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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, Jack Dale Koontz, who was ten years of age, brought an action by his next friend for slander, against Lena Weide, and recovered a judgment for $150, from which defendant appeals.
The defamatory words alleged to have been uttered in the presence of a number of persons were:
“You little thief, you stole my pocketbook with $20.50. You took it, I am going home and call Mr. Dawson, the city marshal, and have him put you in jail. I will have you arrested.”
Two witnesses testified that slanderous words were spoken substantially as alleged while other witnesses gave a modified version of the language used. The jury in answer to a special question found that the words uttered upon which the verdict was based were:
“You stole my pocketbook, I am going to have you arrested.”
It appears that the defendant had left her pocketbook on a table in her house and', returning later to get it, discovered that it was not on the table. The plaintiff and other children had been in the house and for some reason defendant jumped to the conclusion that plaintiff had taken it. She sent for the boy and when he arrived she accused him -of the theft. It turned out that another member of her family had removed the pocketbook from the table and put it in a receptacle on the buffet. Sometime after finding the pocketbook defendant sent for the boy, apologizing to him for making the accusation, and gave him a dollar which was returned to the defendant by the father of plaintiff.
There is no basis for a serious dispute that the slanderous accusation was made.
There is complaint that the court excluded a negative answer of defendant to the question, “Did you call him a thief?” The objection was properly sustained upon the ground that the question was leading and suggestive. In response to other questions she was permitted to deny in effect that she had called plaintiff a thief. Objections were sustained to other questions upon like grounds but in most cases the rulings were based on the form of the questions, and the evidence was later admitted in answer to questions that were deemed to be unobjectionable. We discover no material error in the rulings on the admission of evidence.
There is complaint as to the instructions in that more attention was given by the court and a greater number of instructions were given relating to the claims of the plaintiff than to the defenses of the defendant. Error can hardly be predicated on an unequal division of instructions or words used by the court in submitting the claims of the respective parties to the jury. The defense pleaded was stated and the jury were instructed that' there could be no recovery unless the plaintiff established his claim by a preponderance of the evidence.
Special complaint of instruction thirteen is made in which the jury were advised that—
“Now it is claimed upon the part of the plaintiff that shortly after he had been at the place of residence of the defendant that the defendant in the presence of others openly accused him of stealing her poeketbook containing $20.50, and that she threatened to have him arrested and put in jail unless he restored the same to her. On the other hand it is claimed by the defendant that while she entertained a suspicion of his having stolen her poeketbook, containing $20 or more, that she did not accuse him of its theft, but only inquired of him whether or not he had taken it. Now if you believe from the evidence that the defendant did in the presence of others by the use of the language set out in plaintiff’s petition or a sufficient number of the words therein alleged when taken according to their usual and accepted meaning, constitute a charge of larceny of $20 or more, accuse the plaintiff with stealing her poeketbook as alleged, then and in such case such charge would amount to a charge of the crime of larceny, which crime is punishable by imprisonment and hard labor under the laws of Kansas, without the allegation of special damage. But if you believe from the evidence that the defendant did not accuse the plaintiff of the larceny of her poeketbook and its contents in the words as charged in the petition, but simply asked him if he had taken it and that the language made use of by her did not constitute an imputation of the commission of the crime by him, then in such case such language would not be actionable per se.”
Of this instruction it is contended that aside from the undue prominence given to the claim of plaintiff which tended to obscure the defense, the court used the expression that certain language would not be actionable per se, and did not define the meaning of the expression. It appears that in another instruction the court did explain that words imputing a crime are of themselves actionable from which malice will be inferred. A reading of the entire charge satisfies us that the case was fairly submitted to the jury and that nothing approaching material error is to be found in the instructions.
Nor do we find anything substantial in the contention that the boy settled the claim and is barred from recovering damages because he received and kept the dollar for a few hours which defendant handed him, when she apologized for her accusation. It may well be questioned whether a boy ten years old is capable of making a release which he could not disaffirm at any time before attaining majority, but even if he should be regarded as capable of executing a valid release, there was in fact no agreement of release negotiated for or made. There could be no release unless there was a meeting of the minds of the'parties and a mutual understanding that the payment and acceptance of the dollar were in full settlement of defendant’s liability. It is not shown or even claimed that such an agreement was made. Evidently the defendant when she made her apology to the boy accompanied it with the $ 1 tip as a kindly expression of her penitence for wrongfully charging him with a crime. An apology for or a retraction of a slander of itself does not operate as a bar to a recovery .of damages but is only received as tending to show an absence of malice and in mitigation of the damages recoverable. (17 R. C. L. 327, 448.)
A question has been raised as to the allowance of interest on the award of damages. The verdict was returned on May 24, 1921, and interest was allowed on the award from that date. Within three days after the return of the verdict a motion for a new trial was made which was denied on June 19, 1921. It is not áhovrn whether or not the judgment was announced when the verdict was returned. Evidently it was not formally entered until June 19, twenty-five days after the rendition of the verdict and the interest for that period on the award made, about 65‡, would hardly pay for printing the arguments concerning it. The court found and determined that—
“Judgment should be rendered for the plaintiff in accordance with the verdict of the jury rendered on the said 24th day of May, 1921,” etc.
It was the duty of the clerk to enter judgment in conformity to the verdict when it was returned unless it was special or the court ordered the case to be reserved for future argument or consideration. (Civ. Code, § 407.) It does not appear that an order of reservation was made by the court. A motion for a new trial does not necessarily stay proceedings upon a judgment. (Church v. Goodin, 22 Kan. 527.) The plaintiff should not be deprived of interest on his recovery through the failure of the clerk to perform his duty in entering a judgment. The delay in the formal entry of judgment resulted from the action of the defendant. It has been said:
“We think the general rule to be gleaned from the authorities is that where delay in entering judgment on the verdict is occasioned by the act of the party against whom it is rendered, interest is allowed.” (K. C. Ft. S. & M. Rld. Co. v. Berry, 55 Kan. 186, 40 Pac. 288, 193, citing Irvin v. Hazelton, 37 Pa. St. 465; Shephard v. Brenton, 20 Iowa, 41; Bull v. Ketchum, 2 Denio, 188.)
It cannot be held that there was error in the allowance made for interest.
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The opinion of the court was delivered by
West, J.:
This appeal involves the ownership of two cars of wheat. Clark Burdg and Y. C. Scott were grain dealers with offices in the same building in Wichita. The former sold to the latter two cars of wheat, then on the tracks at Wichita, indorsed the bills of lading to him and received two checks on the National Bank of Commerce where both did business. These checks were taken to the bank about 2:30 of the afternoon of February 13, 1920, and deposited to the credit of Burdg and entered upon his pass book. Scott went to the railroad companies which held the wheat and surrendered the bills of lading, took out new shipper’s-order bills of lading to himself as consignor and consignee. The shipper’s orders contained the notation: “notify Barrett Grain Company, Kansas City, Missouri,” and “notify Armour Grain Company.” He then drew on S. H. Miller Grain Company for $3,980.01, indorsed the bill of lading obtained from the railroad companies and attached the same to the draft. He also drew a draft on Barrett Grain Company of Kansas City for $3,500 and indorsed the other bill of lading and attached it to the draft and presented these drafts and bills of lading to the receiving teller of the bank about 3 p. m. of the same day,, February 13, and received credit for such drafts on his account, such credits being entered upon his pass book subject to check. When the plaintiff’s checks were presented, the receiving teller stamped them “Paid” and gave the plaintiff credit in his pass book.
When the accounts were balanced later in the day, the defendant Scott did not have sufficient funds to his credit to pay the two checks he had given the plaintiff. The bank, therefore, charged the checks back to the plaintiff and notified him that they were not good. The plaintiff came to the bank the same afternoon when the two checks to him by defendant Scott were delivered to and received by the plaintiff. He demanded the two bills of lading which had been surrendered by Scott to the railroad companies. In the meantime the bank had called Scott and a note had been drawn up for the balance due the bank and a chattel mortgage signed by Scott, which was afterwards in his presence torn up, and the plaintiff took a chattel mortgage from Scott for the amount due. him for the wheat.
The next day the plaintiff sued the defendant Scott to recover $7,415, the purchase price of the wheat then in possession of the railroad companies. Three days later the defendant bank was permitted to intervene and set up its claim to the wheat and execute a forthcoming bond and obtain possession of the wheat. On November 9, 1920, the bank filed its amended petition of intervention. On April 6, 1921, after a trial before a judge pro tem. and a jury, a verdict was returned in favor of the plaintiff against the bank on which judgment was entered and from which judgment this appeal is taken by the bank.
Errors are assigned upon certain rulings on evidence, the denial of the bank’s motion for a directed verdict, the submission of special questions to the jury, the giving and refusing of instructions and the denial of a new trial.
The plaintiff in his petition against the defendant Scott alleged that the latter gave checks which were not paid for lack of funds and fraudulently contracted the debt, and asked judgment for the purchase price of the wheat.
By its amended intervening petition the bank alleged, among other things, that after the bills of lading had been indorsed to Scott, the latter drew his drafts upon the Barrett Grain Company for $3,500 and on the S. H. Miller Grain Company for $3,980 and attached them to the indorsed bills of lading, which drafts were cashed by the defendant bank, and that after the suit and attachment had been begun and levied by the plaintiff, the wheat was the property of the bank and was in transit in interstate commerce in possession of the director-general of railroads as a common carrier, to be shipped to Kansas City, Mo. It prayed that -the bank be given possession and adjudged the owner of the wheat.
The plaintiff denied that the title ever passed from Scott to the bank, and alleged that if the bank received the bills of lading from Scott it knew that they were for the wheat belonging to the plaintiff for which he had not been paid except by the checks of Scott, and knew that Scott’s account was overdrawn at the bank and that he was insolvent, and with such knowledge the president of the bank stated to the plaintiff that the bills of lading would be held for collection and that after forwarding them for collection the defendant stopped payment thereon and they were never paid.
It will be seen that the litigation centered around the question of ownership of the wheat. Mr. Scott testified that he consigned the orders' to himself because it was customary and he considered that he owned the wheat until it reached Kansas City; that the two drafts were delivered by him to the bank to be collected from the firms upon which they were drawn, as customary; that it was his custom and expectation that as soon as they were deposited with the bills of lading attached he would be given credit and could check upon the amount.
The receiving teller of the bank testified that when a deposit slip like the one made to Mr. Scott is presented, the amount is entered in the bank book and is then subject to check by the customer; that if it were not subject to check a receipt would be given and credit would not be given until the money was returned. He testified that the charge of $3.70 was the rate of interest for the advancement of the money paid to the bank and deducted from the account; that this charge is sometimes termed exchange: “It is exchange or interest on the advancement. It is our collection fee for that.”
“If we had not made that charge then Mr. Scott would have gotten the use of this money on the 13th day of February and the bank would not have gotten the money back from the proceeds of the collection of the draft until some days thereafter. And this charge of $3.70 is to compensate the bank for the use of that money during that interval. . . .
“When a customer ordinarily doing business with the bank, as Mr. Scott has been, 'presents a draft with a bill of lading we credit him on his book. If the draft isn’t paid we charge it off.”
Mr. Carey, president of the bank, testified among other things that Scott and Burdg were both doing business with his bank and engaged in the grain business; that the drafts and bills of lading after being deposited in the bank were forwarded in the regular course of business for payment at destination.
“When those drafts and bills of lading were delivered to the bank the amount was placed to the credit of Y. C. Scott Grain Company and was subject to check, and then the drafts were sent forward by the bank for the collection of the money with the bills of lading on them. I heard the testimony of Mr. Worrell about the charge of $3.70 on this deposit. That is a charge made for placing the proceeds of the draft immediately to the credit of the drawer of the drafts for his use. That represents a charge for the use of the money from the time it is placed to his credit to the time it is collected and placed to our credit in Kansas City. If that draft had been simply taken for collection for Mr. Scott without giving him credit for it there would have been no charge of that kind.”
He further testified that he saw Mr. Burdg and Mr. Dixon on the evening of the 13th and when Mr. Burdg demanded back the bills of lading he replied that they had been forwarded in the regular course of business to Kansas City; that he did not use the term “for collection,” but probably said they were forwarded for payment.
The man in charge of the bookkeeping department of the bank testified that at the close of the day’s business, February 13, there was a balance of $2,514.48 to the credit of the-Scott Grain Company; that the books really showed two deposits on that day, one after some checks had been returned. The other deposit was for $7,476.30 and there were four checks charged off at the close of the business, leaving to his credit a balance of $2,514.48.
There was considerable testimony introduced showing that Scott’s account had been overdrawn frequently for some' time. Mr. Scott testified, among other things, that in his conversation with Mr. Carey in the afternoon of the 13th it was decided that about all he could do was to give a note and chattel mortgage for the overdraft and he afterwards saw Mr. Carey with reference to paying Burdg his money; that Mr. Carey tore up the chattel mortgage and note he had signed, and he, Scott,'gave Burdg a chattel mortgage.
