Brothers and Lewis Arnold, who had furnished material or labor for the construction of the building, and who had not been paid, respectively filed mechanic’s lien statements in the office of the clerk of the district court. Ralph C. Lindenberger brought this action to foreclose his lien. He made defendants the other mechanic’s lien claimants, William Zweifel and Emma May Zweifel, T. W. Robinson, the building and loan association, and the surety company. The case was tried to the court. It was decreed that the mortgage to the building and loan association was a’ first lien upon the property; and no one complains of this. Because the bond had been given to prevent the filing of mechanics’ liens, and such liens attaching to the property, the court canceled of record the mechanic’s lien statements filed with the clerk of the court. The court found the amount due the respective claimants for labor and material and rendered judgment in their favor against the surety company. The court also rendered judgment in favor of the surety company for the aggregate amount of such claims against William Zweifel and T. W. Robinson and decreed that the amount of this judgment should be a lien on the real property on which the residence was constructed, second to the lien of the building and loan association.
Emma May Zweifel has appealed and complains of that portion of the decree which made the judgment rendered in behalf of the surety company a lien upon her property. The surety company has appealed, and contends that the statute (R. S. 60-1412) was not sufficiently complied with to make the bond valid; second, that the court erred in not rendering judgment in its favor against Emma May Zweifel. It further contends that if the bond was valid the court correctly decreed the judgment in favor of the surety company to be a lien on the property.
Taking up, first, the appeal of Emma May Zweifel: Was the court correct in decreeing the judgment of the surety company to be a lien upon her property? The statute under which the bond was given reads as follows:
“The contractor or owner mentioned in this act may execute a bond to the state of Kansas for the use of all persons in whose favor liens might accrue by virtue of this act, conditioned for the payment of all claims which might be the basis of liens; which bond shall be in a sum not less than the contract price, and with good and sufficient sureties, whose qualifications shall be verified in accordance with this code, such surety as shall be approved by the clerk of the district court in the county in which the property is situated, and shall file such bond in the office of said clerk before work shall be commenced or material delivered on such contract, and when such bond is so approved and filed no lien shall attach under this act, and if when' such bond is filed liens have already been filed, such liens shall be discharged. Suit may be brought on said bond by any person interested.” (R. S. 60-1412.)
It will be noted that the very purpose of giving this bond is to prevent liens for labor and material from being filed against or attaching to the property. That purpose would be entirely destroyed if all it did was to effect a change of parties in whose favor the lien was made from the original lien claimants to the surety company. When the owner of the property contracted with the contractor to construct the building for a stated amount, the contractor to furnish labor and material, that contract itself, if carried out, would prevent liens for labor and material attaching to the property. The purpose of the bond was to assure the pwner that the contractor would comply with the contract on his part. It was made for the benefit of the owner, as well as for the benefit of the owner’s mortgagee, the building and loan association.
In Surety Co. v. Hudson, 98 Kan. 775,160 Pac. 209, where a bond had been given similar to the one in question, the surety company bought up the liens of laborers and materialmen and sought to have the amount established as a lien against the property. The right to do so was denied. The court said:
“Such a lien can exist only by virtue of the act of the legislature, under the conditions there laid down. And the statute in so many words provides that where the contractor gives such a bond against liens as' that here given, and it is approved and filed, no lien shall attach. . . . The bond was given and all basis for a lien was thereby removed. The laborers and materialmen had no claim against the building and their assignment could transfer none to the plaintiff.” (pp. 777, 778.)
See, also, 40 C. J. 330, where there is a general discussion of the subject and this case is cited.
The surety company, in becoming surety on the bond, could do so, of course, under such terms as it was willing to assume the obligation; that is, it could charge a definite premium which should bo paid to it, and in addition it could require the contractor, or others, to indemnify it against loss or to sign the bond as principals. The right of the surety company to be reimbursed for any money it has to pay out by reason of its having executed the bond as surety necessarily depends upon the terms of any agreement by which some one agreed to indemnify it for such loss, or to be the principal on such bond. Here the surety company took the agreement of William Zweifel and T. W. Robinson to indemnify it against loss, and took them as principals on the bond, with itself as surety. It has no contract for Emma May Zweifel to be bound upon the bond in any event; hence, it is not in position to ask for a judgment against her, nor to ask that any judgment it obtains against William Zweifel and T. W. Robinson be made a lien upon her property. It necessarily follows that the judgment must be reversed in so far as it decrees the judgment in favor of the surety company to be a lien upon the property of Emma May Zweifel.
What we have already said dis'poses of one of the questions raised by the appellant, the surety company, namely, its contention that it should have had a personal judgment against Emma May Zweifel. The surety company had no contract relation with Emma May Zweifel. She did not agree to be bound on the bond in any capacity, or to indemnify the surety company in the event it had to pay. In the trial court there was an effort made to show that there was a parol promise of Emma May Zweifel, either to sign the bond as principal, or to become bound to the surety company to indemnify it in the event it was not paid; but that was controverted, and the finding of the trial court is against the contention of the surety company. The purpose, so far as the owner of the property was concerned, in having the bond given was to have security that Robinson, the contractor, would perform the contract on his part by paying for the labor and material that went into the building. It was Robinson’s obligation that was to be secured by this bond.
The surety company contends that the bond is not valid as a statutoiy bond under R. S. 60-1412 for the reason that it was for less than the contract price, and was not filed with the clerk of the district court before the work was commenced and was not approved by him until after the building was completed. The bond was executed June 24, 1925. At that time the building had been partly constructed, and $1,400 had been paid by the owner to the contractor. The bond was for $3,500, which was the balance to be paid on the contract price. It was left with the clerk of the district court to be filed June 25,1925, and at some time later, the exact date is not shown, he marked it “Filed June 25, 1925,” and on January 12,1926, he marked it as being approved by him. There is nothing to indicate that the clerk disapproved the bond at any time, and we do not regard his delay in noting the date of filing, and his approval, as being of any consequence. Neither does the fact that the bond was for less than the contract price, and that it was given and filed after the work on the building was commenced, render the bond invalid. The parties knew the condition of the work at the time the bond was given, and had a reason for the amount named in the bond. In Griffith v. Stacker, 91 Kan. 47, 136 Pac. 937, the bond was not given until after the work was completed, and it was not filed with the clerk of the district court, but it was held valid as a statutory bond.
From what has been said it necessarily follows that the judgment of the court below must be reversed, in so far as it decrees the judg-, ment in favor of the surety company to be a lien upon the property of Emma May Zweifel, and in other respects that it be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for conversion. It was tried to the court, nominal damages only were allowed, and plaintiffs have appealed. Plaintiffs were the owners of an Ingersoll steam air compressor, being a part of and designed to be used in a mill for milling lead and zinc ore. Plaintiffs had taken this compressor onto premises which they had leased with the intention of erecting a mill in which it would be used. The mill was not erected, and the compressor stood on the lease for some months. Defendant had a mill a few miles away in which there was a compressor of the same make. Some repairs were needed for this. Defendant sent one of its men to plaintiffs’ compressor, which was looked after by a watchman, who had no authority to let any of the parts go, and got some of the parts of plaintiffs’ compressor to repair the compressor owned by defendant. Some months later these parts were returned. It was plaintiffs’ contention in the court below that the parts taken by defendant and the exposure to the weather conditions in which defendant’s workman left plaintiffs’ compressor at the time the parts were taken, damaged the compressor to such an extent that it was rendered useless. The action was for the full value of the compressor. After evidence had been introduced the court indicated that plaintiffs were not ’entitled to the full value of the compressor, and gave plaintiffs permission to amend their petition so as to claim damages only for the taking of the parts and such damage as was actually sustained by reason thereof. A continuance was granted, in part at least, to enable plaintiffs to make such amendment, if they cared to do so. The case stood in this condition for some time. When it was finally called for final trial plaintiffs specifically declined to amend so as to present a claim for partial damages, and stood on their original petition, claiming there had been a conversion of the compressor as a whole. Additional evidence was taken. The court held against plaintiffs on their contention that the compressor had been wholly damaged, but because it was obvious there had been some damage, although the amount of that had not been established by evidence, the court allowed plaintiff nominal damages only.
One who, without authority for so doing, takes and uses the property of another, is liable therefor. (26 R. C. L. 1110 et seq.; 38 Cyc. 2017 et seq.; Simpson v. Alexander, 35 Kan. 225, 11 Pac. 171; Brown v. Campbell, 44 Kan. 237, 24 Pac. 492.) This point is not controverted in this case. Appellants’ principal contention is that the court should have allowed damages for the compressor as a whole. Naturally, this is largely a question of fact, and depends, of course, on what parts were taken and their relation to the compressor as a whole, or to parts not taken. Here the part taken was the piston, or piston rods, from the engine (constructed much like the engine of an automobile) of the compressor; possibly some other specific parts were taken. Did this necessarily amount to the taking of the whole compressor? In 38 Cyc. 2019, the rule is thus stated:
“Conversion of a part amounts to conversion of the whole of a chattel when the circumstances evince a purpose to control or dispose of the whole of it, or whenever the remaining part is thereby impaired in value or utility.”
There is nothing in the record evincing a purpose on the part of defendant to control or dispose of the whole of the compressor. Indeed, appellants do not so contend; but they do contend that the remaining part was “thereby impaired in value or utility.” It is obvious this language is used by the author in a general sense. If one without authority to do so were to take a spark plug, worth a dollar or less, from an automobile, worth a thousand dollars or more, he might thereby impair its value or utility, but in a civil action against him by the owner, for damages for conversion, it would hardly be said that the measure of recovery would be the full value of the automobile. This illustration, as to its details, exaggerates appellants’ claim, but in principle is identical with it. Just how much of a machine must be taken without authority should be held to be the taking of the whole must depend upon the facts and circumstances of the particular case. The measure of damages is compensation for the injury sustained. (Railway Co. v. Implement Co., 73 Kan. 295, 301, 85 Pac. 408, 87 Pac. 80.) Usually it is in the value of the property converted at the time and place of the conversion (Shepard v. Pratt, 16 Kan. 209, syl. ¶ 8), and for additional injury, if any, resulting from the conversion (26 R. C. L. 1148). See, also, First State Bank of Hamlin v. Jones & Nixon, 60 Tex. Civ. App. 523; and generally, when only a part of certain property is taken, an action for conversion lies only for the part taken. (Laam v. Green, 106 Ore. 311; Mead v. Mead, 115 Minn. 524.)
In this case plaintiffs’ property was in the care of a watchman. Defendant’s employee came with a purported order for certain parts, and the watchman permitted the parts to be taken. This was repeated on one or two later occasions. If it be taken as established that these respective orders were issued by some one who had no authority to issue them, and that the watchman had no authority to allow the compressor or any of its parts to be taken, hence, that the taking of the parts was unauthorized, the fact remains that defendant made no attempt to assume dominion of the compressor as a whole. Defendant’s only claim (and this proved not to be well founded) was the right to take and use a few of the parts of the compressor. Defendant asserted no rights of ownership in or possession of the whole compressor, nor did it deny plaintiffs’ rights thereto. What defendant did was really in recognition of, and in subordination to, plaintiffs’ rights of title and possession of the compressor. Hence, the trial court correctly found that plaintiffs were not entitled to recover damages for the conversion of the compressor as a whole.
Appellants contend that in any event the court should have allowed more than nominal damages, and should have allowed damages for the value of the parts taken. The difficulty in this contention is that the pleadings in the case were not so framed as to present the issue of what damages, if any, the plaintiffs should recover for the parts taken; neither was this question tried out. Plaintiffs offered no evidence on that theory of the case. It is true that one of the witnesses for defendant, in answer to a question objected to by plaintiffs, stated his judgment of the value of the parts taken to be $200. Perhaps the court should have sustained plaintiffs’ objection to this question, but since the case was being tried to the court, whether he did so or not is of but little consequence. It is clear that other factors would have entered into the question of the amount of damages which plaintiffs should recover if the case were tried on that theory. The parts had been .returned. There is no evidence as to what their condition was or their value at the time of their return. It may be they were in as good condition as when taken, and that the value of the parts taken was not the proper measure of damages for their wrongful taking when-in fact they were returned in good condition. Neither was it alleged, nor was any evidence offered,.to show injury or damage to plaintiffs by reason of their not having the use of the parts during the time they were gone. An opportunity was given plaintiffs to reframe their pleadings to claim damages resulting from the taking of the parts only, but plaintiffs declined to recast their pleadings on that theory, or to offer evidence upon that theory, and they are not now in position to complain that no relief was granted on that theory.
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The opinion of the court was delivered by
Burch, J.:
Daily sued Schneider for damages sustained when Daily was struck and injured by Schneider’s automobile, driven' by Schneider’s thirteen-year-old boy. At the first trial the court instructed the jury according to the family-purpose doctrine, and judgment was rendered for plaintiff. On appeal the judgment was reversed because the instruction was erroneous. (Daily v. Schneider, 118 Kan. 295, 234 Pac. 951.) At the second trial the court sustained a demurrer to plaintiff’s evidence, and the present appeal is from that ruling. Error is also assigned on rulings of the court refusing to permit plaintiff to introduce certain testimony.
Plaintiff’s evidence discloses all the facts stated in the first opinion. If plaintiff’s evidence relating to the express limitations on the boy’s authority to use the automobile were omitted, and all the evidence introduced 'and offered relating to his use of the automobile were considered, there would still be no proof that, at the time of the accident, the boy was using the automobile with his father’s consent, express or implied, in furtherance of his father’s business.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the widow and sole dependent of a deceased workman under the workmen’s compensation act. ' Plaintiff recovered, and defendant has appealed. The principal question argued is whether the injury which caused the death of the workman arose out of and in the course of his employment.
The evidence tends to show that the workman, John Byron McDonnell, was employed by defendant as an assistant yardmaster at its meat-packing plant. His duties were to transmit instructions coming into the yardmaster’s office from the various departments of the plant to the switching crews of the two railroads serving the industry as to .the placing of railway equipment for the loading and unloading of cars, and to keep a check and record of freight cars coming into and leaving the plant. His work ordinarily was at an office or station at what was known as the “north switch shanty,” and he went on duty each day at 10 o’clock a. m. He owned a Ford sedan, which he used for his own pleasure and convenience, and which he used in going to his work. Many of the employees of de fendant used their automobiles in going to and from their work and were permitted by defendant to park the automobiles on defendant’s premises, places for the parking of cars being designated or assigned by defendant in order that they might not be so parked as to interfere with the conduct of the business. McDonnell had been accustomed to park his car in a space often used by one Dolan, when Dolan’s car was not occupying the space. On the day in question McDonnell drove his car to work, arriving at defendant’s plant about 9:45. He found the space where he usually parked his car occupied by another car, not Dolan’s. He reported this to his foreman and was told to find whose car it was and have it removed. He made some inquiry among other employees and was informed that the car belonged to a colored man named Webster, employed in defendant’s ice-making department. He went to the third floor of the ice plant, where Webster was employed, and stopped to inquire for him of the first man he met. A Mr. Williams pointed out Webster to him, and he started to walk across the floor of the room to talk to Webster. He had taken only a few steps when he fell into a vat of hot water used by defendant, to dip the cans of ice when they were pulled, in order to release the ice from the can. A cover was provided for this vat, but it was then out of repair and was not being used. McDonnell was so badly scalded that death resulted the next day from his injury.
In bringing her cause of action the plaintiff brought it in two counts — one stating a cause of action under the workmen’s compensation act, and one at common law for wrongful death. At the close of the evidence the court held that the plaintiff had not made out a case under the cause of action at common law, and declined to submit that to the jury. Plaintiff, by cross appeal, has complained of this ruling. It was not erroneous. The injury was by accident. If it arose out of and in the course of the employment, plaintiff’s sole remedy was under the compensation act. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247; Frere v. Railway Co., 94 Kan. 57, 145 Pac. 864; Smith v. Cement Co., 94 Kan. 501, 146 Pac. 1026; Echord v. Rush, 122 Kan. 260, 251 Pac. 1112.) If it did not occur by reason of the employment the relation of master and servant did not exist, and there would be no liability at common law. Plaintiff argues that McDonnell’s position was that of an invitee; that having been di rected by his foreman to find who had parked the car at the place in question and have him remove it was equivalent to an invitation to go to the place where Webster was, hence he was in effect invited to go to that place. But any direction given by his foreman and relied upon by him cannot be said to be independent of the relation of master and servant.
Appellant contends that to introduce evidence as to both causes of action was to confuse the issues before the jury and necessarily to result in an unfair trial. When a plaintiff is in doubt as to what the evidence will be as to the theory on which he may recover it is proper for him to plead two or more causes of action, the recovery to be upon the one sustained by the evidence. (McRoberts v. Zinc Co., supra; Hutton v. Oil Co., 108 Kan. 197, 194 Pac. 925.) The jury was called to answer but one question; the instructions were limited to that question. Hence, the jury could not have been confused by reason of evidence having been introduced on the two causes of action.
It is argued that McDonnell was engaged in no work of his employer at the time he was injured. If he were not so engaged the plaintiff could not recover. (Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174.) But this is the question that was tried, and the finding is against defendant. It is argued that the automobile was McDonnell’s private car, not needed or used in his employer’s business, and that where he parked it was his private matter with which his employer was not concerned. As the case was tried, plaintiff’s right to recover did not depend on whose car it was, nor where it was parked. The question submitted to the jury was whether McDonnell was directed by his foreman to go to the ice plant on a specific errand. The question whether he was directed to go, not the nature of the errand, was the important thing — assuming, of course, that the direction, request, or order of the 'foreman was one which the nature of his employment authorized him to give, and this is not seriously questioned here. The result is, the jury found that McDonnéll was killed while on an errand on which his foreman had sent him. His injury, therefore, arose in the course of his employment. While the evidence on this question was conflicting, there was substantial evidence to support the jury’s finding; it was approved by the trial court, and we cannot review it. We have examined the cases, Industrial Commission v. Enyeart, 256 Pac. 314 (Colo.); Savage’s Case, 153 N. E. 257 (Mass.), and Board of Education v. Industrial Commission, 321 Ill. 23, cited by appellant, and find them not in point.
A part of the material evidence in the case consisted of a dying declaration made by McDonnell to his wife, the plaintiff herein. In view of former decisions (Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625; Vassar v. Swift & Co., 106 Kan. 836, 189 Pac. 943; Helm v. Railway Co., 109 Kan. 48, 196 Pac. 426), it is not seriously contended that the evidence was improperly admitted because it was a dying declaration. The contention is that plaintiff is an incompetent witness to testify to the dying declaration, under our statute (R. S. 60-2804). Plaintiff is not claiming anything from the estate of a deceased person, nor is she claiming directly or indirectly from him, within the meaning of. that statute. A dependent, under the workmen’s compensation act, has a separate and independent action against the employer. While it is true it arises out of a contract which the workman made with the employer — the terms of which contract are found in the statute (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784) — the dependent’s right of action is separate and independent from that of the workman, and is 'not derived from him. (Routh v. List & Weatherly Construction Co., 124 Kan. 222, 257 Pac. 721.)
It is argued, also, that plaintiff was an incompetent witness under R. S. 60-2805, the material portion of which reads:
“The following persons shall be incompetent to testify: . . . Third. Husband and wife, for or against each other, concerning any communication made-by one to the other during the marriage, whether called while that relation, subsisted or afterwards.”
The plaintiff was not testifying “for or against” her husband. She was testifying for herself, in an independent cause of action which, never accrued to her husband and which did not accrue to her until after her husband’s death. The statute is not applicable.
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The opinion of the court was delivered by
Hopkins, J.:
A farm laborer employed on a farm, where he was furnished a house in which to live, a cow, a garden spot, his firewood, and paid a salary of $65 a month, sought to recover damages from his employer on account of injuries sustained while helping to saw wood on a neighbor’s farm to which he had been directed by his employer to go. A demurrer to plaintiff’s evidence was sustained and he appeals.
The defendant'operates a farm near Wichita. He and a neighboring farmer, Greenwell, exchanged work. On November 8, 1925, the plaintiff under the direction or assent of the defendant, went to the Greenwell farm to assist in sawing wood. An ordinary saw with buck and without guards was furnished by another neighbor, Sandusky. The plaintiff, while in the act of bringing a piece of wood to the saw, tripped over a piece of wire and fell in such manner that 'he threw out his hand, the first three fingers of which were caught in the saw and severed or severely injured. He sued his employer to recover damages on the theory that where a servant is under the control and subject to the orders of his master, and while in obedience to such orders assists a third person in doing some work, he remains the servant of his own master and is entitled to recover damages for injuries suffered in doing such work. He con tends that while in the performance of such duties, his employer failed to furnish him a safe place to work, and that the operation of the saw in question was within the provisions of the factory act, entitling him to recover. He cites and relies on Casper v. Lewin, 82 Kan. 604, 109 Pac. 657, and Pack v. Grimes, 107 Kan. 704, 193 Pac. 330.
We are of opinion it would be an unwarranted extension of the factory act to apply it in the instant case. The statute provides:
“Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and, in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description, whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.” (R. S. 44-107.)
It cannot reasonably be said that a few farmers assembled in a neighbor’s feed lot to assist in cutting firewood are operating a manufacturing establishment. The legislature did not intend that the operation of various kinds of farm machinery should constitute a manufacturing establishment or a mill within the meaning of the words of the statute. The sawing of firewood on a farm ordinarily is a mere incident of the general farm work such as husking or shelling corn, separating the milk, cutting ensilage or operating a tractor or combine. Farmers who observe friendly helpfulness among their neighbors are not compelled to underwrite all the hazards of modern farm life, which would be included if the factory act could be extended to accidents like the one under consideration. The conclusion at which we arrive, that the provisions of the factory act do not' apply, renders discussion of the other questions raised in the briefs unnecessary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on an account for merchandise sold by plaintiff, to defendant. The verdict and judgment were for defendant, and plaintiff appeals.
Hagan was a merchant at Smith Center, and purchased goods of plaintiff for several years. Hagan sold out to Kirk, to whom plaintiff had previously sold goods. Kirk was not able to pay Hagan in full, Hagan owed plaintiff, and Kirk assumed payment of the Hagan account. Plaintiff assented to Kirk taking over the account provided Kirk continued to deal with plaintiff, and plaintiff released Hagan from payment of the account. Thereafter Hagan made no attempt to collect from Kirk. Kirk continued to deal with plaintiff, made a number of payments on the Hagan account, became indebted to plaintiff on his own account, and finally made an assignment for benefit of creditors. Plaintiff then sued Hagan.
The arrangement whereby Kirk agreed to discharge his debt to Hagan by paying plaintiff, and plaintiff agreed to accept Kirk as its debtor in place of Hagan and to release Hagan, was made with plaintiff’s agent. The agent denied any such arrangement was made. The question was one of fact, and the jury believed Hagan and Kirk.
Plaintiff denied its agent had any authority to conclude the arrangement. The evidence was that plaintiff accepted benefits of the arrangement, which need not be detailed here, and when Kirk failed, plaintiff presented the Hagan account against his assignee. Under these circumstances, a subsequent change of front availed plaintiff nothing.
Plaintiff asserts the arrangement was void because of the statute of frauds. The statute of frauds does not apply to plaintiff. Its agreement was consummated when made, and it is not charged on any special promise to answer for the debt, default, or miscarriage of another.
Plaintiff asserts the arrangement was not supported by any consideration. Plainly, the benefits and detriments consequent on the arrangement constituted consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one to forfeit an automobile used in transporting intoxicating liquor as a common nuisance. Judgment of forfeiture was rendered, and a mortgagee of the automobile, who intervened, appeals.
The automobile was discovered standing in front of the Lipton hotel in the city of Downs, with liquor dripping from it. Under direction of the mayor the city marshal took possession of it. The county attorney was notified, and a John Doe warrant was issued under which Dennis Morris was arrested. Two days later, and on April 19,1926, complaint was made before a justice of the peace charging Morris with violation of the liquor law. The fourth count of the complaint charged maintenance of a common nuisance by using the automobile for transporting intoxicating liquor. The automobile was seized by the sheriff under a warrant issued pursuant to the complaint. Notice to persons claiming an interest in the automobile was given, and the mortgagee appeared and answered. With other reasons why the vehicle should not be forfeited, the answer pleaded the seizure was in violation of the fourteenth amendment to the constitution of the United States. After a hearing, the justice entered judgment forfeiting the automobile. The mortgagee appealed to the district court, and after a trial the judgment complained of was entered. The mortgagee contends the justice of the peace had no jurisdiction under the laws of Kansas .to adjudge forfeiture of the automobile, and that on appeal the district court exercised the jurisdiction of a justice of the peace.
The proceeding was a civil proceeding and not a criminal proceeding, either by virtue of the code of criminal procedure before justices or the criminal provisions of the intoxicating-liquor law. The code of procedure, civil, before justices provides that justices of the peace shall have original jurisdiction of civil actions for recovery of money only when the amount claimed does not exceed $300, and shall have jurisdiction in other cases not material here. In this instance the action was not one for recovery of money, and the code provision has no application. The district court found the value of the automobile to be $325, but judgment was not rendered for or against anybody for that or any other sum. Judgment was for sale of the automobile and for payment of the proceeds of sale less costs, to the school fund. Value of the automobile was not an issue in the proceeding, and the only purpose of the finding of value was to fix amount of the appeal bond. (R. S. 21-2166.)
The constitution provides the powers and duties of justices of. the peace shall be prescribed by law (art. 3, § 9), and the powers of justices of the peace to abate liquor nuisances are prescribed in the intoxicating liquor law. Abatement is by seizure and destruction or by seizure and sale. Liquor nuisances may also be enjoined. Justices of the peace may not issue injunctions, but this fact does not militate against power to abate. (Norton v. Saline County Comm’rs, 118 Kan. 659, 662, 236 Pac. 819.) Under the statute of 1901 (R. S. 21-2133 et seq.), seizure was limited to intoxicating liquor, bottles, glasses, kegs, pumps, bars, and other property used; in keeping a place as a liquor nuisance. After notice to persons claiming an interest in such articles, summary hearing, and judgment of condemnation, the articles were destroyed. Under the statute of 1919, declaring automobiles used in transportation of intoxicating liquor to be common nuisances, the seizure includes the vehicle and all intoxicating liquor found in it, together with the bottles, jugs and vessels containing the liquor, and other property used in transportation. After condemnation the vehicle is sold, but the liquor, the containers, and other property are destroyed. (R. S. 21-2162 et seq.)
The abatement provisions of the liquor law do not specify the court in which an abatement proceeding may be commenced, but the jurisdiction is indicated by the nature of the process employed. While the proceeding to abate is a civil proceeding in rem, the process was borrowed from the procedure in criminal cases. The proceeding is instituted by the filing of a complaint or an information. District courts do not take cognizance -of complaints. They act on information filed by the county attorney, or on indictment by a grand jury. (R. S. 62-801.) Justices of the peace do not take cognizance of informations. They act on complaint made on oath or affirmation. (R. S. 63-201.) Therefore, the words of R. S. 21-2133 and 21-2163, “upon the filing of a complaint or information,” are to be read “upon the filing of a complaint before a justice of the peace or an information in the district court.”
The purpose of the 1901 statute was to punish the maintaining of a nuisance — a misdemeanor cognizable by justices of the peace— and to abate the nuisance by seizing and destroying the instrumentalities of maintenance. The legislature had no thought of dividing the jurisdiction and permitting a justice to punish but requiring recourse to the district court for authority to seize and destroy. The 1919 statute was framed on the same theory as the 1901 statute, and the various provisions of the liquor law are to be considered and construed as an entirety and as if enacted at the same time. (Norton v. Saline County Comm’rs, supra.) Therefore, the word “court,” appearing in both statutes, was used in a sense inclusive of both kinds of judicial tribunal.
The mortgagee contends there was no evidence to prove the automobile was used to transport intoxicating liquor. The contention is frivolous, but, because a constitutional question is involved, it may not be out of place to state the facts in order to illustrate adaptability of the automobile to an illegal purpose (Goldsmith-Grant Co. v. United States, 254 U. S. 505, 513), and to illustrate the need for the law to build up a secondary defense against a forbidden use (Van Oster v. State of Kansas, 47 Sup. Ct. Rep. 133, 134).
The automobile was a closed Hupmobile roadster. When liquor running from it called attention to it, it was closed, locked, and unattended. It was first observed by a man in a near-by building, and then by two passersby. The mayor then came on the scene, and then the city marshal. At about this time Morris appeared. He told the marshal the automobile was his, but he had no. key for it, and would not unlock it if he had. The marshal told him he was under arrest, but he went into a toilet, then into a telephone booth, and then departed. He was captured about two miles south of town. He subsequently broke jail, and has never been tried. The keys.of the car were fished from the toilet, and the car was unlocked. When unlocked it was found to contain nine one-gallon cans of intoxicating liquor, six one-gallon jugs, some filled and some only partly filled with intoxicating liquor, and seventeen quart and seventeen pint bottles of intoxicating liquor. Morris had registered at the hotel from Missouri, the automobile bore a Missouri license, and the mortgagee proved the automobile belonged in Kansas City, Mo. The possibility that the automobile was empty when it was parked at the place where it was seized, and that it had received its cargo of intoxicating liquor in the daytime while standing in front of a hotel on a public street of the city of Downs, is rather remote.
The constitutional question raised by the mortgagee’s answer to the complaint against the automobile has been indicated. The automobile was purchased by James P. Drew, a resident of Kansas City, Mo., from the Howard Motors Company, of Kansas City, Mo. Drew made a cash payment, and gave his note to the motors company for the remainder of the price. The note was secured by chattel mortgage on the automobile, and the note and chattel mortgage were assigned to the intervener, the Commercial Credit Company, of Kansas City, Mo. The mortgage provided that the mortgagor should not remove the automobile from his place of residence, and should not use, or cause or permit it to be used, for transporting intoxicating liquor. Violation of these provisions occasioned default and authorized foreclosure. At the time the automobile was seized, the intervener had a valid chattel mortgage lien upon it to secure the sum of $784.88. The intervener had no notice or knowledge of the unlawful use to which the automobile was devoted, and did not assent to such use.
Drew testified, in a way, to the circumstances under which Morris obtained possession of the automobile. His testimony follows:
“Prior to April 27, 1926, I let a man named Billy Pretzel drive the car one evening. He said a friend of his named Morris wanted to use it to go to Branson, Missouri, in the Ozarks, to see his mother, and would be back in a few days and pay me for its use. I did not then or at any time consent that he or any one else take my car out of Missouri, nor carry, transport or have liquor in or about the car. If any was carried, transported or possessed in or about the car, or if it was removed from Missouri, it was without my consent and against my wishes.”
Drew’s testimony was given by deposition, and this court possesses the same competency to determine its probative force that the district court possessed. Drew testified he let Billy Pretzel drive the car one evening. This tends to show a lending of the car to Pretzel one evening. Why Pretzel wanted to drive the car, whether he returned it that evening or afterward, and when he' negotiated for use of the car by Morris, are not disclosed. Who Pretzel was, and what the relations were between him and Drew which justified Drew’s confidence in him, are not disclosed. The precise nature of the authority Pretzel had from Morris, if any, is unknown. Whether Drew knew Morris, and whether Drew negotiated with Morris personally, are not disclosed.- Morris may have desired to visit mother down in the Ozarks just as the apocryphal office boy desires to attend grandmother’s funeral on the afternoon the deciding game is played on the home-team grounds. On the other hand, Morris may not have intended to make a rum-running expedition into Kansas until after he received possession of the car. It is reasonable to infer that Morris was willing to pay for use of a car, and the event disclosed that in some way the car came into his possession. Drew fixed no definite date on which he parted with possession. The car was taken flagrante delicto, and it devolved on the claimant to show cause why it should not be condemned. (R. S. 21-2164.) Without discussing Drew’s testimony further, the court concludes it may be relied on to this extent only: It fairly establishes the fact that Morris was Drew’s bailee of the car for hire. For purpose of the decision, the court will assume Drew did not know the car was to be used for transportation of intoxicating liquor in Kansas, and did not assent to such use.