Mr. Dixon testified that when Burdg got to the bank Mr.' Carey told him there were two checks that were no good and Burdg inquired where the bills of lading were and was told they had been sent to Kansas City for collection, and said:
“ ‘That is our wheat. He just the same as stole it from us. If these checks are no good, I want the wheat and I want the ladings.’ He says, ‘We hold the ladings and they have gone on for collection.’ ”
Mr. Scott was then brought back to the bank and advised that his two checks were not good. Mr. Carey said: “ ‘We have sent these on for collection and . . . when they get up there, this will show a balance to Mr. Scott’s credit,’ ” and then he said: “ ‘You give a check to Clark Burdg Grain Company for $2,463 and we will make a deposit slip out and if those drafts are paid to-morrow we will then cash your check but not unless those drafts are paid as they were taken for collection,’ ” and Burdg went out and telegraphed to stop payment on those drafts in Kansas City.
Mr. Burdg testified that he learned the next day that Scott was insolvent and then called the firms on the telephone and advised them not to honor the drafts. He then instituted attachment proceedings.
The jury returned a verdict in favor of plaintiff Burdg and answered twelve special questions, finding that Scott did not deliver the bills of lading to the bank for credit on his account; that they were not received by the bank and placed to the credit of Scott, and that they were not indorsed to the bank by him for credit subject to check, and were not placed to his credit subject to check; that the bank, when the two checks given to the plaintiff were presented, stamped them “Paid” and gave the plaintiff credit in his pass book; that when Scott delivered the drafts and bills of lading to the bank he intended to deliver them for collection only; that the bank charged a collection fee of $3.70; that it was the understanding that if the drafts were not paid this would be paid back to the account of Scott; that Scott had overdrawn in the bank when he gave the two checks to Burdg; that on the evening of the 13th the plaintiff was informed by the bank that the credit given him for his two checks would be canceled and that the bank through its agent stated to the plaintiff that they had sent the drafts for collection.
Counsel for the bank contend that the testimony shows without serious dispute the drafts and bills of lading were taken from Scott and placed to his credit, and hence, it was error to submit the question whether this was done to the jury. But it must be remembered that Scott gave a different version of the affair from the bank and this conflict in evidence was resolved by the jury against the bank. (Scott v. McIntyre Co., 93 Kan. 508, 513, 144 Pac. 1002.) Of course, if these drafts were taken by the bank as a deposit and placed to the credit of Scott, the wheat became its property. This is thoroughly settled by the decisions in Scott v. McIntyre Co., 93 Kan. 508, 144 Pac. 1002; Bank v. Sprout, 104 Kan. 348, 179 Pac. 301; Mercantile Co. v. Bank, 105 Kan. 474, 185 Pac. 287; Lampl Produce Co. v. Hawkins, 106 Kan. 423, 188 Pac. 233; Fourth Nat. Bank v. Bragg, 127 Va. 47, 11 A. L. R. 1034; and 11 A. L. R. 1061, note.
In the Sprout case it was said:
“The drafts were not taken for collection only. The interest to be paid during the suspension period was in effect discount, and the reserved right to charge back the drafts was a right which attaches to commercial paper to protect it, and not to defeat it. . . '. The negotiation of the bill of lading vested in the plaintiff all the title to the property which the shipper possessed.” (p. 350.)
In the Mercantile Company case the second syllabus reads:
“The indorsement and delivery of a negotiable draft with bill of lading attached implies an intent to transfer the title to the goods, and strong evidence is required to show that the intention was other than these acts indicated.” (Syl. H2.)
In the Lampl case it was said:
“Modern business could not well be conducted at long range, as from Idaho to Kansas, without the highly efficient agency of bank drafts, bank credits, and the assignment and attachment of bills of lading thereto, with the legal and equitable significance which commercial usage accords to these instruments; . . .” (p. 425.)
Instructions were requested to the effect that if the bank placed the drafts to the credit of Scott subject to check it became the owner of the wheat, and that if Scott’s account was overdrawn and the overdraft was made good by the credit, it would not deprive the bank of the wheat. These were refused; and the court charged, among other things, that such receipt and entry by the bank to the credit of Scott would make it the owner of the wheat unless the jury further found that it was not a bona fide purchaser. By instruction No. 10, the jury were told in substance that if Scott gave the plaintiff worthless checks for the wheat with the intent to defraud him and caused new bills of lading to be issued to himself and indorsed them and turned them over to the bank and was given credit by the bank in the usual course of business, and the bank had knowledge or reason to believe that Scott was insolvent and his account overdrawn and thereafter rescinded its previous actions in regard to the checks by reversing charges and entries, and if the bank received such drafts and-bills of lading with knowledge or reason to believe that the wheat had not been paid for when purchased of Burdg, then the bank would not be a bona fide purchaser. Various other instructions were given practically charging that if the bank had reason to believe that Scott was trying to defraud Burdg then it was not a bona fide holder of the paper. This is not law.
While in some cases erroneous instructions are not sufficient to work a reversal, this should result when such erroneous instructions color the verdict. Unless the bank in taking the bills of lading acted in bad faith it was a bona fide holder. The knowledge, had it possessed it, that the wheat had not been paid for when purchased of Burdg would not convict the bank of bad faith. (Bank v. Reid, 86 Kan. 245, 120 Pac. 339; Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637; Gigoux v. Henderson, 107 Kan. 325, 190 Pac. 1092; Thresher Co. v. West, 108 Kan. 875, 196 Pac. 1061.)
(Filed July 13, 1922.)
The fact that Scott had been .overdrawn at the bank, the fact that checks he had given Burdg were turned down for want of funds, and the fact that certain “kiting” had been indulged in would naturally and probably did have considerable effect on the jury in passing upon the real facts concerning the dealings between the bank and Scott. The erroneous instruction given would naturally influence the jury in reaching their conclusion, and under the circumstances shown, must be deemed to have materially colored the verdict. This means, at least, that the bank did not have a fair trial — a thing every litigant is entitled to. Complaint is made that incompetent evidence was admitted touching certain, conversations after the 13th of February, but as these simply disclosed the version the parties concerned placed on the previous transaction and the situation resulting therefrom, no harm was done by their admission.
Other matters are presented and argued, but as the judgment must be reversed for the reasons indicated, no further discussion is deemed necessary.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment overruling their demurrer to the plaintiff’s petition.
The petition alleged that on September 13, 1915, defendant John B. Phelps obtained a judgment against the plaintiff for $374; that execution was issued on that judgment and levied on real property which was sold under the execution to John B. Phelps for the full amount of the judgment, interest, and costs; that the sale was confirmed; that afterward, on January 7, 1920, a sheriff’s deed therefor was issued to John B. Phelps. The petition also alleged that by reason of the execution, sale, and sheriff’s deed, the judgment in favor of the defendant had been fully satisfied. The petition further alleged that on January 7,1921, defendants John B. Phelps and C. L. Marmon caused another execution to be issued on the judgment and placed in the hands of defendant Lee Richardson, sheriff of Finney county; that Lee Richardson was about to levy that execution upon a share of stock belonging to the plaintiff in the Garden City Land and Immigration Company; that the levy of the execution upon the stock would be illegal and wrongful; and that the plaintiff had no adequate remedy at law to prevent the sale of the stock. A permanent injunction was asked.
The judgment from which the appeal is taken reads:
“Now, on this 17th- day of May, a.d. 1921, . . . the above case came on for hearing upon the demurrer of defendants to the petition of plaintiff filed herein/ . . . Upon argument of counsel, and pending a ruling of the court in said matter, it was stipulated and agreed in open court that the same admissions and evidence adduced in the trial of the case of John B. Phelps v. Geo. W. Finnup et al., would be admitted as the evidence in this action, in so far as same was applicable to the point in issue. The court being fully advised in the premises, overrules said demurrer.
“It is therefore, by the court considered, ordered, adjudged and decreed that the demurrer of the defendants to the petition of the plaintiff filed herein be overruled and the defendants electing to stand on the demurrer and excepting to the rulings of the court, said exceptions were duly allowed.”
The action of John B. Phelps v. Geo. W. Finnup et al. was prosecuted by Phelps to recover possession of the land described in the sheriff’s deed. He failed in that action. These facts are not stated in the petition and are not included in the stipulation set out in the judgment in this action.
Unless the admissions and evidence named in the judgment were made a part of the petition, they had.no. place in the hearing on the demurrer. There is nothing to show that they were made a part of the petition or that they were so considered. If they were not made a part of the petition, the trial court could not consider them on the demurrer, and this court should not do so now. The judgment indicates, but does not say, that only the petition was considered when the ruling on the demurrer was made. The defendants who 'appeal apparently did not consider the admission and evidence as a part of the petition because they are not abstracted, although a transcript of them has been filed in this court. The admissions contained in that transcript do not add anything to the petition in this action. The facts shown by the evidence set out in the transcript, if they had been pleaded in the petition, might compel a different judgment; but the judgment should not be reversed until it affirmatively appears that those facts were considered the same as if they had been alleged. Tliis action must be disposed of on the petition, as written, and the demurrer thereto.
The practice of simplifying matters in the courts in the trial of a lawsuit is to be commended; but, when it is sought to reverse the judgment of the trial court, matters must be placed in the record brought to this court to show that error was committed, or the judgment must be affirmed. There is nothing in the record presented to this court in this action to show that error was committed by the trial court.
The defendant argues that by setting aside a sheriff’s sale of real property, the judgment under which the sale had been made 'would be reinstated. It may be conceded that the argument of the defendants on this proposition is correct, but that is not the case that is presented to this court. Here, there had been a sale of real property under execution; the sale had been confirmed; and a deed had ■been issued. There is nothing in the petition to show that the title of the purchaser failed or that the judgment creditor, John B. Phelps, did not receive the proceeds of the sale. So far as the petition is concerned, the purchaser acquired good title to the property. The purchase money was, under the law, applied in satisfaction of" the judgment, and another execution cannot be lawfully issued on it:
The demurrer was properly overruled, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the defendant, Joe Pickering, on two notes, one for $8,700 and the other for $560.87. Thereafter, Pickering filed a voluntary petition, in bankruptcy, and the plaintiff filed an amended petition making Mrs. Pickering a party defendant, alleging that the money for which the notes were given was lent to the defendants upon an agreement to mortgage the land involved therein, and further averring an agreement with the de fendants that if the plaintiff would furnish them with the necessary funds to purchase this land they would, as soon as they acquired title, make a mortgage to secure the money; and prayed for a decree adjudging the money due as an obligation contracted in payment for the purchase price of the land.
The court gave the plaintiff judgment for $9,700 and interest and found as a conclusion of law that the indebtedness was contracted for the real estate in question and that such real estate was not exempt from sale under execution for the payment of such obligation.
Sixteen findings of fact were also made by the court and the defendants claim that numbers 3, 5, 6, 9 and 15 were erroneously made, and say:
“This is the only question in this case. These findings all taken together really mean: ‘That the indebtedness sued upon in this action was for money loaned by the bank to the defendant, Joe Pickering, under an agreement that it should be used for the purchase of the land in question.’ ”
It is argued that these findings are practically conclusions of law and are not supported by the evidence. These five findings were to the effect that before the purchase of the land the defendant, Joe Pickering, conferred with Callahan, the president of the bank, about the purchase of certain other land in the same vicinity and they went together to look over such land and afterwards Callahan told Pickering that in case he bought land in that vicinity he could have such funds as he might need in addition to what he had; that immediately afterwards Pickering contracted for this land and advised the bank of the purchase and its terms:
“And it was agreed between said defendant, Joe Pickering and the bank through its president, J. E. Callahan, that said bank would loan the said defendant such money as he might need to complete the purchase of the said real estate.”
Further, that on May 19, 1919, he advised the bank that he had issued a check for $5,000 to cover the amount due on approval and that he would need $3,500, which the bank agreed to lend him, to meet the payment on the real estate, and for which Pickering gave his note. That on August 2, 1919, he advised the bank that he expected to close the deal in a few days and needed more money, the balance due being $14,000, and that he needed $4,500 to make the final payment, “which amount the bank loaned him for the purpose,” and on August 5, he gave his cheek for $14,000 as final payment on the land. That the $3,500 item of May 19, and the $4,500 one of August 2, were borrowed on agreement between Pickering and the plaintiff and was lent by the bank to pay the purchase price of the real estate involved in this case, and was so used.
“And the use of said money in making payments for said real estate were all parts and portions of one single and entire transaction.”
We think these findings are findings of fact rather than conclusions of law, and a careful examination of the abstract and counter-abstract furnishes fair support for each of them. It appears that Pickering had done' business with the bank for a long while, sometimes borrowing large sums and often overdrawing, and that a practice-had grown up that when he was away from home and needed money, some one in the-bank would advance the money and sign his name to a note, and when he came in such notes would be put into a new one properly signed by himself. It is clear from the evidence that he talked with the officers of the bank about the purchase of this land and told them of his contract and that he needed more money than he had, and that a loan of some $10,000 was secured from a loan company and placed to his credit in the bank.