Drew’s situation is precisely the same in legal consequence as the situation of Stella Van Oster in the case of State v. Brown, 119 Kan. 874, 241 Pac. 112, affirmed in Van Oster v. State of Kansas, 47 Sup. Ct. Rep. 133. For a contemplated consideration Drew voluntarily parted with possession of the car to the person who made unlawful use of it. Morris did not obtain possession by theft or trespass. It would make no difference if he obtained possession by means of' false representations respecting what he intended to do with the car. The liquor-nuisance law does not distinguish in consequence between possession honestly obtained and then abused, and possession fraudulently obtained for purpose of abuse. The scene in front of the Lipton hotel in Downs would be the same in either case. There is no certainty, however, that Morris secured possession by deceit. It has been conceded that Drew was not at fault, but when he voluntarily parted with possession, he took the risk of the staunchness of the integrity of his bailee.
Drew’s mortgagee stands in no better position than Drew. One was innocent owner, the other was innocent lienholder, and in all essential respects both stood in the same relation to misuse of the car. The mortgagee left the car in Drew’s possession and took the risk of its appropriation to unlawful use, whether through Drew’s culpability or gullibility, or normal exercise of privilege attending ownership. (State v. Peterson, 107 Kan. 641, 193 Pac. 342; State v. Stephens, 109 Kan. 254, 198 Pac. 1087.)
R. S. 21-2162 reads as follows:
“All automobiles, vehicles and other property used in the transportation or carrying of intoxicating liquors into this state or in carrying and transporting intoxicating liquors from one place to another within this state, are hereby declared to be common nuisances.”
The legislature and the courts of Kansas have dealt with the illicit liquor traffic for many years. The effrontery, the capacity for machination and the indefatigableness of those who promote and engage in the traffic are amazing. If provisions such as the Drew mortgage contained, that the car should be used in a restricted territory and should not be used to transport intoxicating liquor, were to exempt the car from forfeiture, the statute would not only become waste paper, but a disastrous breach would be opened in the dyke which keeps foreign liquor out of the state.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the Kansas Wheat Growers Association, a cooperative marketing association, organized under the statute (R. S< 17-1601, et seq.) against one of its members for damages, stipulated in its contract with him, for his failure to deliver wheat, alleged to have been grown by him, to the association. The trial court sustained a demurrer to plaintiff’s evidence, and it has appealed. The sole question before us is whether there was sufficient evidence to go to the jury.
The facts are substantially these: In May, 1922, defendant signed the contract of membership and marketing agreement with the plaintiff association. At that time he was a tenant farming land belonging to his father-in-law, W. T. Manson, and had at that time a crop of growing wheat. After the harvest of 1922, and some time in September, he wrote the association that he had mortgaged his wheat before he signed the contract and marketing agreement with the plaintiff, and that the parties who held the liens had demanded the wheat. The secretary of the plaintiff wrote inquiring the amount of wheat he had and what mortgages there were against it. He wrote that he had 928 bushels of wheat, that there were two mortgages against it, one for $800 and one for $675. Plaintiff’s secretary then advised him that since the mortgages amounted to more than the value of the wheat, and the mortgages had been given prior to the time of his becoming a member of the association, the mortgagees were entitled to have the wheat delivered to them, and that he need not deliver it to the association. Defendant delivered no wheat to the association for that year, nor for the years 1923, 1924 and 1925. His contract with the association contained a provision by which he agreed that if he did not deliver wheat grown by him to the association he would pay 25 cents per bushel as liquidated damages. This action was brought to recover that sum for failure to deliver the wheat alleged to have been grown by him in the years 1923, 1924 and 1925. The defendant contends that he raised no wheat in those years. At the trial plaintiff called as witnesses on its behalf the defendant, his wife, and others. This evidence was to the effect that after September 15, 1922, the owner of the land, by a written lease, rented the wheat land on the place where defendant was farming to the defendant’s wife, dating the lease back to the first day of August, 1922, for a term of five years, and that since that time defendant had simply worked for his wife in whatever he had done toward raising wheat harvested in 1923, 1924 and 1925. He said this was done because plaintiff refused to take the wheat grown by him and harvested in 1922. The evidence further showed that on two or more occasions defendant had mortgaged as his own the wheat he now contends he was raising for his wife. The evidence further tended to show that defendant went along farming the land very much as he had done before, working on it and using his implements, and taking the proceeds of the wheat to pay his individual debts and the living expenses of his family, as well as mortgaging it to secure his personal obligations.
Plaintiff contends that this evidence tends to show that the purported lease to defendant’s wife was simply a subterfuge to avoid complying with the marketing agreement which defendant had made with plaintiff. It is true, as contended by appellee, that in this state a woman may own property and conduct a business in her own name. No reason is suggested, so far as her legal status is concerned, why she could not conduct a farming business. It is also true, under the marketing agreement, that a member of the association may quit raising wheat if he desires to do so without being under any liability to the plaintiff association. But if having the written lease made to defendant’s wife was simply a device or subterfuge by which defendant sought to avoid carrying out his marketing agreement with plaintiff, and if, in fact, the defendant went on raising wheat just as he had in the past, and did raise wheat for the harvest of 1923,1924 and 1925 which he did not deliver to the association, that device would not relieve him from liability to the association. (S. C. Cotton Growers Coop. Ass’n v. English, 135 S. C. 19; Burley Tob. Growers Coop. Ass’n v. Devine, 217 Ky. 320; Monte Vista Ass’n v. Bond, 80 Colo. 516; Dark Tobacco Growers’ Coop. Ass’n v. Garth, 291 S.W. 367 [Ky.].)
In sustaining the demurrer to plaintiff’s evidence the trial court said he thought the demurrer should be sustained for two reasons— that plaintiff had failed to show that defendant raised wheat in the years in question, and had failed to show, if he had raised wheat, where he had sold it. The second of these is not a sufficient reason for sustaining the demurrer, for if defendant raised wheat it was his duty to deliver it to plaintiff, and if he did not do so he was liable without regard to where he may have sold it. Without determining whether it should be controlling in its final analysis, we think the evidence offered on behalf of plaintiff tends to show that defendant did raise wheat in the years in question, and that the lease of the wheat land to his wife was a device or subterfuge designed to enable defendant to not deliver any wheat grown by him to the plaintiff association.
The judgment of the court below is reversed, with directions to overrule the demurrer to the evidence and to grant a new trial. | [
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Per Guriam:
This was an action to recover possession of real estate. At the trial the defendant, who claimed under a tax title, confessed that the legal title was in the plaintiff, and the court declared and adjudged that the plaintiff had the legal title, and was entitled to the possession of the property upon payment to the defendant for valuable and lasting improvements which the latter had placed' thereon, and for the taxes and interest which he had paid on the property. The court, upon the request of the defendant, proceeded to find the value of the improvements and the amount of the taxes before awarding a final judgment. A sheriff’s jury was impaneled, which found that the value of the improvements, over and above the rents and profits, was $312, but this amount was afterward reduced, by remission, to $112, and the court found that the taxes and interest which had been paid by defendant and were chargeable against the land amounted to $2364, and gave judgment accordingly. A motion for a new trial was granted as to the taxes and interest, and the matter was then sent to a referee to take an accounting, and determine the amount of the taxes and interest for which •defendant should be reimbursed.
The plaintiff brings here for review the rulings on the allowance for lasting and valuable improvements. This was an interlocutory matter, and final judgment had not been rendered determining the equities and ultimate rights of the parties. Thereafter the trial of the cause proceeded as to the amount of taxes and interest which was due, and final decision awarding the plaintiff the possession of the property could not be made until it was determined how much should be paid to defendant. There Can be no review of the rulings made in the accounting between the plaintiff and the unsuccessful contestant for the title to the land before the rendition of final judgment.
The motion to dismiss must, therefore, be granted. | [
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Per Curiam:
The Bank of Topeka sued J. T. Clark and others on a note due February 29, 1891. The summons served on Clark- was not indorsed with the amount for which plaintiff would take judgment in case of default. Clark failed to appear, and judgment for $7458.15 wras rendered against him .November 16, 1896. On September 23, 1897, at the request of plaintiff, the court entered an order setting aside the judgment as to Clark on the ground that the summons was void. On September 13, 1899, the plaintiff applied to the court to set aside its order of September 23-, 1897, vacating its judgment against Clark. This application was denied. On January 7, 1903, the plaintiff caused an alias summons to issue against Clark, which was regularly served. Numerous proceedings were thereafter had, but in each successive step Clark, by appropriate motions and pleadings, saved whatever right he had under the statute of limitations. Finally, on June 22, 1903, the court rendered judgment against plaintiff for costs. To reverse this judgment this proceeding is prosecuted.
The plaintiff’s right of action on the note was barred February 20, 1896. The order of the court of September 23, 1897, setting aside plaintiff’s judgment was final and terminated the action, unless set aside on proceedings in error. (Code, §§542, 543; Gfen. Stat. 1901, §§5019, 5027; Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210.) No steps were taken to have this order reviewed or set aside. The failure of the action otherwise than on its merits operated to toll the statute for one year thereafter. Had the alias summons been issued within one year from September 23, 1897, the date the judgment was set aside, the statute of limitations could not have been successfully pleaded, but, the same not having been issued until January 7,1903, the plaintiff lost its right to bring a new action.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Atkinson, J. :
On December 13, 1901, plaintiff was a passenger on one of defendant’s cars from Argentine, Kan., to the New York Life building, at the corner of Ninth and Wall streets, in Kansas City, Mo. At Ninth street she was transferred to an east-bound car. The Ninth-street car line was a double-track cable system, east-bound cars using the south track and west-bound cars the north, the space between the two being about four feet. When the car stopped at the corner of Ninth and Wall streets plaintiff alighted on the south side at the rear, or west, end. Before it moved forward she started northward toward the New York Life building. While crossing over the north track she was struck by a west-bound car, thrown violently to the ground, her right arm broken, and she otherwise bruised about the body. This action was brought to recover damages for the injuries sustained.
■ In her petition plaintiff charged defendant with negligence in operating the west-bound car, alleging, in substance, that it was being operated at a high and dangerous speed at that time, and that no sufficient and timely warning of its approach was given. Defendant answered with a charge of contributory negligence. Upon the trial it was shown from the testimony of plaintiff that she was familiar with the locality, the surroundings, the tracks, and the manner of operating cars thereon ; that each morning, for about two months, she had made a like trip oyer the line from Argentine. Upon cross-examintion she testified that she knew that a west-bound car was likely to pass on the north track at any time ; that as she was passing the west end of the standing car she looked eastward to see if a car was coming from the east; that she could then only see about ten or fifteen feet to the eastward along’the north track ; that this was the last time she looked, for an approaching car until she was startled by parties’ crying out to warn her of danger. Plaintiff further testified that she first saw the car when it was about ten or fifteen feet from her ; that had she looked eastward along the north track when she stepped into the space between the two tracks she could have seen a car approaching from the east for a distance of two blocks, at least. A demurrer to plaintiff’s evidence was overruled by the court. In this there was error.
This court has frequently said that a traveler, upon approaching a railway-track, in the exercise of ordinary care, must look and listen before crossing over it. In Burns v. Railway Co., 66 Kan. 188, 71 Pac. 244, it was held that the same rule applies to a traveler about to cross a street-railway track. In U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, it was said that a railroad-track is itself a warning of danger. This is so because trains may be expected at any time. Where plaintiff sustained injury street-cars were passing at frequent intervals, and one might be expected at any time ; and of this fact and with the locality and surroundings, plaintiff was perfectly familiar. She was mature in years and in the full possession of all her senses. The care which a traveler upon the public highway should exercise to protect himself from danger is commensurate with the known and the apparent dangers. There is more dan ger in crossing a street upon which street-cars are run than where they are not operated. Where two streetcar tracks run parallel, there is added danger. So, too, is it more dangerous to the traveler to cross from one track to another where the view is obstructed by a passing or standing car, than it is where the view is clear and unobstructed. Plaintiff knew that the car from which she alighted would soon move on and leave the view of the tracks unobstructed. She neither waited for one to move forward nor looked for an approaching car before passing upon the north track, when by looking eastward along the space between the two tracks she could have seen a car approaching at a distance of two blocks.
The accident occurred in the daytime, at a place where the view of the track was not obstructed' for a space of two or three blocks to the east, except as the car from which she had just alighted would obstruct the view, and if she had waited until the car moved on she would have had an uninterrupted view of the space. She did not do so, but, according to her own statement, passed hurriedly along and around the rear end of the car, crossing the space between the two tracks from which the approaching car could readily have been seen and onto the track immediately in front of it. In doing this, without looking to see where she was going, or whether a car was approaching, she was guilty of negligence contributing to her injury. There was nothing in the existing conditions which prevented her from seeing the danger if she had looked, or in escaping the injury had she taken this precaution.
Under the numerous decisions of this court the minimum of care to be exercised in crossing over a railroad-track is to look and listen, where the sur roundings permit this precaution. The only excuse offered by plaintiff for a failure to look eastward for an approaching car as she passed onto the space between the two tracks is that the street was somewhat icy and slippery and that she was compelled to look where she was stepping. The fact that the footing was thus insecure might, with consistency, be urged as a reason why she should have exercised greater-care in looking for an approaching car before stepping upon the track.
The following cases are quite similar to the case at bar, and in each plaintiff was held to be guilty of contributory negligence barring a recovery : Indianapolis St. Ry. Co. v. Tenner, 32 Ind. App. 311, 67 N. E. 1044; Doty v. Detroit Citizens’ St. Ry. Co., 129 Mich. 464, 88 N. W. 1050; Busby v. Philad. Traction Co., 126 Pa. St. 559, 17 Atl. 895, 12 Am. St. Rep. 919.
Defendant did not stand upon its demurrer to the evidence, but offered testimony in support of its defense. None of it offered by defendant tended to' strengthen plaintiff’s case. The judgment of the trial court will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
Edward Coover was charged with the crime of burglary and grand larceny by an information filed in the district court of Geary county and found guilty, and from this conviction he appeals, The information in one count, in substance, charged defendant with breaking into a building in the nighttime and stealing and carrying away coin in denominations of nickels, dimes, quarters, and half-dollars, of the value of thirty-two dollars, and one pistol with black handle, of the value of three dollars. Complaint is first made that after the jury had been sworn the court permitted the county attorney, over the objection of defendant, to amend the information by inserting in the body thereof the name of defendant. In this the court committed no error. The information in its caption bore the name of defendant and his name was found elsewhere in the body of the information. Its omission was merely a clerical error, and inserting the name was an amendment as to its form only and not to its substance. Such amendment is authorized (Crim. Code, §72, Gen. Stat. 1901, § 5513) , and was not prejudicial to the rights of defendant.
Soon after his arrest, defendant was taken by the sheriff to the office of the county attorney and by him asked ninety-six questions, each of which, together with defendant’s answer thereto, was taken in shorthand by a stenographer and subsequently transcribed.. The county attorney at the time stated to defendant that he need not answer the questions unless he so desired. At the trial, upon cross-examination the attention of defendant was directed to forty of these questions and answers, the questions separately read, and defendant asked if he had made such answers thereto. Defendant denied making the answers. The stenographer who had taken and transcribed the questions and answers testified to their correctness. These questions and answers, over the objection of defendant, were read to the jury. That the trial court permitted, the state so to use these questions and answers against the defendant is assigned as error.
The claim is made in this court, upon oral argument and in the brief of defendant, that the reading of these questions and answers in evidence was in violation of the constitutional-rights of defendant. The question thus presented is somewhat serious; however, the record discloses that the only objection made to the county attorney’s reading the forty questions and answers to the jury was because they were incompetent, irrelevant, and immaterial, and for the further reason that there had been no foundation laid for offering them in evidence. A different objection, and one going to the constitutional rights of defendant, was raised when the county attorney read to the jury the statement made by him to defendant when the questions and answers were taken, but no such objection, nor any objection which raises the question we are asked to review, was properly made to the reading of the questions and answers to the jury. We must review the case upon the objection of counsel and the ruling of. the court made at the trial. (Howard v. Howard, 52 Kan. 469, 34 Pac. 1114, and Edmondson v. Beals, 27 id. 656.) We must presume that, had the objection now presented been made to the trial court, a proper ruling would have been made thereon.
Error is assigned that the trial court permitted nine dollars in coin, mostly nickels and dimes, to be introduced in evidence. Of this sum, $3.45 was taken from the person of defendant at the time of his arrest, and six dollars of it was money spent by defendant in a gambling resort on the morning of the day the crime was committed. None of it was identified as the specific money stolen, nor was all of the six dollars shown to be the exact money by defendant spent in the resort. The money recently stolen was in small coin. There was evidence tending to show that the money introduced in evidence, or money of the same kind and denomination, was in the possession of defendant soon after the crime had been committed. If this had been the. only evidence offered by the state as a circumstance tending to show defendant’s guilt, the failure to identify specifically the money introduced in evidence might be a serious question.
The record in this case discloses that in the early morning of May 23, 1903, an entrance was effected through a rear window of a building in Junction City occupied as a “joint.” The person effecting the entrance stole from the proprietors of the joint thirty-two dollars in money, most of which was in small coin, and also a 32-caliber revolver with black handle, of the value of three dollars. About eighteen or nineteen dollars of the money taken was in nickels and dimes. The property stolen was left in the building by the proprietors upon closing, about twelve o’clock on the evening of May 22. The manner in which the entrance was effected and the money taken from its accustomed place of keeping indicated that the crime had been committed by a pérson familiar with the store and its surroundings. Blood-stains were found at several places in the building. Defendant, who was a frequenter of the place, was present at the time of closing the evening before. He was familiar with the surroundings and the place where the property stolen was kept. A portion of the money was kept locked in a drawer and the key to it was kept in an adjoining drawer. The key had been taken, the money-drawer unlocked, the money taken therefrom, the drawer again locked and the key returned to its próper place. About 6 :30 o’clock of the-morning the property was stolen, defendant entered the place, passed 'into a back room of the building, washed and dried his hands upon a towel, and left-thereon blood-stains. His conduct at the time and the blood-stains upon the towel caused suspicion. One-of the proprietors detained hita and he was arrested. There was found upon his person at the time the sum of $3.45 in coin of small denominations. It was also-found that the thumb and finger of one hand had slight cuts or wounds upon them from which blood flowed slightly. It was learned that he had spent the time from one o’clock to five o’clock of the morning of the burglary in a gambling. resort; that while there he had paid out about eight dollars, mostly in nickels and dimes. Blood-stains were observed upon the cards and money handled by defendant. A revolver, answering the description of and identified upon beliefs by two persons as being the one stolen from the place, was found at the defendant’s home. Tracks in the soft earth at the window where the entrance to the building was effected corresponded in measurement with, and fitted to, the shoes worn by him the next morning when arrested.
The foregoing are some of the circumstances in evidence before the jury tending to show defendant’s-guilt. The introduction in evidence of this money, consisting of coin of small denomination, mostly nickels and dimes, was merely proof of an additional circumstance tending to show his guilt. The fact that, in kind and denomination, this money corresponded with that recently stolen, coupled with the unusual circumstance of a person’s having and carrying about that amount in coin of so small denomina tions, was a circumstance which, taken in connection with all the other circumstances in evidence tending: to show defendant’s guilt, was competent to go to the jury, under proper instructions.
Upon cross-examination, with the view of affecting-his credibility as a witness, defendant was interrogated by the state with reference to particular occasions of arrest, a charge of larceny, and the further-fact that he had been sent to the reform school. This-was not error. The cross-examination was within the rule laid down in Bassett v. Glass, 65 Kan. 500, 70 Pac. 336. Other errors are assigned, but an examination of the record discloses them to be without merit.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This is an action by the Union Pacific Railroad Company to enjoin the county treasurer of Wyandotte county from selling four tracts of land owned by it in the county of Wyandotte for the taxes of 1901 and 1902. The board of county commissioners was also made a party defendant. A restraining order was issued at the time of filing the petition. Upon the final hearing a perpetual injunction was refused, and judgment rendered against the plaintiff for costs. It prosecutes error to this court.
This case was tried by the district court on an agreed statement of facts, subdivision 21 of which reads:
“In the year 1893 S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane and F. R. Coudert were appointed receivers of all the property of the Union Pacific Railway Company by the United States circuit court for - the district of Kansas. Railroad tracts Nos. 4, 6, 7, and 8, above described, were included in the property which said receivers had in their possession and under their control by virtue of their appointment. In the year 1893 said four tracts of land were assessed by the state board of railroad assessors, together with other property belonging to the- Union Pacific Railway Company. The county clerk and the county commissioners of Wyandotte county, Kansas, refused to recognize said assessment and made a local assessment of said tracts of land and placed said local assessment upon the tax-roll of Wyandotte.county for the year 1893. On September 1, 1894, said receivers brought suit in the district court of Wyandotte county, Kansas, against the board of county commissioners of Wyandotte county, and M. G. McLean, then county treasurer of Wyandotte county, to restrain the collection of the taxes levied under the local assessment. On January 7, 1896, the-case was tried and judgment was rendered in favor of the receivers, declaring the local assessment null and void and perpetually enjoining the defendants from collecting the taxes levied thereunder. No appeal was taken from that judgment. The journal entry in said case is recorded in journal 14,- page 191, which is referred to and made part hereof. The plaintiff herein is the legal successor in interest of .the Union Pacific Railway Company and its receivers above mentioned.”
The journal entry above referred to contains the following recital:
“It is therefore ordered, adjudged and decreed by the court that all of said tracts of land fully described and set out in the'findings herein, and ever since they have been so owned by said plaintiffs have been, and during the year 1893 were, railroad lands situated, lying and being contiguous to the right of way of said plaintiffs, and necessary for the daily and convenient use of said railway in the operation of its road, and are, and during all of said time have been, assessable only by the board of railroad assessors.”
It is contended by plaintiff that the agreed facts disclose that the question involved in this case was fully considered in the action brought by the receivers ; that the judgment rendered in that action determined the status of the land; that it was there determined that said premises were not subject to the jurisdiction of the local assessors ; that the status of the land remains as fixed by the judgment in that action.
The agreed facts admit that the plaintiff herein is the legal successor in interest of the Union Pacific Railway Company and its receivers ; disclose that the same parties are defendants in this case that were defendants in the former injunction suit; that the same premises are in controversy; that the controversy arose out of the same question—that is, whether the said lands were assessable by the board of railroad assessors, or by the local assessors; and that the law applied to the facts in that case is now in force to be applied to the same state of facts in this case. The judgment in that case found the premises to be “necessary for the daily and convenient use of said railway in the operation of its road.” Premises so used come within the provision of said section 7551. Premises owned by a railroad corporation and so used are authorized to be assessed by the board of railroad assessors and not by the local assessors. There is not shown in this case a state of facts and conditions differing from the facts and conditions existing when the former injunction suit by the receivers was brought and determined. The rule of res judicata applies as well to facts settled and adjudicated as to causes of action. (C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96; St. Joseph & G. I. Rld. Co. v. Steele, 63 Fed. 867, 11 C. C. A. 470.)
The matters in controversy in this case, as disclosed by the agreed facts, were adjudicated in the former injunction suit. The judgment of the district .court, will be reversed, with direction to enter judgment for plaintiff.
All the Justices concurring. | [
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Per Curiam:
This is a proceeding of the same character as Allen v. Burrow, ante, page 812, 77 Pac. 555. It has been submitted upon a motion similar to that passed on in that case. The same questions are presented that were there decided. The motion to dismiss is denied, and the same order made with regard to further proceedings as in the Allen case. | [
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The opinion of the court was delivered by
Atkinson, J. :
This action was instituted by W. W. Spencer against F. D. Taylor and J. W. Reeves to recover damages alleged to have been sustained on account of a failure to comply with the terms of a written contract. After a jury had been imxianeled and counsel for plaintiff had read to them the petition of plaintiff with the contract sued on, and made a statement of plaintiff’s claim, the court, upon motion of counsel for defendants, discharged the jury and rendered judgment for defendants for costs. Plaintiff brings error.
The following is the contract upon which suit was brought:
“This instrument, made and entered into by and between Taylor & Reeves of Cowley county, Kansas, first parties, and W. W. Spencer, of Geuda Springs, Kan., party of the second part,
“Witnesseth: That said first party hereby covenants and agrees to sell and furnish the second party f. o. b. cars at Geuda Springs, Kan., sufficient mineral waters of the Geuda mineral springs to supply the trade of the city of Wichita, Kan., of such springs as required, natural and uncarbonated, for the period of five years from the 1st.day of August, 1900, at the price of three cents per gallon, and as soon as the quantity so sold exceeds an average of more than two hundred (200) gallons per day the price is to be two and one-half (2-J-) cents per gallon; and when the waters are carbonated the same are to be furnished, but the price to be made to correspond with the additional expenses for all costs incident to such carbonating, bottling, casing, etc. Said Spencer is to have the privilege of renewing this agreement at the termination of said term of five years for the period of another five years on fulfilling his part of this agreement. Said Spencer is to furnish the vessels necessary in which to ship such natural mineral waters, to pay all expressage or freight, and is to use his best endeavors to push the sales of said mineral waters in Wichita, Kan., and is to have the exclusive sale of said waters in said city of Wichita during the existence of this agreement. Said Spencer is to pay for all advertising and all other expenses made by him in connection with the 'sale of such waters, settlement, to be made and money paid over on each and every of the 1st days of each month during this agreement.
“In Witness Whereof, we have hereunto subscribed our names this 1st day of August, a. d. 1900,, at Geuda Springs, Kan. Taylor & Reeves.
W. W. Spencer.”
The district court found that the petition of plaintiff, to which the contract was attached and formed apart, failed to state a cause of action. It was contended by counsel for defendants that the contract was void for want of mutuality. It is apparent from the- record that in sustaining the motion of defendants for judgment the court found that the petition of plaintiff, with contract attached, failed to state a cause of action on the ground that there was no mutuality of obligation in the contract. The opening statement made to the jury by counsel for plaintiff will not here receive consideration, as it was confined substantially to the averments of the petition. In addition to the allegations with reference to the execution of the contract, a recital of the material matters contained theróin, and the damages sustained, the petition contained the following averments :
“That at the time of making said contract plaintiff was a resident of Geuda Springs, Kan. ; that as soon as said contract was executed the said plaintiff, relying upon the same, and with the intention and for the purpose of carrying out the provisions- and fulfilling his part of the said contract, moved to the city of Wichita-, Kan., and purchased horses, wagons, tanks, cases, bottles and other necessary articles to carry on said business, at an aggregate cost to the plaintiff of the sum of five hundred dollars ($500) ; that the plaintiff, in reliance upon said contract and for the purpose of increasing the sale of Geuda Springs min: eral water in Wichita, did expend large sums of money in advertising said water, to wit, the aggregate sum of one thousand dollars ($1000) ; that said plaintiff, relying upon the said contract, has spent his entire time in the work of advertising and selling said mineral water in Wichita, Kan., and has at all times used his best endeavors to push the sale of said mineral water in the city of Wichita, Kan., from the date of said contract until about the 15th day of November, 1901, when the said defendants wholly disregarded the terms and provisions of said contract and failed and neglected to ship said water to the plaintiff, after the plaintiff had ordered the same to be shipped, and stated to plaintiff at that time that they would not carry out the terms of the contract, that they would not ship to him any Geuda Springs mineral water under said contract, and have, since said 15th day of November, 1901, wholly failed and refused to ship to plaintiff any Geuda Springs mineral water under said contract, although frequently requested to so do by the said plaintiff.”
It is apparent that the petition, which includes the contract as a part thereof, by its averments states a cause of action in favor of plaintiff and against defendants.
Is the contract void for want of mutuality, as claimed by defendants ? It is conceded by counsel that a promise is a good consideration for a promise, there being a mutuality of agreement and obligation. It is claimed that the contract imposes no obligation on plaintiff; that he does not bind himself or agree to take of defendants any of the Geuda Springs mineral waters. It will be observed that plaintiff obligates himself’ to furnish the vessels in which to make shipments of water from the springs; to pay all express and freight charges ; to pay all advertising expenses, and “to use his best endeavors to push, the sales of said mineral waters in Wichita.” Defendants had the mineral water to sell. It is to be presumed that they would derive profit on its sale at the price stipulated in the contract. It is also to be presumed that defendants would derive a benefit' from plaintiff’s advertising the merits of the water in the city of Wichita.
The case of Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759, is cited by defendants in support of their contention. An examination of the case cited will disclose it to have been determined on the ground that there was no advantage in the contract accruing to the railway company, aside from the haul of the grains actually shipped over its lines; there was no agreement on the part of Bagley to ship over its lines at the rates fixed by the contract, nor did Bagley obligate himself to do anything. The following cases come nearer to meeting our views and to the provisions of this contract than any cases to which our attention has been directed: Hickey v. O’Brien, 123 Mich. 611, 82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227; E. G. Dailey Co. v. Clark Can Co., 128 id. 591, 87 N. W. 761; Woodward v. Smith, 109 Wis. 607, 85 N. W. 424. The authorities cited by defendants are bottomed upon contracts with provisions different from those found in the one at bar. This agreement fairly implies that plaintiff, in addition to furnishing the necessary vessels, paying express and freight charges and the expense of advertising, would devote his time, talent and labor to introducing and selling, in the city of Wichita, the waters from these springs. Do not the advertising and the efforts which plaintiff obligates himself to make to create a market in the city of Wichita, if these waters possess merit, reasonably imply a market in said city, a demand to be filled, and a taking of the waters by plaintiff to supply this demand ? It cannot be said that such a contract is wanting in mutuality, or that it imposes no obligation on plaintiff.
The validity of the contract was also challenged on the ground that no revenue stamp had been affixed to the instrument, and a claim made that a compliance with the act of congress of June 13, 1898 (30 U. S. Stat. at L., ch. 448), was necessary to its validity. The judgment of the district court appears from the record not to have been influenced by this claim. While counsel for defendants again urge the claim in this court, the question appears not to be fairly in the record for review, nor have counsel cited authorities in support of their position. We do not feel called on, under the circumstances, to consider the question. If the claim be renewed on a second trial of the case, authorities decisive of the question will be found collected at page 935 of volume 24 of the second edition of the American and English Encyclopedia of Law.
For error of the district court in holding the contract void for want of mutuality of obligation the case will be reversed, and remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
was an action to have a certain deed and contract declared to be a mortgage, to ascertain the amount due the defendant thereon, and to have the premises sold to satisfy the amount so found due in case it should not be paid within a time specified by the court. The defendant filed a general demurrer to the petition, which was overruled. On the trial it objected to the introduction of any evidence under the petition. This objection was sustained and judgment rendered for defendant for costs. Plaintiff brings error.
The petition shows the following material facts: In 1892 L. G. Scheetz was the owner of lots 113 and 115 on Douglas avenue, in Griffenstein’s addition to the city of Wichita. While such owner he undertook to construct thereon a three-story brick and stone building, according to the plans and specifications referred to in the agreement. After performing some portion of the work he became greatly involved for material and labor, and among his creditors was L. 0. Jackson, to whom he executed a mortgage on this property for $4800. This mortgage was assigned to defendant and, at the time of the agreement hereinafter set out, had been foreclosed and the premises ordered sold. The property had also been deeded for taxes, the amount of which was about $1200. By reason of his indebtedness Scheetz was compelled to suspend the construction of this building.