The vice president testified that on .August 2, when the $10,000 was placed to his credit, Pickering’s balance was $14,487.63, and the $14,000 check was given to pay the remainder of the purchase price on the land.
“He told me about buying and selling this land. ... He said he would buy another piece of land if we boys would help him; that is, he couldn’t do it alone. . . .
“Q. How often did he talk to you about financing this deal for the purchase of this real estate? A. Very frequently.
“Had several conversations with Pickering in reference to the buying of this land, and the bank loaned him the money. . . . Probably discussed it a half dozen times. '. . . The reason no mortgage was ever taken was that Pickering deferred doing so from time to time, stating that he expected to sell the land and pay up.”
Mr. Callahan, president of the bank, testified that Pickering wanted to know what he thought about buying the farm there and if the bank would lend him some money.
“I told him that the land was going to cost him a good bit of money and the only way we could handle it was to get a real estate loan through for as much as he could get from some mortgage company and we would loan him the balance from the bank. ...
“A. He said we could hold the deed or a mortgage or fix it up any way we wanted to. He said he couldn’t buy the land without our help, which was true. . . .
“A. Well, he said it was going to cost around $20,000, somewhere along there. . . .
“A. Well, lie said he didn’t have only about $4,000, and he wanted to know if there was any way he could fix it up if he made the deal. . . .
“A. I told him to go ahead and make the deal and I would get him a real estate loan for all I could and I . would; take care of the balance at the bank for him. . . .
“A. Well, I told him we could fix it up with a mortgage or fix, it up some way later on. To go ahead and make the note or have the boys make the note at the bank for what he needed to finish up his deal, and we would fix up the mortgage later on.”
He further stated that the mortgage for $10,000 was signed up at the bpnk, and it was agreed that Pickering—
“ ‘Could put up his noteá at the bank, what he needed to clean it up, and we would fix it up later on,’ and not take a mortgage just then, as Pickering said he might sell it in a few days.”
It is impossible to read the record without coming to the conclusion that the bank furnished the money to buy this land and that Pickering could not have bought it without the assistance of the bank. The controversy arises now over the claim of the Pickerings that the land constitutes their homestead, which cannot be reached by the bank for the collection of its debts. The record, however, is convincing that the findings of fact complained of were fairly supported by the evidence.
It is contended that there must have been such an agreement between all the parties as could subrogate the bank to the rights of Kiser, from whom the land was purchased. But the case turns, not on a question of subrogation, but on the question whether the money was lent by the bank to buy the land, and used for such purpose. If so then the lender is entitled to a judgment, and in such judgment he may attach the land because under the constitution it is not exempt from sale “for the payment of obligations contracted for the purchase of said premises.” (Art. 15, §9; Andrews v. Alcorn, Adm’r, &c, 13 Kan. 351; Nichols v. Overacker, 16 Kan. 54; Greene v. Barnard, 18 Kan. 518; Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198; King v. Wilson, 95 Kan. 390, 394, 148 Pac. 752; Thompson on Homesteads and Exemptions, §§339-342; Smyth on Homestead and Exemptions, §223; Waples on Homestead and Exemption, 331.)
“Money borrowed of a third person by the vendee of a homestead, and paid to the vendor, is purchase-money for which the purchased property is liable to such third person, under the broad application of the term purchase-money in many of the homestead states.” (Waples on Homestead and Exemption, 337.)
The'judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was one for damages resdlting from death by wrongful act. Judgment was entered against defendant, and the error assigned turns upon the propriety of substituting a Missouri administrator for a Kansas administrator as plaintiff in the action.
One Archibald Minney, a resident of Leavenworth county, was killed in Missouri through the negligence of the defendant bridge company while reconstructing a Missouri river bridge near St. Joseph. Minney had neither wife nor child, but it was shown that he was wont to contribute small sums frequently to the support of his brother, William Minney, and this action was brought in behalf of the latter, under a Missouri statute which sanctioned such recovery.
Archibald had been injured on September 15, 1917, and died two days later, and the action was begun on October 27, 1917. The original petition was brought in the name of William Minney, “the duly appointed, qualified and acting administrator of the estate of Archibald Minney, deceased.” William was a Kansas administra tor, but the petition did not expressly so state. Issues were joined by answer filed January 10, 1918, but the want of power on the part of such Kansas administrator was not at first raised. An amendment to the petition pleading further concerning the Missouri law was filed on February 14, 1920. On February 20, 1920, defendant filed a demurrer on three grounds, one being that the plaintiff had no legal capacity to sue. It does not appear that the trial court ruled on this demurrer, but it does appear that on April 2, 1920, upon a joint motion of William Minney, administrator of the estate of Archibald Minney, deceased, and of Mary A. Williams, public administrator of the estate of Archibald Minney, deceased, appointed by the probate court of Buchanan county, Missouri, in March, 1920, the latter was substituted as plaintiff in the action, .and the trial proceeded to judgment in her name.
While the Missouri administrator filed an amended petition, the cause of action was the same as that originally filed — for damages to William Minney for the wrongful death of Archibald, under the laws of Missouri. No new or different cause of action was stated; and the question for our review arises out of the court’s order substituting as plaintiff 'an administrator who could maintain the action for one who could not.
Of course the Kansas administrator had no legal capacity to sue and consequently could not maintain the action (Russell v. Railways Co., 106 Kan. 609, 189 Pac. 367), and just as certainly a Missouri administrator could maintain such action under Missouri statutes inserted in the pleadings, and under our own code (Civ. Code, § 47, Gen. Stat. 1915, § 6937.) But it was of prime importance in this case that substitution of such Missouri administrator be made in the action already begun, otherwise the Missouri statute (one year limitation) would bar it altogether. (Rodman v. Railway Co., 65 Kan. 645, syl. ¶ 2, and citations therein, 70 Pac. 642.)
We have some analogous precedents which settle the present question. In City of Atchison v. Twine, 9 Kan. 350, a widow brought an action against the city for the death of her husband who was hung by a mob. At the trial, the appointment of an administrator for the estate of the deceased was suggested and he was substituted. This court by Chief Justice Kingman said:
“This action was therefore improperly brought by the widow; and the plaintiff, not having the legal right to bring the action, and that fact appear ing upon the face of the petition, it was a suitable ease for the interposition of a demurrer. . . . But the court very properly permitted an amendment making the administrator the plaintiff.” (pp. 356, 357.)
In Service v. Bank, 62 Kan. 857, 62 Pac. 670, an action to foreclose a mortgage was brought by one Mary R. Bryant as plaintiff. She had been the original mortgagee. Later, the Farmington Savings Bank interposed and showed-that it was the owner of the mortgage and it was substituted as plaintiff instead of Mary R. Bryant. This court said:
“Great latitude is given'to the trial court in the matter of the amendment of pleadings, with a view of curing defects, supplying omissions, and preventing injustice. Our statute in terms authorizes the adding or striking out of the name of any party or correcting a mistake in the name of a party, or a mistake in any -respect. (Gen. Stat. 1897, ch. 95, § 139; Gen. Stat. 1899, § 4389.) Here a mistake was made in bringing suit in the name of the payee of the note instead of the party to whom the payee had indorsed and transferred it. While it is a radical amendment to substitute one plaintiff for another, such an amendment is clearly within the power of the court, under the plain provisions of the code, and Weaver v. Young, 37 Kan. 70, 14 Pac. 458, is directly in point and settles the question in favor of the substitution. In that case an amendment was permitted striking out the name of one party who was "the sole plaintiff and substituting another and distinct party, after it was shown that the first name was used by mistake.” (p. 860. Citing many earlier Kansas cases.)
In Harlan v. Loomis, 92 Kan. 398, 140 Pac. 845, an action to recover rents was brought by one James S. Harlan as plaintiff. James had been the agent of the landlord, but he had no right to maintain the action. Later his brother, Richard D.' Harlan, as executor of the estate of the landlord, brought another action for other rents, and the cases were consolidated and Richard as executor was substituted for James, as plaintiff. This court stated the appellant’s position thus:
“There is no contention that the amendment substituting one party for another was improperly allowed, but it is contended that James S. Harlan was a stranger to the land occupied by appellant and to the controversy as to the rentals for its use, and that an action in his name did not arrest the running of the .statute on the claims, and that the amendment substituting Richard D. Harlan, executor, as plaintiff did not relate back to the commencement of the action.” (p. 399.)
But it was held to the contrary — that, the substitution of one party for another as plaintiff did not change the cause of action, and that such amendment related back to the institution of the action and that the statute of limitations stopped running as to the sub stituted plaintiff when the action was begun rather than when the substitution was made.
“As the amendment did not introduce a new claim or cause of action, it is not to be deemed a change of the action itself; and, under the liberal provisions of our code authorizing amendments, we think the amendment relates back to the beginning of the action, and that the statute of limitations did not run against the owner of the paper during the pendency of the proceeding.” (Service v. Bank, 62 Kan. 857, 862.)
(See, also, Hudson v. Barratt, 62 Kan. 137, 140, 141, 61 Pac. 737; Maurer v. Miller, 77 Kan. 92, 93 Pac. 596; Cooley v. Gilliam, 80 Kan. 278, 282, 102 Pac. 1091; Cunningham v. Patterson, 89 Kan. 684, 686-688, 132 Pac. 198.)
This view is in accord with that of the supreme court of the United States in Mo., Kan. & Tex. Ry. v. Wulf, 226 U. S. 570, 57 L. ed. 355.
The foregoing sufficiently disposes of the question presented, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.
The plaintiff shipped ninety-one head of cattle about April 1, 1918, from Duñlap, Kan., to Kansas City, Kan., over the defendant’s road. The contract of shipment contained a provision that, as a condition precedent to the right to recover for any loss or damages resulting from shrinkage in weight while the stock was in the possession of the carrier, the shipper should in writing give notice to the conductor in charge of the train or to the nearest freight agent before the car should leave the carriers’ lines and before the cattle should mingle with other live stock or be removed from the pens at destination, and give the place and circumstances of the injury. The petition alleged that about six miles from Dunlap the train became derailed and the cars 'the cattle were in left the rails and were thrown to the ground and turned over, greatly injuring and damaging the cattle; that the injuries were due to the negligence of the company in allowing its road bed to become uneven and washed out, the ties rotten, worn and broken. He asked damages for five cattle killed, $818, one cow crippled, $100, "and shrinkage in weight of the other cattle, $1,328.12, and alleged that by reason of the derailment the cattle were greatly bruised and marred in appearance and sold for $418.32 less than they would have sold for had such accident not occurred. It was averred that on or about April 5, 1918, the plaintiff served a written claim for damages on the company. o
The answer contained a general denial and a plea of contributory negligence.
The jury returned a verdict for the plaintiff for $823.32, and answered special questions to the effect that the verdict included $375 for cattle killed; $30 for the cow crippled and $418.32 for general depreciation of cattle owing to the appearance upon their arrival at Kansas City. The plaintiff filed a motion for a new trial which was denied, and he appeals, the principal error complained of being an instruction of the court that although the jury might find that the defendants were guilty of negligence in handling and shipping the cattle the plaintiff could recover nothing on the item of $1,328.12 for shrinkage set forth in his petition.
The plaintiff testified that the wreck occurred about 3 p. m. and the cattle were permitted to roam over the country for the rest of that day and night and until about ten o’clock the next day when they were taken.back to Americus; that the agent asked him to ship the cattle and do the best he could and not tell the commission men anything about the wreck; that the defendants sold the dead steer and the crippled steers for $50, but the plaintiff did not get the money.
Counsel in their brief say that this evidence brings the case within the rule announced in Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132, wherein it was held that the representative of the railroad company in charge of the live stock was present and inspected the cattle when they arrived, and directed what disposition should be made of them and the purpose of the stipulated notice was accomplished and no further notice was necessary. Section 8587, General Statutes of 1915, that any provision in a contract of shipment providing as a condition precedent to recovery for damages for any cause, including delays, that notice of such in writing be given in less than twenty days. after such claim will be unlawful' and void, is cited. It is therefore insisted that the provision for notice of shipment in this case was void, and further that the purpose of requiring notice was accomplished in this case, and that none was needed. This same provision was considered in Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421, and it was held that when cattle are moved from pens at destination without notice being given, the shipper cannot maintain an action for shrinkage and for delay in delivery of the cars at destination chute for unloading. To the same effect are Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847, and Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875. See, also, Achen v. Railway Co., 103 Kan. 668, 175 Pac. 980, involving an interstate shipment.
The case of Railway Co. v. Wright, supra, involved an injury of which the representative of the carrier had personal knowledge at the place of. delivery and inspected the cattle there and directed what disposition should be made of them. But even in that case shrinkage occurring in another shipment was held to be a matter requiring compliance with a contract provision for notice.
It is held, therefore, that under the circumstances of this case failure to give the notice barred a recovery on account of shrinkage, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Dewey Frey was convicted of feloniously stealing a set of harness from Rennie McCormick, a farmer residing about six miles north of Norton.
The harness was taken from McCormick’s barn on the night of March 9 or during the early hours of March 10, 1921. The wheel tracks of an automobile such as defendant then possessed were seen in the public road nearby; marks as of harness which had been dragged under the fence were discovered; and after daylight Frey and his car were found stalled on the highway about seven miles south of Norton. In the car was some harness partly covered with a blanket. McCormick’s harness was a set which had cost $175 about fourteen months before, but it had not been greatly used, and still had a new appearance. Several witnesses testified that the harness partly covered in Frey’s car looked like new. On the same night as this theft, another harness belonging to a farmer named Lockwood, living near McCormick, was likewise stolen, and before Frey was apprehended for the theft of the McCormick harness he had been arrested for the larceny of the Lockwood harness. Following this first arrest he wrote a rambling letter to the editor of a Norton newspaper in which he told a preposterous story to the effect that while driving from Oxford, Neb., on the night of these larcenies he halted on the road about six miles north of Norton and was importuned by two fellows to haul two sets of harness, one of which was new, to some place between Lenora and Morland, (thirty to fifty miles southwest), and that they offered him $150 for that service, and that he hauled one of these fellows and the harness to a draw south of Lenora and was paid $145 therefor, and that he had promised not to tell who these persons were.
Verdict of conviction, and judgment and sentence to the penitentiary followed; and defendant appeals.
The first error urged on our attention relates to the amendment to the information which the court permitted during the trial. The information had first given the legal numbers of McCormick’s farm as section 24, town 1, range 21 west, in Norton county. The amendment changed the range number to 23. The legal numbers of the McCormick farm were immaterial and surplusage; they hardly amounted even to matter of form. At the preliminary examination the state’s evidence was developed and defendant was fully apprised of the offense charged against him. So, too, by the information. It charged him with the felonious theft of a set of harness belonging to R. E. McCormick in Norton county. Since the action was not for burglary, it was unnecessary to charge that the harness was taken from McCormick’s barn. Furthermore, no request was made for a postponement on account of the amendment, nór was any showing of prejudice made at the trial nor on the hearing of the motion for a new trial. The allowance of the amendment was therefore not erroneous. (Crim. Code, §72; The State v. Sterns, 28 Kan. 154; The State v. Spendlove, 47 Kan. 160, 28 Pac. 894; The Slate v. McDonald, 57 Kan. 537, 46 Pac. 966; The State v. McCullough, 101 Kan. 52, 165 Pac. 644; 22 Cyc. 437, 443, 444.)
The next error urged relates to the admission in evidence of the letter written by defendant to the newspaper editor, in which he said that he had been in the vicinity of McCormick’s farm on the night of the larceny and that he had hauled away a new harness therefrom. Three objections are urged to this — that the defendant’s signature was not fully identified, that the letter itself was not identified, and that it should have been excluded because it involved him in another crime than the one for which he was on trial. None of these objections are tenable. Defendant’s signature to the letter was sufficiently identified by the banker with whom he had done business. (Baird v. Shaffer, 101 Kan. 585, 590, 168 Pac. 836.)
The letter to which defendant’s identified signature was appended was itself identified by the recipient; and since it contained admissions of material importance to a correct determination of the cause on trial, the fact that it likewise contained matters relevant to another crime did not require its exclusion. (The State v. King, 111 Kan. 140, syl. ¶ 1, 206 Pac. 883.) Defendant’s counsel cite section 216 of the criminal code, which provides that the testimony of three expert witnesses is requisite to prove the genuineness of a note, bill, draft, certificate of deposit or other writing. That rule applies where the note or writing is itself the subject of the crime and wdiere its authenticity is consequently of vital importance, and where there is no evidence concerning the crime involved in the writing except the testimony of experts, as in the case of forgery, for example. It does not apply where the writing is a mere bit of evidence touching a crime which has nothing to do with the writing, as in this case, where the subject of the crime was the theft of a set of harness. (The State v. Foster, 30 Kan. 365, 2 Pac. 628.) Here, too, there was other evidence, the tracks of defendant’s automobile near McCormick’s, the marks on the ground near by where the harness had been dragged under the fence, and the presence of the harness in defendant’s automobile after daylight next morning.
Another contention is that the harness in defendant’s possession was not sufficiently identified as that which was stolen from McCormick. To support this some diversity in the testimony of the state’s witnesses is quoted, some testifying that it looked like brand new, while in fact the harness had been used for some months on a span of colts and had sweat marks and had been rained on. That contention is only a jury argument; and moreover, that overlooks also the other evidence which tended to identify the harness in defendant’s possession as that of McCormick — the theft of the harness, the marks on the ground, the presence of Frey’s car in the neighborhood, the absurd explanation of how defendant got the harness and how he disposed of the harness. These were potent 'bits of evidence on the question of identification.
Elsewhere it is argued that the trial court expressed dissatisfaction with the evidence touching the automobile tracks, saying: “The testimony regarding the automobile tracks is vague, indefinite, un certain and contradictory.” But this remark was in connection with its ruling on the motion to take the case from the jury. It is generally immaterial what reason a trial court gives for its ruling, so long as the ruling itself is correct. (Saylor v. Crooker, 97 Kan. 624, syl. ¶ 4, 156 Pac. 737.) Of course, after a verdict is rendered in a criminal case, if the trial court is dissatisfied with it, it is its imperative judicial duty to set it aside and grant a new trial. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 30 Pac. 108; Coal and Mining Co. v. Stoop, 56 Kan. 426, 43 Pac. 766; Richolson v. Freeman, 56 Kan. 463, 43 Pac. 772; Hudson v. Riley, 104 Kan. 534, syl. ¶ 4, 180 Pac. 534.)
In Butler v. Milner, 101 Kan. 264, 166 Pac. 478, Mr. Justice Porter, speaking for this court in pointed language which should address itself weightily to the consciences of all trial judges, said:
“The sole function of the jury is to return a verdict, but the matter does not rest there; before a judgment can be rightly entered upon the verdict the judge of the court must exercise a judicial function and approve or disapprove the verdict. It can not be doubted that frequently miscarriages of justice would be avoided by a more vigorous exercise of the trial court’s discretion in granting new trials. And it is doubtful if a weightier responsibility rests upon the judge of the district court than the proper exercise of this part of his judicial functions. At every session we affirm judgments which do not accord with our views of justice as presented by the printed record, but solely because we are obliged to assume that the trial judge, in refusing to grant a new trial, has added to the verdict of the jury the weight of his approval, after a full opportunity to see and hear the witnesses, which this court can not have.” (p. 266.)
But here there is nothing to show that the trial court’s misgivings as to the sufficiency of the evidence to fasten the- crime on defendant continued after the verdict was reached. (Railroad Co. v. Matthews, 58 Kan. 447, syl. ¶ 4, 49 Pac. 602; Sovereign Camp v. Theibaud, 65 Kan. 332, 337, 69 Pac. 348.)
There is no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves the right of inheritance of a widow in the estate of her deceased husband who prior to his death executed a will giving all of his property to his children by a former marriage. The marriage occurred in Illinois, January 22, 1902. At that time the parties were about sixty-six years old, each of them had been married before and each had living children by former marriages, and each before and at the time of the marriage was the owner of real estate and personal property.
On the part of the defendants it is contended that the widow was barred from a share in the estate by the following postnuptial contract, which was executed about ten days after the marriage.
“The undersigned, Jacob J. Marti and Caroline Marti, his wife, both of Grantfork, Madison Co., Illinois, hereby mutually agree that the property both real and personal owned at the present time by each of us, remain intact for the benefit of each one children. That neither party desires to disturb the property rights as existing at the present time.”
On May. 10, 1915, Jacob J. Marty made a will devising all his property to his children by his former marriage and giving nothing to his wife, Caroline Marty. The will was made in Comanche county, Kansas, where he afterwards died, leaving an_ estate consisting of money and notes. Mrs. Marty did not sign or consent to the will' but elected to take under the law of descents and distributions. After the contract was made he did not accumulate any additional property and his estate decreased rather than increased. The trial court held that the contract did not deprive the widow of her right of inheritance from her husband’s estate. The defendants appeal, and contend that the contract should be interpreted as providing for an actual disposition of the property and that it means that each surrendered his or her right of .inheritance in the property of the other. Plaintiff contends that the agreement contains no word of conveyance, no reference to survivorship and means no more than that the property was to be kept intact, not wasted or squandered, the income or benefits arising from it to be for the benefit of each one’s children; that this keeping of it intact referred to the control of the property during coverture; that neither of them was to disturb property rights as existing at the present time, but that nothing in it related to the right of the survivor to take by inheritance.
There is no question that the husband and wife were competent to contract with each other as to the rights of inheritance of each, and while a postnuptial contract cannot be founded on the consideration of marriage, a contract fairly made between them after marriage in which one transfers individual property rights to the other, or where'each surrenders rights of inheritance to the other, is based on a sufficient consideration. Here each of the parties owned property in his or her own right, and the mutual stipulations as to control of the property of each and the surrender of survivorship rights afford a consideration, and the contract will be upheld if it evinces a clear purpose to exclude the rights of the survivor to.take by inheritance. The agreement involved here is informal and evidently was drawn by one, unskilled in the use of language, but if from the language used it clearly discloses that the parties intended that each should relinquish rights of inheritance in the property owned by the surviving spouse, that intention should be given effect if it can be done consistently with legal principles. Agreements of this character are to be liberally interpreted with a view of carrying out the manifest intention of those who executed them, however artless and informal that intention may be expressed. As an aid to interpretation we can look not only to the language in the agreement but to the surrounding circumstances at the time it was executed. As we have seen, each of the parties had been married before, each had living children about whom they were concerned, and each was the owner of real and personal property about the control and disposition of which they were contracting. It is the view of the court that when they stipulated that the property of each should remain intact they meant that the ownership should not be affected by the marriage relation, and when they further provided that it should remain in each for the benefit of the children of each one they intended that it should pass to the children of each spouse without regard to the marital statutory rights of the other. As the court reads the agreement they were endeavoring to provide for the ultimate disposition of their individual property, ahd although unskillfully expressed their intention was that the property of each should finally go to his or her own children free from the rights of the survivor to take by inheritance under the law. Much r'eliance is placed on the holding in Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18, where the contract provided that the prospective wife should hold and care for her own property which she owned or might acquire as lier exclusive property free from all claims, rights and interests of her intended husband and might dispose of the same to such persons as she might desire, and it was held that upon her death the husband was not excluded from the right of inheritance. There, however, no provision was made as here that the property of each should go to the children of each party and there no will was made by the deceased spouse as has been done in this instance. Because of the different circumstances of the two cases it is the view of the court that that ruling is not applicable or controlling here. For like reasons Rouse v. Rouse, 76 Kan. 311, 91 Pac. 45, relied on by plaintiff, is held not to be contrary to the interpretation which has been placed on the agreement. It follows that the judgment must be reversed and the cause remanded with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Burch, J.:
These actions were commenced to recover damages for breach of the covenants embraced in an oil lease. Demurrers to the petitions were sustained, on the.sole ground of misjoinder of causes of action. The plaintiffs appeal.
The land covered by lease is the south half of the southeast quarter, and the south half of the southwest quarter, of a described section. The lease was given by the owner, Jules Gillet, and his wife, Rose Gillet, to S. W. Forrester. So far as it applied to the east eighty acres, Forrester’s interest in the lease came into the hands of the Elmhurst Investment Company, the principal defendant in case No. 23,874. So far as it applied to the west eighty acres, Forrester’s interest in the lease came into the hands of the Orlando Petroleum Company, the principal defendant in case No. 23,875. The petitions alleged these companies were under the same officers, operated in conjunction with each other under the same managing representative, and controlled the leases on the land north, south, and west of the Forrester lease. A well was drilled on the west eighty acres, which produced 1,000 barrels of oil per day. The lessors then deeded to each one of their seven children an undivided one-eighth of the mineral in place on the two tracts, subject, however, to the Forrester lease, and by the same instrument, fully vested in each grantee an undivided one-tenth interest in the Forrester lease, its rents and royalties, to the same extent as if each grantee were lessor. The petitions alleged failure to deliver oil produced and saved, inexcusable waste of produced oil, and calculated waste by the Elmhurst and Orlando Companies of stores of oil in the ground, by refraining from caring for and operating drilled wells, and by refraining from drilling wells necessary to prevent the land from being drained by wells of great capacity outside its borders. The lessor and his assignees joined as plaintiffs. The court held the petition stated a cause of action, but held several causes of action were improperly joined. The plaintiffs asked leave to file separate petitions, each one stating a single cause of action, but the court would not permit, and dismissed the actions at the cost of the plaintiffs.
The joinder did not consist in uniting several causes of action different in nature, unrelated to each other, and affecting the parties in different ways, but in the joining of several plaintiffs in present ing a common cause of action, for relief on account of a common injury, measured by damages in a common sum, in which each plaintiff had a share; and it would be a reproach to our system of procedure if it required going through the maneuvers of bringing eight separate lawsuits, with eight attendant cost bills, to establish the same state of facts before eight juries, at eight trials, so that each plaintiff might receive his proportionate share of the damages which the defendants caused.