On September 28, 1897, Scheetz executed a .warranty deed of the property to defendant. On September 21, 1897, the parties entered into the following agreement:
“This contract, made and entered into on this 21st day of September, 1897, by and between the Cherokee & Pittsburg Coal and Mining Company, a corporation, party of the first part, and L. G. Scheetz, party of the second part,
“Witnesseth : That whereas the party of the first part is the owner in fee simple of the following-described real estate, situated in the county of Sedgwick and state of Kansas, to wit: Lots Nos. 113 and 115 on Douglas avenue, in Griffenstein’s addition to the city of Wichita, Kan. ;
“And Whereas, there is situated upon said real estate a stone foundation and partly constructed brick walls for a three-story brick building thereon, the construction of which building has heretofore been undertaken and commenced by the party of the second part for and on behalf of Jacob Scheetz;
“And Whereas, the party of the first part desires, at as early date as it can profitably do so, to sell the above-described real estate, and the party of the second part desires, as soon as he can arrange to do so, to purchase said real estate ;
“And Whereas, in the meantime it is desired by both parties to this' agreement that the said building, the construction of which has heretofore been commenced upon said property, be completed according to the original plans and specifications prepared by E. Dumont, an architect, and in pursuance of which the construction of said building has heretofore been commenced :
“Now, Therefore, the party of the first part agrees to proceed with the construction of said building, according to said original plans and specifications without unnecessary delay.
“Said specifications and plans maybe altered by the agreement of the parties hereto; and to keep a correct account of all moneys expended and paid out in construction and completion of said building. The party of the first part further agrees to sell and convey said real estate to the party of the second part or to his assigns at any time within two years from this date, upon the payment to the party of the first part by the party of the second part or his assigns the following-named sums, with interest from the time hereinafter stated, to wit:
“ 1st. The sum of four thousand eight hundred and ninety-seven and X^8X ($4897.48) dollars, with interest from the 10th day of January, 1897, at the rate of nine per cent. (9% ) per annum, until the date of such payment.
“2d. The sum of five hundred .twenty ($520) dollars, with interest-thereon at the rate of nine per cent. (9%) per annum from the 29th day of May, 1897, until the time of such payment.
“3d. The sum of twelve hundred and forty ($1240) dollars, with interest thereon at the rate of nine per cent. (9% ) per annum from the 17th day of, August, 1897, until paid.
“4th. The sum of three hundred and seventy-two and xs/x ($372.32) dollars, with interest thereon at the rate of nine per cent. (9% ) per annum frpm the 30th, day of August, 1897 ; and also such other and further sums of money which the party of the first part may hereafter pay out or expend in the con struction and completion of the said building upon said real estate, with interest thereon at the rate of nine per cent. (9 % ) per annum from the time when such sum or sums shall be paid out until the date of the payment of such sum or sums from the party of the second part to the party of the first part; and such further sums also as the party of the first part may hereafter expend or pay out for taxes, insurance and repairs upon said property, together with nine per cent. (9% ) interest on said sum or sums from the date when the same shall be paid out or expended until the date when paid to the party of the first part by the party of the second part. That if the party of the second part or his assigns at any time within the above-named period shall purchase said property from the party of the first part upon the terms herein-before mentioned, then the party of the second part or his assigns shall receive credit on the amount which is to be paid according to the terms herein-before set forth for all income, without commissions for renting or otherwise caring for or handling the property or constructing said building, which the party of the first part shall receive from said property between now and the. date when the party of the second part shall purchase said property and- make the payments therefor as hereinbefore mentioned, which 'credits shall be made of dates when said income is received.
“ It is expressly understood and agreed that time is of the essence of this contract and that unless the party of the second part shall fully comply with the terms of this agreement on or before two years from this date, then all the rights of the party of the second part under this contract shall cease and be determined, and the same shall thereafter have no binding force and effect.”
It is alleged that said deed was executed to the grantees in pursuance of the agreement above quoted to secure the amount then owing by Scheetz for the improvements upon said lots, and for money to be ad vancecL for the completion of the building; that the company agreed to reconvey said property to Scheetz whenever these sums should be paid, and that the deed was intended only as a mortgage. In October, 1900, Scheetz assigned to these plaintiffs all his right, title and interest in and to said agreement, and to the lots described, and it is also alleged that they were the owners of the property, and that defendant company has refused to account to them for any of the money received for rents and profits. The only question to be determined is, Does the deed, together with the contract, constitute a mortgage, or only a conveyance with a contract to reconvey? The court concluded that it was a conveyance with a contract to reconvey and not a mortgage.
The test in determining whether an absolute conveyance with a separate agreement to reconvey', executed simultaneously, constitutes a mortgage is whether the relation of debtor and creditor continues to exist.
At page 163 (note d) of volume 4 of the fourteenth edition of Kent’s Commentaries, the rule is stated as follows :
“The test of the distinction is this: If the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage ; but if the debt be extinguished by the agreement of the parties, . .- . and the grantor has the privilege of refunding, if he pleases, by a given time, and thereby entitle himself to a re-conveyance, it is a conditional sale.”
This is the test adopted by this court in McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 Pac. 507; Elston v. Chamberlain, 41 id. 354, 21 Pac. 259; McNamara v. Culver, 22 id. 661; Martin v. Allen, 67 id. 758, 74 Pac. 249.
Applying this test to the present transaction, it cannot be construed into a mortgage. Scheetz was not liable to the coal company for any of the debts assumed and paid by it. He did -not agree to pay such debts, nor did he agree to pay any of the expense of completing the building. An action could not have been maintained by the coal company against Scheetz to recover any of such amounts. The contract amounted to nothing more than an option by which defendants agreed to sell to Scheetz within a certain time, upon his compliance with the specified conditions. There was no room for oral evidence in the interpretation of the agreement, or in arriving at the intention of the parties. Such intention was plainly expressed in the contract.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
The note sued on was non-negotiable. (Bank v. Gunter, 67 Kan. 227, 72 Pac. 842.) Johnston, one of the makers of the note and one of the defendants below, testified as follows:
“Ans. When I got notice from Ladd, Penny & Swazey (the payees) that the note was due, or about due, I paid’ the note.
“Ques. Did you pay it in full ? A. Yes; sir.
“Q. To whom? A. To Ladd, Penny & Swazey.
“Q.' And at what time ? A. I sent the money on the day or the second day before it was due, from home, to pay the note.
“Q. What notice, if any at that time, did you have that Ladd, Penny & Swazey were not the holders of the note ?' A. I had none.”
There was other testimony in the case tending to show payment.
It is evident that the trial court treated the note as negotiable. The evidence should have been submitted to the-jury.
The judgment of the district court will be reversed and. a new trial granted. | [
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The opinion of the court was delivered by
Mason, J. :
Joseph Crilly appeals from a conviction' in the district court of Cherokee county upon an indictment charging violations of the prohibitory liquor’ law. The facts, so far as need be stated, appear in-connection with the discussion of the several assignments of error.
It is contended by appellant that there is nothing in the record showing that the indictment was returned by the grand jury in open court, and that the judgment should be reversed on this account. Such an omission has often been held fatal to the prosecution (10 Encyc. PI. & Pr. 410), but it is said that “an indictment properly indorsed ‘A true bill’ and filed by the clerk sufficiently appears to have been returned into court by the grand jury” (id. 411, note-2). Here the transcript does not show that any entry was made upon the minutes or journal of the court of the fact of the return of the indictment, but does include a copy of the indictment showing that it was indorsed by the foreman “A true bill,” and by the clerk, “Presented in presence of grand jury, and filed this 13 day of Oct., 1903.” Within the authority and reason of the cases cited in the note referred to, we think the record affords sufficient evidence of the proper return of the indictment.
‘ ‘ The indictment itself being a part of the record proper and always on file, certainly when it is authenticated, as in this case, by the genuine signatures and indorsements of the prosecuting attorney, foreman of the grand jury, and the circuit clerk, there can be no question in our opinion but that the prima facie pre ■sumption is that it was lodged in that court in the ■manner and by the means prescribed by law.” (State v. Lord, 118 Mo. 1, 23 S. W. 764.)
‘‘The objection that the recital in the indictment, ■■that Hhe jurors, upon their oath, present/ etc., does not sufficiently show that it was presented by the jury in open court, cannot be sustained. The presumption is that it was properly presented, as it is indorsed as .a true bill and signed by the foreman.” (State v. Weaver, 104 N. C. 758, 10 S. E. 486.)
‘‘As it appears that an indictment against defendant was found November 1, and this indictment appears to have been filed on that day, unless the ■ordinary presumption in favor of the proceedings of ■courts is inapplicable here, it would be presumed that it was duly presented ; and we see no reason why this is an exception to the ordinary rule. When, therefore, the record of the proceedings of the term at which the indictment was found does not show that it was presented in court, as provided by law, we think it should be presumed that the law in that respect was complied with, if, as in this case, the indictment appears to have been found and properly filed.” (State of Minnesota v. Beebe, 17 Minn. 241, 245, Gil. 218.)
‘‘When an indictment has been so returned, it is the duty of the clerk to record the facts upon the journal of the court. Such recitals upon the record are conclusive as to what was done in the premises ; but, if an indictment was in fact returned into court, as required by law, the omission of the clerk to record the facts would not invalidate the work of the grand jury, nor defeat the jurisdiction of the court. The facts that the indictment was on file in the clerk’s office, and duly recorded in the indictment record, furnish sufficient memorandum upon which the court on proper application, and in the absence of a showing to the contrary, could order a nunc pro tunc entry supplying the omission in the record.” (Shivers v. Territory, 13 Okla. 466, 74 Pac. 899.)
The question was raised in the district court by a motion to quash the indictment for the reason that it “was not presented by the foreman of the grand jury, in their presence, to the court, as required by law.” This motion was, in effect, a plea in abatement’, and required to be supported by evidence. (Gen. Stat. 1901, §5604.) None having been offered, the presumption arising from the indorsement and filing was not overcome, and the motion was properly denied.
The indictment was signed, “C. D. Ashley, assistant attorney-general for Cherokee county, Kansas.” It is objected by the appellant that the only provision of the law for assistants to the attorney-general is-found in section 2476 of the General Statutes of 1901 • that an officer appointed under that statute has no authority to sign an indictment; and that, as the indictment was not signed by the county attorney, the court acquired no jurisdiction to try the defendant. The part of that section here involved reads :
“And whenever the county attorney shall be unable or shall neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act (the prohibitory liquor law) shall not be enforced in any county, it shall be the duty of the attorney-general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be authorized to sign, verify and file all such complaints, informations, petitions and papers as the county attorney is authorized to sign, verify, or file, and to do and perform any act that the county attorney might lawfully do or perform.”
It is obvious that if the language quoted is to be construed literally abundant authority is conferred for the signing of an indictment by the assistant attorney-general, since he is, in terms, empowered to ■“sign . .. . all such . . . papers as the county -attorney is authorized to sign, . . . and to do . . any act that the county attorney might lawfully do.” But it is argued that these words of general import are limited by the special terms by which they .are preceded, and give authority only for the perform.ance of other acts of the same general nature as those .•already expressly enumerated. ' Granting that this is ’true, the appellant’s case is not helped. The signing •of an indictment is an act of the same general character as the signing of an information. An indictment, dike an information, is the first pleading in a criminal .action. The signature to each by the prosecuting •officer serves the same purpose, and authority to sign ■other papers of the same general character as an information, and to do other acts of like nature, includes .authority to sign an indictment.
It is further urged that, from the context, it is apparent that no authority was intended to be granted by the language quoted to the appointee of the attorney-general to act .in the place of the county attorney in any matter other than the prosecution of offenders against the law forbidding the sale of intoxicating liquors (which may also be conceded ), and that consequently it has no application to such proceedings as the present one, because a county attorney cannot prosecute by indictment, but only by information or complaint. But the county attorney can cause witnesses to be subpoenaed before the grand jury, there interrogate them himself, and give the jury any other .information he may have. (Crim. code, §§83 and 84; Gen. Stat. 1991, §§5525, 5526.) Therefore, he can institute a prosecution in this manner as well as by the other methods provided by statute. These same powers are given to the attorney-general and his assistants, so far as they concern offenses against the prohibitory law; and the signing of an indictment charging the unlawful sale of intoxicating liquor is a step taken in the enforcement of that law. To clothe the assistant attorney-general with authority to perform his duty in any case where there might be occasion for his services in that connection is apparently one of the very purposes for which the statute was ■enacted.
An application was made for a change of venue on account of the prejudice of the trial judge against the •defendant. Nothing of a material nature was offered in support of it except affidavits stating that, after the arrest of the defendant and before his trial, while the court was in session and the matter of giving bail was under consideration, the judge said to this defendant and other defendants who had been arrested ■upon the same charge, in substance :
‘ ‘ I want to say to you, as I have said to the other •defendants who have been before me on these same charges, that it has come to me that the joint-keepers have said that they will, if convicted, lie in jail at the •expense of the county while their bartenders continue their illegal business; and I want to say to you now, that if you go back and continue your illegal business as you have been doing, I shall see that every one of your bars and fixtures, even down to the smallest cup, shall be seized and publicly destroyed. You shall not be permitted to continue in your open violation of the law in contempt of this court and its process.”
Assuming that it was established that the judge used this language, it does not follow that it was error to deny the application. The defendant complains of it as showing a belief in his guilt. It is open to that construction, but this consideration is not controlling, if important.
“The belief or disbelief of a trial judge in the guilt-of a defendant put upon trial before him is not a test-of his qualification to preside at such trial. A trial-judge may be convinced from his personal knowledge of the case, or what he has heard from others, of the-guilt of one put upon trial before him, and yet with the utmost fairness and impartiality conduct the trial and give the defendant a fair and impartial hearing. It is the existence of prejudice or bias in the mind of' the trial court against defendant which must be clearly shown in support of an application for a-change of venue from the court presided over by such judge, not the belief of the judge in the guilt of defendant. (The State v. Morrison, 67 Kan. 144, 72 Pac. 554.)
A full exposition of the circumstances occasioning the remarks objected to might affect the inference to-be drawn from them, as to the attitude of the judge-toward the defendant; but, even in the absence of explanation, it is apparent that what the judge said with regard to his action to be taken in the future was-based upon the contingency that the defendants, in-the event of their conviction, should seek to evade the-effect of the judgment of the court by the artifice described. It indicates no personal bias against this-defendant, but a purpose that the efficacy of’ any sentence that might he pronounced should not be defeated by subterfuge ; at least, it does not so clearly show a prejudice as to require a reversal. (The State v. Stark, 63 Kan. 529, 66 Pac. 243, 54 L. R. A. 910, 88 Am. St. Rep. 251; City of Emporia v. Volmer, 12 id. 622, 4 Encyc. Pl. & Pr. 408.)
It appears that no oath was administered to the-bailiff who took charge of the jury, and this was-urged as a ground for a new trial. It has been said that this is a substantial requirement of the statute-which should not be disregarded. (The State v. McCor mick, 57 Kan. 440, 46 Pac. 777, 57 Am. St. Rep. 341.) But here the prosecution contends that the error was-waived by the failure of the defendant to make timely objection. In The State v. Baldwin, 36 Kan. 1, 12 Pac. 318, it was held that an irregularity in administering the oath to the jury could not be made a ground for a new trial unless the attention of the court was-called to it at the time. In the opinion it was said :
“If the form of the oath was defective the attention of the court should have been called to it at the time the oath was taken, so that it might have been corrected. A party cannot sit silently by and take the chances of acquittal, and subsequently, when convicted, make objections to an irregularity in the form of the oath.”
The same principle was applied where there was an omission to administer any oath to the bailiff upon his taking charge of the jury, in Dreyer v. The People, 188 Ill. 40, 58 L. R. A. 869, 53 N. W. 620, 59 N. E. 424, the reporter’s head-note reading:
“The requirement of the statute that the jury in a criminal case shall be placed in charge of a sworn officer upon retirement is waived by the failure of the accused to object at the time to the omission of the-oath, and the question is thereafter not open to review upon writ of error, although the point is urged as. a ground for new trial by motion supported by affidavits.”
In the opinion many decisions are cited supporting-the conclusion reached. In the present case the fact-that the bailiff was not sworn was proved by several affidavits, including one made by the defendant’s attorney, in which it was set out that the affiant was-personally present at the time the cause was finally submitted and-when the jury retired to deliberate-upon their verdict, and knows the facts to be as- stated. There was an affirmative showing by the state that the conduct of the bailiff was in all respects such as is enjoined by the statutory oath. Whether a new trial should ever be granted a defendant for a failure to have the bailiff properly sworn, when no exception is taken to the omission at the time it occurs, need not now be determined. Certainly when, as in this case, there is an express showing that the defendant’s attorney was present and cognizant of what was taking place, his silence must be taken as an effectual waiver of the irregularity, where no actual prejudice resulted.
The last assignment of error which invites separate notice is based upon a claim that the court was not legally in session when the defendant was tried, convicted, and sentenced, in December, 1903. The statute (Laws 1901, ch. 156; Gen. Stat. 1901, § 1949) provides for holding terms of the district court at Columbus on the first Mondays in January, May, and October, and at Galena, in the same county, on the first Mondays in March and September and the second Wednesday in November, of each year; that “all actions commenced in said court shall be entitled in said court ‘sitting at Columbus,’ or ‘sitting at Galena’ (as the case maybe), and all actions shall be filed, process issued from, and returned to, and trial had in, the court sitting in the place designated in the title.” Defendant was indicted at Columbus on October 13, 1903. Before his trial there was a regular term of court at Galena. The contention of defendant is that the court sitting at Columbus had no power to continue the October term to a day beyond the ensuing November term at Galena. Where a judicial district is made up of several counties the term of court in one county may be adjourned to a day beyond the commencement of a regular term in another county. (The State v. Montgomery, 8 Kan. 351.) The reasoning by which that conclusion was reached in the case cited is equally applicable here, and justifies the prolongation of the Columbus term to a day beyond the commencement of the regular Galena term. Defendant relies upon the following statement, made at page 733 of volume 11 of the Cyclopedia of Law and Procedure, upon the authority of Jaques v. Bridgeport Horse-railroad Company, 43 Conn. 32:
“A court having regular terms and in which all cases are continued from one term to another in regular succession has no power to adjourn to a timé beyond the commencement of another regular term of the same court in the same county, where both terms are of the same character.’ ’
That is not the situation here. The cases filed at Galena which remain untried at the expiration of a term there are not continued to the term at Columbus. The terms are not of the same character, as the expression is used in the case cited. One is held for the trial of cases begun at Columbus, the other for the trial of cases begun at Galena. The language quoted, by the clearest implication, suggests that under these circumstances the term at either place may, by proper order, be kept alive until the ensuing regular term at the same place, notwithstanding the intervention of a regular term at the other.
Other errors are assigned, but they involve no doubtful questions of law and require no discussion.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
Reeves & Company, a foreign corporation, brought action against C. E. Hamilton to recover the possession of certain machinery under a chattel mortgage, and recovered. The defendant brings this proceeding to reverse the judgment.
The only serious errors assigned are based upon the claim that the plaintiff, by failure to comply with the statutes relating to. foreign corporations doing business in the state, was disqualified to take the chattel mortgage or to maintain the action. The fact that the statute had not been complied with at the time of the execution of the contract does not make the .contract void. (The State v. Book Co., ante, page 1.) Before the commencement of the action, and, indeed, before the taking of the mortgage, the plaintiff had made application to the state charter board under chapter 10 of the Laws of 1898 for authority to do business in the state, which application was taken under consideration by the board. On December 20,1901, plaintiff complied fully with the provisions of chapter 127 of the Laws of 1901, allowing foreign corporations, under certain conditions, to take and enforce liens on real or personal property. The trial was had January 20, 1902. Inasmuch as at the time of trial plaintiff’s incapacity had been removed the judgment will not be reversed because the statute had not been fully complied with at the time the action was begun. (The State v. Book Co., supra.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action brought by Mrs. J. H. Allen against the German Insurance Company, of Freeport, 111., upon a contract insuring a store-building and a stock of merchandise therein against loss or damage,by fire. The policy of insurance was issued on September 7, 1901, and the building and stock of goods were wholly destroyed by fire on September 24,1901. Payment of the loss was refused by the insurance company because of alleged non-performance of the conditions of the policy by the insured. The contract contained what is commonly spoken of as the “iron-safe clause,” by which the insured agreed to keep a set of books showing a record of the business transacted, including all purchases and sales, for credit, cash, and exchange, as well as the last inventory of the stock taken within twelve months prior to the happening of the loss, and to keep books and inventory securely locked in a fire-proof safe at night and when the store was not actually open for business ; and, also, the further provision that such books and inventory would be produced in case of any loss, and in the event of a. failure to produce the same the policy should be deemed to be null and void. On the part, of the company it was contended that the insured had failed to keep the books showing her cash sales, or to produce any such books after the loss occurred. The insured contended that she had substantially performed the conditions and requirements of the policy, and that if she had failed to any extent it had been waived by the company and its agents. Among other questions that of waiver was submitted to the jury and their finding was in favor of the insured. She was awarded $2400, the full amount provided for in the policy,'and also an attorney’s fee in the sum of $100.
The stipulation to keep a set of books showing the purchase and sale of goods for cash, credit, and exchange, together with an inventory' of the stock of merchandise, and the production of the same in case of loss, was an important feature of the contract. A set of books was kept by the insured, but it appears that no cash-book, or book showing the sales of goods for cash, was kept, and, of course, none was produced after the loss occurred. Whether the record of the business done by the insured could be fairly determined from the books actually kept, we need not now inquire.
After the contract of insurance had been made the attention of the agent of the company who issued the policy was drawn to the method of bookkeeping; ■ that is, that she kept a day-book, a register, and a ledger—and he said that they were kept right; in effect, he declared that her method of keeping books would be sufficient as well as satisfactory to the company. This condition was intended for the benefit and protection of the insurer, and, like other provisions of the insurance contract, it might be waived by the company. As the agent issued polices and had full power to represent and bind the company, his statement waived defects, if there were any, in the system of bookkeeping. This is not to be regarded, nor was it treated by the court, as a preliminary oral or contemporaneous agreement. If it had been of such character it would have been merged in, and could not be set up to contradict and overthrow, the final written contract. The jury were instructed that the statement of the waiver, to be effective, must have been made after the policy had been issued and delivered to the insured. There was testimony tending to show that it was made after the contract of iusurance had been completed and the policy delivered.
In addition to this waiver, the adjuster, although directly informed that no cash-book had been kept, did not declare a forfeiture, but negotiated with the insured about making other and better proofs of loss. At the same time, it is true, he declared that the company did not thereby waive any of the conditions of the policy or the rights of the company, but his conduct was hardly consistent with his declarations. Later he actually extended the time for making proof, and, more than that, required the insured, at some trouble and expense, to appear in another town and submit to an examination under oath with respect to the property and the loss. At this time there was an extended inquiry regarding the ownership of the stock of goods, the quantity, quality, and value, the inventory that had been taken, the goods on hand when the fire occurred, the probable origin of the fire, and the conduct of the insured at the time. These negotiations and transactions by the adjuster after learning that no cash-book had been kept amounted to a waiver of the requirement and of forfeiture, if any ground therefor existed. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335.)
An attorney’s fee was allowed, and an attack has been made on the statute under which the allowance was made. Several decisions have been made upholding the validity of the law and the question is no longer open' for debate. (Assurance Co. v. Bradford, supra; Insurance Co. v. Corbett, ante, page 564, 77 Pac. 108.)
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
Burch, J. :
At its session in 1899 the legislature enacted the following provision for the condemnation of lands for the storage of water :
“Any irrigation, canal or reservoir company, for the purpose of establishing any reservoir, lake or pond for the storage of water, shall have the right to condemn lands in the same manner as is provided for the condemnation of lands for railroad and other purposes.” (Laws 1899, ch. 151, §1; Gen. Stat. 1901, §3758.)
Under this law the Lake Koen Navigation, Reserr voir and Irigation Company condemned a tract of land in that part of Barton county which is. known as the “Cheyenne Bottoms,” and from the commissioners’ award the McLain Land and Investment Company appealed. The appeal was perfected by the filing of a bond, and the case was tried without formal pleadings. In the appeal bond occur the following attempted descriptions: “S. E. acres 160, value twenty-five dol lars ; . . . S. E. acres 80, value eighty dollars." At the trial proof was offered under these descriptions concerning damages to the southeast quarter, of section 25, township 18, range 13, and to the north half of section 35, township 18, range 13, all in Barton county. The jury found damages in the sum of $320 for the first tract, and in the sum of $500 for the second tract. Objection was made to the evidence, and it is urged here that the appeal bond furnished no basis for such damages, because, it is said, the appeal is taken only from the award for land described in the instrument which effectuates the appeal.
There was an essay at description, showing that tracts of land which had been condemned for twenty-five dollars and eighty dollars, respectively, were embraced in the appeal. The bond described the condemnation proceedings fully, and near its close contained the following statement: “This bond is intended as an appeal from appraisement and condemnation of all lands appraised and condemned in the within-described proceedings." There is no complaint that the land imperfectly described had not been condemned by the commissioners. Here, as in other cases of real-estate description, that is certain which can .be rendered certain; hence, the reference to the commissioners’ report was sufficient to identify that which was otherwise imperfectly described. That a reference to the proceedings anterior to the bond for the purpose of aiding its recitals is permissible was indicated in the case of K. C. & S. W. Rld. Co. v. Hurst, 42 Kan. 462, 22 Pac. 618.
At the trial witnesses were interrogated regarding damages to land taken, and afterward regarding the value of fences taken, and the amount necessary to be expended to reenclose with a fence tracts not taken. No objection was made to this method of proof. The legal theory that fences are a part of the land was not insisted upon in the course of either the examination or the cross-examination of witnesses. The answers of the witnesses clearly show that they made no such discrimination. The court instructed the jury upon the specific matter and admonished them against the double valuation which would result from first including the value of the fences in that of the land, and then finding the value of fences as a separate item. The jury returned separate damages for land and for fencing. Under these circumstances it must be decided that an assignment of error claiming a duplication of damages in respect to fences is not sustained by the record.
At the conclusion of the appellant’s evidence a demurrer to it was interposed on the ground that it had shown no title to the land. It was shown, however, .that the McLain Land and Investment Company had been in possession of the land by a tenant for a long period of time, that it granted leases of it and received rent for it year after year, and that it sold and conveyed a portion of it, acting through its president, J. K. McLain. The condemning company conducted portions of its defense apparently upon the assumption of ownership in the appellant, and a witness stated without objection- that a plat shown him correctly represented the lines of “the land owned by the McLain people,” by whom, it fairly appears, was meant the McLain Land and Investment Company. Therefore, the record contains sufficient to warrant the submission of the question of title to the jury.
The trial court instructed the jury as follows :
“In actions of this kind the owner of the lands is entitled to receive a fair and just compensation for all damage which he has sustained to his lands, considered as an entire tract, by reason of the condemnation and appropriation of certain parts thereof, as plaintiff-claims has been done in this case, and the determination of the amount of that compensation is the principal question for this jury.
“There is some testimony in this case bearing upon the market values of the lands condemned and appropriated and considered in two ways : (1) By considering the land condemned and appropriated in a body by itself, and unconnected with the other portion of the ranch in question; (2) by considering it as a part of the whole ranch in question. The plaintiff in a case of this kind is entitled to compensation for the damage which he has sustained, and if the market value of the land condemned and appropriated is greater when considered in one of these two ways than in the other, then he is entitled to such fair and reasonable market value of his land as will compensate him for the loss which he has sustained.”
These instructions and the testimony given under the second method of proof referred to by the court were opposed by proper objections and exceptions. The land taken comprised 4573 acres, practically in a body, of a stock-ranch containing 8400 acres. The jury found the value of the land appropriated to be $13,740, regarding it as unrelated to'the tract from which it was severed, but found such value to be $15,240 when the entire ranch of which it formed a part was considered. The verdict adopted the larger sum as the owner's compensation and judgment was rendered accordingly. The reservoir company claims that the rule adopted contravenes the condemnation statute. This, however, is not apparent.
Section 1360 of the General Statutes of 1901 provides for the appraisement of the portion of any quarter-section or other lot of land taken, and the assessment of the damages thereto, and section 1364 authorizes an appeal from the award of damages for injury to the land, crops, buildings and other improvements thereon, and for all other injuries sustained. But neither of these sections, and no other of which the court is aware, undertakes to say what it is that shall make up the value of any particular tract of land which may be appropriated.' Such value depends upon the purpose to which the land is devoted, its specific quality and character, the manner of its use, its contiguity to other land, and many other circumstances as variable as the necessities and the desires of men. In this case the witnesses declared that a body of land of the peculiar kind and quality of that which was taken was more valuable when used with another body of land of the size and character of that from which it was disunited. No objection was urged against the competency of the witnesses, and the jury found their testimony to be true. No claim was made for damage to land not taken. Probably the unappropriated land suffered no diminution in value from the segregation. But the method of estimating the value of the land taken»was not affected by these facts. The most advantageous use to which any condemned tract may be put should always be considered. (G. K. & W. Rld. Co. v. Willits, 45 Kan. 110, 25 Pac. 576; Cohen v. St. L. Ft. S. & W. Rld. Co., 34 id. 158, 8 Pac. 138, 55 Am. Rep. 242.) In the case of Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577, the syllabus reads :
‘1 Where three quarter-sections of land lying in a body are owned severally by three persons, who, under a written contract between themselves, use the land in common; and each quarter-section is more valuable by being so used than it would be if used separately; and a public road is established across these three quarter-sections, separating the stock water from the pasture land, and thereby rendering the use of the land in a body under the contract less valuable, and thereby lessening the value of each quarter-section, it is held, that damages for this loss of value to each quarter-section may be awarded to the owners of the land.”
If, instead of a roadway, one of these quarter-sections of land had been appropriated entire, any enhanced value it might have possessed occasioned by its community with the other tracts, could not have been excluded or ignored in an award of damages. So, in this case, it was proper for the jury to consider all the capabilities of the property and all the uses to which it might be applied as it was actually situated and as it was actually related to other land, and not merely as a separate and independent plat; and, if its value, so considered, be greater than it otherwise would be, nothing short of such value would afford its owner adequate compensation for its loss. Therefore, the evidence complained of was rightfully admitted, and the instructions assailed were rightfully given.
The report of the condemnation commissioners was filed June 4, 1900. The trial occurred August 18, 1902. From the plaintiff’s own evidence the jury could have found that during the interim the possession of the owner and its use of the land were disturbed in no important or substantial particular. It continued, as before, to rent the land to a former tenant; the sale of a portion of the land was not impeded, the owner reserving the right to recover its value ; the land taken was largely pasture, and no evidence as to contemplated improvements was offered. The rental value of the land and the actual returns of rent to the owner increased. At the time of the con demnation the owner was receiving for the use of the whole ranch—the land taken and the land not taken rented as an entirety, and therefore in the most advantageous manner for the land taken—the equivalent of $900 per annum. At the time of the trial it was receiving $1000 per annum. Other facts made it a matter of much doubt for the jury to decide whether the owner of the land had been at all seriously disadvantaged pending the appeal, and tended to show that the value of the- use of the land during that period must have been a very considerable sum. The court instructed the jury as follows :
“The jury are instructed that the plaintiff is entitled to recover some amount iri this case as its damages, and the plaintiff is also entitled to recover interest upon that amount at the rate of six per cent, per annum from the 2d day of June, 1900, and his actual damages, with interest added thereto, will determine the amount of the damages which is to be found in favor of the plaintiff in your verdict.”