The Forrester lease was given, as it stated, for the sole purpose of drilling and operating for and producing oil. The lessee impliedly covenanted that he would fully develop the oil resources of the land with diligence, and impliedly covenanted that he would prevent escape of oil from the land, by drilling a sufficient number of wells to offset those drilled by others outside the lease boundaries. (Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; 1 Thornton, The Law of Oil and Gas, 3d ed., 156.) The lessee also covenanted to render a stipulated oil royalty, and the case is one for damages for breach of covenant.
Tenants in common, by acquisition of undivided interests from a lessor, stand on the same footing as the lessor. Assignment of undivided intérests in the lease by the lessor did not split the covenants; they remained entire. Breach of the covenants as to one tenant in common with the lessor, was a breach as to all, they were all equally affected by breach, and in such cases all may join, although the damages recovered may be apportioned between them, (Cantwell v. Moore, 44 Ill. App. 656; Wall & Another v. Hinds, 4 Gray [70 Mass.] 256; Tylee v. M’Lean, 10 Wend. [N. Y.] 373; Marshall v. Moseley, 21 N. Y. 280.)
In the Massachusetts case the headnote reads as follows:
“Tenants in common may maintain a joint action for the rent due under a sealed lease of the joint estate, all the covenants in which are with them jointly, although by an agreement annexed to the lease, and made part thereof; it is stipulated that half of the rent shall be paid to each.” (p. 256.)
The result is, the case is covered precisely by section 34 of the civil code, which reads:
“All persons having an'interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.” (Gen. Stat. 1915, § 6924.)
No other provision of the article is pertinent to the present controversy.
The plaintiffs cite the cases of Palmer v. Waddell, 22 Kan. 352, and Jeffers v. Forbes, 28 Kan. 174. The defendants assert the decisions in those cases are favorable to them.
In Palmer v. Waddell, John, John W., and James W. Palmer sued Waddell for damages resulting from the flooding of land and the destruction of crops consequent on diversion of a watercourse, and for equitable relief by way of injunction and abatement of nuisance. It was held each plaintiff should sue separately for damage to his own crops; all might join for damage to crops in which they had a common interest; and all might join for abatement of nuisance common to several tracts of land owned individually. The distinction was between separate interests as the subjects of action leading to separate relief, and common causes of action for a common injury redressible by common relief. The distinction was made clear by the decision in Jeffers v. Forbes. In that case, landowners by inheritance from the same ancestor, executed separate deeds to a grantee who procured all the deeds by fraud. It was held the grantors could not join in an action to set aside the deeds. There was no unity of cause of action or in the relief demanded. The fraud on one induced a separate deed of his separate interest .in the land, but did not injure any of the others, and no one was interested in having the deed of anyone else set aside. In this instance, the plaintiffs were authorized to join, just as the Palmers were authorized to join in suing Waddell for damages resulting from flooding the crop of wheat which the Palmers owned in common.
The defendants suggest a misjoinder of causes of action because of diversity of interest on the part of the defendants. Forrester is liable on the covenants, because he made them. Other defendants are liable on the covenants, because they stand in Forrester’s shoes. Other subjects discussed by the defendants are not open to consideration because the defendants did not appeal.
The judgment of the district court is reversed, and the causes are remanded with direction to overrule the demurrers. | [
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The opinion of the court was delivered by
Porter, J.:
Under the law as it existed in 1908 school districts No. 4 and No. 23, which include the city of Florence, in Marion county, were consolidated as union district No. 4. Subsequently the legislature enacted chapter 275 of the Laws of 1911, governing the consolidation of school districts, and under that act school district No. 3 was attached to union district No. 4.
Under chapter 230 of the Session Laws of 1921 the legislature provided the manner in which a school district contiguous to a consolidated or union district already established under the act of 1911 might become a part of such union district. School district No. 77 of Marion county lies contiguous to union district No. 4, and in July, 1921, an attempt was made to attach it to No. 4, but in the proceedings the requirements and provisions of chapter 230 of the Laws of 1921 were entirely ignored. The purpose of this action is to prevent the board of education of the city of Florence from exercising jurisdiction and control over the property and affairs of school district No. 77. The plaintiff prevailed, and the defendants appeal.
The question in the case arises over the construction to be given to certain language in section 1 of the act of 1921, which reads:
“That any school district in the state of Kansas, adjacent or contiguous to a consolidated or union district already established under the provisions of chapter 275 of the Session Laws of the state of Kansas for 1911, shall become a part of said consolidated or union- district upon complying with the following requirements
The defendants insist that union school district No. 4 was not already established under the act of 1911, but on the contrary that it was established under the law as it stood in 1908. In the last analysis, the case turns upon the meaning of the word “established”' as used in the statute of 1921. A similar question was before the court in Armstrong v. George, 84 Kan. 248, 114 Pac. 209, where it was ruled:
“A high school is established within the purview of chapter 210 of the Laws of 1909, concerning high schools, when it is brought up to the standard and meets the requirements prescribed in the Barnes high-school law (Laws 1905, ch. 397), although the school was in existence when the last-named act took effect.” (Syl. U 1.)
In the course of the opinion, Justice Benson said:
“It is contended that a school which was in existence when the Barnes law took effect is not established under that law — that to establish means to create, to found, or to institute. On the other hand the defendants’ contention is that to establish, as used in the statute, means to make stable; to confirm; to secure on a firm basis, as by recognition or favor. These definitions are taken from Webster’s dictionary, and merely show that the word may be used in different senses. . . . The status of any high school by which it may come under the operation of the law is established when it is made to conform to the requirements of the Barnes law. If it has been so established and maintained for one year, it is within the operation of the act of 1909. Reported cases might be cited wherein the word ‘establish’ has been held practically synonymous with create, while others have held the meaning of the word to be to confirm, or to ascertain and fix, or settle. (3 Words and Ph. Jud. Def. pp. 2469-2474; 16 Cyc. 691.) The particular sense in which the word is used must be determined by the context and the manifest intent and scope of the statute. In determining the import of this word in a statute of Alabama the supreme court of that state said:
“It is as often employed to signify the putting or fixing on a firm basis, of putting in a settled or an efficient state or condition, an existing legal organization or institution, as it is to found or set up such organization or institution ; the one meaning is as little recondite, abstruse, or obscure as the other.” (The State, ex rel. &c., v. Rogers et al., 107 Ala. 444, 453.)” (p. 250.)
We think beyond question that since the enactment of chapter 275 of the Laws of 1911, union school district No. 4 has performed its functions solely under the provisions of that act, although the district existed as a union district under previous statutes. The effect of chapter 275, Laws of 1911, was to settle upon a firm basis the organization of district No. 4 which was already in existence. The act of 1911 expressly repealed all previous laws under which district No. 4 had been established. Therefore, it must be held that at the time the act of 1921 was passed, district No. 4 was a consolidated or union district already established and performing its functions under the provisions of the act of 1911. We have not set forth any of the requirements of the act of 1921 because it is conceded that in the attempt to attach district No. 77 to union district No. 4, the requirements and provisions of the act of 1921 were wholly ignored.
We agree with defendants’ suggestion in the brief that the-law is cumbrously and inaptly worded. Apparently the draughtsman was much concerned lest it might be thought the legislature was attempting to enact a law which would affect the people of Arkansas or Massachusetts or some other state. Twice the superfluous expression, “in the state of Kansas,” appears. We agree, also, that the law might well have read, “any school district adjacent or contiguous to a consolidated or union district shall become a part of such con solidated or union district,” etc. However, the intention of the legislature is not in doubt.
This disposes of the only question presented to the trial court, and it follows that the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff foreclosed a chattel mortgage, and the defendants Nichols and Spiwak appeal and insist that there was no default, and that the suit was prematurely brought. Another matter involved is the question of the plaintiff’s deeming himself insecure.
The petition alleged that the defendant, Kerns, gave the plaintiff a note for $3,500 secured 'by chattel mortgage on the Edwardsville Telephone Exchange. The note was dated February 19, 1919, payable on or before one year after date. The mortgage provided, among other things, that if default should be made in payment of the debt or any part thereof, “or if at any time the payee, of said pote shall deem the said debt unsafe or insecure,” he was authorized to take possession and sell the property. A further stipulation was—
“That the undersigned may renew said indebtedness and this mortgage at the maturity thereof at his option, if he shall' have paid the interest due thereon, for the period, of one year from February 19th, 1921, and may, also, under the same condition, at his option, renew said indebtedness and this mortgage, further, from year to year, thereafter, but not more than three times after February 19.th, 1921, ...”
The petition alleged that the note was past due and that the condition of the mortgage had been broken, and the plaintiff deemed the debt insecure and unsafe.
The answer of defendants Nichols and Spiwak (subsequent owners of the telephone system) alleged, among other things, that the note and mortgage were not due and payable and not in default, and that the indebtedness was not unsafe and insecure. It was further alleged that on February 8, 1921, and prior to the beginning of the suit Kerns paid the plaintiff through its .authorized agent, the Farmers State Bank, $210, “the said amount being received by said bank and duly endorsed on said note, and being the interest due and payable on the said note and mortgage by the terms thereof, from February 19th, 1920, to' February 19th, 1921”; further, that on the date of this payment Kerns elécted to exercise the option to renew, and did renew for one year, and the plaintiff in recognition thereof filed his renewal affidavit.
In reply the plaintiff averred that on or about August, 1920, and prior to January 1, 1921, the defendant Kerns sold the property to Nichols subject to the mortgage and Nichols assumed and agreed to pay .the debt, and at the time of the interest payment on February 8, 1921, Kerns was not the owner of the property.
The court rendered judgment for the plaintiff. The errors alleged are, admitting improper and refusing proper evidence, entering judgment for the plaintiff, and denying a new trial.
The plaintiff testified, among other things, that when the interest was paid in 1920 there was nothing said about a renewal; that he did not know when Kerns sold out, and was told nothing about it by Kerns. The defendant Nichols testified that he owned the telephone system February 8, 1921, but had dated the paper back to the first of February because that was when the contract was made between him and Spiwak.
The plaintiff testified that he looked over the telephone lines and they were in poor shape; that he saw Kerns sometime in June and talked to him about the note and mortgage.
“Q. Now, you may state, knowing what you did about the system and Mr. Kerns, and the property he had, what he may have told you whether you deemed yourself and this debt safe and secure? ... A. I felt unsafe and insecure on account of changing hands and ...”
In their brief counsel say that all the specifications of error are based upon the fundamental proposition that the judgment is in whole or in part contrary to the evidence. They argue that the court erred in finding there was no renewal of the mortgage and in its construction of the insecure clause of the contract, and that the evidence showed that the plaintiff did not deem himself insecure.
Whether or not the renewal clause between the plaintiff and the mortgagor Kerns could be taken advantage of by the defendants to whom the property was solclsubject to the mortgage need not be determined at this time.
We do not regard the evidence as showing a renewal of the note and mortgage by the mere payment of interest to the bank, but even if a renewal was made the insecure clause still retained its primary force.
Whatever the views of other courts may be, the rule is settled in this state that if a chattel mortgagee in fact deems himself insecure that is the end of all strife and the grounds thereof cannot be inquired into by other parties. (Thorp v. Fleming, 78 Kan. 237, 96 Pac. 470.)
While counsel claim there was evidence to show that the plaintiff did not in fact deem the debt insecure, his own evidence, already quoted,' was the other way, and the trial court evidently took that view of the matter, and we are bound thereby.
No material error appearing in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was in ejectment and involves the owner-' ship and right to the possession of a house and lot in Kansas City, Kansas, described as No. 1341 Cleveland avenue. The verdict, findings, and judgment were in favor of the defendant, and the plaintiff appeals.
The common source of title is Simon H. Randolph, formerly the husband of the defendant. The following is the substance of defendant’s testimony: She and Simon H. Randolph were married in January, 1907, and while living together as husband and wife acquired the property in controversy which they occupied as their homestead. They were divorced in July, 1911, and the property by the decree was awarded to the husband who continued to occupy it as his home. The defendant moved to Kansas City, Mo., and lived there until January, 1914. Sometime in 1913 she met her former husband and he began to court her and endeavored to obtain her consent to remarry him. He told her he would see the judge and have the decree of divorce set aside and that if she would come and live with him, they would be husband and wife again, and he said he wanted her to have the home. If she would come back to him he would give it to her. It would be hers from the time she moved into it and allowed him to have the decree set aside. “It would be considered mine.” She believed that if the divorce decree were set aside and she went back to live with him she would be his wife again, and in January, 1914, went to live with him in the home, and they continued to cohabit as husband and wife until in the spring of 1917 when she had her suspicions aroused and employed an attorney to look the matter up and learned that the decree had not been set aside. She told her husband of this and threatened to get the law to protect her interests. Her testimony is, “He told me there was no need to do that; everybody thought we were married and that we would just get a license and be married.” He is an employee in the railway mail service; at that time a married man could secure a run which would leave him at home oftener than if unmarried. He induced her to consent to go to Olathe and be married, and promised her that if she would do this the home place would be hers. On the next day they went to Olathe and were married. The day before, on April 17, Simon H. Randolph executed a warranty deed conveying the property in question to Lucy A. Rice, the plain tiff, who is his sister and who lived in Virginia. The consideration stated was one dollar. After acknowledging the deed he had an attorney mail it to the plaintiff. After the Olathe marriage, the parties lived together as husband and wife and occupied the property. In March, 1919, the wife brought suit for divorce but on May 26 dismissed the action on the promise of her husband to treat her better. The next day he sued for divorce, which was subsequently granted. In his petition nothing was said about the property in question. The deed to the. plaintiff was not recorded until March 21, 1919, the day after defendant’s action for divorce had been brought, and she first learned of the deed about May 27, 1919, when the husband commenced his action.