The jury allowed the sum of $2073.72 as interest on damages for the time elapsing between the condemnation and the trial of the case, which amount was included in the judgment. In this the district court erred.
In condemnation appeals the issue is, What shall be full compensation ? Interest is allowed merely as a means of securing such compensation. If, upon the condemnation of land, complete deprivation do not follow at once, still, further tenure is rendered precarious. Possession may be disturbed at any time, and all property rights are exercisable only under doubt and uncertainty as to their duration. As a recompense for the loss attending this embarrassed use of the land and this qualification of dominion over it pending the payment of the condemnation money, interest may be allowed. If, however, as a matter of fact the owner should suffer no injury in these respects no occasion for compensation byway of interest would arise. The owner should not have his land and interest too, for the constitution does not contemplate the payment of anything beyond full compensation. It is the better rule, therefore, to allow interest on general damages from the date of condemnation, then reduce the amount by the value, if any, to the owner of whatever subsequent possession and use of the land he has enjoyed. (2 Lew. Em. Dom., 2d ed., § 499 ; Rand. Em. Dom. § 280.) The instructions given, to which due exception was taken, gave the jury no opportunity to apply this rule, although the evidence clearly indicated an opportunity for its just and beneficial use.
The judgment of the district court is reversed', and the cause is remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
On August 10, 1901, school district No. 18, of Kearny county, entered into a written contract with Lewis Davies to teach school for a term of eight months, to commence on September 30 following, at a salary of $40 per month, payable at the end of each school month. Davies commenced work under this contract and continued to teach, receiving payment therefor, until January 31, 1902, when he was dismissed by the district board, acting in conjunction with the county superintendent, on a charge of incompetency, cruelty, and negligence.
On May 22, 1902, Davies commenced an action against the district in the district court of Kearny county to recover the sum of $150, damages alleged to have been by him sustained on account of his dismissal. In his petition, after alleging the execution of the contract and the entering upon his duties.as teacher thereunder, plaintiff averred in substance his willingness and readiness at all times to discharge the duties of teacher and comply with the terms of said contract, and the refusal of defendant to permit him to do so.
Defendant answered admitting the execution of the written contract, and that plaintiff had taught the school thereunder for a period of four months and one week. It averred that plaintiff had received payment for services rendered; that in the conduct of said school plaintiff was incompetent, cruel, and negligent, and that the district board, acting in conjunction with the county superintendent, had dismissed him for incompetency, cruelty, .and negligence. The jury awarded plaintiff $50, and returned four special findings. The court, upon motion of plaintiff, set aside the general verdict and rendered judgment for plaintiff in the sum of $150 upon the special findings.
The record discloses that at a meeting of the district board in conjunction with the county superintendent, on January 31, 1902, plaintiff was dismissed on the charge of incompetency, cruelty, and negligence. There was no claim of fraud, corruption or oppression in the action of dismissal. Defendant, upon the trial, requested the court to give the following instruction :
“If the jury find from the evidence that the school board of the defendant district met in conjunction with the county superintendent of public instruction to consider the matter of complaints made against the plaintiff as teacher of the school of the district, and at such meeting such board and superintendent gave full and fair consideration to the facts of the matter as known to them personally, and also used reasonable diligence to inform themselves upon the subject from such sources as were available, and gave full and fair consideration to such information, and then, in good faith, reached the unanimous conclusion that plaintiff had been so negligent of his duties as teacher that the interest of the school x-equired his discharge, and, therefox’e, made an order discharging him as such teacher on the 31st day of January, 1902, then plaintiff is not entitled to recover in this action.”
The court refxxsed to give the instruction requested, and did not instruct the jury relative to the legal effect of the dismissal of plaintiff by the district board acting in conjunction with the county superintendent.
Defendant bx-ings the case here and urges the following assignments pf error : (1) The refusal of the trial court to give said instruction, or to instruct the jury relative to the legal effect of the dismissal of plaintiff by the district board acting in conjunction with the county superintendent; (2) the action of the trial court in setting aside the general verdict and entering judgment for plaintiff on the special findings. The view we take of the case requires a consideration of the first assignment of error only.
Section 6184, General Statutes of 1901, provides for the employment of teachers and the manner of employing them in the district schools of the state. It also provides for the dismissal of teachers, the causes for which they may be dismissed, and the manner in which they may be dismissed. It reads :
“The district board in each district shall contract with and hire qualified teachers, for and in the name of the district, which contract shall be in writing,-and shall specify the wages per week or month as agreed upon by the parties, and such contract shall be filed in the district clerk’s office ; and, in conjunction with the county superintendent, may dismiss for incompetency, cruelty, negligence, or immorality.”
In the case of School District v. McCoy, 30 Kan. 268, 1 Pac. 97, 46 Am. Rep. 92, it was held that the school-district board, acting in conjunction with the county superintendent, as provided by said section, was not a court; that this tribunal so constituted could act without pleading and without process, and, the proceedings to dismiss a teacher could be conducted by it in an informal manner. "We are now called upon to determine the legal effect of the acts of this tribunal. The legislature must have had a purpose in uniting the county superintendent with the school-district board. In doing so it constituted a special tribunal, which may fairly be said to be outside and independent of the employing board—a tribunal unknown to the common law, and given power to dismiss the teacher for negligence, incompetency, cruelty, or immorality.
In the case of Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, the board of medical registration and' examination was classed with such boards as the county board of equalization, boards for the examination of applicants for teachers’ certificates, city councils in granting and refusing a business or occupation license, and numerous other boards of similar character. It was there said that such boards performed no judicial functions, were not judicial tribunals, and had never been classified as such. It was held, however, that in the absence of fraud, corruption, or oppression, the findings of the medical board were conclusive upon this court.
The school law of New Jersey clothes the board of education with power to employ teachers, and to remove them for cause. There is given the right of appeal to the county superintendent; -from that official is given the right of appeal to the state 'superintendent, and thence to the state board of education. There is no statutory provision constituting the acts of the state board of education final. In the case of Draper v. Comm’rs of Public Instruction, 66 N. J. L. 54, 48 Atl. 556, it was held that the board had exclusive jurisdiction over such controversies and that its determinations were final. The school law of Iowa in the matter of the dismissal of teachers is quite similar to that of New Jersey. The supreme court of Iowa, in the case of Park v. The Independent School District of Pleasant Grove, 65 Iowa, 209, 21 N. W. 567, held that the finding of the county superintendent, sustained by the state superintendent on appeal, was final; that the proceeding is statutory, unknown to the common law, arid the courts therefore have no authority to reexamine or retry the questions of fact.
In the case of McCrea v. School District, 145 Pa. St. 550, 22 Atl. 1040, it was' held that under a statute giving a board of directors power to dismiss a teacher for incompetency, cruelty, negligence or immorality, the board was held merely to the observance of good faith, and its acts were not reviewable. To like effect was the case of Whitehead v. School District, 145 Pa. St. 418, 22 Atl. 991.
In Gillan v. The Board of Regents of Normal Schools, 88 Wis. 7, 58 N. W. 1042, 24 L. R. A. 336, it was held that the power to remove a teacher, given to the board of regents, when exercised in a given case, cannot be inquired into by the courts; that this power of removal becomes a part of every contract made by the board with the teacher ; that when the board has exercised this power and the teacher has received notice thereof, the right to further salary or compensation is terminated.
In the case of People, ex rel. Gorlitz, v. Board of Education, 52 N. Y. Super. Ct. 520, under a statute providing that "any teacher may be removed by the board of education upon the recommendation of the city superintendent,” it was held that the order of removal might be made without cause asserted or shown, and was not reviewable.
It is manifest that the intention of the legislature in enacting section 6184 was to provide a speedy and inexpensive mode for the dismissal of teachers from the district schools. We believe that the legislature established this tribunal, clothed with the power to dismiss, with the intention that its acts should be final. The teacher takes his employment with the knowledge of this power and it enters into his contract of hire, however made or formulated. We can see no purpose or object of the legislature in joining the county superintendent with the district board and giving the tribunal thus created the power to dismiss teachers unless it was intended that, in the absence of fraud, corruption, or oppression, its acts should be final and conclusive. It would tend greatly to impair the government and efficiency of the public schools if the honest judgment and discretion of this tribunal, so exercised, were subject to review.
The judgment of the district court is reversed.
All the Justices concurring.
Mason, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Mason, J. :
These cases are submitted together and • involve the same questions. In each the John Deere Plow Company, a foreign corporation, sued in the district court upon a note ; a defense was interposed by answer, based upon the law relating to foreign corporations, and especially upon section 1283 of the General Statutes of 1901, which forbids any corporation doing business in the state to maintain an action in any of the courts thereof without first filing certain statements with the secretary of state ; a reply admitted non-compliance with the statute, but set out matters claimed to exempt plaintiff from its operation, and judgment was rendered for the defendant upon the pleadings. The plaintiff asks the reversal of the judgments upon these grounds : (1) That in each case the pleadings disclose but one transaction, and that this does not constitute the doing of business within the meaning of the act; (2) that the only business engaged in by the corporation was the sale of merchandise from a point outside the state to buyers within it, and that the statute is not intended to apply in such cases ; or, if so intended, that it is to that extent in contravention of the federal constitution as an attempt to regulate interstate commerce.
The statute requires every foreign corporation seeking to do business in the state to make application to the charter board for permission to do so, which is granted only upon compliance with certain requirements, including the payment of fees. Section 1283, above referred'to, reads :
“It shall be the duty of the president and secretary or of the managing officer of each corporation for profit doing business'in this state, except banking, insurance and railroad corporations, annually, on or before the 1st day of August, to prepare and deliver to the secretary of state a complete detailed statement of the condition of such corporation on the 30th day of Jfine next preceding. . . . No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the’ secretary of state that statements provided for in this section have been properly made.”
The reply in each case shows that the note sued upon was given for the purchase-price of machinery sold by plaintiff to defendant, the negotiations for such sale having been made, and the order for such machinery having been taken, by an agent of plaintiff residing in Kansas ; that the order was in writing, made by defendant and delivered to the local agent, by whom it was forwarded to plaintiff at Kansas City, Mo., for acceptance or rejection ; that plaintiff then accepted the order and shipped the machinery to the local agent for delivery to defendant. It is contended by plaintiff in error that as but one transaction is referred to in each case, and as each must be decided solely upon its own record, it cannot be said that it is made to appear that the corporation was engaged in business in this state. It is said in volume 13 of the second edition of the American and English Encyclopedia of Law, at page 869 :
“The doing of a single act of business in the domestic state by á foreign corporation does not constitute the doing or carrying on of business within the meaning of the statutory and constitutional provisions.”
Many decisions are there cited in support of this declaration, to which may be added : Commercial Bank v. Sherman, 28 Ore. 573, 43 Pac. 658, 52 Am. St. Rep. 811; Henry v. Simanton, 64 N. J. E. 572, 54 Atl. 153; Oakland Sugar Mill Co. v. Fred. W. Wolf Co., 118 Fed. 239, 55 C. C. A. 93; Florsheim etc. Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. Rep. 162; D. & H. Canal Co. v. Mahlenbrook, 63 N. J. L. 281, 43 Atl. 978, 45 L. R. A. 538. (See, also, 6 Thomp. Corp. §7936.) For the most part these authorities merely hold that the expression “doing business” is not to be given such a strict and literal construction as to make it apply to any corporate dealing whatever. They turn upon the character, rather than upon the amount, of business done. This is illustrated by the fact that the particular transactions under consideration are frequently described as “in-" dependent,” “isolated,” “occasional,” “incidental,” “accidental,”, “casual,” “not of a character to indicate a purpose to engage in business within the state,”' as well as “single.” In the decision most frequently' cited in this connection, Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137, stress is laid upon the circumstance that there was no' purpose to’ do any other business in the state. The’ controlling principle involved in these cases has already been applied by this' court in Commission Co. v. Haston, 68 Kan. 749, 75 Pac. 1028. The scope of the rule invoked is stated, and the limitations to which it is subject are suggested, in the third paragraph of the syllabus in that case, which reads :
“Isolated, independent transactions in this state, incidentally necessary to the business of a foreign corporation conducted at its domicile, fully completed before action commenced, will not prevent recovery in the courts of this’ state by such corporation under section 1283, General Statutes of 1901, when no repetition of such acts is in contemplation and the territory of the state is not being made the basis of operations for the conduct of any part of the corporation’s business at the time the suit.is begun.”
Although the record in each case discloses but one transaction of the corporation, that transaction was not merely incidental or casual; it was a part of the very business for the performance of which the cor poration existed; it did distinctly indicate a purpose on the part of the corporation to engage in business’ within the state, and to make Kansas a part of its field of operation, where a substantial part of its ordinary traffic was to be carried on. Therefore, although a single act, it constituted a doing of business in the state within the meaning of the statute, while several acts of a different nature might not have had that effect. See, in this connection, Farrior v. New England Mortgage Security Co., 88 Ala. 275, 7 South. 200, and other Alabama cases cited in Chattanooga Building &c. Assn. v. Denson, 189 U. S. 408, 23 Sup. Ct. 630, 47 L. Ed. 870.
The contention that the statute in question is not to’ be construed as applying to foreign corporations en-. gaged wholly in interstate commerce finds some support in the authorities. See volume Í3 of the second^ edition of the American and English Encyclopedia' o.f Law, page 870, and volume 17, page 106, where it is said:
“The transaction of the business of interstate commerce is not considered as ‘ doing business in the state’ within the meaning of state statutes regulating foreign corporations ‘doing business within the state.’ ”
Many of the cases cited in support of this statement, however, decide merely that provisions imposing conditions upon the conduct of interstate commerce are unconstitutional. Such of them as hold that, properly interpreted, the statutes do not apply to corporations engaged in interstate commerce reach that, conclusion only by a vigorous application of the principle that, if possible, a construction should be adopted that will avoid interference with the federal constitution. (See, also, 17 A. & E. Encycl. of L., 2d ed., 75,. and cases cited.) Whether or not all parts of the Kansas statute be valid, we think it was the intention of the legislature that it should reach every continuous exercise" of a corporate franchise and should apply in such cases as the present, even conceding that the business of plaintiff was purely interstate commerce. It was so declared in The State v. Book Co., 65 Kan. 847, 69 Pac. 563, where the act was upheld upon the theory that the requirements made of a corporation engaged in such business were not burdens upon it, but measures of protection to the people of the state.
It is not necessary to consider at this time whether the portion of that decision which affirms the constitutionality of the act is consistent with the adjudications of the federal supreme court on the subject. These, with other cases bearing on the matter, are collected, classified and discussed in an exhaustive note on “Corporate Taxation and the Commerce Clause,” in Sandford v. Poe, 60 L. R. A. 641, 677, 69 Fed. 546, 16 C. C. A. 305, but their effect need not be decided, for no such question is here involved. So far as the present controversy is concerned, it may be admitted that the state has no power to exact any requirements whatever as conditions precedent to the doing of business in this state by a foreign corporation engaged solely in interstate commerce.
The only part of the statute affecting the matter now to be determined is that already quoted in full, which merely provides that no foreign corporation doing business in this state shall maintain an action in any of the courts of the state without furnishing certain information regarding its affairs. The restriction is laid not upon the doing of business, but upon tlie use of the local courts. In Haldy v. Tomoor-Haldy Co., 4 Ohio Dec. 118, Bateman v. Western Star Milling
Co., 1 Tex. Civ. App. 90, 20 S. W. 931, and Woessner v. Cottam & Co., 19 Tex. Civ. App. 611, 47 S. W. 678, statutes conditionally denying relief through the courts to foreign corporations engaged in interstate commerce were held to be unconstitutional, but in each of these cases the statute refused a remedy because it was invoked in aid of a right that accrued while the corporation was doing business without having met its requirements, the objection running against the cause of action itself. Here the corporation is placed under a disability to sue upon any claim whatever so long as it fails to make the statements exacted of it. It may defend itself when attacked, and may even prosecute proceedings in error in this court to review a judgment rendered against it. (Swift & Co. v. Platte, 68 Kan. 1, 72 Pac. 271.) Its contracts made during its non-compliance are not held void. The courts do not take jurisdiction of its controversies and determine them against it because of its past attitude ; they merely abate the inquiry until the required statements shall have been made. (The State v. Book Co., supra; DeCamp v. Mortgage Co., 65 Kan. 860, 70 Pac. 581.)
Although in each of the present cases the defense was made by answer and the judgment was that the defendant recover his costs, the effect is the same as though a formal plea in abatement had been interposed and sustained. There is no adjudication: against the plaintiff further than that it could not at the time maintain an action, and this judgment does not bar a new action whenever the disability shall have: been removed. The case of Ashley et al. v. Ryan, 49 Ohio St. 504, 31 N. E. 721, arose upon Ohio statutes authorizing the consolidation of corporations upon-stated conditions, including the payment of certain fees. A foreign corporation engaged in interstate commerce sought to avail itself of the privilege so afforded without complying with the conditions, contending that the exaction of' the fees was a burden upon interstate commerce. The court said :
1 ‘ The power to regulate commerce between the states belongs without doubt to.the Congress of the United States ; the states cannot interfere with or regulate it in any way. But the duty of the states in respect to such commerce is passive and not active. No state is under any federal obligation to furnish highways, nor to create agencies of any kind, for the purpose of facilitating interstate commerce. The grant of the right to be a corporation is within the sovereign discretion of the state, and cannot be controlled by any other power, state or federal. As it may create or withhold such franchises at its pleasure, it may grant them upon such conditions as best suit its own notions of convenience and policy. Hence the state violates no federal duty toward non-residents, whether corporate or natui’al persons, in refusing them corporate franchises or in making an exaction for the grant of the same, simply because such persons may have the control of a system of railways used in interstate commerce.”
The case was taken ■ to the supreme court of the United States, and in affirming the decision-of the state court it was there said : .
: ‘ ‘ The question here is not the power of the state of Ohio to lay a charge oh interstate commerce, or to prevent a foreign corporation from engaging in interstate commerce within its confines, but simply the right of the state to determine upon what conditions its laws as to the consolidation of corporations may b'e availed of.” (153 U. S. 436, 14 Sup. Ct. 865, 38 L. Ed. 773.)
•In paraphrase of this argument, as applied to the facts of this case, it may be said that the question here is not the power of the state of Kansas to lay a charge on interstate commerce, or to prevent a foreign corporation from engaging in interstate commerce within its confines, but simply the right of the state to determine upon what conditions its laws as to the enforcement of rights through its courts may be availed of. The part of the statute under consideration lays no embargo or burden upon interstate commerce ; it does not seek to prevent or hamper the transactions of corporations engaged in that business ; it does not declare their contracts void or deny them the enforcement of any rights whatever; it merely provides that if they wish to make use of the machinery of the state courts for their own benefit they must do so upon the same terms as other corporate suitors. In this we find no interference with the powers reserved to Congress by the federal constitution.
The judgments are affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The state, upon the relation of the county attorney of ‘Coffey county, brought an action of mandamus to compel the Missouri Pacific Railway Company to restore to its former condition of usefulness a highway-crossing which had been impaired by a reconstruction of the company’s railroad. After a trial a peremptory writ was awarded in accordance with the prayer of the petition.
The railway company contends here, as it did in the district court, that the board of railroad commissioners have exclusive jurisdiction of the controversy. That the board of railroad commissioners have jurisdiction in the premises the state does not deny, but it regards the remedy afforded by the law creating that body as cumulative to those existing by virtue of the common law. This position is assumed on account of the statute itself. Section 5998 of the General Statutes of 1901 makes it the duty of every railroad company to obey all reasonable orders of the board of railroad commissioners, made under authority of law, and provides for the enforcement of such orders, but concludes as follows :
“The remedies provided by this section shall not 'be deemed to exclude or limit any other remedies provided in this act or existing in virtue of any other statutes or common law, but shall be additional thereto.”
The language quoted does not mean simply that other statutory and common-law remedies may be utilized to compel obedience to orders of the board, but its purpose was to save all other remedies for the redress of grievances, even though such grievances be cognizable by the board.
The railroad company argues that the portions of the railroad-commission law applicable to the facts of this case were adopted from the statutes of Nebraska, and that prior to their adoption t'he Nebraska law had been construed by the highest court of that state to require the action of the railroad commission before any adversary proceeding could be commenced against the offending company, and that, since the railroad-commission law provides a plain and adequate remedy, such remedy must by employed. (Laws [Neb.] 1885, ch. 65, §2.; State v. R. V. R. R. Co., 17 Neb. 647, 24 N. W. 329, 52 Am. Rep. 424.) Since the decision of the case of Bemis v. Becker, 1 Kan. 226, it has been the law of this state that the judicial construction given a statute in the state of its orgin follows it into the state of its adoption. Therefore, the company claims the Nebraska case to be controlling. Conceding the origin of the law to be as stated, the Nebraska statute contains no provision of the character of the one quoted above from the statute of this state. The rule of interpretation announced in Bemis v. Becker is of general application only. It is not absolutely controlling in all cases, and cannot prevail against an express provision inserted in the statute at the time of its adoption, indicating a different legislative intention. If it were necessary to support so plain a' proposition by authorities, they might be found in the decisions of the supreme court of Nebraska. (Nebraska Loan & Building Association v. Marshall, 51 Neb. 534, 71 N. W. 63; Goble v. Simeral, 93 N. W. [Neb.] 235.)
It is conceded that, aside from the railroad-commission law, an ordinary action of mandamus will lie to compel a railway company to restore to their former condition highway-crossings it may have disturbed. Therefore, the district court was not without jurisdiction, and its judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
On February 20, 1895, the firm of D. J. Fair & Co., a partnership composed of D. J. Fair and George M. Schurr, was dissolved by mutual consent, Schurr retiring therefrom. The firm had for several years engaged in the lumber and grain business at Abbyville, Kan., during which time Schurr had the active management of the business. Among other transactions in the interest of the firm, Schurr gave to the Citizens’ State Bank of Arlington a note for $647, signed by himself only and having the appearance of being his individual liability. To secure the payment of this note he placed with the bank, as collateral security, a number of notes belonging to the firm, indorsing thereon the firm name. After the dissolution of the firm Fair demanded the notes held by the bank. It was claimed by him that the note to the bank for $647 was the individual obligation of Schurr, and that Schurr, without his knowledge and without authority, had turned over to the bank the notes by it held as collateral. The bank refused to deliver these notes to Fair and he commenced two actions in replevin to secure their possession, and one action in conversion. These three actions were consolidated and tried as one. The bank recovered a judgment against Fair for the value of the collateral notes or their return. Fair filed a supersedeas bond, retained possession of the notes given to the bank as collateral security, and carried the case to the court of appeals, where it was affirmed. (Fair v. Bank, 9 Kan. App. 779, 59 Pac. 43.)
Among the collateral notes which came into the possession of Fair by the replevin proceedings was one for $127.20, given by J. A. Kitzmiller and A; W. Martenej1- to D. J. Fair & Co., which, for convenience; we will hereafter refer to as the Kitzmiller note. Soon after the filing of the mandate of the court of appeals with the clerk of the district court, the bank caused an execution to issue on its judgment against Fair. Thereupon Fair, as a compliance with the alternative judgment of the bank against him, delivered the Kitzmiller note to the clerk of the . district court, from whom the bank received it. The execution was returned unexecuted. This note was due December 1, 1894, and no payments had been made thereon. The mandate was issued from the court of appeals December 23, 1899. This action was commenced by the bank against D. J. Fair on the 4th day of September, 1901, in the district court of Reno county, to recover the value of the Kitzmiller note and interest. There was due plaintiff on the original note a sum in excess' of the amount sued for. In its petition the bank averred substantially the facts above set forth, and charged liability of defendant thereon. Defendant-denied liability, pleaded.the statute of limitations as-a bar to a recovery, and alleged that the original note-had been paid. The trial court rendered judgment-for plaintiff for |184.30, and defendant brings error.
There was no error in overruling defendant’s demurrer to the petition or in refusing to sustain an objection to the introduction of evidence; nor did the court commit error in overruling defendant’s demurrer to plaintiff’s evidence. The judgment in the replevin action against defendant Pair was an alternative one ; it found the value of the collateral notes and directed a return of them or their value, providing also for the payment of any sums collected on them. It is disclosed by the record that collections were made by defendant on these notes and paid in to the clerk of the court; none, however, upon the Kitzmiller note. When defendant delivered the note to the clerk of the court, with the view of thereby complying with the judgment entered against him in the replevin action, the statute of limitations had run against it, and it was at that time barred against the makers and indorsers (Gen. Stat. 1903, §4446) ; no action could have been maintained by plaintiff against them or any of them, and the note was prima facie without-value. It was not claimed by defendant that at the time the note was delivered by him to the clerk of the-court it possessed value, nor was there testimony offered by defendant to show any value in the .note at that time. Testimony was offered by plaintiff tending to show that it was without value, and the trial court by its judgment found it to be without value.
The action against defendant having been brought not upon the note but to recover its value, he could not interpose as a defense to plaintiff’s right to a recovery that the note was then barred against him by the statute of limitations ; his direct liability on the note was not the subject of controversy in this action. Whether he was liable for the deterioration in value of the note caused by his retention of it was the question before the trial court, and is the question we are here called upon to determine. It is an established and well-recognized rule of law that where property has been taken in replevin, to comply with the alternative judgment for its return it must be returned in substantially the same condition as when taken, and without deterioration in value. (Washington Ice Co. v. Webster, 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799; George v. Hewlett, 70 Miss. 1, 12 South. 855, 35 Am. St. Rep. 626; McPherson v. Acme Lumber Co., 70 id. 649, 12 South. 857; Hazlett v. Witherspoon, 25 South. [Miss.] 150; Hinkson v. Morrison, 47 Iowa, 167; Yelton et al. v. Stinkard et al., 85 Ind. 190; 24 A. & E. Encycl. of L., 2d ed., 538.)
Defendant could not, by the return of a worthless note, made so by deterioration in value caused by his retention of it, claim a compliance with the judgment rendered against him in the replevin action and thereby escape liability. He retained the property at his own risk as to deterioration in value and not at the risk of plaintiff. He did not collect the note, and by retaining it prevented plaintiff from doing so. The statute contemplates that the property be returned in substantially the same condition, and of the same value'-, as when taken.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
T. B. Sweet, George M. Noble, and E. M. Shelden, who were defendants below and plaintiffs in error here, were president, vice-president, and treasurer, respectively, of the Trust Company of America, a corporation having its place of business in the city of Topeka. They were also large stockholders and had the active management, charge and control of its affairs, its business, among other things, being that of receiving money in trust, executing trusts, and performing such duties as might be committed to it by others.
In June, 1898, at the request of the trust company, through Shelden, its treasurer, the plaintiff below, defendant in error here, which is a corporation, with its place of business at Montpelier, Vt., sent to the trust company the note and mortgage of J. E. Weaver for $1545, owned by plaintiff, with instructions to collect and remit. Accompanying the mortgage, as requested, was a release of the same, to be surrendered with the mortgage upon payment. During the month the trust company collected the amount of the note, but it was never remitted to plaintiff, nor was it known by plaintiff until November following that the amount had been collected. In the meantime, about September 1, a receiver was appointed by the federal court, who took charge of the property and effects of the trust company.
In December, 1898, plaintiff filed in the federal court its petition of intervention asking that its claim be allowed as a trust fund, and decreed a first lien on the assets in the hands of the receiver. The petition was submitted to a special master, but no report made thereon. Subsequently this action was brought by plaintiff against defendants Sweet, Noble, and Shelden, to recover of them the said sum of $1545, charging that they had wrongfully converted the proceeds of the collection to the use of the trust company. Defendants denied liability, and pleaded that the pro ceeding of plaintiff by petition of intervention in the-federal court constituted-an election of remedies and a bar to this action. The verdict and judgment were-for plaintiff, and defendants have brought the case-here for review.
The right of plaintiff to follow the funds in the-hands of the receiver as a trust fund is a recognized-remedy (Bank v. Bank, 62 Kan. 788, 64 Pac. 634; Hubbard v. Irrigating Co., 53 id. 637, 36 Pac. 1053, 37 Pac. 625), but it was not the only remedy open to it. It is conceded that plaintiff had the right to select its remedy from among the remedies afforded, but it is claimed that, having elected to follow the funds in the hands of the receiver, it is held to its selection ; that such election constitutes-a bar to its maintaining this action against defendants. The doctrine of the .election of remedies has-been frequently applied by this court. The cases-hold that where the remedies afforded are inconsistent the election of one by a party, with full knowledge of the important facts affecting his right, operates as a bar to the adoption of another of such remedies. (Remington v. Hudson, 64 Kan. 43, 67 Pac. 636; Railway Co. v. Henrie, 63 id. 330, 65 Pac. 665; Bank v. Haskell County, 61 id. 785, 60 Pac. 1062; City of Larned v. Jordan, 55 id. 124, 39 Pac. 1030; Plow Co. v. Rodgers, 53 id. 743, 37 Pac. 111.) Election goes not to the form but to the essence of the remedy. It applies only where the law supplies to a party two or more modes of procedure, predicated upon inconsistent and conflicting theories. If the remedies afforded be predicated upon consistent theories, the suitor may use one or all of them ; there can be but one satisfaction. Where the remedies afforded are inconsistent, the election of one operates as a bar. Where the ■"remedies afforded are consistent, the satisfaction of •the'Claim operates as a bar.
Is ¡there inconsistency in following the trust property -so far as it can be traced and in recovering of the ¡trustee damage which the beneficiary has sustained Iby reason of the misappropriation? In Heidelbach v. National Park Bank, 87 Hun, 117, 33 N. Y. Supp. 794, a large quantity of tin was shipped on the condition that the title to the same should be held in trust for ¡the owner until he had received the proceeds of its ■sale. ¡Sale was made by the trustee, who failed in ¡business before remitting to the owner. The owner •of the property presented his claim to the commis■sioners of the estate of the trustee, which was allowed ■and a dividend paid thereon. Soon after the claim, had been presented to the commissioners for allowance the owner of the property commenced an action to recover from the bank to which the remittance for the proceeds of the sale of the property had been made, and recovered-in the action to the extent of the amount ■of funds in the bank to the credit of the trustee at the time of his financial failure. The action against the 'bank was defended on the ground that the two proceedings to recover were inconsistent; that plaintiff, having elected to file his claim against the estate with ¡the commissioners, would not be permitted to maintain his action against the bank. The court, in passing upon the question, said :
“An election once made is determined forever, and it may be determined by any decisive act made with full knowledge of all the facts, and the bringing of an .action to enforce one of the .remedies sufficiently evi- . dences such election ; but if a person has two.or more ■consistent, instead of two or more inconsistent remedies, for the recovery of the same debt, he may resort to all, although he can have but one satisfaction.”
The same view of a trust fund was expressed in the .opinion in Stoller v. Coates, 88 Mo. 514. See, also, Gambling et al. v. Haight, 59 N. Y. 354, and Commercial Nat. Bank v. Kirkwood, 172 Ill. 563, 50 N. E. 219. In Bowen v. Mandeville, 95 N. Y. 237, the court said: “A party, however, may prosecute as many remedies as he legally has, provided they are consistent and concurrent.” (See, also, 7 Encyc. Pl. & Pr. 362.)