Simon H. Randolph testified that there was no agreement of any kind between himself and his wife prior to or after their remarriage concerning the real estate in question. He admitted that he went to see the judge of the- district court who granted the first divorce to learn if it were possible to have the decree set aside because at that time he contemplated remarriage with the defendant. His testimony is that the defendant became his housekeeper in 1914 at her own suggestion and that he paid her wages of $20 a month and board and room and that the same arrangement continued until the marriage at Olathe. He denied that after the first divorce and prior to the Olathe marriage they had ever lived together as husband and wife. He admitted that he had given her a number of checks in which she was named as Mrs. S. H. Randolph.
For. the purpose of contradicting the defendant’s story thé plaintiff offered in evidence her petition in the divorce case she brought against her husband after the Olathe marriage which was sworn to and which contained the statement that she and her husband owned this property and she was entitled to one-half of it; also her answer and cross petition and other verified pleadings filed in the subsequent divorce case in which she claimed to own a one-half interest in the property. She was recalled and testified that at the time these pleadings were drawn she had never explained to her attorney anything concerning the agreements with her husband in regard to the property.
The jury made findings of fact in substance that Simon H. Randolph made an oral gift of the property to the defendant just prior to the time she went back to live with him in 1914; that he continued to pay the taxes, insurance and upkeep of the property; they made a finding that Simon H. Randolph orally promised the defendant that after the marriage between them the place should be mutually considered her property; that this was immediately prior to the marriage at Olathe. To questions as to the consideration for these promises, if any, they answered: “Herself in marriage.” They made a finding that in the divorce proceedings referred to the defendant had stated under oath that the property in controversy belonged to her and Simon H. Randolph.
The main contention of plaintiff is that the doctrine of partial performance has no application to a contract of this character; that partial performance can only be relied upon in contracts relating to lands where the nonexecution of the contract would operate as a fraud on the party who had partially performed and who could not be reasonably compensated in damages.
It is defendant’s contention that there is no question here of whether the contract would support an action upon her part to compel specific performance; that the contract by which, in consideration of her marriage to her former husband, she was to become the equitable owner of the property, was fully executed by the contracting parties long before the plaintiff claims to have acquired an interest in the property; that defendant can assert her equitable title in defense of this action in ejectment. The contention is predicated upon the findings of the jury that when the first oral promise was made, the defendant, relying upon the representations that the decree of divorce had been set aside and that by their living together they would become husband and wife, nothing further remained to be done by either party to the contract; and that when the parties were remarried, that being the sole consideration for the promise, there was nothing that remained to be done by either party.
The defendant relies upon former decisions, including Weld v. Weld, 71 Kan. 622, 81 Pac. 183, where it was said in the opinion:
“The statute of frauds does not render void the verbal contracts to which it refers. They are valid for all purposes except that of suit. (Stout v. Ennis, 28 Kan. 706.) The parties may perform them if they desire, and when performed the statute has no application to them. (29 A. & E. Encycl. of L. 829, 941.)” (p. 624.)
In that case the oral agreement made in consideration of marriage was that after the marriage a debt of one of the contracting parties to the other should be mutually regarded as paid. It was ruled in the syllabus that the agreement “is fully performed when the marriage takes place and is not thereafter affected by the statute of frauds.” It was held that it was no part of the agreement that the husband should enter of record a satisfaction of the mortgage debt. It was said in the opinion,:
“Since the parol evidence introduced established a contract fully performed, it was competent.” (p. 624.)
In the present case the contract established by the defendant’s evidence was not that after marriage the husband would make a conveyance to the wife in consideration of the marriage, but that the property should be mutually regarded by them as belonging to her. The opinion in the Weld case, supra, recognized the doctrine for which plaintiff in the present case contends that generally marriage is not a sufficient part performance to take a contract out of the provisions of the statute, but it was held in that case that there was no question of part performance for the reason that the contract was fully performed when the defendant married the plaintiff. In that case witnesses testified that they were present after the marriage when the husband said his wife need not worry about the debt; “her mortgage is paid.” But this statement of his was not part of the performance of the contract. Proof that he made the statement merely served to corroborate the wife’s testimony as to the terms of the contract. There was no agreement on his part that he would make such a statement any more than there was an agreement that he should release the mortgage.
The plaintiff contends that a parol contract within the statute of frauds sought to be enforced by part performance must be established and shown by the evidence to be clear, definite and certain. The answer is that this contract is not sought to be enforced by part performance but by full performance; and as to the evidence, it was definite and certain; that is to say, the wife testified to a definite statement that the property was to be regarded by them as belonging to her if she would consent to a remarriage.
The plaintiff makes an argument based upon the contention that the evidence was not sufficient to sustain the judgment. Attention is called to the'many statements made by the defendant under oath in pleadings filed in several actions between herself and her former husband which were contradictory to her claims on the trial. But these contradictory statements merely went to the weight and credi bility to be given to her testimony on the trial. As was said in the opinion in the Weld case:
“The evidence might perhaps have been made the basis of 'different conclusions as to the existence of the contract relied upon as a defense to the suit. It was, therefore, properly submitted to the jury for interpretation. The jury has performed its duty in that respect, and the trial judge has approved the result. Hence, this court will not interfere.” (p. 624.)
For another reason we think the plaintiff cannot prevail. She was a stranger to the oral contract and as held in Vaught v. Pettyjohn & Co., 104 Kan. 174, 178 Pac. 623, the statute cannot be invoked by third parties not concerned therein. “Oral contracts relating to land dre not inherently illegal; the parties thereto may consummate them if they are willing to do so.” (Syl. ¶ 1.) It was held:
“The rule of the statute of frauds which requires contracts for the conve3'ance of land to be in writing in order to furnish a legal basis for their enforcement, concerns only the parties to such contracts and their privies. The statute cannot be invoked by third parties not concerned therein.” (Syl. ¶ 1.)
In the opinion it was said:
“A third party cannot make the statute of frauds available as an excuse for his' wrongful conduct which interferes with and prevents the consumption of a transaction between other persons. The statute cannot be raised by those who were neither parties nor privies to the agreement.” (p. 177.)
That decision was followed and approved in Kindig v. Richardson, 108 Kan. 218, 194 Pac. 920. There two persons who each owned a half interest in lands orally agreed that one of them should trade off as his own the interest of both in part of the lands and that the other should be the exclusive owner of the remaining lands. It was held that the statute- of frauds could not be invoked to strip the equitable owner of the property at the instance of the judgment creditors of the other, “or of any third party not privy to the oral contract,” and further, that the facts could be established by parol testimony. The plaintiff was not a party to the oral agreement between the defendant and her former husband. The contract having been fully performed, the plaintiff has no right to raise any objection to the full performance of the contract by the parties to it.
For the reasons stated the court properly refused to give the instructions requested by plaintiff based upon the proposition that marriage is not a sufficient part performance to avoid the effect of the statute of frauds; and the court properly instructed that if the jury believed from the preponderance of the evidence that the first oral promise was made by Simon H. Randolph substantially as claimed by defendant and that she relied upon the representations and statements and in good faith accepted his proposal and went to live with him as his wife and entered fully into the marriage relation with him believing she was his wife, she thereupon became the equitable owner of the real estate, and no attempt of his thereafter to convey the real estate to the plaintiff could defeat defendant’s title; further, that if they found that she acquired the real estate as claimed by her in 1914 and that Simon H. Randolph, in order to induce her to enter into a formal marriage with him in 1917, again promised her that the property should be mutually considered and regarded by them as hers from the time the ceremonial marriage should be entered into, and thereby induced her to consent to the ceremonial marriage, his renewed offer and acceptance would not estop defendant from claiming under the first offer and acceptance; and that it was for the jury to determine the real intention of the parties and the second offer might be considered by them in determining the effect of the first, and that if the evidence so convinced the jury they might consider that the second was a mere affirmation and ratification of the first offer. We find no error in the instructions, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries sustained in an automobile casualty alleged to have resulted from the negligence of defendant. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Those parts of the record necessary for a decision here may be stated briefly as follows: Plaintiff alleged that she resides at Tulsa, Okla.; that about four o’clock in the afternoon of March 30, 1931, she was riding in the rear seat, on the left side, of a motor car which was proceeding west on Second street in Tulsa; that the car was being driven in a careful and prudent manner at a speed not exceeding ten miles per hour, on the right side of the street, in accordance with the laws of the state and the ordinances of the city; that defendant was proceeding in a northerly direction on Utica avenue in a car loaded with equipment, and in his possession and control; that a certain ordinance of the city of Tulsa then in force provides:
“When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. . .
That under the circumstances and this ordinance the car in which plaintiff was riding had the right of way at the intersection of Second street and Utica avenue; that the car in which plaintiff was riding had proceeded well across the intersection when defendant’s car crashed into and collided with the rear left side of the car in which plaintiff was riding, throwing plaintiff forward and to the right through the window on the right side of the car, causing plaintiff personal injuries, which were later detailed in the petition; that defendant’s car Was defective in that the foot brakes therein were old and worn and the emergency was disconnected or broken, on account of which defendant was unable properly to control his car while driving; that in addition defendant was negligent in his failure to have the windows and windshield of his car in such condition as to make it possible to see through them and observe the movement of other cars. Defendant’s answer admitted the residence of the parties, contained a general denial, alleged contributory negligence on the part of plaintiff, and further alleged that the collision was the result of an unavoidable accident. The reply was a general denial.
Appellant argues several points on this appeal, which, if sustained, would require a reversal for a new trial, but in the view we take of the case it is not necessary to discuss all of these. We therefore limit the statement to the points necessary to the determination of the appeal.
Plaintiff and her husband were riding in a car owned and driven by Mr. Williamson, a business associate of plaintiff’s husband, and were going to a hospital, where plaintiff’s husband was to be treated. They were traveling west on Second street. Plaintiff was alone in the rear seat, her husband riding in the front seat with Mr. Williamson, who was driving. The car was a Reo sedan. Defendant, in a Chevrolet city delivery car, built much like a coach, with doors in the back, being driven by a man employed by defendant, was driving north on Utica avenue. The cars collided a few feet north of the center of the intersection at Second street and Utica avenue. The front end of defendant’s car struck the car in which plaintiff was riding on the rear portion of the left side, damaging the left rear fender and the running board. The apron was damaged, the glass in the right rear door was broken, there was a dent in the left rear door and another in the body of the car over the left rear fender. Williamson got out of his car, went to defendant, inquired his name, then went to a nearby telephone and called the police station. He did this because he wanted someone to admit that he was going to take care of the damages on his car. If defendant had not promised to pay for the damages he was going to have him detained. In response to his call at the police station two policemen came to the scene, also an ambulance and a wrecker, but it seems neither of these was used. Defendant agreed to pay Williamson for the repair of Williamson’s car. It was repaired at a cost of about $30, which defendant paid. Defendant and his driver were asked to go to the police station to make a report. They were kept there about two hours at least, thinking someone might make some further request respecting them, but as none was made they were discharged. Williamson did not see defendant’s car until it was within about four feet of him. He then speeded up, but stopped on being struck. He had not been looking to the left for traffic, but had been looking straight ahead. Plaintiff did not look for traffic at the intersection, but was relying on Williamson as an experienced driver and was paying no attention to other cars.
The ordinance of the city of Tulsa, received in evidence, provides, among other things:
“Seo. 8. Restriction as to Speed, (a) Any person driving a vehicle on a street shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the street,, and of any other condition then existing, and no person shall drive any vehicle upon a street at such a speed as to endanger the life, limbs or property of any person. (b) Subject to the provisions of subdivision (a) of this section, and except in those instances where a lower speed is specified in this ordinance, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following:
“3d. Fifteen (15) miles per hour when approaching within fifty (50) feet and in traversing a street intersection, except on boulevards when the driver’s view is obstructed. . . .
“4th. Twenty (20) miles per hour on any street, except where a different speed is provided by this ordinance; and,
“5th. Twenty-five (25) miles per hour on any boulevard as defined by this ordinance.
“Sec. 18. Bight of Way. When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, . . . The driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection. . . .
“The above provisions as to the right of way shall hold with respect to intersections along boulevards, except that vehicles approaching on intersecting streets shall come to a full stop before entering or crossing a boulevard.