In Fowler v. Bowery Savings Bank, 113 N. Y. 450, 21 N. E. 172, 4 L. R. A. 145, 10 Am. St. Rep. 479, John White deposited money with the bank to the credit of his wife, Elizabeth White, but not as a special deposit. Both the husband and wife soon thereafter died. The executor of the estate of John White and the executor of the estate of Elizabeth White each made demand of the bank for the funds. The money was paid by the bank to the executor of John White. The executor of Elizabeth White brought an action and recovered judgment against the executor of John White. Being unable to satisy this judgment hesubseqently brought an action to recover the amount of the deposit from the bank. It was held that the relation of debtor and creditor existed between the bank and Elizabeth White at the time of her death; that after the bank had paid out the money to the executor of John White, the executor of Elizabeth White had two remedies—he could have sued the bank as a debtor for the amount of the deposit, or he could have brought an action for money had and received against the executor of John White and have recovered a judgment against either ; but that he was-not entitled to both remedies at the same time, or in succession. In the opinion it was said :
“If the money had been absolutely the money of the plaintiff, left on special deposit with the bank, then he could have pursued the money wherever he •could trace it without losing his remedy against the bank. In such a case the plaintiff would not be barred of bis right of recovery against the bank until he had ■either recovered his money, or the value of the same. All his remedies would be consistent, being based upon ■the theory of a wrongful disposition of his property. So, too, where a trustee, in breach of his trust, disposes of the trust property, the beneficiary of the trust may pursue it or its proceeds wherever he can trace them, so far as the law will permit him to do so, 'without relieving the trustee.” (Page 455.)
In Hervey v. Rawson, 164 Mass. 501, 41 N. E. 682, it was held :
“The plaintiff cannot, of course, have more than one satisfaction, but the general rule in cases of trust is, that when the trust property has been misappropriated or misapplied by investing itin an unauthorized .manner, the beneficiary may pursue and recover‘the trust property so.far as it can be traced, unless the purchaser or holder of it has obtained a good title against the beneficiary, and can also recover of the trustee any damages which the beneficiary has sustained by reason of the misappropriation or misapplication.”
As appears from the averments of plaintiff’s petition of intervention, and from the petition filed in this case, plaintiff has at all times disaffirmed the wrongful act of defendants in the conversion of its funds. In neither proceeding was there a recognition of title to the funds in the trust company, or a ratification of the wrongful act of defendants. The amount, if any, that may be recovered from the receiver will go to reduce the damage of defendants. There is nothing inconsistent in the two positions. There is nothing in the nature or the justice of the. case which should preclude plaintiff from pursuing this course, which is for the interest of the defendants. To hold that the pro •ceeding in the federal court ratified the act of the trust company or condoned the offense of defendants and would relieve them of liability would be carrying the •doctrine of implied ratification to an unreasonable and unjust extent.
The consistency of remedies is a matter to be determined by the facts in each case. No arbitrary rule •can be enunciated which will constitute a test for all ■cases. In the case at bar plaintiff, after filing its petition of intervention in the federal court, could have maintained an action against the trust company, the ■trustee in this case, to recover its damages for the misappropriation of the funds of plaintiff, the limitation being that there could be but one satisfaction of plaintiff’s claim. In the view we take of the ■case, if the conversion of the money was through the wrongful act of defendants, the same rule would apply to them. We find no inconsistency in plaintiff’s adopting the two remedies. There was, in the two remedies, no controversy as to the ownership of the trust property ; there was no waiver of plaintiff’s claim ■of ownership ; there was no ratification of the act of defendants ; there was no affirmance of an act or contract in the one proceeding and a disaffirmance of it in the other. The two proceedings are between different parties. There can be but one satisfaction of plaintiff’s claim.
Error is assigned in the court’s giving to the jury the •following instruction :
“If you believe from the evidence in this case that in June, 1898, the plaintiff was the owner of the Weaver note and mortgage ; that the Trust Company •of America, then doing business in the city of Topeka, requested plaintiff to forward said note and mortgage to it for collection, and the same was forwarded with instructions that when collected the money should be remitted to the plaintiff; that in pursuance to that request the plaintiff forwarded to the Trust Company of America the Weaver note and mortgage in June,. 1898, for collection ; that the Trust Company of America collected said note and mortgage, but failed and neglected to notify the plaintiff that the collection-had been made, and withheld from plaintiff information of said collection ; that plaintiff did not learn of' the facts of said collection until about November 22, 1898 ; that the Trust Company of America appropriated the money so collected to the use of said company without the knowledge or consent of the plaintiff;. that defendants had knowledge that the money so collected was a trust fund and of its misappropriation;. that the defendants, or either of them, participated in the misappropriation of the money, or knowingly permitted subordinates in the office to misappropriate the-money to the Trust Company of America, and acquiesced in such misappropriation, then I instruct you-that the defendants or such of them as participated in the misappropriation or knowingly acquiesced in the misappropriation of the money by subordinate-employees, would be liable in this action.”
The above instruction fairly states the law applica-ble to this case, where it is shown, as alleged, that defendants were the active executive officers of the-corporation and had personal charge and supervision of its business affairs, receiving and disbursing moneys that came into its possession. The personal- liability of defendants to plaintiff, as alleged, is not-statutory, but rests wholly on the common law. Upon the subject of the personal liability of the officers of a corporation for their wrongful acts to persons having-dealings with the corporation, see the following authorities : Anderson v. Daly, 38 Hun, App. Div. 505, 56 N. Y. Supp. 511; Hempfling v. Burr, 59 Mich. 294, 26 N. W. 496; Winchester v. Howard, 136 Cal. 432, 69 Pac. 77, 89 Am. St. Rep. 153; Gores v. Day, 99 Wis. 276, 74 N. W. 787; Wolfe v. Simmons, 75 Miss. 539, 23 South. 586; Fusz v. Spaunhorst, 67 Mo. 256; 3 Thomp. Corp. §§ 4138, 4140.
Complaint is made of the court’s giving to the jury the following instruction :
“If the defendants were, respectively, president, vice-president and treasurer of the Trust Company of America, a corporation, and the principal place of business of said company was in the city of Topeka, and the defendants had personal charge and supervision of the office and the business affairs of said company, directing and managing its affairs, receiving and disbursing moneys that came into its possession, then the defendants would be held to have knowledge of all the business affairs of the corporation which came under their personal observation and knowledge, of all the business affairs of the corporation which they might have known by the exercise of ordinary diligence in the conduct of the business affairs of the company.”
The corporation is primarily liable for the conversion or misappropriation of moneys by its employees ; the employees of the corporation are its agents within the line of their respective duties. The instruction complained of, as to liability, would probably be applicable where an action is brought direct against a corporation for a conversion or misappropriation of money by its employees. The usual remedy in such cases is an action against the corporation for the recovery of the money misappropriated. A proceeding against the managing officers of a corporation, as in the case at bar, is a somewhat unusual and extraordinary remedy. But where there were sent to a corporation a note and mortgage, with instructions to collect the same and remit, and the money was collected but not remitted, a recovery may be had' by the owner of the note and mortgage against the executive officers and managing agents having the active management, charge and control of its affairs for the conversion of the money by them for the use of the corporation; and a recovery may be had against them for such conversion of the money by subordinates with the knowledge and acquiescence of such .officers and managing agents.
That part of the instruction complained of which holds defendants personally liable for the conversion of funds by the subordinates, of which they had no actual knowledge, but by the exercise of ordinary diligence in the conduct of the business affairs of the corporation they might have known, does not meet our approval. The rule announced by the able trial judge in his charge to the jury, holding such officers liable for ordinary negligence, finds support in the following cases: United Society of Shakers v. Underwood, &c., 9 Bush. 609, 15 Am. Rep. 731; Marshall v. F. & M. Savings Bank of Alexandria and als., 85 Va. 676, 8 S. E. 586, 2 L. R. A. 534, 17 Am. St. Rep. 84; Solomon v. Bates, 118 N. C. 311, 24 S. E. 478, 54 Am. St. Rep. 725; Delano et al. v. Case, 121 Ill. 247, 12 N. E. 676, 2 Am. St. Rep. 81. The authorities following, which more nearly meet our approval, hold that such officers of a corporation are not personally liable to persons dealing with the corporation for mere acts of negligence : Bank v. Hill, 148 Mo. 380, 49 S. W. 1012, 71 Am. St. Rep. 615; The Frost Manuf. Co. v. Foster, Adm’r, 76 Iowa, 535, 41 N. W. 212; Chick v. Fuller, 114 Fed. 22, 51 C. C. A. 648; Deaderick v. Bank, 100 Tenn. 457, 45 S. W. 786; 3 Thomp. Corp. § 4137.
It is a well-known fact that much of the business of this day and age is transacted by corporations, many of them employing” numerous persons in the various departments of the work in which they are engaged. Large amounts of money and property are daily han died by the employees of such corporations. The instruction complained of casts upon the executive officers and managing agents of such corporations an unreasonable degree of liability. It would be a great hardship to hold them liable for acts of misappropriation of money or' property by subordinates of which they had no actual knowledge. The rule of personal liability of such officers for the misappropriation by subordinates adopted by the trial court is too far-reaching in its scope.
For the error in giving the instruction complained' of, which is the only material error disclosed by the record, the judgment will be reversed and a new trial ordered.
All the Justices concurring. | [
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Per Curiam:
In this case, as in Allen v. Burrow, ante, page 812, a hearing has been had upon the sole issue of fraud, which was here charged against all the members of the contest board, their decision being unanimous. The evidence produced had no tendency to establish fraud. The questions argued, while not precisely identical with those presented in the Allen case, are so similar as to be governed by the same considerations.
The writ is, therefore, denied. | [
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The opinion of the court was delivered by
Burch, J. :
A policy of insurance against loss by fire, lightning, tornado and wind-storm covered a dwelling-house, a double corn-crib with a stable addi tion, and hay and grain, all situated on the east half of the northwest quarter of section 22, township 2 south, range 4 west of the sixth principal meridian, in Republic county. A single premium was paid for the entire policy, but the insurance was distributed upon separate items of property as follows : House, $125 ; hay and grain, $80; double corn-crib, $95. The policy contained a provision that it should, become void “. . . if the above-mentioned premises . . . become vacant for thirty days.”
The corn-crib stood some 200 or 800 feet from the house. About the site of the buildings were a few fruit-trees and a small orchard, and all together they fixed the dwelling-place of occupants of the farm. There were no other buildings on the land. At the date of the policy the house was occupied as a dwelling by a tenant of the land. Subsequently the tenant moved away and the owner of the land farmed it from his own residence on an adjoining tract. During the period the double corn-crib was used for the purpose of housing unused farming implements, including a self-binder, two listers, a riding-plow and a stalk-cutter. More than thirty days after the removal of the tenant a wind-storm destroyed the double corn-crib. In an action upon the policy against the company issuing it, the assured recovered a judgment for the value of the double corn-crib, and the question now to be determined is, Were the premises vacant, within the meaning of the contract of insurance?
To sustain the judgment rendered, the doctrine of the divisibility of insurance contracts must be given an application so strained and so extreme that the agreement of the parties must be entirely ignored. The argument in brief is that the relations between the insurer and the assured were the same as if separate policies had been issued, one covering the house, another covering the crib, and the third the hay and grain ; that hay and grain could not become vacant at all; that human beings were not expected to occupy the double crib with its stable addition; which was properly usable for the storing of machinery, and that the vacancy of the house had no bearing whatever upon-any other subject of insurance.
In adopting the theory of the divisibility of insurance contracts which place separate valuations upon separate subjects of insurance (Insurance Co. v. York, 48 Kan. 488, 492, 29 Pac. 586, 588), this court quoted extensively from the opinion of Mr. Justice Folger in the case of Merrill v. Agricultural Ins. Co., 73 N. Y. 452, 29 Am. Rep. 184. A portion of that opinion bears directly upon the proposition under discussion, and is as follows :
“Where a separate valuation has been placed upon different subjects of insurance, as $800 on a dwelling-house and $200 on household furniture, the contract is severable and not indivisible. . . . Again, the principle in the case of a contract about several things, but with a single consideration in gross, is this : that we are not able to say that the party would have agreed for one, or for more than one, yet less than all of them, without he could at the same time acquire a right to have them all. But our daily experience and observation show that an insurance company, is as ready to insure buildings without insuring the contents, and the contents without insuring the buildings, as to insure them together ; so that that principle does not press so hard in considering such a contract as that before us.”
In the policy under consideration there is nothing whatever to indicate that the company would have insured the hay and grain at all except as it fell under the protection of a guardian of the premises, or that it would have entertained for a moment an application for the insurance of an isolated, unfrequented corn-crib and stable, the prey of the elements, devoted merely to the shelter of unused implements and machinery and subject to be made the rendezvous of tramps. To assume that it would have done so involves an absolute and perfectly arbitrary repudiation of the conspicuous purpose of the vacancy clause in the contract. Any ordinary individual in charge of premises would exercise a preservative superintendence over them—would take some steps to anchor a ruffed or toppling stack of hay before he would suffer it to scatter before the wind, and would secure loosened boards about the crib, close widening apertures, brace racked timbers, and otherwise fortify the rigidity of the structure against storms.
The courts have given expression to the fundamental conception of the vacancy clause in insurance policies just noted when expressed in different ways and applied to different states of facts.
“From the nature of the contract, whether it be divisible or not, we are constrained to infer that the existence of the condition 'had a potent influence in securing the assumption of the entire risk, for it is a matter of common knowledge that a farm with its dwelling and outbuildings constitutes a single establishment, generally remote from other habitations, and that the protection of the whole must, in a great measure, depend upon the occupants of the dwelling. Almost without exception, the outbuildings of a farm are clustered about a place of abode, and for that reason are deemed to be more secure than the occasional outlying barn or crib, which, because of its isolation, becomes the bane of its apprehensive owner. It seems to be impossible not to assume, in this case, that the proximity uf the outbuildings to the dwelling influenced the insurer to enter into its contract or contracts under the protection of .the condition here questioned. It is natural and reasonable that it should be held to have intended that the continuance of the insurance upon all the subjects thereof was to depend upon the occupation of the dwelling.” (Hartshorne v. Agricultural Ins. Co., 50 N. J. L. 427, 431, 14 Atl. 615, 618.)
“A dwelling-house and barn are unoccupied, within the meaning of an insurance policy which provides that buildings unoccupied shall not be covered by the policy, where the house is only used by the insured and his servants for the purpose of taking their meals there when engaged in carryihg on a contiguous farm, and the barn is only used for the purpose of storing hay and farming tools. . . . Occupancy as- applied to such buildings implies an actual use of the house as a dwelling-place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for mere storage.” (Ashworth v. Builders' Insurance Company, 112 Mass. 422, 424, 17 Am. Rep. 117.)
The principle is the same whether the danger be from fire or from wind.
“The condition cann'ot be disregarded when the contract is attempted to «be enforced. The parties contracted that the building should not be permitted to be vacant or unoccupied. We cannot vary or depart from their contract. It may be, but the point we do not determine, that if the condition required the performance of acts which in no way affected the hazard, or the non-performance of which could work defendant no prejudice, the courts would not regard it. But it cannot be justly claimed that the hazard of ‘high winds, cyclones or tornadoes’ was not increased by the vacancy of the building. The occupants of a dwelling, for their own safety and the .protection of the property they may have in it, will exercise care for the preservation of a building, by keeping closed and secured the windows and doors of the house during high winds, which would, to some •extent, secure to it increased stability and capacity of resistance to storms.” (Sexton v. Hawkeye Ins. Co., 69 Iowa, 99, 28 N. W. 462.)
In the same clause with the vacancy stipulation of' the policy under consideration occurs a provision forbidding that “the risk be increased . . . by any ■other means whatever.” .A like contract was interpreted in Moore v. Insurance Co., 64 N. H. 140, 6 Atl. 27, 10 Am. St. Rep. 384, as follows :
“The meaning of the words ‘vacant and unoccupied,’ as used in the contract of insurance, is that which the parties intended to give them ; and that intention is to be found from the whole instrument, the ■subject-matter of the contract, and the situation of the property insured. The object of the stipulation against vacancy and non-occupancy was to guard against the increased risk which arises from the absence of everybody whose duty or interest might afford some protection. In the same clause of the contract, ‘increase of risk ’ from the mode of occupation and use of the premises, and ‘increase of risk by any means whatever,’ are mentioned as express grounds for avoiding the policy. ‘If the buildings shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever,.’ is a statement in which the leading idea in the condition of forfeiture is ‘increase of risk,’ and that idea must have been intended as part of the definition of the words ‘vacant and unoccupied.’ It was the increase of risk from the loss of care and attention of persons otherwise present which the parties intended to guard against by the stipulation of forfeiture in case of vacancy and non-occupancy for more than ten days. They intended by the words ‘vacant and unoccupied,’ as used in the policy and in the connection in which they were used, such a desertion of the premises and removal from them as would materially increase the risk.”
From this it must be apparent that the risk intended to be mitigated by the vacancy clause of the contract-affected the double corn-crib with its stable addition as well as the dwelling-house itself. The case therefore presents many features analogous to those discussed in Dohlantry and others v. The Blue Mounds Fire and Lightning Ins. Co., 83 Wis. 181, 53 N. W. 448, the syllabus of which reads :
“The insurance was distributed between the house- and other buildings on the farm and their contents. Held, that as the. continued absence of any occupant of the house might reasonably be presumed to increase the risk of loss of the other buildings, the policy was-indivisible, and the company could not assert a forfeiture as to the house and its contents, and enforce it as a valid policy as to the other property, without-the consent of the assured.”
In the opinion of the court it was said :
“It requires no argument to show that in this case the continued absence of any occupant of the dwelling-house may reasonably be presumed to increase the risk of loss of the barns and granary, and the contents thereof, situated on the same farm, and presumably subject to the care and watchfulness of an occupant of the dwelling-house, which the contract-calls for.”
The subject of the divisibility of policies was given careful consideration by the supreme court of Wisconsin in the case of Loomis v. The Rockford Ins. Co., 77 Wis. 87, 45 N. W. 813, 8 L. R. A. 834, 20 Am. St. Rep. 96. In that case the rules relating to the subject formulated by the supreme court of Vermont in the case of McGowan v. Ins. Co., 54 Vt. 211, 41 Am. Rep. 843, were adopted. In doing so the Wisconsin court said :
“These rules are so reasonable and satisfactory that we feel justified in quoting somewhat at length from the opinion. The court says : ‘This is a question of great practical importance, as a large proportion of insurance contracts embrace more than one item of property insured. Tbe decisions are apparently conflicting, but, we think, are easily reconciled by referring to the plain principles which should govern them. The general rule, “void in part, void in toto,” should apply to all cases where the contract is affected by some all-pervading vice, such as fraud or some unlawful act condemned by public policy or the common law ; cases where the contract is entire and not divisible ; and all those cases where the matter that renders the policy void in part, and the result of its being so rendered void, affects the risk of the insurer upon the other items of the contract. Keeping these rules in mind, the leading cases upon this subject can all be reconciled. A recovery should be had in all those cases where the contract is divisible, the different properties insured for separate sums, and the risk upon the property, which is claimed to be valid, unaffected by the cause that renders the policy void in part.’ ”
In the case of Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa, 625, 88 N. W. 807, 57 L. R. A. 328, 93 Am. St. Rep. 261, decided in 1902, the supreme court of Iowa took a-position much advanced beyond its earlier decisions, and after a careful review of its previous utterances and of the opinions of many other courts, it states the following conclusion :
“We therefore hold on this question, as involved in the case before us, that entirety of premium does not necessarily prove that the contract is indivisible, and that where it appears from the terms of the policy that distinct items or classes of property were separately insured the policy may be valid as to one item or class, although it is invalid as to another item or class by reason of breach of conditions of the policy with reference thereto, provided it appears, also, that the risk which it was intended to exclude by the condition which is broken does not apply to the other items or classes of property. In this case a chattel mort •gage on the cows and horses could not in any way affect the nature of the risk as to the dwelling-house and contents, and, therefore, we find that a breach of a condition in the policy as to the one class of property did not invalidate the insurance as to the other.”
The decisions of Insurance Co. v. York, 48 Kan. 488, 29 Pac. 586; Insurance Co. v. Ward, 50 id. 346, 31 Pac. 1079, and Insurance Co. v. Saindon, 53 id. 623, 36 Pac. 983, are virtually to the same effect, except that, as no occasion, for so doing had presented itself, the qualification of the rule expressed in the Iowa, Wisconsin and Vermont cases was not noted; therefore, although a policy of insurance so written as to place separate valuations upon separate subjects of insurance will ordinarily be severable, it will not be so unless it can be said that the risk intended to be excluded by a violated condition of the policy did not affect the item of property for the destruction of which a recovery is sought. Although courts are diligent to prevent forfeitures, they may not entirely subvert the contracts of parties deliberately made, in an effort to do so.
The judgment of the trial court is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This litigation had its origin in a proceeding commenced by the county attorney of Atchison county, under the direction of the board of county commissioners, to sell certain real estate which had previously been bought by the county for the nonpayment of taxes, and had remained unredeemed for three and one-fourth years. The proceedings were had under chapter 392, Laws of 1901 (Gen. Stat. 1901, §§ 7718-7724). When the action was commenced, the lots in question stood on the records in the name of the Northern Kansas Investment Company, and it was made a party defendant. After the decree had been entered foreclosing the lien and the sale had been consummated, and while the proceedings stood on a motion to confirm the sale, Oscar Lips, who had not been made a party defendant, filed a motion asking that the sale be set aside on the sole ground that he was the owner of the lots and had not been made a party to the action. The court sustained this motion from which order the county prosecutes error.
It appeared on the hearing of the motion that, by a sale under execution against the Northern Kansas Investment Company, Oscar Lips became the purchaser of the lots, and on February 1, 1898, received a sheriff’s deed therefor, which was not recorded until September 18, 1902. Lips took his deed subject to such tax liens as were then upon the property, and is entitled to no equitable relief against those and subsequently accruing liens. The county foreclosed its liens for the unpaid taxes of 1893 to 1901, inclusive. The steps taken by the commissioners and the county attorney in instituting the proceedings were regular and fully authorized by statute.
The important question is, What was the legal effect of the decree and sale made thereunder on the right of Lips, in the absence of jurisdiction of him? Unpaid taxes on real estate are standing liens, and are matters of public record, of which all persons dealing with the real estate have notice; they also have knowledge that sooner or later, unless redeemed, the legal title will be divested and merged into the title of the holder of the tax liens by tax deeds, or into the title of some other person by proceedings like the present case. If, therefore, the holder of the legal title of- lands upon which the taxes are delinquent wishes to insure notice of such proceedings, he must do those things which the law requires of him—that is, make public profert of his title by placing the evidence of it on record. Section 1 of the act under which this proceeding was had requires the county to make only the owners, or supposed owners, defendants. Full protection was provided for Lips against a foreclosure proceeding in his absence, had he availed himself of the provisions of the law. The penalty for not so doing is provided in section 1223, General Statutes of 1901: “No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”
Lips chose to take his chances, and withheld his deed from record until after the foreclosure • proceeding by the county had gone to final decree and a sale of the land. The county, therefore, in foreclosing its tax lien, rightfully proceeded upon the assumption that no persons, except those whose titles were upon record, had any interest in the real estate. As between the county and Lips, his deed took effect only from the time he placed it on record ; it had no greater force than if he had purchased on the day it was recorded. Therefore, he was a purchaser pending the action, with notice of all the rights which the county claimed in its foreclosure proceeding. This case falls exactly within the principles annouced in the case of Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385.
The judgment of the court below is reversed, and the cause remanded with directions to set aside the order and deny the motion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gkeene, J. :
The plaintiff in error, which is an insurance company, appointed one E. E. Brown its agent, with power to solicit insurance, issue policies, and collect premiums. Brown gave a bond, with W. F. Sapp as surety, for the faithful performance of his duties. This action was brought on this bond to recover defaults made by him. The company prosecutes error to reverse a judgment in favor of defendants. • Plaintiff’s first contention is that the court erred in striking from the petition certain premiums collected by Brown for risks taken by him in Emporia and Wichita. These items were stricken out on the ground that Emporia and Wichita were outside the territory for which Brown was bonded. The contract of appointment is as follows: “The Fidelity and Casualty Company, of New York, . . . has appointed the said E. E. Brown as agent for the following territory : Southeastern Kansas, including Parsons and Galena, with headquarters at Galena, Kansas.’’ The language used in defining the territory is ambiguous and susceptible of more than one interpretation. The court could not, therefore, say, as a matter of law, that Emporia and Wichita were not within Brown’s territory. That is a question of fact which should have been submitted to the jury.
Plaintiff contends that it should have had judgment on the pleadings, or, rather, that defendant should not have been permitted to introduce any evidence tending to show that the items set out in the charges made against Brown were not true, for the reason that plaintiff’s petition was sworn to and the answer was not verified. We find attached to the petition, as an exhibit, this itemized account, to which is attached a form of an oath signed by Robert J. Hill, as secretary and treasurer of the' Fidelity and Casualty Company,, but to this there is no jurat. The original petition was subsequently amended twice, but in neither amendment do we find any reference to the exhibit. Upon this question we think no error was committed-For the reason assigned the judgment is reversed,, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Smith, J. :
It is contended that the lease is void for uncertainty, in that its duration extends “so long as gas or oil may be found in paying quantities.” This is a common expression found in such leases, and it is generally for the benefit of the lessee. Whether a gas- or oil-well is a source of profit can be determined readily by deducting the cost of production from the market value of the product.' We have not been referred to any adjudicated cases involving the validity of gas or oil contracts like the one at bar where leases containing such stipulations have been held void for uncertainty; on the other hand, the authorities on the subject sustain the validity of such contracts. (Thorn. Oil & Gas, §§ 134, 135; Harness v. Eastern Oil Co., 49 W. Va. 232, 38 S. E. 662; The Xenia Real Estate Company et al. v. Macy, 147 Ind. 568, 47 N. E. 147; McMillan v. Phila. Company, Appellant, 28 Atl. 220; Young v. Oil Co., 194 Pa. St. 243, 45 Atl. 121; Colgan v. Oil Co., 194 id. 234, 45 Atl. 119, 75 Am. St. 695.)
.Gas and oil leases are in a class by themselves; they are not strictly “leases,” as defined and treated in the law of landlord and tenant; they are in the nature of a written license, with a grant conveying the grantor’s interest in the gas- or oil-well, conditioned that gas or oil be found in paying quantities.
Plaintiff in error invokes the rule that where a lease is terminable at the option of one party it is equally so at the will of the other. It is sought to apply this rule here from the fact that in clause 5 of the lease it is provided:
“If wells are put in operation, and at any time in the future the party of the second part shall become satisfied that it is not paying, he shall surrender this lease, and remove all machinery, pipes and fixtures from the premises, and be released from all further obligations.”
The lease before us does not create what may be likened to an estate at will, and permit the lessee at his option to terminate the lease at any time. The lessee could not arbitrarily declare that a profitable gas- or oil-well was not paying, and thus satisfy the condition of the lease above set out respecting a surrender. (Balto. & Ohio Rld. Co. v. Brydon, &c., 65 Md. 198, 611, 3 Atl. 306, 9 Atl. 126, 57 Am. Rep. 318; Exhaust Ventilator Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 66 Wis. 218, 28 N. W. 343, 57 Am. Rep. 257; Ela and another v. Bankes, 37 id. 89; Andis v. Personett, 108 Ind. 202, 9 N. E. 101.)
The condition in this contract is different from that before the court in Campbell v. Holcomb, 67 Kan. 48, 72 Pac. 552. In that case the agreement was that an employee should receive as salary a stated sum per annum and twenty-five dollars a month additional if the value of business done by him should be satisfactory to his employer. It was held that the plaintiff must show satisfaction on the part of the employer before a recovery of the extra compensation could be had. Here it may be said that there are two conditions precedent which must concur to justify the lessee in surrendering the lease—one. that the well is not paying, and the other that the lessee shall become satisfied of that fact. In Campbell v. Holcomb, supra, if the contract had been that the employee was to receive $100 a month as salary provided the profits on the goods he sold should appear to the satisfaction of his employer to be $200 a month, the amount of profits could have been ascertained readily, and if they should have aggregated the sum mentioned the expressed dissatisfaction of the employer would not have availed to defeat an action for salary. So, if it should be stipulated in a contract for the sale and delivery of bridge timbers that the vendee was not obligated to pay the agreed price unless he should be satisfied that the timbers delivered were twenty feet long or over, the purchaser would certainly be liable for the price if timbers thirty feet in length were furnished to him, although he should protest, however solemnly, that the same were shorter than the length contracted for.
In matters of taste, as where an artist or sculptor agrees to furnish a picture or bust to the satisfaction of another, the latter is the sole judge whether the work done complies with the contract. (Zaleski v. Clark, 44 Conn. 218, 26 Am. Rep. 446; Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351.) In such cases there is but one test or condition of payment, which is that the vendee be satisfied. In this case it must be held that if it be demonstrated that a gas- or oil-well is paying, which, as before stated, can be ascertained readily, it is satisfactory, within the meaning of the contract, although the lessee assert to the contrary. (Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422.)
Again, it must be remembered that this action had for its purpose the cancelation of the entire lease and its removal as a cloud on the title of the owner of the fee. In our construction of clause 5, above quoted, the provision for the termination of the contract, when the lessee should become satisfied that a certain well was not paying, had application to that particular well only, and, in such event, the lease was not terminated except with respect to the unprofitable well, if there'were no breach of the other conditions in the contract. In Coffinberry v. Oil Co., 68 Ohio St. 488, 67 N. E. 1069, a decree was entered canceling an oil lease as to all undrilled land. It would be unreasonable to hold that if one of a dozen wells should prove unprofitable, and the lessee should so declare, such fact would avoid the entire lease.
If, as argued by counsel for plaintiff in error, the lessee could arbitrarily end the lease by asserting that he had become satisfied that a profitable well was losing money, such action would result in a benefit to their client, for in lieu of rent or royalty a valuable gas- or oil-well would revert to him in its entirety, freed from any claim of the lessee.
When this action was begun in the court below the time allowed the lessee to begin the drilling of oil-wells had not expired. With respect to the gas-wells the contract was executed. A gas-well was completed which produced gas in paying quantities. From this well the lessor was entitled under the contract to a sufficient supply of gas for his tenants’ domestic purposes, free of charge, and eighty dollars a year as rent for the same. When gas or oil is found, it is held that the right to produce it becomes a vested right, and the lessee will be protected in exercising it in accordance with the terms and conditions of his contract. (Colgan v. Oil Co., supra.)
It is contended that Martin forfeited the lease by abandonment of the gas-well. This was a question of fact for the court or jury. (Thorn. Oil & Gas, § 185.) The court below, after hearing the evidence, decided against the claim of abandonment, and its finding will not be disturbed.
There is no merit in the claim that defendant in error was estopped by its conduct from asserting its ownership of the lease assigned to it by Martin. Plaintiff in error took his deed to the land subject to the lease, which was recorded, and which ran to Martin and his assigns. There was testimony also that he had ample notice of the assignment by Martin to the brick company beyond the recitals in the recorded lease before he bought the land.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The appellant, William Rambo, was found guilty of murder in the second degree. On the hearing of the motion for a new trial the affidavit of L. G. Eike, one of the jurors, was filed by defendant in support of his application. The material part reads:
“When the jury retired to consult and deliberate upon their verdict, the fact that William Rambo, commonly known as ‘Toots’ Rambo, defendant, did not go upon the stand to testify in his own behalf was freely commented upon and discussed in the jury-room, and the jurors, while so deliberating, expressed their opinion that the fact that said Rambo did not testify in his own behalf was an indication and some proof that said Rambo was guilty. Several of us talked about this matter. I mentioned it first, and Mr. Hill mentioned (it) and so did Mr. Price. I think every juror said something about it.”
The juror was also sworn and testified orally in support of the motion as follows :
“Q,ues. Now, the fact that he did not go upon the stand and testify—that fact was mentioned, was it? Ans. Yes, sir.
‘‘Q,. How often do you think that fact was mentioned—that he did not go upon the stand ? A. I think that was only mentioned once.