“Sec. 56. Boulevards Established. The following streets and portions of streets are hereby designated as boulevards and, after adequate signs have been erected at all intersections to warn drivers of vehicles from intersecting streets to come to a full stop before entering the boulevards, and restrictions, as defined in the preceding section, shall be in effect:
“East Second street — east from the west line of Elgin avenue to the east line of First Place street, . . .”
There is no evidence that Utica avenue intersected that portion of East Second street which, by the ordinance, was to be designated as a boulevard “after adequate signs have been erected at all intersections,” etc., nor is there any evidence that the stop signs had been put up on Utica avenue where it intersected with Second street at the time or prior to the collision in question. There was a sharp conflict in the evidence as to whether plaintiff’s disabilities testified to at the trial were caused by the collision; also, whether the collision occurred at Second street and Utica avenue, or at Third street and Utica avenue. The verdict of the jury favorable to plaintiff on those controverted questions settles them so far as this court is concerned.
The jury answered special questions as follows:
“1. Is it not a fact that the Williamson car was traveling 20 to 22 miles per hour as it approached and entered the intersection where the collision occurred? A. Yes.
“3. Is it not a fact that the collision occurred at the intersection of Third street and Utica avenue? A. No.
“4. Is it not a fact that Mr. Williamson was the agent of the plaintiff and her husband for the purpose of taking them to the doctor’s office? A. No.
“5. Was the collision an accident as defined to you in the court’s instructions? A. Yes.
“6. If you find for the plaintiff, in what respects do you find the defendant negligent? A. By not stopping at stop sign.
“7. Were Williamson, the plaintiff and her husband engaged in a joint enterprise? A. Yes.
“8. Do you find that plaintiff did not see defendant’s car until it had entered the intersection and after it was too late to avoid the collision? A. She did not.
“9. Do you find that plaintiff did not see defendant’s car until the car in which she was riding had entered the intersection? A. She did not.
“11. If the Williamson car had been under control and traveling at a rate of speed not exceeding 15 miles per hour as it approached and entered the intersection, would the collision have been avoided? A. Was under control— but could not have been avoided.
“12. How fast was defendant’s car traveling when it entered the intersection? A. 12 miles.”
Defendant moved for judgment on the answers to the special questions notwithstanding the general verdict. This motion was overruled, and this ruling is one of the things defendant complains of on this appeal.
In support of his contention that his motion for judgment on the answers to the special questions should have been sustained, appellant argues, first, that by the answer to question 5 the jury found the collision to be an unavoidable accident for which no one was to blame. The jury found the collision to be an accident as defined in the court’s instructions. The trouble is, the court gave no instructions on that point except as it stated the defenses pleaded by defendant in his answer. Such an instruction was requested by defendant and refused. Under the facts in this case it was not error for the court to refuse to give that instruction, but, having refused to give it, the court was not justified in submitting to the jury special question No. 5. It is futile to ask a jury a question on a point “as defined by the court’s instructions” when no instructions pertaining thereto are given.
Appellant next argues that the answers to the special questions disclose that plaintiff was guilty of negligence which contributed to her injury, if any she sustained. The jury found that the car in which plaintiff was riding was traveling at the rate of 20 to 22 miles per hour and defendant’s car 12 miles per hour. The evidence disclosed both Second street and Utica avenue were paved about the same width. The collision occurred just a few feet north of the center of the intersection. Since the car in which plaintiff was riding was traveling almost twice as fast as defendant’s car, it is clear defendant’s car entered the intersection first. Plaintiff alleged as one of the grounds of defendant’s negligence, that defendant had violated the city ordinance which reads:
“When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.”
But the same section of the ordinance introduced in evidence by plaintiff contains also this provision:
“The driver of a vehicle approaching but not having entered the intersection shall yield the right of way to a vehicle within such intersection and turning therein to the left across the line of travel of such first mentioned vehicle,
At the speed the jury found the cars were traveling it is clear defendant’s car entered the intersection when the car in which plaintiff was riding was approximately fifteen feet east of the intersection, hence, under this ordinance and under the facts as found by the jury, defendant had the right of way, and it was the duty of the driver of the car in which plaintiff was riding to turn to the left and go behind defendant’s car. Instead of doing so he gave no attention to other cars in or near the intersection, but drove straight ahead. In answer to question 7 the jury found Williamson, plaintiff and her husband were engaged in a joint enterprise. We are not called upon to determine whether this finding was justified under the evidence, for no complaint is made of it and it stands as the finding of the jury binding on the parties in this court. (Clark v. Railroad Co., 115 Kan. 823, 224 Pac. 920.) The evidence was that the driver of the car in which plaintiff was riding did not see defendant’s car until it was within four feet of his car, and the findings in answer to questions 8 and 9 are that 'plaintiff did not see defendant’s car until the car in which she was riding was in the intersection. The city ordinance required care, not only on behalf of plaintiff but on behalf of the driver of the car in which she was riding, at intersections, and the fundamental principles of due care also required it. Since plaintiff and the driver of the car in which she was riding were engaged in a joint enterprise the negligence of the driver is imputed to plaintiff. (Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131.) Under the findings of the jury it necessarily follows plaintiff was guilty of negligence which contributed to her injury.
In answer to question 6 the jury found defendant to be negligent “by not stopping at stop sign.” Appellant contends this is not an act of negligence alleged by plaintiff in the petition, or shown by the evidence in the case. In the petition defendant was charged with negligence in three respects: First, that defendant did not yield the right of way to the car in which plaintiff was riding, as required by the city ordinance. Under the findings of the jury, as we have seen, defendant had the right of way, having first entered the intersection; hence, the jury did not find the defendant guilty in that respect. Defendant was charged with negligence, second, in that the brakes of his car were defective so that he was unable properly to control the speed and movements of his car. On this point there was a conflict of evidence. The jury did not find defendant negligent in that respect. Defendant was charged with negligence, third, in failing to have the windows and windshield of his car clean and in such condition that he could see through them and observe the movements of other cars. There was no evidence to support this allegation of negligence and the jury did not find him negligent in that respect. Nowhere in the petition is it alleged that there were stop signs on Utica avenue at Second street. It is not even alleged in the petition that Second street was a boulevard, or even that it was a through street. There was testimony on behalf of plaintiff that Second street was a through street, and plaintiff testified that she understood by that term that vehicles on Second street had the right of way. But with respect to the right of way, plaintiff pleaded the ordinance of the city, which specified the circumstances under which a vehicle had the right of way. The ordinance established a portion of East Second street (whether Utica avenue crossed that portion of Second street is not disclosed) as a boulevard “after adequate signs have been erected at all intersections to warn drivers of vehicles from intersecting streets to come to a full stop before entering the boulevards.” There is no evidence in the case that stop signs had been erected on Utica avenue at Second street at the time of the collision in question. There is evidence that such stop signs were so located at the time of the trial of this case, nearly a year after the collision, but that, of course, could have no bearing upon the conditions existing at the time of the collision; hence, there is no evidence to sustain the finding that defendant was negligent “by not stopping at stop sign.” But, passing the question of evidence on the subject, there was no allegation in the petition that defendant was negligent because he did not stop at a stop sign. The finding of the jury, in answer to question 6, was favorable to defendant on all acts of negligence charged in the .petition. Defendant cannot be held liable for negligence which was not alleged. (Telle v. Rapid Transit Rly. Co., 50 Kan. 455, 31 Pac. 1076; McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Martin v. City of Columbus, 96 Kan. 803, 153 Pac. 518; Case v. Yoakum, 99 Kan. 253, 161 Pac. 642.)
It was error for the court to overrule defendant’s motion for judgment on the answers to the special questions notwithstanding the general verdict.
The judgment of the court below is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case is now before us on rehearing, the original opinion having been filed January 7, 1933 (Cashin v. State Highway Comm., 136 Kan. 659, 17 P. 2d 838). It is an action to recover damages under the provisions of R. S. 1931 Supp. 8-223, or section 23 of chapter 80 of the Laws of 1931, from the state highway commission for personal injury sustained by plaintiff while in the employ of the commission working on the highway, by reason of the negligence of the defendant and one Rollo, employed as chauffeur by the commission.
The petition is set out in the original opinion. The demurrer of the defendant to the petition was overruled by the trial court and the defendant appealed to this court where the ruling of the trial court was affirmed in the opinion handed down and published as above stated. Because the enactment of the statute on which this claim is based was recent and far reaching in its effect, a rehearing was granted and the matters involved have been thoroughly briefed on both sides.
In the hearing on appeal only one question was presented and considered, and that was whether the common-law fellow-servant rule had been abrogated by the statute above cited. This court in affirming the ruling of the trial court in overruling the demurrer to the petition held, as the trial court had done, that the statute cited had abrogated the common-law fellow-servant doctrine, and that the employer was jointly and severally liable with the negligent employee for the injury of the plaintiff, a fellow servant.
On the rehearing the appellant has brought to this court three additional questions of law bearing upon the contention of the commission that the demurrer to the petition should have been sustained. One of the three is that the statute above cited is unconstitutional, as being in violation of the first portion of section 16 of article 2 of the constitution of the state of Kansas, which is—
“No bill shall contain more than one subject, which shall be clearly expressed in its title . . .”
The following is the title of the act:
“An act relating to motor vehicles, providing for licensing motor-vehicle operators and chauffeurs, defining the liability of certain persons for negligence in the operation of motor vehicles on the public highways, and to make uniform the law relating thereto.” (Laws 1931, ch. 80.)
There appears to be two subjects clearly expressed in this title, the licensing of operators and chauffeurs of motor vehicles, and defining the liability of certain persons for negligence. If the second part had been defining the liability of operators and chauffeurs for negligence, instead of “certain persons,” it would have afforded a natural relation to the licensing of operators and chauffeurs, but without regard to whom the certain persons may be, they of course are not operators or chauffeurs, when pains were evidently taken to so describe them, and the language itself of the title almost compels one to conclude that the matters referred to therein are incongruous and disconnected. But it has been regularly held that whether or not a statute’ contains more than one subject, is to be determined from the body of the act rather than from the title itself. (59 C. J. 802.)
A careful reading of the entire act indicates that every section of it except section 23 relates to the licensing of motor-vehicle operators and chauffeurs and the punishment for the violation of the provisions of the act and the liability of such operators and chauffeurs and owners of motor vehicles furnished to minors or unlicensed operators and chauffeurs, all of which features and provisions are related and germane to the subject of licensing motor-vehicle operators and chauffeurs. Section 23 does what the second part of the title indicates by defining the liability of certain persons for negligence in the operating of motor vehicles on the public highways. It is as follows:
“This state and every county, city, municipal or other public corporation within this state, employing any operator or chauffeur, shall be jointly and severally liable with such operator or chauffeur for any damages caused by the negligence of the latter while driving a motor vehicle upon a highway in the course of his employment: Provided, This section shall not apply to boards of education, fire or police departments.”
The certain persons mentioned in the title appear from this section to be “this state and every county, city, municipal or other public corporation.” It will be readily noticed that under the provisions of this section there is no distinction or difference as to the liability whether the operators and chauffeurs are licensed or not. It is not connected up in any way with the licensing of operators and chauffeurs. It appears to be wholly incongruous with, independent of and disconnected with the rest of the act and constitutes a separate subject, thus making the act contain more than one subject.
We recognize that the liberal rule of construction so as to uphold, if possible, the constitutionality of an act has always been in force in this state.
“When a statute is attacked as being in violation of section 16 of article 2 of the constitution, for the reason that it is not within the title of the act, such title will be liberally interpreted for the purpose of upholding the law.” (State v. Topeka Club, 82 Kan. 756, 100 Pac. 183.)
But this section of the constitution has likewise been held to be mandatory instead of directory and if the act is clearly in violation of this constitutional requirement, it is the duty of the court to hold it unconstitutional.
“The constitutional provision that ‘no bill shall contain more than one subject, which shall be clearly expressed in its title,’ is mandatory; and if the legislature should clearly violate this provision by putting something in the body of an act clearly not embraced in the title thereof, or wholly foreign to the title, it would be the duty of the courts to declare such portion of the act void. . . .” (Comm’rs of Sedgwick Co. v. Bailey, 13 Kan. 600, syl. ¶ 1.)
In the case of State, ex rel., v. Dawson, 90 Kan. 839, 136 Pac. 320, it was said:
“While section 16 of article 2 of the constitution requiring the single subject of an act to be clearly expressed in its title is not so frequently invoked as formerly, it is still as binding as ever. . . . The congressional practice of putting riders on appropriation bills is not permitted under our constitution.” (p. 841.)
“The provisions of an act must correspond with the subject expressed in its title; so nothing can validly be included in the body of a statute which is not expressed in or covered by the title, and all parts of an act which are not within its title are unconstitutional and void. . . .” (59 C. J. 811.)
In the case of Reilly v. Knapp, 105 Kan. 565,185 Pac. 47, the constitutionality of the act making appropriations for executive and judicial departments of the state was called in question because section 2 thereof had reference to the qualification of certain persons related by blood or marriage to the heads of departments, and while the title of the act was broad enough to include both subjects, it was held—
“. . . that section 2, which attempts to fix the qualifications for certain offices, being part of a bill containing two subjects, violates section 16 of article 2 of the constitution, and is void.” (Syl. ¶ 1.)