“Q,. Do you remember the words used at that time ? A. No, I do not remember.
‘‘Q. Do you remember who mentioned the fact that he did not go on the stand and testify ? A. I think I did.
“Q,. What did you say ? A. I said if anybody put anything like that over my shoulders I would talk for myself.
‘‘Q. You meant—what did you mean by that ? A. I meant by that if anybody blamed anything on me that I was not guilty of, I would think my own talk would do me more good than anybody else’s.
“ Q. You meant your own testimony as a witness ? A. Yes, sir.
‘‘Q,. Do you remember anything else that you said at that time ? A. That is all I said.”
‘ ‘ Q,. When you went out Thursday night there were some members of the jury voted 'not guilty,’ were there not? A. Yes, sir.
"Q,. And there were members of the jury that voted ‘not guilty’ all day Friday? A. Yes, sir.
‘‘Q,. And there were members of the jury that voted ‘not guilty’ on Saturday morning? A. Yes, sir.”
“Q. You were voting for conviction at the timo you made that statement to the jury? A'. Yes, sir.
“Q,. And up to that time some had been voting for acquittal? A. Yes, sir.”
This juror and eleven others who sat in the case testified that the defendant’s failure to take the stand as a witness in his own behalf was not considered by them, and did not influence them in arriving at a verdict. Section 215 of the code of criminal procedure (Gen. Stat. 1901, § 5657) provides :
“ No person shall be rendered incompetent to testify in criminal causes by reason of his being the person . on trial or examination; . . . provided, that the neglect or refusal of the person on trial to testify shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.”
This section of the statute is peremptory in its declaration that the refusal of a‘defendant on trial charged with crime to testify shall not be considered by the jury. We may give credence to the statements of the jurors, other than Eike, who testified that they did not give consideration to the failure of Rambo to be a witness in his own behalf. The assertions of Eike, however, to that effect must be taken in connection with his confessed misconduct in the jury-room, and his words spoken there must serve as a true index to the operations of his mind. A stultifying denial that he did not consider the refusal of appellant to testify will not overcome the force of the application which he made of Rambo’s failure to take the witness-stand to a supposed case of his own when he said he meant “if anybody blamed anything on me that I was not guilty of, I would think my own talk [meaning testimony] would do me more good than anybody else’s.” This and the accompanying statements of the juror, set out above, must convince the meanest understanding that he did consider the refusal of defendant to testify as a circumstance weighing against him while the question of his guilt or innocence was under deliberation in the jury-room. From the language employed by the juror prejudice to the defendant is evident.
Obvious language, expressive of opinion, indicating thought on a matter respecting which the words are used, is the best evidence that the person speaking has, to a greater or less degree, considered the subject to which the language relates. “Out of the abundance of the heart the mouth speaketh.” A mere incidental mention, however, of the fact by a juror that a person on trial did not testify in his own behalf—a remark noting the circumstance, unaccompanied by an opinion that an explanation would be of service to the accused—might fall short of showing a consideration of the matter by the speaker, and not violate the statutory injunction. (The State v. Mosley, 31 Kan. 355, 2. Pac. 782; The State v. Goff, 62 id. 104, 61 Pac. 683.)
The court instructed the jury that defendant’s failure to teftify was not to be construed by them as in any manner affecting his guilt or innocence. This ■admonition was not heeded. The juror himself not only considered the neglect of defendant to testify, but his opinion deduced from that fact was expressed in the hearing of others, with an evident intent to have his fellow jurors consider what he said.
In Texas a section of the statute reads :
“Any defendant in a criminal action shall be permitted to testify in his own*behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented upon by counsel in the cause." (Code Crim. Proc., art. 770.)
In Tate v. The State, 38 Tex. Crim. Rep. 261, 265, 42 S. W. 595, a conviction for murder was reversed on the strength of an affidavit made by one of the jurors that the failure of the accused to testify was considered in the jury-room; that one of his fellow jurors asked why defendant was not put on the stand. He answered that, if he had testified, when cross-examined ’ by the district attorney he would have been bound to convict himself by his own testimony. The court said :
“As stated above, the statute is plain in its terms, and it does not stop to* estimate the question of injury ; it inhibits the failure of the defendant to testify from being used as a circumstance against him; and this court has often reversed cases where this matter was discussed by counsel for the state before the jury."
To the same effect, see Wilson, alias Garner, v. The State, 39 Tex. Crim. Rep. 365, 46 S. W. 251; Thorpe v. The State, 40 id. 346, 50 S. W. 383; Buessing v. The State, 43 id. 85, 63 S. W. 318.
That part of section 215, supra, which prohibits any attorney prosecuting in a criminal case from referring to the circumstance that the person on trial did not testify, has been considered and passed on several' times by this court. (The State v. Mosley, supra; The State v. Tennison, 42 Kan. 330, 22 Pac. 429.)
The State v. Balch, 31 Kan. 465, 469, 2 Pac. 609, was a prosecution for criminal libel. The accused did not testify. The county attorney, in his opening argument to the jury, stated that “the defendant Batch had not offered any testimony denying that he signed and circulated the libel; that he had failed to go on the witness-stand . . . and deny that he had not signed or circulated that libel.” The court, in reversing the judgment of conviction, said :
‘.‘It must be remembered that this statement of the county attorney was not provoked or called forth by anything said by the defendant or his counsel; nor was it said incidentally in some argument addressed to the court; but it was said in an argument addressed to the jury, and in an argument upon the merits of the case, and for the purpose of influencing the jury and obtaining from them a verdict that the defendant was guilty of the offense charged. In all probability, this statement was made innocently and inadvertently by the county attorney, as he had been acting in that capacity only a very short time, and this was among the first cases prosecuted by him. But still, the rights of the defendant cannot be ignored or overlooked for that reason ; nor can the principle be tolerated that convictions for violated law maybe procured or brought about by the inauguration and accomplishment of other violations of law. It is also true that in this case the bourt below instructed the jury thajfc the statement made by the county attorney should not be allowed to work any prejudice to the rights or interests of the defendant. But, under the authorities, the evil done by such an infringement of the law—an infringement of law by the prosecuting officer of the state—cannot be remedied or cured by any mere instruction from the court. The only complete remedy, if the defendant is convicted, is to grant him a new trial, on his motion.” (See, also, State v. Baldoser, 88 Iowa, 55, 55 N. W. 97.)
The testimony of the juror Eike on the motion for a new trial was a narrative by him of extraneous facts not in evidence and not proper to be considered. The court did not err in receiving it. (Gottlieb Bros. v. Jasper & Co., 27 Kan. 770; A. T. & S. F. Rld. Co. v. Bayes, 42 id. 609, 22 Pac. 741; The State v. Burton, 65 id. 704, 70 Pac. 640.)
Other questions in the case are discussed by counsel, but the references in' the briefs to the record do not correspond with the pages of the bill of exceptions before us, and for this reason we have not considered them.
The judgment of the court below will be reversed, and a new' trial granted.
All the Ju'stices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The appellant was charged with robbery and convicted of an attempt to rob. The property alleged to have been taken was money. The crime was committed at night. On the preceding: afternoon and evening the appellant was observed to-be gambling, and, upon quitting play, he declared he was “broke.’’ The next day he had money. These-facts were proved, and the claim is made that it was-error to establish the crime of gambling against him.
The appellant was transient in the locality, and his- depleted financial condition furnished a motive for the, crime. The circumstances narrated were strongly indicative of guilt, and could not be excluded merely because they tended to prove another independent crime. (The State v. Folwell, 14 Kan. 105; The State v. Adams, 20 id. 311, 319; The State v. Stevens, 56 id. 720, 722, 44 Pac. 992.) The testimony was competent, not to prove another offense, but as circumstances to show the prisoner’s guilt. (Lewis v. The State, 4 Kan. 296, 309.) The authorities upon this subject are classified and reviewed in an elaborate note found at page 193 of volume 62 of Lawyers’ Reports Annotated. (62 L. R. A. 193.)
The information alleged that the assault was made with a pistol. When arrested on the day following the crime the defendant had a pistol. The weapon was taken by the officer, who produced it at the trial.. It corresponded, as far as the verbal description in the record extends, with the pistol held by the appellant while conducting the felonious enterprise, and, hence, was properly admitted in evidence. Besides this, the record shows that the pistol had been passed into the hands of the jury, without objection, before it was finally offered in evidence. Therefore, the offer was in fact a formal matter, and the appellant cannot complain of it.
The information charged the robbery of one W. EOronkrite, who was not a witness at the trial. On the afternoon preceding the offense Oronkrite had drawn from the bank some thirty dollars, which he placed in a tobacco pouch, covered it with tobacco-, and then put it into his pocket. This pouch was taken from Cronkrite’s pocket while he stood covered by appellant’s revolver. The appellant moved for a discharge upon the state’s evidence because it failed to show that the property described in the information was taken, and the same defect in the evidence is urged upon this appeal. The court denied the motion, and, after instructing upon the crime for robbery, submitted to the jury the law relating to an attempt to rob. The appellant assails this instruction on the ground that a complete offense of robbery was proved, if any crime were proved. The two positions are inconsistent, but the fact that a fair argument may be made for each one shows the wisdom of the trial court's action.
There was no direct evidence that Cronkrite's money was taken, but it would not be unreasonable to infer that it was. Probably it remained in the pouch where he placed it, but he appeared to be anxious for its security, and may have changed its place of concealment, or left it with some one for safekeeping. The question of fact was preeminently one for the jury.
The crime of robbery is divided by the statute into three degrees. Section 121 of the code of criminal procedure (Gen. Stat. 1901, § 5563) provides :
“Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense."
True, there may be a separate substantive offense of an attempt to rob, but in the case of The State v. Decker, 36 Kan. 717, 721, 14 Pac. 283, 286, it was said :
“Even where an indictment or information charges the full commission of an offense, without the slighest intimation that there was any failure on the part of the defendant in the perpetration thereof, or any prevention or interception in executing the same, still he ■may be convicted under § 121 of the criminal code of attempting to commit the offense."
In the case of The State v. Frazier, 53 Kan. 87, 90, 36 Pac. 58, 59, 42 Am. St. Rep. 274, the same doctrine was declared. Whenever the evidence warrants, it is the duty of the court to instruct upon inferior degrees of the crime charged; so, if the evidence warrant, the law of an attempt to commit the crime ■charged should be given.
The appellant’s challenge of the evidence directed the court’s attention specially to the possible failure to prove a completed crime. Therefore, the instruction was necessary if the court were to obey the mandate of the statute and state to the jury all matters ■of law necessary for their information in giving their verdict. That the jury gave the appellant the benefit ■of the doubt and found him guilty of an attempt only, was greatly to his advantage and not at all to his detriment.
The record .is free from error and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
On January 24, 1901, George Schaefer commenced his action in the district court of Russell county against Robert P. Mills and Oral S. Black to recover the balance of $1015.03 claimed to be due him on a written contract for the sale of a stock of merchandise at the town of Gorham, in said county. The defense was that the written contract sued on, through mutual mistake—an error of the party writing it—failed to state the real agreement between the parties ; that plaintiff had settled and liad received in full the amount due him on the contract. Defendants asked that the contract sued on be reformed, and that they recover their costs. The district court found in favor of defendants, and also decreed a reformation of the written contract to conform to the agreement between the parties as proved. Plaintiff brings error to this court.
It is contended on the part of plaintiff in error that the findings and judgment of the court were not supported by sufficient evidence, and that the court was not warranted in reforming the contract. The controversy arose out of the sale of a stock of merchandise formerly owned by Schaefer, Mills & Weidle. In November, 1900, J. W. Householder, a brother-in-law of plaintiff, purchased the undivided one-third interest of John Weidle in this stock of merchandise. On account of some misunderstanding Householder did not assume partnership relations with George Schaefer and Robert P. Mills, each of whom was the owner of an undivided one-third interest in the stock. On or about December 6, 1900, defendants Robert P. Mills and Oral S. Black purchased the interest of Schaefer and Householder. There was at the time a written' agreement entered into between the parties, which was the contract sued on by plaintiff. Defendants claimed that the written contract should have provided for the deduction of the liabilities from the amount of the stock- and book-accounts. Plaintiff denied this claim of defendants. The contract is silent as to the deduction of the liabilities. This gave rise to the controversy between plaintiff and defendants.
In the settlement made the stock was invoiced at cost, less freight. To this were added the book-accounts at their face value, less such notes and accounts as it was mutually agreed should not be included, and from this amount, as the assets of the firm, were deducted the firm’s liabilities. The difference was divided by three, to ascertain the interest of each of the three owners, Schaefer, Mills, and Householder, in the proceeds of the sale, which, thus determined, was found to be .$1802. Plaintiff in error Schaefer, on December 22, accepted this sum as his portion of the proceeds of the sale. He claimed, however, that he at the time did not know that the firm liabilities had been deducted. If the firm liabilities were not to be deducted, and defendants, under the contract, were to take the book-accounts and assume the liabilities, as claimed’ by plaintiff, then he should have recovered.
Upon the question whether the liabilities were to be deducted from the assets, or defendants were to take the book-accounts and assume the liabilities, much testimony was offered. The evidence was conflicting. The findings of the trial court are conclusive here. It is, however, contended by plaintiff that the parol testimony of defendants was insufficient to warrant the trial court in reforming the written contract, under the authority of the case of Bodwell v. Heaton, 40 Kan. 36, 18 Pac. 901, where the court in the opinion said:
“We understand the'rule to be in actions to reform written instruments on the ground of mutual mistake that the evidence must be clear and convincing when, as in this case, it is parol. It is not enough that it shows a probability of mistake, but there must be a moral certainty of it; in other words, it must be established beyond a reasonable doubt.”
We have carefully examined the record in this case anil find the evidence abundantly sufficient to warrant the court in reforming the contract, under the rule recognized in the case cited.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a collateral attack on the appointment and action of receivers. To recover from them and those at whose-instance they were appointed and acted it must appear that they collected the rent money without authority and that their action to that extent was absolutely void. The history of the case and the facts upon which the trial court based its judgment are included in the foregoing statement, and they are so elaborately and clearly stated as to render a restatement and discussion of them unnecessary. Although some complaint is made, it may fairly be said that the testimony in the record substantially supports all the material findings. They disclose that in the action in which the receiver was appointed nothing was involved but the title of lot No. 165, on Kansas avenue, in the city of Topeka. The title of Branner,who was Hazen’s grantor, to one-half of the lot was not disputed, and the only controversy was whether Josie Webb and Millie Nichols owned the remaining one-half, and that part they ultimately recovered. In that case the decision in the trial court had been given in their favor, and they had acquired possession of their shares in the lot when the receiver was appointed.
The trial court undertook to vest the receiver with the custody of other valuable property which was in no way involved in the action wherein the appointment was made. Just why the receiver was given possession of Branner’s half of lot No. 165, when his right to it was conceded, is not easily understood; but when the court undertook to reach out and take custody and control of property which was not the subject-matter of the controversy, it went outside its appointed sphere and its orders in respect to such property were nullities. The court had no more authority over that property than it would have had over the square on which the state-house stands. The fact that the other real estate, which may be termed the outside property, was or had been in litigation between the same parties did not enlarge the court’s jurisdiction in the case in which the receiver was appointed. The outside property was entirely distinct from that involved in the action wherein the receiver was appointed, and the orders of the court relating to the former were in excess of its jurisdiction, and to that extent, at least, absolutely void.
This question was directly adjudicated, first in the court of appeals, and later when the decision of that tribunal was affirmed in this court. (Branner v. Webb, 10 Kan. App. 217, 63 Pac. 274; Webb v. Branner, 65 Kan. 856, 68 Pac. 1133.) Since that determination thei’e has been no excuse for contention about the invalidity of the receivership so far as the outside property was concerned. The orders appointing and directing the receivers were incurably void, and afforded no protection to the receivers or those at whose instigation they were acting.
Some of the money wx'ongfully taken from Branner through the medium of the receivership was returned to him by order of court, and becaxxse of this it is contended that Branner and his grantee cannot raise the question of invalidity, and that Hazen is precluded from recovering in this action. The money returned to Branner was his own, and at no time did he or Hazen acknowledge the authority of the receiver or acquiesce in his action. They protested persistently, and at every stage of the proceedings, that there was no jurisdiction to appoint the receiver's, and that their acts were utterly void. As the orders were nullities, they may be attacked collaterally as well as directly, at any time, by anybody, and in any proceeding where their validity is in issue. (In re Dill, Petitioner, 32 Kan. 668, 691, 5 Pac. 39, 49 Am. Rep. 505; Gille v. Emmons, 58 id. 118, 48 Pac. 569, 62 Am. St. Rep. 609; Whitmore v. Stewart, 61 id. 254, 59 Pac. 261; Johnson v. Powers, 21 Neb. 292, 32 N. W. 62; State v. District Court, 21 Mont. 155, 53 Pac. 272, 69 Am. St. Rep. 645; The People v. Weigley, 155 Ill. 491, 40 N. E. 300; Smith v. Los Angeles etc. R’y Co., 98 Cal. 210, 33 Pac. 53; Staples v. May, 87 id. 178, 25 Pac. 346; Kreling v. Kreling, 118 id. 421, 50 Pac. 549; Port Huron & Gratiot R. W. Co. v. Judge of St. Clair Circuit, 31 Mich. 456; People v. Jones, 33 id. 303; Spoors v. Coen, 44 Ohio St. 497, 9 N. E. 132; Thurber v. Miller et al., 11 S. Dak. 124, 75 N. W. 900; Vila v. Grand Island Electric Light I. & C. Storage Co., 94 N. W. [Neb.] 136, 63 L. R. A. 791; Van Fleet’s Collateral Attack, § 16; 17 Encyc. Pl. & Pr. 752.)
The orders- did not give the receivers even color of authority as to the property not in litigation, and they were therefore trespassers, and were liable for all the moneys unlawfully collected. The plaintiffs in that action, who procured their appointment and aided and cooperated with them, in wrongfully taking and appropriating the rents from the outside property, were equally liable as trespassers for the wrong done.
It is contended that they should have been credited with the money disbursed, especially as much of it was used for the benefit of the owners. Trespassers are not in.a position to make such a claim. Those who wrongfully seize and hold the property of another cannot excuse themselves by showing that if was subsequently used for some good purpose, or that the use made of it was, to some extent, beneficial to the wronged party. Such trespassers cannot compulsorily constitute themselves disbursing agents of. the one whose funds or property they have wrongfully seized ; nor can they make themselves his creditors by paying his debts without his request or consent. It cannot be said that the measure and extent of recovery adjudged by the trial court was erroneous. As tending to sustain the ruling the following cases are cited : Shaw v. Rowland, 32 Kan. 154, 4 Pac. 146; Hagar v. Haas, 66 id. 333, 71 Pac. 822; Otis v. Jones, 21 Wend. 394; Higgins v. Whitney, 24 id. 379; Kerr v. Mount, 28 N. Y. 659; Wehle v. Butler et al., 61 id. 245; Roff v. Duane, 27 Cal. 565; Olsen v. Upsahl, 69 Ill. 273; Garrigan v. Knight, 47 Iowa, 525; Hall v. Ray, 40 Vt. 576, 94 Am. Dec. 440.
In his cross-petition in error Hazen complains of the rulings which denied to him the recovery of $1375.63, being the rents collected from lot No. 165. This was done upon the theory that the order appointing receivers as to that property, although erroneous, was not void. The ruling must be sustained. While the application to take possession of Branner’s half of the lot to which the opposing parties made no claim was without merit, it cannot be said that the court was wholly'without jurisdiction in making the appointment. There was' joint ownership of the lot in litigation. The possession given under the agreement was conditional upon the decision to be made in the case by the reviewing court. Aside from the- question of paying taxes, repairs might be necessary, and the parties in interest might not be able to agree with ■ respect to the necessity and extent of such repairs. Circumstances can be imagined which afford reason for a receiver in a case of joint ownership of property, the title of which was in litigation, and, hence it cannot be said that the court was without jurisdiction, nor that the orders were absolutely void. As to this lot Hazen can only recover upon the theory of a lack of power in the court to appoint a receiver, and as that cannot be held, the trial court rightly refused him the rents.
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
Mason, J.:
In December, 1893, Silas Porter recovered a judgment confirming an attachment lien on certain real estate belonging to the Kansas City Safe Deposit and Savings Bank. In March, 1894, A. E. Watson obtained a judgment giving him a lien on the same property, subject to the Porter lien. Watson caused the property to be sold on his judgment, subject to the prior lien, and on November 10, 1894, the sale was confirmed and a deed ordered. A sheriff’s deed was issued to Watson on these proceedings November 28, 1894. On April 25, 1092, an order of issued on the Porter judgment, and on June 2, 1902, the property was sold to the judgment plaintiff. On the same day the sale was confirmed, the order of confirmation, directing the issuance of a deed, and a deed was issued to Porter, which was recorded on the next day. On June 5, 1902, Watson filed a motion asking that the order of confirmation be modified so as to provide for the present issuance of a certificate of sale only, so that opportunity might be given for redemption within the statutory period, before the execution of a sheriff’s deed. On June 7, 1902, at the same term of court, the motion was granted and the order of confirmation changed accordingly, allowing eighteen months for redemption. Porter brings this proceeding to review the order granting such motion, and contends that the final order made was erroneous for three reasons: (1) That Watson, by having obtained an order for a deed to the property without opportunity being offered for redemption, was estopped to challenge Porter’s right to adopt the same procedure ; (2) that the sheriff’s deed to Porter having been executed before the motion of Watson was filed, and Watson not being a party to the litigation, his only remedy was by a suit in equity to vacate the deed and to enforce his right of redemption; (3) that if Watson had a right to redeem at all, it was only as a judgment creditor and not as owner, and his right should have been limited to fifteen months.
We cannot agree to any of these contentions. Watson was not estopped by the proceedings in his own case to object to the order in the Porter case. The order in his case, directing a sheriff’s deed to issue at once, and making no provision for the exercise of any right of redemption, was, of course, erroneous, and should have been, and doubtless would have been, corrected upon timely application by any party in interest. It may be said that during the period of eighteen months after the sale he was asserting a right to which he was not entitled. But after that period expired without any effort having been made to redeem, his attitude was the same as though the order had been made within the statutory period ; at least, it does not .appear that Porter was injuriously affected by his conduct.
The order directing a deed to be issued to Porter was clearly erroneous, and the attention of the court having been directed to it by a motion filed by one having a substantial interest in the matter, the adverse party having notice of the motion, and no rights of third persons having intervened, it was competent for the court, before the expiration of the term, to correct the error and revise the order accordingly. The deed depended for its validity wholly upon the order of confirmation, and a change in that, when properly made, necessarily affected the sufficiency of the deed. A different question would be presented if rights were asserted by one claiming as an innocent purchaser prior to the entering of the motion to amend the order.
The rights of the original owner of the property had passed absolutely to Watson by his sheriff’s deed prior to the sale to Porter, and he was entitled to redeem as owner and not merely as a judgment creditor. Whether or not he might claim the rights given to the “defendant owner” by sections 4928 and 4929 of the General Statutes of 1901, he is within the protection of section 4945, whch extends the same privileges to “the holder of the legal title at the time of issuance of execution or order of sale.”
The order of the district court is affirmed.
All the Justices concurring.
Smith, J., not sitting, having been of counsel in related litigation. | [
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Per Curiam:
The plaintiff in error struck the defendant in error on the head with a piece of iron pipe, inflicting injuries for which the latter recovered damages in the sum of $2070.80. Many exceptions were taken to rulings on the admission of testimony, but upon examining them in detail we find no material error; nor do they justify extended comment. The charge of the court was full and. fair, and there was no error in the instructions given, nor in the refusal of instructions requested. The evidence was sufficient to support the verdict, and it cannot be said that the damages awarded were so excessive as to indicate passion and prejudice.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J. :
This is an original action brought in the name of the state to oust the Excelsior Coke and Gas Company from the exercise of a right, which it claims has been granted it by a city ordinance, to lay and maintain its gas-pipes in the streets of Topeka. The only question necessary to be considered is the validity of such ordinance. By a former ordinance, the validity of which is not challenged, passed June 7, 1869, a franchise was granted to the company for twenty-one years from that date. In 1881, in a revision of the statute relating to cities of the first class, it was enacted that “no franchise, rights of way, or privileges of any character whatever, shall be granted by the mayor or council for a longer period than twenty years.” (Gen. Stat. 1901, § 727, subd. 23.) On July 16, 1889, Topeka then being a city of the first class, the mayor and council passed the ordinance now in question, granting the gas company the further right to the use of its streets for twenty years from June 7, 1890, the day following the expiration of the old franchise. • The ordinance by its own terms, however, did not take effect until the last-named date.
The principal contention of the plaintiff is that the ordinance was void because it was, in effect, a granting of a privilege for a longer period- than twenty years. It is argued that unless this position is well taken the statutory restriction can be completely nullified by the passage of two ordinances, one grant ing a privilege for the maximum statutory term and the other granting the same privilege to the same company for an additional time commencing at the end of such period. The fallacy of this argument lies in the assumption that an ordinance has some force and effect before the time set for it to go into operation. The answer is that until that time arrives it has no effect’ for any purpose. It imposes no obligation on the city and cannot be made the basis of a present contract. At any time before it takes effect the city may repeal it, notwithstanding that its terms may have been accepted and expenditures may have been made in reliance upon it. This was expressly held in Gormley v. Day, 114 Ill. 185, 190, 28 N. E. 693. That case arose under a provision that the ordinances of a village should take effect ten days after copies should have been posted in three public places. An ordinance was passed under which the plaintiff claimed to have acquired special rights, but before it took effect it wTas repealed. Of his claim that such repeal was ineffective as to him the court said :
“For the purposes of the argument it may be conceded if the ordinance had gone into effect before its repeal he would have acquired special rights under it; but as it did not, his rights remained precisely the same as if the vote of the council adopting it had never occurred. Before the so-called ordinance could have any legal effect as such, two things, in addition to the affirmative vote adopting it, were necessary : First, printed or written copies of the ordinance had to be posted within thirty days after its' passage in three of the most public places in the village ; and second, the lapse of ten days after such posting. From its passage until the full period of ten days after posting had expired,'it existed, so to speak, as an ordinance in embryo, merely. Until the final condition essential to give it effect as a law was performed, no rights, inchoate or otherwise, could arise under it, either to the relator or to any óther person. The right of the village council to rescind or repeal the resolution adopting the ordinance, at any time before it took effect, is too clear to admit of discussion or doubt. The council have exercised this right, and we have no disposition to interpose, even if we hdd the power to do so, which we clearly have not.”
It is true that the ordinance now under consideration provided that the gas company, in order to gain any rights under it, should file an acceptance within ten days- after its approval by the mayor, and that from the filing of such acceptance it should operate as a contract between the city and the company. These provisions were limited, however, by the express restriction as to the time the ordinance should take effect. It was not, in legal contemplation, an ordinance taking effect at once and authorizing a contract to be made immediately covering a period of twenty years commencing at a future date, although its 'draftsman may have so regarded it. If it had been, it doubtless would have been subject to the objections urged by plaintiff. (City of Somerset v. Smith, 49 S.W. [Ky.] 456, and Chillicothe v. Logan Nat’l Gas and Fuel Co., 8 Ohio N. P. 88.) Until the time fixed for the taking effect of the ordinance was reached, the company gained no contract right, and the city had full power to repeal it. But when that time arrived without the ordinance’s having been repealed and without the acceptance’s having been withdrawn, the situation was the same as though it had been passed, approved, published and accepted all on the same day, the 7th of June, 1890.
Another objection made to the ordinance is that it is against -public policy to allow one council to forestall the action of future councils by granting a fran chise to commence at a time beyond its own life. It is urged that such a policy would result in tying the hands of a council that might be elected with special reference to the regranting of a franchise about to expire. This objection is met by what already has been said as to the right of the council to repeal the ordinance at any time before its becoming effective.
The prayer of the petition is denied and judgment is rendered for defendant for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
On the night of December 27,1900, W. E. Johnson, an employee of the Missouri Pacific Railway Company, was killed in the switch-yards at Ccffeyville, Kan., while in the discharge of his duties as engineer of a switch-engine. He left a widow and one child, and the widow brought this action to recover damages, charging that his death was the result of negligence of the railway company. She had verdict and judgment for the sum of $7000, and the company brings error.
In the city of Coffeyville are two switch-yards, one known as the Missouri Pacific yards, the other as' the Iron Mountain yards, both operated by the plaintiff in error. They are connected at the west end by a Y, and the portion of this Y which leads from the main track southeast into the Iron Mountain yards forms a very perceptible grade, dipping to the westward. Johnson was killed at about the hour of 10 : 30 p. m. The night was dark, cold, and windy, and he was a new man in the yards, having operated the switch-engine there the two.preceding nights only. The local freight from Osawatomie had just pulled into the yards.' By direction of the foreman of the switching crew, the switch-engine operated by Johnson moved forward and was coupled to the rear end of the caboose of this train, consisting of twenty-seven cars. This string of cars which had formed the local freight was then backed westward over the main line until it passed the switch opening onto the Y leading to the Iron Mountain yards. The switch having been lined, a signal was given to Johnson to move forward, it being given in a manner to indicate that cars would be cut off. Johnson moved the engine forward, pushing- the string of cars onto the Y and up the grade. As this was being done the east -twelve cars were cut off, and the signal was given to Johnson to stop and back with the remaining fifteen cars attached to the engine. It was left to McElrath, a member of the switching crew, to follow up and stop the .cut of twelve cars and prevent their rolling back down the grade. When the signal was given Johnson did not immediately stop the engine and attached cars; and did not back. He said to his fireman, Zubar : “I smell waste burning; I believe the right back-driver box is on fire.” He lighted a torch and got down from the engine with it in his hand. After walking about the engine he stooped down, holding the torch in his left hand, resting his right upon the' rail, and looked up under the engine. While in this-position the twelve cars which had been cut off and left to move up the grade in charge of McElrath, rolled back down the grade, colliding with the cars attached to the engine, and causing it to move backward and over Johnson, killing him instantly.
The second amended petition contained two causes of action—the first charging a liability for negligence under the common law, and the second, under the statute. When plaintiff rested her case, defendant interposed a demurrer to the evidence in support of each of the causes of action, and also moved that plaintiff be required to elect upon which cause of action she would rely for a recovery. The court overruled the demurrers, and withdrew from the consideration of the jury all charges of negligence except-the one charging negligence to McElrath on account of his failure to prevent the cut of twelve cars from rolling back down the grade, colliding with the standing cars, and causing the death of Johnson.
Defendant denied negligence on the part of McElrath, and charged negligence to Johnson contributing;' to, and causing, his death. It was averred by it that-, the accident was caused by Johnson’s negligence in the following particulars: (1) In not obeying-the; signals given him to stop and back; (2) in stopping the engine with fifteen cars on the grade, he at the time knowing the danger of the cut-off cars’ running, back against them ; (3) in going under the engine at¡ the time and under the circumstances then existing' without giving notice or warning that he was about, to do so ; (4) in voluntarily and unnecessarily select-' ing a dangerous and unsafe way to do what he did,' when there was a better and safer way which might, have been selected. It was further averred that Johnson had a full knowledge of all the conditions surrounding the business in which he was then engaged and the means of acquiring information of all the dangers and risks incident thereto, and that he 'assumed the risks and hazards as a part of his duties without objection or protest. The foregoing specifications of negligence were also urged as grounds upon which the court should have sustained defendant’s demurrers to plaintiff’s evidence, the overruling of which is assigned as error.
The switching crew with Johnson was composed of Wilson, the foreman of the crew, whose duty it was to lay out and direct the work; Murphy, one of the helpers, whose duty it was to cut off cars and throw switches ; McElrath, also one of the helpers, the field-man, whose duty it was to look out after, catch and stop cuts.of cars; and Zubar, the fireman. Wilson and Murphy testified that signals to stop and to back were given to Johnson by means of a lantern at or about the time the twelve cars wero cut off; that the signals were not answered or acted upon by him. There was no evidence to show that he saw or understood the signals given. There was testimony tending to show that Johnson, from his position on the engine, could not have seen the signals ; and there was testimony tending to show that the signals, given were confusing ; that it was the duty of an engineer, upon receiving confusing signals, not to' act on the the same, but await the giving of signals which he could understand. There was also competent evidence to the effect that when an engineer believed, as Johnson at the time expressed himself to his fireman, Zubar, as believing, that there was a hot box on his engine, it was his duty, at once and to the exclusion of every other duty, to make an examination of his engine. There was also testimony of engineers that Johnson, in making the examination of his engine at the time and place, pursued the customary method.
Whether Johnson, before making an examination of his engine, applied the brakes, or whether he attempted to communicate by signals to the switchmen the fact that he was about to .make such examination of his engine, is in doubt. He did not sound the whistle. If he signaled by the use of his torch it was not seen. When the collision came the fireman found the brakes not applied. He applied them and soon stopped the moving engine and cars. He stated that he did not know whether Johnson had applied the brakes before leaving the engine. There was evidence offered to show that the air-brakes, such as those with which this engine was equipped, would, when the air had been applied, automatically release themselves within the time intervening between Johnson’s leaving his engine and the collision caused by the cars’ rolling down the grade. There was evidence that one man could handle and control that number of cars on the grade of the Y, if attentive to the task, and the work of setting the brakes was taken in hand at the proper time ; that one brake in good repair, set at the proper time, would have held this cut of cars.
Johnson was a new man in the yards and, while it is fair to presume he knew of the existence of the grade, there was no evidence to show that he had any knowledge that cars frequently rolled back down the grade when attended by a brakeman to control them. He had the right, under the circumstances, to assume that McElrath would discharge his duty, control the cars, and prevent their rolling back down the grade. Negligence is not imputable to a person for failing to guard against accident when, under the circumstances, he had no reason to apprehend danger. (Moulton v. Aldrich, 38 Kan. 300.) There was evidence that Johnson, at the time and place, was discharging a necessary duty by the customary method. The facts shown were such that reasonable minds might differ with respect to the question whether he had acted as a reasonably prudent man under the circumstances would act. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136.) We cannot say, as a matter of law, that he was guilty of -negligence contributing to his injury and death. The court committed no error in overruling defendant’s demurrers to plaintiff’s evidence. (K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329, 18 Pac. 285; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650, 23 Pac. 1044; Rogers v. Hodgson, 46 id. 276, 26 Pac. 732.)
•Switchman McElrath, a witness for defendant, stated that when the cut of twelve cars was made, he followed them up the grade, overtook them, climbed on top of the cars, set the brakes on two of them, and was in the act of setting the brake on a third when they collided with the standing cars attached to the engine. He further stated that he had about succeeded in stopping the moving cars ; that had Johnson stopped the cars attached to the engine at the time he was signaled to do so and not permitted them to move further up the grade, he (McElrath) could have stopped the twelve cars’ rolling down the grade before they would have traveled to a point where the standing cars would then have been, and the collision with the standing cars thus have been avoided. Wilson and Murphy both stated that when they last saw McElrath before the collision he was following the cut of twelve cars, endeavoring to overtake them; that when they first saw him after the collision he was on the ground beside these cars. They did not see him on them at any time. Greenup, an engineer who was on his engine close by where the cut of cars ran upon the grade, stated that there was no person on them as they passed. The cars were not subsequently found as McElrath stated that they were at the time he left them, nor were they found with the brakes set, as he stated. Gallagher, a witness for defendant and one of its car-repairers, stated that he examined the cars soon after the accident, found the brakes all in good repair, and the brake on the second car set.
Defendant also produced as witnesses its master mechanic and several engineers'to establish that Johnson, in making the examination of his engine, had not pursued the safest course and had voluntarily placed himself in a place of great danger. The question of the negligence of McElrath in not preventing the cars’ rolling down the grade, and the question of the negligence of Johnson in making the examination of his engine at the time and place and under the surrounding circumstances, were submitted to the jury upon conflicting evidence. The jury returned answers to 115 special questions submitted by defendant, covering all the material points in controversy. The answers returned were consistent with one another, were supported by the evidence, and upheld the general verdict. The jury specially found that there was negligence on the part of McElrath and that there was no negligence on the part of Johnson. They not only found negligence on the part of McElrath in not preventing the cars’ rolling down the grade, but also found that he was never on the cut of twelve cars to set the brakes.
■ It is urged that the risk that cars might roll back down the grade was one of those assumed by Johnson in his employment. This court has frequently held that the risks assumed by the servant by virtue of his employment are the ordinary risks and hazards incident to such employment. (A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 id. 701, 16 Pac. 146, 1 Am. St. Rep. 266.) He does not assume unusual risks and hazards—those risks and hazards not ordinarily incident to his employment and of which he has no knowledge. (A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 965.) Johnson being a new man in the yards, and not having knowledge that cars attended by switchmen frequently rolled back down the grade, it cannot be said, as a matter of láw, that this was one of the risks and hazards assumed by him in his employment. The question was properly submitted to the jury, and by their general verdict and special findings this proposition was determined against the defendant company.
The record in this case is voluminous. Much testimony was introduced upon the trial going to the questions of the negligence of McElrath and the contributory negligence of Johnson. The brief of plaintiff in error contains numerous assignments of error, most of which are based upon the refusal of the court to give the instructions requested and upon the instructions given. The latter fairly stated the law of the case, and there was no material error in refusing to give the instructions requested.
No prejudicial error being found in the record, 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
Atkinson, J. :
On the 14th day of May, 1897, the Wichita Electric Railway and Light Company, a corporation under the laws of Kansas, with its place of business at the city of Wichita, entered into a contract, or lease, in writing, with the Wichita Gas, Electric Light and Power Company, a corporation under the laws of Kansas, with its place of business at the city of Wichita. By its terms the former leased to the latter, for a period of ten years, at an annual rental of $3000, payable semiannually, certain machinery and appliances in the city of Wichita, adapted to, and used by the lessor for, the purpose of generating electricity for light, heat, and power. On the 20th day of March, 1900, the Keene Syndicate, a corporation, purchased of the lessor, the Wichita Electric Railway and Light Company, the property covered by the lease, and also its interest in the lease, taking a written assignment thereof. The lessee, the Wichita Gas, Electric Light and Power Company, being in default for three years’ rent, in August, 1900, the Keene Syndicate, as assignee of the Wichita Electric Railway and Light Company, commenced its action in the district court of Sedgwick county to recover the rent—the amount claimed due it from the lessee. The petition of plaintiff presented seven causes of action, and attached thereto was a copy of the written lease. The first six causes of action were each a specific claim for recovery upon one of the semiannual payments of rent. Each cause of action made reference to said lease and made it a part thereof. The seventh and last cause of action in the petition was intended by plaintiff to state a cause of action upon a quantum, meruit, for the use of the machinery delivered to defendant under the lease, and by defendant received and used. This last or seventh cause of action made reference to the preceding counts, adopted portions Of each, and made them a. part thereof, which adoption had the effect to include also in the seventh cause of action the lease attached to, and made a part of, the petition. It became-thereby also an action for recovery on the lease, and not a cause of action for recovery on a quantum meruit,. as was contemplated by plaintiff. Defendant filed a-demurrer to the petition, which was sustained by’'the court. Plaintiff elected to stand upon its petition,, and judgment'was entered against it for costs. Plaintiff brings error.
Does the petition on its face disclose a cause of action—a right of plaintiff to recover from defendant?' It is charged by defendant that the petition discloses-the lease sued on to be against public policy and void. The district court found it to be void for that reason. It is the only question before us for determination.
The petition of plaintiff, by its averments, in addition to embodying the facts above stated with reference to-location, corporate existence, the execution of the lease, the leasing of the machinery for the term and consideration mentioned, and the assigning of the lease by the lessor to plaintiff, may fairly be said also to disclose that the lessor and the lessee, at the time the lease was entered into, were rival public-utility .corporations in the city of Wichita, engaged in generating and furnishing electricity for public and private use for light, heat, and power. The petition also in substance avers that the assignor of plaintiff, the Wichita Electric Railway and Light Company, had delivered to defendant all the property described in the lease and had duly performed all the conditions, agreements and stipulations in said lease to be by it performed. The lease contains the following language:
“The said first party hereby binds and obligates itself not to engage in the business of furnishing electric light and power to private or public consumers within the city of Wichita during the period covered by this agreement, eicept for the purpose of operating the street-railway now owned by the first party, and said first party furthermore agrees not to dispose of any of the apparatus, machinery, appliances, etc., retained by it, for producing or generating electric light and power in said city of Wichita.”
The above language quoted from the lease, applied to, and construed with, the averments of the petition, of which the lease formed a part, fairly discloses that the lessor obligated itself not to engage in the business of furnishing electric light and power to private and public consumers within the city of Wichita during the period of ten years covered thereby; and further agreed that during said period of ten years it would not dispose of any of its machinery or appliances, retained by it, for the purpose of being used to generate electric light and power in the city of Wich ita. The effect of this, if carried out, would be that the lessor for said period of ten years would abandon the exercise of its corporate power to generate and furnish electric light and power for public [and private use in the city of Wichita; that it would withdraw itself from the field of competition with the lessor, its former competitor in the business, for said period of ten years, and refrain from the sale of property to others who might thereby become competitors of the lessor in the said field of competition during said period of ten years. Butjyt is not necessary for "the determination of this case to inquire whether the effect of the agreement between the lessor and the lessee was in fact detrimental to the city of Wichita, or its citizens. The inquiry should be whether the agreement, which, in its necessary or contemplated operation upon the actions of the party to it, tends to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public or of third parties, is against the principles of sound public policy, and consequently void. (Atcheson v. Mallon, 43 N. Y. 147, 3 Am. Rep. 678.)
In Western Wooden-ware Ass’n v. Starkey, 84 Mich. 76, 47 N. W. 604, 11 L. R. A. 503, 22 Am. St. Rep. 686, an action to enjoin the association from engaging in a certain business and from using certain premises in carrying on said business in violation of a contract ’with plaintiff, which contract provided that the association would not engage in, or carry on, the business in controversy for a period of five years, and would not within said period use the said premises or sell them or permit them to be sold or used without the consent of plaintiff, the court denied the injunction and held the contract void as against public policy. Referring more particularly to that feature of the case wherein the association had contracted not to use, or permit the premises to be used, or to sell the the premises for use, in competition with plaintiff, an element in that case not unlike one of the elements in the case at bar, Mr. Justice Long, speaking for the court, said:
“In the present case, the defendants were not only to remain out of such business for the full time specified, but the premises which had been used to carry on the manufacturing by them, though not sold and conveyed under the contract, could not be again used for such time by them or any other party for the same business. I do not think it needs the citation of authorities to show that contracts of this nature have frequently been condemned by the courts, and held void, as unreasonable restraints of trade, and therefore void on the ground of public policy.”
Among the .contracts declared illegal under the •common law because opposed to public policy were contracts in general restraint of trade—contracts between individuals to prevent competition and keep up the prices of articles of utility. It is well settled in the law of contracts that the first purpose of the court is to look to the welfare of the public, and if the enforcement of the agreement would be detrimental to its interests no relief should be granted to the party injured, and that, even though it might result beneficially to one of the parties who made and violated the agreement. In Gibbs v. Baltimore Gas Co., 130 U. S. 396, 9 Sup. Ct. 553, 32 L. Ed. 979, the court said: “Courts decline to enforce contracts which impose a restraint, though only partial, upon business of such character that restraint to any extent will be prejudicial to the public interest.” The rule that contracts and agreements, when contrary to public policy, will not be enforced is one of the great pre servatives of a state. It has been the uniform rule of this court, and indeed of all courts, to hold that contracts tainted with illegality are absolutely void. (Hawley v. Coal Co., 48 Kan. 593, 30 Pac. 14; Hinnen v. Newman, 35 id. 709, 12 Pac. 144.) Plaintiff, the assignee of the lessor, the Wichita Electric Railway and Light Company, is in no better position to recover than the lessor, as the illegal consideration appears upon the face of the contract or lease. (The Saratoga County Bank v. King, 44 N. Y. 87; Setter v. Alvey, 15 Kan. 157.)
Whether plaintiff could maintain an action against defendant on a quantum meruit or otherwise, independently of the contract, need not be here considered. That question, in the view we have taken of the seventh cause of action of the petition, is not in the record before us:
The lease sued upon being in contravention of public policy, no action for a recovery upon it can be maintained. 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
Dawson, J.:
This was a suit to enjoin the sheriff from selling an interest in a certain leasehold and certain oil-drilling equipment to satisfy a judgment, on the ground that plaintiff had procured an attachment on the property prior to the date of the judgment.
The outstanding facts are these: In June, 1919, the Atlantic Petroleum Company commenced an action against J. T. Pringle, alleging that it owned a three-fourths interest in the property in dispute and in other property, that Pringle owned the other one-fourth interest, that the Atlantic company and Pringle had drilled for oil and gas thereon, that the property was producing gas and oil in paying quantities, and that the Atlantic company had advanced over $4,000 in this mining venture and that Pringle owed it one-fourth of that sum, and it claimed a first lien on Pringle’s interest to satisfy its claim.
On August 20, 1920, the plaintiff bank sued Pringle on an indebtness of $5,200 and attached his interest in the oil leasehold and equipment.
On September 13, 1920, judgment was entered against Pringle as prayed for in the action brought by the Atlantic Petroleum Company, and its claim was declared to be a first lien on Pringle’s interest, and execution was ordered thereon.
On October 16, 1920, judgment in favor of the plaintiff bank was entered against Pringle, and its attachment issued on August 20, 1920, was also declared to be a first lien on Pringle’s interest.
Pursuant to an execution issued to satisfy the judgment of the Atlantic Petroleum Company the sheriff was about to sell Pringle’s • interest, and this action was begun. A temporary restraining order was issued, but after a demurrer was filed and a certain admission was made touching the nature of the Atlantic Petroleum Company’s case, the court dissolved the restraining order, and sustained the demurrer.
This is a one-point case. While it is true that plaintiff’s cause of action was good as against the demurrer alone, it was not good when the admission concerning the nature of the earlier case was considered therewith. It might have been better to have brought into the record more formally the files of the earlier case, so that the precedence of the Atlantic Petroleum Company’s right to a lien would have appeared more clearly; but the statement in defendant’s brief as to the nature of the admission is not disputed, and it would serve no purpose to rest our judgment on a mere technicality which would only cause delay and expense and which eventually would have to end with the same result as the one already reached. So we will go to the main question. When the Atlantic Petroleum Company commenced its action with timely service of summons, claiming a prior lien on Pringle’s interest, the later attachment by the bank was an attachment pendente lite. If the Atlantic Company had failed in its case the bank’s attachment would have been a first lien. But in attachment a creditor or claimant only seizes what his debtor has — no more; the seizure reaches no further. It does not affect prior claims on the property which are in course of judicial determination. Pringle’s interest was subject to the Atlantic company’s claim lis pendens at'the time the attachment issued. When the Atlantic company’s claim was perfected by the judgment, it was thereby determined that its claim to a first lien made when the action was begun was correct. It therefore had precedence over the bank’s attachment. (Gen. Stat. 1915, §6977; Holden v. Garrett, 23 Kan. 98; Markley v. Investment Co., 67 Kan. 535, 73 Pac. 96; Good v. Williams, 81 Kan. 388, 389, 105 Pac. 433; Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 491, 188 Pac. 248; Kindig v. Richardson, 108 Kan. 218, 194 Pac. 920; Cotton v. Dacey, 61 Fed. 481; Jefferson County Savings Bank v. McDermott et al., 99 Ala. 79; Thomas v. Hillhouse, 17 Iowa, 67, 71, 72; Keith v. Dosier, 88 Iowa, 649; J. I. Case Threshing Mach. Co. et al. v. Walton Trust Co. et al., 39 Okla. 748, 754; Germania Nat. Bank v. Duncan, 62 Okla. 144, 161 Pac. 1077; 25 Cyc. 1457, 1458, 1460; 6 C. J. 286.)
Judgment affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Clarence Bolton was convicted upon a charge of the larceny of an Exide battery. In his appeal he contends that the verdict was not sustained by the evidence. The testimony for the state was to the effect that in the early part of October, 1921, defendant and four others went from Lyons to Little River in a Ford car owned and driven by the defendant. While riding about Little River defendant directed those with him to get a battery for his car, saying that if they did so he would make it right with them. Two of them acting upon his suggestion, tried to take a battery from a car pointed out, but they were interrupted and one of them said “We about got caught and gave it up.” Defendant then told them to go over to a certain place and try and take a battery from another car. Two of them went to the place designated, where the car of Doctor Bush was parked, and while one Nordstrom was detaching the battery another of the party named Colberg stood guard. While they were engaged in taking the battery and in hiding it behind a church, the defendant drove his car about the town and shortly afterwards returned to the place where others of the company were, took them into the car, drove to the church where the stolen battery was' left and when it was loaded into his car the defendant and his companions drove back to Lyons. On the way back the defendant remarked that the battery taken was an Exide battery.. When they arrived in Lyons the battery was taken into the shop of the defendant’s garage. There defendant got tools and removed the name plate from the battery. In his testimony defendant stated that the battery in his possession alleged to have been stolen was given to him by a tourist for repairs he had made on the car of the tourist. There is no lack of incriminating testimony. That produced by the state was mainly given by those who accompanied the defendant and had a part in the larceny. It is argued that as the witnesses were accomplices in the crime, their uncorroborated testimony will not sustain a conviction. The rule invoked has no application in Kansas. It has long been settled that the uncorroborated testimony of an accomplice is legally sufficient to sustain a verdict. The evidence of an accomplice is as competent as that of any other and his participation in the offense only goes to his credibility. For obvious reasons the testimony of an accomplice is to be cautiously scrutinized, but if it is otherwise sufficient and fully satisfies the jury of the defendant’s guilt, a verdict may be based upon his unaided testimony. (The State v. Patterson, 52 Kan. 335, 34 Pac. 784; The State v. Bratcher, 105 Kan. 593, 185 Pac. 734; The State v. McDonald, 107 Kan. 568, 193 Pac. 179.) There is no complaint of the instructions given by the court as to the caution to be used in accepting and acting upon the uncorroborated testimony of accomplices, and the fact that the witnesses against defendant had participated in the commission of the crime charged was brought to the attention of the jury with the admonition that such participation should be considered in determining the weight and credit to be given their testimony.
Complaint is made that the value of the property stolen was not sufficiently established. There was testimony and enough of it to show that the value of the battery taken exceeded $20, the amount essential to the offense of grand larceny. The market value of a new battery was shown to be $25 and the one in question had only been used for a few days. One witness did place a valuation of $18 upon it, but the testimony of another fixed it at $25 and the- jury was warranted in finding that its value was more than $20.
Objection was made to an instruction in which the jury were told that inquiries had been made on cross-examination of defendant and one Diggs as to the commission of other offenses, and that such testimony could be considered for no other purpose than as it might affect the veracity and credibility of the witnesses. For this purpose the evidence was admissible, and it became the duty of the court to tell the jury what application could be made of the testimony. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; The State v. Bowers, 108 Kan. 161, 194 Pac. 650.) The defendant admitted that he had previously committed thefts other than the one charged, but Diggs in his testimony denied that he had participated in other offenses about which inquiry was made. It is contended that a reference by the court to the inquiry of Diggs was improper. In view of the denial of Diggs the reference to him might well have been omitted, but as there was no testimony or admissions of misconduct or guilt, the mention of him in the instruction cannot have been prejudicial.
Judgment affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to vacate and set aside an order made by the public utilities commission on August 27, 1921. * The defendants appeal from an order granting a temporary injunction.
On October 12, 1920, the plaintiff, which operates a telephone system in the city of Independence, filed an application with the court of industrial relations, asking for permission to charge higher rates for telephone service in that city. On August 3, 1921, H. A. Russell, a member of the public utilities commission — that commission under chapter 260 of the Laws of 1921 having taken over the regulation of the rates of telephone companies — heard the application and then requested certain additional information and stated that a final order under the application could not be made until that information had been furnished by the plaintiff. The plaintiff agreed to furnish the information, but no time was fixed within which it should be furnished, although it was understood by Commissioner Russell that the information would be furnished in a week or two. The information asked involved much calculation. It had not been furnished on August 27, 1921, and on that day, without further notice to the plaintiff, findings and an order were made by the public utilities commission, as follows:
“That there is nothing in the evidence to enable the commission to determine that the rates now in effect and authorized to be charged by the said Kansas City Long Distance Telephone Company at its exchange in Independence, Kan., are not just, compensatory and lawful rates to be' charged bj? said company.
“The Commission further finds that, assuming that the present rates are too. low, then the applicant has failed to furnish evidence upon which this commission could base a fair, equitable and lawful rate for service by said company in said city of Independence.
“It is therefore by the commission considered and ordered, and the commission finds: That the present rates authorized and charged for telephone service by the Kansas City Long Distance Telephone Company in the city of Independence are just, reasonable, compensatory and lawful rates for the service rendered. The application is denied.”
’ On the hearing of the application for a temporary injunction, the district court made findings of fact, the tenth finding of which was as follows:
“The testimony introduced at this hearing tends to show that the rates now in effect at plaintiff’s exchange at Independence, Kan., are unjust and unreasonable and do not provide plaintiff with an adequate return upon the valuation placed by it upon its property used and useful at such exchange.”
The defendants argue that the order made by the public utilities commission amounted to a dismissal of the application. So far as the rights of the plaintiff are concerned, this may be the effect of the order; the plaintiff has an undoubted right to present another application asking for an increase in its rates, but the order of the commission was not a dismissal of the application. The order was that the rates were “just, reasonable, compensatory, and lawful”— quite a different proposition from an order dismissing the application.
The commission had unqualified authority to ask for additional information, but sufficient time should have been given in which to furnish it. If the commission desired that it be furnished within a given time, that time should have been named, and the plaintiff should have been notified concerning it. The commission was not justified in making the order that it did make, without fixing a time within which the information should have been furnished and without notifying the defendant that the order would be made unless the information was given within that time.
There was evidence to support all that was said by the court in the tenth finding of fact. It is true that the finding does not state that the rates were unjust, unreasonable, or that they did not provide an adequate return on the property, but it was not necessary that the court should finally and conclusively find those facts before granting a temporary injunction.
The judgment of the district court granting a temporary injunction is affirmed. | [
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The opinion of the court was delivered by
West, J.;
The plaintiff recovered judgment for $349.37 commission for procuring a purchaser for the defendant’s farm. The bill of particulars alleged the sale to “one Mr. Ode.” In his .testimony, the plaintiff said that he received a letter dated February 14, postmarked February 15, 1919, in which the defendant stated he wanted to sell his farm, consisting of 98 acres and 92 acres, for $17,000 net and would divide, but might do a little better to make the sale on the whole; that after receiving this letter he had a talk with the defendant who said he would take $16,000 if he could get a buyer for it, and the next morning he talked with Henry Ode, who said he would go out and look at the farm, as he was interested; plaintiff did not know o.f the Odes going out to look at it until along in June; that Mr. Ode did go down in June, and he saw him on his way and was invited to go along, but he did not go; that about the 15th of July, Mr. Ode called for the plaintiff over the telephone and directed the person answering to tell the plaintiff he would be down after a while to see him. After a while he came down with some other men and they asked the plaintiff -if he had sold the land yet, and he said “No,” but that Mr. Ode had better buy the place, and he said he believed he would, and went on down and bought it, and the plaintiff thought he paid $16,300 for it. Henry Ode told him at different times that he was going down to look at the farm before he did go; that he saw him the next Monday morning after his trip and he told him he bought it.
It appears that the deed to the land was taken in the name of Fred Ode, Henry Ode’s father, and Henry testified that he had no conversation about the land until July, and in that conversation he told the plaintiff he thought Cochran’s place was sold as he had a deal on for it. He received a letter from the owner on February 20, listing the land with him and said this'was in answer to a letter he had written the defendant asking him to list his farm with him for sale; that he had sold some farms; that he gave the owner a check to which his father’s name was signed- per H. A. Ode; that he never took his father down to see the land; that his father had a farm at Potter which he sold for $13,000, and at his son’s suggestion bought the one in question.
“Mr. Cochran had written me a letter he would take $16,250.00 for the place. My father was not in the market to buy any land until probably the first of July, when he got this offier for his farm at Potter, which he decided to sell as I advised him to and buy this one. I have never bought and sold any land myself.”
The defendant testified he wrote to the plaintiff and H. A. Ode and others, 'listing his land for sale at different prices, and that Henry Ode told him during the process of the negotiations that Fred Ode was buying the farm; that Henry Ode had been down two or three times before the July transaction to look over the place.
“There was a contract made on this 12th day of July. The contract was drawn up at my house by Henry Ode. Henry Ode gave me a check, signed his father’s name per H. A. Ode. . . . He signed it at my house that day.”
The court charged the jury that if they believed from the preponderance of the evidence that the plaintiff first called the attention of Henry Ode to the farm being for sale, the plaintiff would be entitled to recover although the property was taken in the name of Ode’s father, but if they believed Henry Ode’s attention was first called to the farm by the defendant’s letter, and in pursuance of such letter the sale was made through Henry Ode to Fred Ode, then the plaintiff would not be entitled to recover.
The defendant demurred to the plaintiff’s evidence and complains because the demurrer was overruled and because the court instructed that if the jury believed from the preponderance of the evidence that the plaintiff brought about the sale of the property he was entitled to a commission although the property was taken in the name of Henry Ode’s father, and because the court did not instruct that although the plaintiff, Hasty, called the attention of Henry Ode to the farm being for sale, and the latter entered into a contract with the defendant to sell the farm for him, Hasty could not recover. Counsel say:
“There is no evidence in this case whatever that H. A. Ode ever bought this farm. . . . The undisputed testimony in this case is that Fred Ode bought the farm, the farm was deeded to Fred Ode and that Fred Ode paid for the farm from the proceeds which he received from the sale of a farm he had owned near Potter, Kansas.”
Whether Henry Ode, who appears to have been a banker, and did, or undertook to do some real-estate business, really bought this farm for himself or had his father bona fide buy it through: him, is a question about which fair-minded men might disagree on reading the record before us. Twelve jurors might well disagree after hearing the testimony of all witnesses given in this.case.
We find no error in the instructions given, and as the defendant offered no other instructions, he cannot complain, for the charge seems to have fairly covered the issues between the parties. The mere paper fact of the deed running to Fred Ode instead of his son is not conclusive by any means. All the claimed dealings and conversations between the parties, and others who overheard some of the conversations, together with the facts shown, were before the jury, and from all of these they had to conclude for one party or the other. The conclusion reached finds sufficient support in the record, so that it must be permitted to stand.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, Albert D. Jones, jr., brought this action in the district court to compel the defendant, The Kansas State Board of Medical Registration and Examination, to permit him to take the examination for a license to practice his profession as a physician and surgeon in this state.
The district court denied the writ of mandamus prayed for, and plaintiff appeals.
The facts touching plaintiff’s qualifications are not in dispute. Jones is a resident of Topeka, 27 years old, of good moral character, and has studied medicine and surgery for four years during terms of not less than six months each year, and has paid the examination fee, and otherwise conformed to the rules prescribed by the defendant board for candidates for examination, except on one point which will require careful statement herein.
It appears that there is in this country an unofficial organization known as the-American Medical Association, the membership of which and the purpose of which are not disclosed, but which we may presume to consist of eminent men in the medical profession who are prompted by a laudable desire to elevate the standard of their profession and the standard of medical schools; and this association has classified the medical colleges of this country into three groups, A, B, and C. Class “A” colleges are those whose entrance requirements, courses of study, teaching staffs and equipment and the like are of a satisfactory standard of excellence. Class “B” colleges are of a lower grade of excellence but which may shortly attain to first-class standards.
Class “C” medical polleges are simply those which refuse to countenance any inspection, supervision or meddling with their collegiate work by any representative of this unofficial “American Medical Association,” and,as to which colleges this so-called association has no authentic data. These class “C” colleges do permit and invite all state boards of medical examiners to visit and inspect their collegiate work, and the defendant board has that privilege.
The Kansas City College of Medicine & Surgery, which is the school plaintiff attended and from which he was graduated, is a class “C” college. It repudiates the unofficial suzerainty of the American Medical Association, but permits and invites, inspection by official boards of medical examiners, including the defendant board. The latter has not inspected this college since 1917, at which time it approved its qualifications and equipment and allowed some of its graduates to take the state examination.
In 1918 the defendant board promulgated a rule:
“That- nothing but ‘A’ class colleges be recognized after February 15, 1922, and in the meantime graduates from class 'B’ schools will be permitted to take the examination until February 15, 1922, but no recognition hereafter will be given a college in class ‘C’.”
The gist of plaintiff’s contention is that the defendant had no power to promulgate this rule, nor to prescribe qualifications for candidates for examination in addition to those prescribed by statute.
The powers conferred upon the state board are found in article 24 of chapter 108, General Statutes of 1915, §§ 10197-10206. Counsel for the state board cite a clause in section 10197 as justifying the board’s power to make the rule which bars the plaintiff from the right to take the examination. This clause reads:
“It [the board] shall formulate rules to govern its actions.”
Elsewhere in the statute we note certain powers which the legislature intended the board to exercise:
The board is required to keep a register of all applicants for licenses to practice medicine, the age of the applicants, a record of the time they have spent in the study of medicine, and the name of the institution or institutions from which the applicants may have received degrees or certificates of medical instruction. (§ 10197.) The board may refuse licenses to felons, to grossly immoral persons, and to those seriously addicted to liquor or drug habits. (§ 10198.)
The board is also authorized to grant licenses to graduates of high-grade medical colleges of this country or foreign countries without examination, and in lieu of examination the board may accept certificates of registration issued by other states or foreign countries where high standards of qualifications are required of medical practitioners; and it may grant temporary permits to practice medicine. The exercise of these powers is discretionary. The examination itself shall constitute a fair test of the. qualifications of the applicants in “all those topics and subjects a knowledge of which is generally required by reputable medical colleges of the United States for the degree of doctor of medicine.” (§ 10199.)
With these powers expressly granted, there goes also a grant of such implied powers as are necessary for the effective discharge of all the responsible duties imposed on the defendant board. In The State, ex rel.,.v. Younkin, 108 Kan. 634, 638, 196 Pac. 620, we said:
“While the powers of a public officer or board are those and those only which the law confers, yet when the law does confer a power or prescribe a duty to be performed' or exercised by a public officer, the powers granted and duties prescribed carry, with them by necessary implication such incidents of authority as are necessary for the effectual exercise of the powers conferred and duties imposed.” (p. 638.)
. The board must ascertain as best it can what are the professional branches of science and art taught and practiced in reputable medical colleges. Nor is the court disposed to impose narrow restrictions on the defendant board in their determination of this important matter. We think it may well mean more than getting a mere list of the branches of learning — anatomy, physiology, hygiene, physics, chemistry, etc. It can hardly be said that the board is without power to determine the requisite thoroughness with which such sciences are studied and taught in these colleges, and it is difficult to say that the board may not inquire into the related question of the general educational requirements which medical students must possess before they can profitably enter upon the study of medicine and surgery; nor can it be denied that the state board can consult the proceedings of the American Medical Association, and its standards of professional scholarship, and that the board’s opinions of Kansas requirements can be at least partially founded thereon.
It is contended by plaintiff that the statute does not require an applicant for a license to be a graduate of any medical school; that he may get his medical education wherever and however he pleases, so long as he acquires it with sufficient thoroughness to pass the examination with satisfactory grades. This contention is plausible, but it may very well be that the examining board has determined upon full and fair inquiry into all sources of information, and upon their own professional knowledge and experience, that there are important branches of medicine and surgery, like diagnosis, obstetrics, and others which cannot be mastered except by instruction and guidance under trained teachers in medical colleges having the requisite equipment therefor; and that in this day of advanced and advancing science it is altogether out of the question to license applicants to practice medicine and surgery without such efficient collegiate training, no matter how creditable a showing such applicants can make on paper in a written examination. True, this statute is twenty-one years old; it was about the first of a series of statutes by which the state has gradually expanded its governmental power over professional or semiprofessional employments; and the grants of power expressly conferred are more narrow than those granted to similar state boards of later creation. Thus, in later enactments the state board of osteopathic examiners is granted very broad powers in very short language:
“The board . . . shall formulate and adopt all necessary rules, regulations and by-laws.” (§ 10207.)
The board of chiropractic examiners—
“Shall have authority . . . and shall from time to time adopt such rules and regulations as they deem proper and necessary for the performance of their duties, and they shall adopt a schedule of minimum educational requirements, which shall be without prejudice, partiality or discrimination as to the different schools of chiropractic.” (§ 10216.)
Illustrations of this sort could be greatly extended. Even the state board of embalming has been given elaborate powers to make reasonable rules touching the right of persons to practice the art of embalming. (§ 10309; Miller v. State Board of Embalming, 110 Kan. 135, 202 Pac. 619.)
Speaking of the powers conferred on the secretary of the state board of agriculture, this court, in The State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, said:
“It [the act] merely confers upon him administrative power such as has become common in this state. • The state charter board is given similar power to grant or withhold a charter for a bank. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80.) The insurance commissioner is authorized to grant, withhold and revoke licenses to transact insurance business in Kansas. The public utilities commission is authorized to grant or deny permits to conduct a public-service business. The state board of medical registration and examination is authorized to grant, deny or revoke licenses to practice medicine. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.) The exercise of such power is merely the exercise of administrative discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus. And by no course of reasoning can a distinction be made between the licensing and other administrative powers conferred by this act upon the secretary of the board of agriculture and the similar broad and valid powers conferred upon the many other official boards and functionaries with which the state has provided itself for the proper and effective conduct of its governmental business.” (p. 471.)
(See, also, 30 Cyc. 1550 et seq.; 21 R. C. L. 365, 366.).
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
The defendant was charged with unlawfully and feloniously persuading, inducing, enticing, and procuring Jessie Hahn, a female person, to go from the restaurant of the defendant on Sumner street in Arkansas City to the Alamo rooming house in Arkansas City for the purpose of prostitution and fornication. - He was convicted of thus inducing and persuading Jessie Hahn to go from the St. Charles rooming house to the Alamo rooming house in that city.'
The statute under which the defendant was prosecuted, so far as it is material, reads:
“Any person . . . who shall persuade, induce, entice or procure . . . any female person . . . to go from one place to another within this state, for-the purpose of prostitution, fornication or concubinage, shall be deemed guilty of a felony.” (Gen. Stat. 1915, § 3646.)
1. What is meant by the phrase “from one place to another within this state”? There is no doubt that the statute prohibits persuading a woman to go from one city to another for either of these proscribed purposes, and no question that the statute prohibits persuading a woman to go from the city into the country or from the country into the city for either of these purposes. If a woman is induced to go from one part of one of the larger cities of this state to a distant part of the same city, she must be going from one place to another. The distance between the places is immaterial, so long as it cannot be said they are one and the same place. If a woman were induced to go from her home to the rooms of some man in another house in the same block, or one, two, three, or any number of blocks away, the act would be a violation of ihis statute. If a woman is on the street and is induced to go to a building immediately .on the side of the street, the statute is violated. If a woman is induced to go from a room occupied by her in a hotel to another room in the same hotel for either of these purposes, the statute would be violated. The word “place” as used in the statute does not mean city. If the legislature had intended that the act prohibited should be that of taking a woman from one city to another, that could have been said in so many words. The statute prohibits inducing a woman to go from one place to another place where the two places can be said to be separate and distinct from each other. If all the acts are done in one place, this portion of the statute is not violated. Otherwise it is. It may be helpful in interpreting this statute to note that it provides that “any person,” even a third person, may be punished for persuading any woman to go from one place to another for illicit sexual purposes. The persuading, inducing, enticing, or procuring may be done by one whose business it is to procure women for immoral practices.
2. The statute provides that no conviction shall be had on the uncorroborated testimony of the woman. It is contended that such evidence was wanting in this case. We think not. There could seldom be a conviction for any crime involving illicit sexual intimacy if corroborating eyewitnesses were indispensable. The statutory requirement of corroboration can readily be satisfied by evidentiary facts and circumstances, if they are of sufficient potency to satisfy the jury. (The State v. Waterman, 75 Kan. 253, 88 Pac. 1074 ; 33 Cyc. 1498; 35 Cyc. 1360 et seq.)
3. We come now, however, to a question of greater consequence. The information charged the defendant with the offense of persuading, inducing, etc., Jessie Hahn to go from his restaurant to the Alamo rooming house for the purpose, etc. The evidence was to the same effect. He engaged the woman to work in his restaurant. She had come to the city the day before and stopped the first night at the St. Charles rooming house, but she had no definite place of abode. He told her he could get her a cheaper room. He engaged a room at the Alamo for one night for himself and wife. That night when her day’s work was done at 8 p. m., he accompanied her to the door of the Alamo and told her the number of the room which he had engaged. She went to the room and retired for the night. He went back to his restaurant and remained there until closing time. Then about midnight he went to the room occupied by the woman, and shortly thereafter the police raided the place and after giving defendant and the woman time to dress took them to the police station. The trial court instructed the jury (No. VI) that before the jury could convict they must find that the defendant “did induce, procure or entice Jessie Hahn to go from the St. Charles rooming house to the Alamo rooming house,” etc. In their verdict, the jury specifically found the defendant guilty of inducing or persuading her “to go from the St. Charles rooming home to the Alamo. This was not responsive to the charge, nor to the evidence; and both the instruction and the verdict were at variance therewith.
This palpable error in the instruction was probably an inadvertence, but this court cannot say that it was nonprejudicial. Counsel for the state make no answer to this assignment of error; and we can think of none which would not do violence to the settled rules of trial in criminal cases. This necessitates a reversal of the judgment and that the cause be remanded for a new trial.
It is so ordered.
Burch, Porter, and West, JJ., concur in the reversal of the judgment but dissent from the rule announced in Syl. ¶ 1, and corresponding part of the opinion.
Johnston, C. J., concurs in the rule announced in Syl. ¶ 1, but holds that the error in the instructions was nonprejudicial and that the judgment should be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
T. A. Sharp and Etta Sharp were the parents of Randall Sharp, who was killed in an automobile accident near Silver Lake. He was riding as a passenger in the automobile and the defendant was operating it at the time of the accident. Defendant and three others started from Topeka to attend a baseball game between the colleges of Washburn and St. Marys. Randall Sharp was a student at Washburn and a member of the baseball club. The players, including Sharp, were being conveyed in a truck to St. Marys and the truck had broken down, near Silver Lake. When Sproat drove into Silver. Lake he was requested to take some of the players to St. Marys. Sharp and one Erickson were taken into the Sproat car. After they left Silver Lake and had gone about one quarter of a mile the automobile was turned over and Sharp was killed. Sproat was driving the automobile at a speed of from forty-five to fifty miles per hour and had been driving at that rate of speed about one quarter of a mile. The two players with two others occupied the back seat of the automobile, and Erickson was holding Sharp on his lap when the accident occurred. The jury found that the speed was from forty-five to fifty miles per hour; that that speed had been maintained for about a quarter of a mile prior to the overturning of the automobile;.that neither Sharp nor anyone else in the car protested against the rate of speed or requested the driver to slow up. The jury found in favor of the plaintiff, awarding damages in the sum of $4,500.
The principal ground of complaint is the instructions given and refused. The defendant insists that the instruction requested which relates to contributory negligence should have been given. An instruction on the subject of contributory negligence was given as follows:
“It is claimed by the defendant in his answer that the deceased Randall Sharp was guilty of contributory negligence, in not making any protest against the speed at which the car was going, if there was excessive speed, or protest against the manner in which the car was operated, but that the deceased concurred and participated in the negligence of the defendant, if any there was, which the defendant denies. In this connection I will say to you that it was the duty of the deceased Randall Sharp to act with ordinary care under the circumstances, for his own safety, and if he was guilty of negligence which contributed to his injury and death, or if he concurred in the negligence of the defendant, if any, in a way which contributed to his injury, then the plaintiffs in this case can not recover, even though you find the defendant was guilty of negligence, as charged.”
The instruction requested, upon the refusal of which error is assigned, reads:'
“You are instructed that if you find from the evidence that Randall Sharp was a young man twenty years old, in the possession of all his faculties, and that at the time of the accident complained of he was riding in an automobile driven by the defendant at a dangerously high rate of speed, and that he had been riding in said automobile for a sufficient distance prior to the accident for him to become aware that said automobile was being driven at a high and dangerous rate of speed, and if you further find that Randall Sharp made no protest to the defendant against the high rate of speed of the automobile, and did not request the defendant to stop or slow down the car, then I instruct you that Randall Sharp was guilty of contributory negligence and the plaintiffs cannot recover in this action.”
This instruction or one of similar import should have been given. In the one given, the court informed the jury that it was the duty of Sharp to act with ordinary care for his own safety and that if his negligence in that respect contributed to his injury and death, no recovery could be had although the defendant was also found to be guilty of negligence. The duty of a guest and the care to be exercised for his own safety under the circumstances were not stated. Before the jury could determine whether Sharp had exercised due care for his safety it was necessary that they should be informed and understand what duties the law imposes upon an invited guest while riding with a reckless or careless driver. The rules governing the duties of a guest and the precautions to be taken for his own safety differ from those imposed upon the driver or one acting independently. It has been decided that:
“Where one person is riding with another for the mutual pleasure of both, with equal opportunity to see and ability to appreciate the danger, and is in. fact looking out for herself but makes no effort to avoid the danger, she is chargeable with the want of care which results in injury.” (Bush v. Railroad Co., 62 Kan. 709, syl. ¶[ 3, 64 Pac. 624.)
In speaking of the kind of care which one who is riding with a reckless driver or in an automobile known to be unsafe should exercise, it was said:
“If in starting upon a trip he discovers that the driver is running the car recklessly it may devolve upon him to insist that the driver shall stop the car and allow'him to alight or to take some suitable steps for his own protection, and if he failed in this regard he might be denied a recovery for injuries subsequently sustained.” (Anthony v. Kiefner, 96 Kan. 194, 200, 150 Pac. 524.)
In a later case, where a person who was riding with an owner and driver of a car was injured at a railroad crossing and neither of the occupants of the car had taken proper precautions for their own safety, it was said:
“A mature person who attempts to cross an interurban railroad track without taking any precautions for his own safety, while riding in an automobile with another, who is driving, cannot recover damages for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger.” (Kirby v. Railway Co., 106 Kan. 163, syl., 186 Pac. 744.)
In Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893, a mature person riding in an automobile driven by the owner sustained injuries in a collision at a railroad crossing and it was decided that if she had failed to look for an approaching car and could have seen it in time to have warned the driver, she was guilty of contributory negligence that barred a recovery. In another crossing case where a person was riding in an automobile driven and controlled by another, and who had sustained injuries in a collision with a railroad train, a question arose as to whether due care had been taken by him, and while it was determined that it could not be decided, as a matter of law that the plaintiff was negligent in failing to see that the automobile was stopped before attempting to cross the railroad tracks, it was decided that he was charged with the duty of looking out for his safety so far as practicable, the court saying:
“The plaintiff however was under a positive duty to take reasonable precautions for his own "safety. Whatever else this may have involved, it required him to keep an outlook for a train, particularly on his side of the ear and to give the driver notice as soon as he discovered one.” (Kessler v. Davis, 111 Kan. 515, 517.)
These authorities show that a guest or invitee riding in an automobile with a reckless driver is required to exercise reasonable care for his own safety and that if he fails to exercise such care to avoid injury to himself he cannot recover. What was the duty of the guest, and what care should he have exercised under the circumstances? These were vital questions- in the case and the jury needed the advice of the court as to the duties imposed upon the invited guest and the care which was required of him when riding in an automobile at a dangerous speed. He certainly is required to do whatever is reasonably necessary to avoid injury to himself. If he had time and opportunity to do so he could have warned the driver, could have protested against the excessive speed or have asked the driver to stop and allow him 'to leave the automobile. Whether a warning protest or request would have been heeded by the defendant is questioned, but whatever the effect would have been, as the danger was obvious, it was the duty of Sharp at least to remonstrate against the dangerous speed or insist that he be allowed to leave the car if there was time to do so after the danger became apparent. In White v. Portland Gas & Coke Co., 84 Ore. 643, the court, while stating that a rule applying to every case of this kind could not be laid down, said:
“It is plain, however, that an invited guest is not to be supine and inert as mere freight. Accepting the hospitality of his friend does not excuse him from the duty of acting for his own safety as a reasonably prudent person would under like conditions.” (p. 651.)
The same rule was declared in Atwood v. Railway Co., 44 Utah, 366, as follows:
“Of course every one who may be riding in a vehicle, whether as a passenger, invitee, or otherwise, must always exercise ordinary care and prudence to avoid injury to himself, and to that end, in case of imminent danger, must leave the vehicle in case such a course is practical and necessary to avoid injury. Again, he may not sit silently by and permit the driver of the vehicle to encounter or enter into open danger without protest or remonstrance and take the chances, and, if injured, seek to recover damages from the driver of the vehicle or from the one whose negligence concurred with that of the driver’s, or from both.” (p. 374.)
A like view was taken in Hardie v. Barrett, 257 Pa. St. 42, where the court remarked:
“The rule is well established that when possible dangers arising out of the negligent operation of a hired vehicle or a conveyance in which one is riding as an invited guest are manifest to a passenger who has any adequate opportunity to control the situation, if he sits by without protest and permits himself to be driven on to his injury, this is negligence which will bar recovery.” (p. 46.)
Of course Sharp could only be held for his personal negligence, and whether or not in the exercise of ordinary care he had time and opportunity to give a warning, make a protest or take other precautions to avoid injury to himself, was a question of fact for the jury. It is earnestly urged that the distance traveled at an excessive speed was so short and the time that elapsed in going the short distance was so brief that it gave Sharp little if any time to caution the defendant or remonstrate with him as to the reckless speed. The distance traveled after Sharp entered the car was only about half a mile, and the jury found that the car had only been driven at the speed of forty-five to fifty miles an hour for a distance of a quarter of a mile. The time for protesting against the reckless driving was very short but it cannot be said as a matter of law that. there was not sufficient time for protest after the danger was or should have been realized by Sharp. Whether there was time and opportunity for one riding in a back seat of an automobile to observe the danger and remonstrate with the driver or to take other precautions to avoid the danger was a question of fact for the jury to determine after the court had given instructions as to the duty of a guest to exercise reasonable prudence for his own protection. The instruction requested was a fair statement of the governing rule in such a case and it or one embodying the same rule should have been given to the jury.
Under the evidence Sharp cannot be regarded as having been engaged in a joint adventure with the defendant and others and hence there was no error in overruling the demurrer to plaintiff’s evidence. (Kessler v. Davis, supra.)
For the. error mentioned in charging the jury the judgment is reversed and the cause remanded for a new trial. mathematics of this situation shows that counting the speed at 45 miles an hour he had 20 seconds in which to ascertain his danger and go through the manifestly useless operation of warning the driver to slow down. To my mind this is too infinitesimal to require giving the requested instruction. Moreover, I regard the one which the trial court gave as proper and sufficient.
Marshall, J.: Dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
A second.petition for a rehearing has been filed in this action. The Chicago, Rock Island and Pacific railroad asks that the judgment be modified so as to make it run against the United States Itailroad Administration only. The reasons advanced for the modification of the judgment have their foundation in the difficulties arising out of the adjustment of accounts between the government and the railroad. In this matter-, the court cannot assist either of the defendants. The judgment rendered is not intended to affect the relations of the defendants toward each other.
The application for a rehearing is denied. | [
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Per Curiam:
In this original proceeding in quo warranto, the state charges abuse on the part of the defendant corporation and its managing officers, and prays for the appointment of a receiver. Among the abuses narrated in the petition is a charge -of collusion between some of the corporate officers and certain of the stockholders whereby this corporation has already been thrown into the hands of a receiver appointed by the district court of Sedgwick county. Permission was granted to file this action, and a temporary order was issued restraining further proceedings in the district court.
Defendant filed a demurrer which, together with affidavits on behalf of the rival factions interested in the corporation, has now had our consideration. Without undertaking to' foreclose the facts which may hereafter be ascertained, and merely to explain the ruling here made, we hold that it does not yet appear that the district court was imposed on, but rather that the action was the result of a race of diligence between two'rival factions interested in the corporation — one of which was laying the groundwork for a federal receivership, and the other may have contemplated a receivership in the district court of Sedgwick county or bestirred itself to accomplish that object, prompted thereto by the activity of the other faction.
Ordinarily the district court is the proper forum for the correction of corporate mismanagement, or perversion, misuse, or abuse of corporate privileges such as herein alleged. (Gen. Stat. 1915, § 2182; id. § 7164, subdiv. 6.) By virtue of its original jurisdiction in quo warranto conferred by the constitution (Art. 3, § 3), and by its inherent supervisory jurisdiction over all inferior courts for the effective exercise of that jurisdiction (In re Petitt, 84 Kan. 637, 640, and citations, 114 Pac. 1071), the strictly legalistic point raised by defendants’ demurrer which challenges our jurisdiction cannot be sustained; but whether this court should assert its jurisdiction when the district court already has jurisdiction of a cause substantially similar, although technically different in some possible aspects, is a question addressed to our discretion. In view of the obvious fact that the state can intervene in the Sedgwick county litigation (Stevens v. Dimke, 110 Kan. 686, 205 Pac. 596), and that the matters it alleges can be thoroughly aired in the action there pending, and that any disposition of that cause in the district court which fails to satisfy the just demands of the state may be corrected here on appeal, the court holds that it should not retain original jurisdiction of this cause. (The State, ex rel., v. MounDay, 90 Kan. 449, 133 Pac. 864.) The restraining order heretofore issued is set aside, and the cause is dismissed. | [
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The opinion of the court was delivered by
Marshall, J.:
In case No. 23,292, The State, ex rel., v. City of Hutchinson, 109 Kan. 484, an opinion was filed July 9, 1921. A rehearing was granted, and No. 23,292 is now disposed of on rehearing.
1. The statement of facts contained in the former opinion is correct, but this additional statement should be made. Ordinance No. 1,378 attempted to include within the city limits all that part of the northwest quarter of section 17 in township 23 south of range 5 west in Reno county, lying south of the right of way of the Atchison, Topeka & Santa Fe Railway Company. The city limits had previously been extended so as to include all that part of the northwest quarter of that section lying north of that right of way. The right of way had not been annexed to the city limits previous to the passage of ordinance No. 1,378. The court is of the opinion that the failure to include the right of way of the Santa Fe Railway Company within the city limits by ordinance No. 1,378 did not invalidate that ordinance.
With this addition, the former opinion of this court is approved, and the judgment there rendered is adhered to.
2. After judgment was rendered in the district court from which the appeal in. No. 23,292 was taken, the city passed ordinance No. 1,442, by which the city attempted to annex all that part of the northwest quarter of section 17 in township 23 south of range 5 west lying south of the north line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and all of the southwest quarter of section 17 in township 23 south of range 5 west in Reno county. The plaintiff then commenced this action, No. 23,564, one in quo warranto, and asked that the defendant be ousted from exercising municipal powers over the territory described. The action was tried, judgment was rendered in 'favor of the defendant, and the plaintiff appeals.
The only difference between the two actions is' that by ordinance No. 1,378 the defendant did not include the right of way of 'the Atchison, Topeka & Santa Fe Railway Company within the limits of the city, and by the ordinance No. 1,442, that right of way is included. The opinion in No. 23,292, The State, ex rel., v. City of Hutchinson, 109 Kan. 484, is controlling and compels an affirmance of the judgment in case No. 23,564.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This appeal presents the one question whether or not the plaintiff must be held in law to have elected to take under the will of his wife, Allie V. Ross.
, The testatrix died in 1913, at Philadelphia, leaving as her heirs the plaintiff and two children, Edward E. Ross and Violet E. Ross. At the time of her death Allie V. Ross owned a half section of land in Rice county, Kansas. She left a will by which she bequeathed all her property to her executors, her two children, in trust, to collect the rents and income and apply them (1) to the payment of taxes and the costs of the repairs and maintenance of the farm, (2) to the payment of all her debts and (3) to the plaintiff during his natural life and the remainder over to the two children. No formal consent or election was ever given or filed by the plaintiff. Afterwards the. daughter died, leaving all her property to her brother, Edward E. Ross.
In July, 1920, the plaintiff brought this action in partition, claiming an undivided half of the land. The defendant and his wife set up the will and claimed the remainder in fee. In 1913, Edward E. Ross received from a lawyer in Philadelphia a letter advising him that the will should be probated in Philadelphia and—
“If probate is delayed longer, it may put upon you the burden of explanation in the event of a contest. As soon as the will is probated, copies should be sent to Mr. Ross and other parties in interest, but we think that there is no reason why a copy of the will should be probated at the present time in Kansas. This would prevent the necessity from [for] any definite action upon the part of your father, and at the same time would preserve the right of all the heirs under the will.”
The son testified that he was- present when the will was made and that'the lawyer, who drew it told the father when he read it to him what his “curtesy” rights were under tlje laws of Kansas and told him under the law of Kansas he .was entitled to half the real estate and asked him if he understood that and if the will was satisfactory to him. His father said it was. “He explained to him, 'you are entitled to the income of all the property, in Kansas, for your lifetime.’ Father said he was satisfied with that.” He testified that he found a note from his father to his wife for $9,800 and it had never been paid to his knowledge and that he had never presented it for payment; that he and his sister had never received any money except a certificate for $300; that there were debts amounting to $1,261.50 which his sister paid and that his father repaid them and $250 which his sister had advanced on a mortgage; that he had never paid or offered anything from the proceeds of the farm to the witness; that after his sister’s death he talked to his father and asked him if he was satisfied with the conditions of the will.
“He said lie was, only he felt hurt he had not been made .one of the executors. He said, ‘it is all right, go ahead, we don’t want any lawsuit about it.’ About a month after that in a conversation he said he did not think he was getting all he was- entitled to and said, T could take half of the farm if I wanted it, under the laws of Kansas.’ I said, ‘That way you would get only half of the income. This way you get it all.’ He made no further state-' ment at that time that I remember.”
Witness said that his father came to Kansas to look after the land and about January, 1920, he heard a conversation between him and witness’ sister, and after she told him what she had in her will she said to him:
“ ‘I have left this house in Philadelphia to Ned and my half of the Kansas farm to him. Isn’t that right? You will get all the income all your life, and I think he ought to have the land. Isn’t that right. Are you satisfied?’ He said he was.”
Joseph A. Zile testified that he knew the plaintiff four or five years and once asked him if his farm was for sale and he said it belonged to his children; that he got the proceeds as long as he lived; afterwards when the witness found that the plaintiff had brought a suit he asked him what was the matter and said:
“ ‘I thought the land belonged to your children.’ He said, ‘Yes,’ but he explained about the Kansas law and said, ‘I am depending on the Kansas law,’ and that’s about all he said ... He told me he was simply renting the farm and it belonged to his children. He said, ‘I’ve just got a life interest and get the proceeds from the farm.’ ”
Charles Zile testified that the plaintiff told him the land belonged to the boy and girl and that he could not sell it. He got all that came off the farm.
The plaintiff testified among other things that he was not present when the will was made and that it was never read to him; that he never learned that his wife willed the property away until the previous month. He had rented this land before 1913 and had rented it for forty-two years and continued to do so after his wife died. After his wife’s death he paid off the mortgage and kept an accurate 'account of the income; that he had come to Kansas nearly every year since 1907, but denied the conversation referred to and that he had ever admitted that the children owned the land.
, The trial court, after hearing all the testimony, made findings of fact very thoroughly covering the entire controversy, and conclusions of law. Among the findings are the following in substance: That the will was withheld from record in Rice county intentionally by the son on the advice of counsel until August 7, 1920; that the plaintiff at no time since the making of the will has ever consented to its provisions “but said H. H. Ross, the plaintiff, has at all times since the making of said will collected said rents and incomes, and from said sums so collected has paid the taxes, costs of repairs and upkeep of the said premises and the insurance upon the property and crops thereon, and has paid the mortgage upon said land and the interest thereon”; that prior to her death the testatrix told the plaintiff that she was going to will the farm to the children and that they were to be executors and he was to receive the income; that shortly after .her death he was informed what the Kansas law, was touching his rights in the property; that his control and management of the farm and the collection of rents, the payment of taxes, insurance and indebtedness and the discharge of the mortgage together with the expenses of the last sickness and burial of his wife “has in no manner prejudiced the rights or interests of Edward E. Ross or Violet E. Ross or caused them to alter their position in any manner to their prejudice, and such payments were in accordance with the terms of said will.” It was further found that the $9,800 note has never been paid by the plaintiff; that the daughter paid $1,600 expenses of funeral and sickness, which the plaintiff subsequently returned to her out of the rents and profits of the land. At the time of the trial he had received from the land $6,693.33, out of which he had expended $4,461.98, including a note executed to him by his daughter for $457, leaving in his hands as proceeds from the farm $2,688.35; that the plaintiff was in no wise prejudiced by the attitude of his children concerning his management of the estate, neither were they prejudiced or misled by his action in relation thereto.
As conclusions of law the court found that the plaintiff was estopped from claiming any greater interest in the land than that bequeathed to him by the terms of the will and that under its terms he succeeds to all rights of the daughter in and to the land. The plaintiff was decreed to have such rights as were given him by the will, the remainder to go to the son upon the death of the plaintiff.
It is contended that the plaintiff, not having made a statutory election, is entitled to one-half of the land, and decisions of this court are cited in support of the theory that an election must be clear and unequivocal.
The defendants claim an election by conduct. Counsel suggest that before his marriage to his second wife in 1919, the plaintiff’s statements indicated an intention to take under the will. They cite Reville v. Dubach, 60 Kan. 572, 57 Pac. 522, holding that one who deliberately proceeds as though an election had been made, accepts the benefits of the will and actually takes under it, will not be heard to say no election has been made.
The usual condition in a lawsuit is found here — a sharp conflict between the testimony of the plaintiff and that of the defendants, and direct assertions and denials of expressions and knowledge touching the provisions of the will. But the trial court resolved this conflict in favor of the defendants, and this is conclusive on us. There is left for our consideration the conduct of the plaintiff and its legal effect.
The case has been thoroughly and ably presented on both sides, and in one or both briefs are discussed not only the question of estoppel, but whether estoppel was properly pleaded, whether any change in status was caused by any act of the plaintiff, whether he came into court with clean hands, whether he was a cotenant with the defendant and his sister, and at what place an election to take under the will should have been made. Aside from the question of estoppel which, under the answer and reply and the way it was treated in the trial, was sufficiently pleaded, the other matters referred to are not necessary to a determination of this case, and therefore will not be discussed or decided.
Taking up the matter of election, it may be said that section 11798, General Statutes of 1915, provides that if the widow shall fail to make an election she shall retain her share of the estate which she would have been entitled to had there been no will, and of course, the same rule applies to a husband. In Sill v. Sill, 31 Kan. 248, 1 Pac. 556, it was decided that in order for the acts of the. widow to be regarded as an equivalent to an election to take under the will she must act with full knowledge of all circumstances and of her rights and it must appear that she intended by her acts to take under the will, which acts must be plain and unequivocal and be done with the full knowledge of her rights and the condition of the estate. There the widow sent a written election to the probate court by her stepson, but she had not had explained to her the provisions of the will or her rights, and there were other reasons why the circumstances were not sufficient to amount to an election. In James v. Dunstan, 38 Kan. 289, 16 Pac. 459, the widow did not make a formal election but expressed her satisfaction with the will when it was made, and, after the death of the testator, declared her intention to take under it and to come in and elect to accept its provisions, but her rights were not explained to her and she was held not to have elected. In Cook v. Lawson, 63 Kan. 854, 66 Pac. 1028, it appeared that the husband when drafting his will was requested by the wife to enlarge her temporary estate to a full life estate, which was done to her expressed satisfaction. She was made executrix with another. After her husband’s death she took the will to the probate judge’s office and made a written proposition for its probate and renounced her right to serve as executrix and asked that her coexecutor be permitted to serve alone, and several times stated to her neighbors that she knew all of the provisions of the will and was satisfied with them and continued to reside on the land for nearly twenty years. The court said:
“All that was lacking satisfactorily to prove an election in pais was evi dence of the widow’s knowledge of her rights under the statute. We do not think, however, that it was necessary to make express proof' of that fact. Knowledge on her part was inferable from her acts and from her declaration of satisfaction with the provisions made for her, and from her twenty years’ failure to dissent from them. It was fair to infer that during that long period she learned what her rights were under the law.” (p. 856.)
In another case the widow was found to have consented to the will and after the husband’s death appeared in probate court, and with it sent a petition asking for its probate and stated that it would not be necessary for her to elect to take under the will for she had in writing consented to the will. She afterwards acted as executrix for more than a year and received from the estate $2,000 from the distribution of personal property and had a thorough knowledge of the property of the deceased. It was held that under all these circumstances the discovery that the estate was larger than she supposed afforded no reason for setting aside the consent1 she had previously given. The trial court found an election by conduct to take under the will, and this was affirmed. (Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543.) That when a widow fails to make an election the law makes one for her and her failure amounts to an elec-
tion to take the share she would have taken had her husband died intestate, was held in Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074. The court said:
“If appellant, with full knowledge of her rights under the will, accepted benefits and received. property provided for her by that instrument she will be estopped to deny that she made an election or to claim the share which a wife takes under the law where the husband dies intestate.” (p. 635.)
“Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. The doctrine, which is purely equitable, and was originally derived from the civil law, finds its most frequent illustration in the case of wills, the principle being that one shall not take any beneficial interest under a will) and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any wáy prevent the full effect and operation of every part of the will.” (40 Cyc. 1959.)
Under the findings made by the trial court which the record shows were supported by the evidence, the conclusion of law that the plaintiff should be held to have elected to take under the will is entirely supportable under the rules announced in the foregoing decisions. It may be more proper to regard it as an election by conduct than purely as a matter of estoppel. The finding that neither party had changed its position or sustained any loss by reason of the action of the other eliminates some of the usual features of estoppel.
But, to use plain terms, with full knowledge the plaintiff for many years acted as if he had chosen to take what the will gave him and his actions in this respect were so significant and so continued that to hold he had not elected would be to convict him of remarkable inconsistency.
Holding, therefore, that the trial court was justified in determining the conflict against the plaintiff and proceeding from this starting point, we conclude that the findings of conduct on his part would, if construed otherwise than as by the trial court, work a remarkable case of inconsistency and that such actions were sufficient proof of an intention to take under the will.
Hence the judgment must be and is affirmed. | [
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