The history of the act here under consideration is helpful in determining the intention of the legislature in connection with its passage. This act, which accords to itself in section 33 the name of the “uniform operators’ and chauffeurs’ license act,” is almost a literal copy of the uniform motor-vehicle operators’ and chauffeurs’ license act, published in volume 9 of the Uniform Laws Annotated, by Edward Thompson Company, beginning at page 322, and also published in the reports of the American bar association, volume 51, in the proceedings of 1926, p. 569, with the approval of that association.
The Kansas act omits three sections contained in the uniform act as published. Two of them concern the liability of parents or guardians of minors under a specified age for negligence of such minor permitted to operate a ear without a license, which matters are sub stantially contained in other sections of the Kansas act. The third section omitted'concerns the constitutionality of the remainder of the act, if any part of it should be held unconstitutional.
This section 23 was in the original uniform act, just exactly as it is here, except the provision making it not applicable in Kansas to boards of education, fire and police departments. The bill was introduced in the Kansas legislature without this proviso, but it was added in the senate.
The following eight states have adopted this uniform measure and enacted it as a.law, viz., Colorado, Delaware, Indiana, Iowa, Michigan, Oregon, Virginia and Kansas. All of , these states excluded the section corresponding to our section 23 except Indiana and Kansas, and Indiana at the succeeding session of the legislature repealed that section, letting the remainder of the act stand. So that Kansas is at present the only state that has this section in force.
Appellee urges that the act is constitutional notwithstanding the subject matter contained in section 23 and cites many cases approving the liberal rule of interpretation and many cases where the constitutionality of the acts involved was upheld. Such authorities have all been carefully examined, but under the authorities heretofore cited and the reasons therein given we cannot avoid concluding that this act contains more than one subject, which subjects are distinct, separate and incongruous.
Now, under this holding, must both portions of the act fall or can one part be held valid and5 the other void, where a consideration of the entire act warrants the belief that the legislature would have passed the main part of the act without including section 23? If so, and section 23 furnished no special inducement for the passage of the rest of the act, a separation can be made and the remainder of the act can be held valid. It was so held in the Reilly case, where the qualification of appointive officers was injected into an appropriation act for executive and judicial departments.
. “The general rule is, that where an act contains two separate and independent subjects having no connection with each other, and the title is broad enough to cover both, both portions of the act fall together and are treated as void, because, generally, it is impossible for the court to choose between the two and hold one part valid and the other void, but where no such difficulty arises, and it is apparent, as in the present case, that the enactment of the provisions of section 2 furnished no inducement to pass the other part, and where a consideration of the entire chapter warrants the belief that the legislature would have passed the appropriation act alone, the rule does not apply, and it is held that the remainder of the act which relates to appropriations is valid.” (Reilly v. Knapp, 105 Kan. 565, syl. ¶ 2, 185 Pac. 47.)
“The question as to whether portions of a statute which áre constitutional shall be upheld while other divisible portions are eliminated as unconstitutional is primarily one of intention. If the objectionable parts of a statute are severable from the rest in such a way that the legislature would be presumed to have enacted the valid portion without the invalid, the failure of the latter will not necessarily render the entire statute invalid, but the statute may be enforced as to those portions of it which are constitutional.” (6 R. C. L. 123.)
“A statute may, however, be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” (59 C. J. 639.)
In the case of State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400, involving the constitutionality of section 4 of chapter 203 of the Laws of 1927, known as the branding-iron statute, that section was held to be unconstitutional, and that such ruling was not to affect the validity of the other sections of the act.
“Where a part only of a statute is unconstitutional, and therefore void, the remainder may still have effect under certain conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other.....
“If a statute attempts to accomplish two or more objects, or to deal with two or more independent subjects, and the provisions as to one are void, it may still be in every respect complete and valid as to any other. . . .” (1 Lewis’ Sutherland Statutory Construction, 2d ed., §§ 296, 297.)
“If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other.” (Cooley’s Constitutional Limitations, 7th ed., p. 247. See, also, State v. Lancaster County, 17 Neb. 85; and Redell v. Moores, 63 Neb. 219.)
We conclude that section 23 of chapter 80 of the Laws of 1931 (R. S. 1931 Supp. 8-223) is unconstitutional and void and that such ruling is not to affect the validity of the remainder of the act.
Having reached this conclusion, it will be unnecessary to consider the other two points raised by the appellant or further consider the matter determined in the original opinion as to the abrogation of the fellow-servant doctrine.
The judgment is reversed and the cause is remanded with instructions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to rescind lease of a hotel and purchase of hotel furnishings induced by fraud, and for damages consequent upon the fraud. Plaintiffs prevailed, and defendant appeals.
L. O. Krause and wife lived in Delphos, and had had some experience in operating hotels. L. H. Collins owned a furnished hotel in Beloit. After preliminary negotiations, Collins leased the hotel to Krause and wife, at a rental of $70 per month payable in advance. The Krauses also purchased the hotel furnishings for $800 cash. On October 5, 1931, the Krauses moved from Delphos to Beloit, took possession of the hotel and personal property, and paid the first month’s rent.
Lease of the hotel and purchase of the furnishings were induced by a fraudulent representation admittedly made by defendant’s agent, relating to what the hotel earnings were. Shortly after taking possession plaintiffs discovered the fraud, and on October 29 plaintiffs made an offer to compromise respecting the situation. Terms of the offer included cancellation of lease, discontinuance of payment of rent, and payment of damages on account of the false representation. No agreement was reached. Plaintiffs did not pay the rent for November, and defendant sued for the amount. On December 9 plaintiffs brought the present action, and in the second count of the answer defendant sued for the December rent.
The action was tried by the court, which returned findings of fact and conclusions of law. The court canceled the lease and the bill of sale of the furnishings, allowed plaintiffs $9 expense of moving from Delphos to Beloit, allowed them $20 interest on $800, the purchase price of the furnishings, charged plaintiffs with $25 per month for use of the hotel while they occupied it, and rendered judgment in favor of plaintiffs for $774. The judgment was rendered on February 27, 1932, and the court found that on that day plaintiffs surrendered the hotel and furnishings to defendant, who took possession.
The principal contention of defendant is that plaintiffs did not qualify themselves to maintain a suit for rescission by making proper tender.
It was not necessary for plaintiffs to make any formal tender before commencing suit. The suit constituted a demand for equitable relief, and it was sufficient for plaintiffs to offer to do equity on their side in order to obtain such relief.
In discussing with counsel what the findings should be, the court called attention to the fact that tender would have been useless. As indicated, Collins was apprised of the attitude of plaintiffs by the so-called offer to compromise. When plaintiffs did not pay the November rent, defendant sued them. When plaintiffs sued defendant for rescission, he responded with another insistance on specific performance by asking judgment for the December rent. The court said:
“The defendant has not only claimed that he was entitled to specific performance before this action was brought, but he is claiming it right now. He says he is entitled to his rent, he complains because they haven’t paid it.”
The result is, it was sufficient for plaintiffs to manifest to the court their willingness to do what equity required of them.
The petition on which the case was tried stated plaintiffs’ claims— cancellation of lease and bill of sale, return of money paid for the furnishings, with interest, return of money paid as rent for the first month, and expense of moving. The petition then continued as follows:
“And these plaintiffs, upon being placed in statu quo, now tender to the defendant reconveyance of said furniture and equipment and the possession of said hotel.”
The next paragraph of the petition contained the following:
“And they hereby tender back all property -which was attempted to be conveyed by said purported bill of sale.”
Defendant contends the first offer was conditional — upon being placed in statu quo, plaintiffs were to tender reconveyance and possession. The statement, however, was, plaintiffs “now tender,” etc. The later tender of return of the furnishings was unqualified. Reading the two paragraphs of the petition together, the court is of the opinion that, while the phraseology of the first offer was not well chosen, the petition was not fatally defective for lack of offer to restore Collins to the position he occupied before he placed defendants in possession of the hotel. Having authority to enter upon an investigation of the merits of the controversy, the court could deal with it as equity required.
Defendant contends the tender contained in the petition should have included an offer to pay rent. If plaintiffs offered to pay rent, they affirmed the contract, and could not ask for rescission. An offer to pay less than the stipulated rent, by way of recompense for use and occupation, would have been futile. The specific objection that the tender omitted offer to pay rent was first made in a demurrer to plaintiffs’ evidence. Plaintiffs promptly offered to pay a reasonable sum for rent during the period they occupied the hotel. As indicated, the district court allowed Collins $125 for use of the property while he was out of possession.
This court has no disposition to weaken the requirement that one who comes to a court of equity to obtain relief according to the dictates of good conscience and equal justice, should govern his conduct by the same principles of fairness and uprightness. In this instance it is plain enough that what plaintiffs desired was to be restored, without loss, to the status they occupied before they dealt with defendant. They did not want the hotel and the furnishings adapted to hotel use. But defendant was suing them on the contract of lease for rent. Therefore they appealed to a court of equity. They fumbled slightly in procedure,' but not to defendant’s hurt, and it would seem the legislature must have had in mind just such cases when it enacted the following statute:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; . . .” (R. S. 60-3317.)
Defendant objected to proof of the offer to compromise, which was not in fact an offer to compromise. It was an attempt to obtain a settlement. But the offer was plaintiffs’ offer, not defendant’s. It merely served to notify defendant of what plaintiffs claimed and were willing to do, and the findings of fact show the court gave the offer no consideration in determining the issues.
There is nothing else in the case of sufficient importance to require discussion, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by Sarah D. Knox, widow of William P. Knox, to recover possession of bonds in the custody of the El Dorado National Bank. The executor of the will of William P. Knox, who died in June, 1931, was substituted as defendant for the bank. The jury returned a general verdict for plaintiff. The jury also returned special findings of fact. The court rendered judgment for defendant on the findings of fact, and plaintiff appeals. The question is whether intention to make a gift of the bonds was consummated by delivery.
William P. Knox had a safety-deposit box in the bank. When the box was opened after his death, it contained bonds which belonged to him to the amount of $21,000; a bond belonging to his wife for $500; his sister’s will, and other documents. In the box were some gold coins in a purse, which Mrs. Knox claimed. The box contained other bonds to the amount of $54,000, which are the bonds in controversy.
The bonds in controversy were in several envelopes. The envelopes were furnished by the Brown-Crummer Company, of Wichita, a bond dealer, to customers as bond containers. On the back of each envelope was a printed blank form for description of contents, beginning “This Envelope Contains.” At the bottom were printed words, “Property Of.” On one envelope, beneath the printed words “Property Of,” were the written words, “Mrs. Sarah D. Knox.” These words were written by Mr. Crummer, at the direction of W. P. Knox. On the other envelopes, beneath the printed words had been written the name “W. P. Knox,” before which “Mrs.” had been written. The handwriting was that of W. P. Knox. Mrs. Knox was not present when the writings were placed on the envelopes, and had nothing to do with the transactions.
All the bonds had been acquired by W. P. Knox from the BrownCrummer Company, in exchange for maturing bonds or coupons Knox already had. The Brown-Crummer Company invoices showed the sales were made in the period September 24, 1924, to February 1, 1930. The invoices disclosed no sales to Mrs. Knox, and a few days before Knox died the Brown-Crummer Company issued to him a receipt for a number of coupons clipped from the bonds in controversy and delivered to the bank for collection. Mrs. Knox testified she had seen most of the bonds at her home.
The safety-deposit box was rented by Knox on August 3, 1925. The key to the box was on a key ring with a leather tab, on one side of which was the name W. P. Knox, and on the other side the name of Mrs. W. P. Knox. Mrs. Knox testified that on different occasions the key had been in her possession at her home. There was no evidence Mrs. Knox ever used the box for any purpose or had actual access to it during her husband’s lifetime.
The findings of fact, so far as material, follow:
“Q. 1. Did William P. Knox give to the plaintiff the . . . bonds described in the petition, or any of them? A. Yes.
“Q. 2. If you answer the foregoing questions in the affirmative, then state: “(a) Which, or how many of said bonds did William P. Knox give to the plaintiff? A. All.
“(b) When was such gift made? A. Within four or five years prior to his death.
“(c) Where were such bonds at the time such gift was made? A. In his possession in El Dorado National Bank.
“(d) What, if any, change then occurred in the custody of the bonds so given? A. None.
“Q. 15. Did William P. Knox at all times prior to his death have and exercise dominion and control over the bonds in controversy? A. Yes, as her agent.
“Q. 16. Did William P. Knox during his lifetime collect all interest accruing from the bonds in controversy and deposit the same to his own credit in the bank? A. Yes.
“Q. 17. Did William P. Knox ever authorize the El Dorado National Bank to allow the plaintiff access to the safe-deposit box in which said bonds were contained? A. No.
“Q. 18. Did the El Dorado National Bank ever allow the plaintiff to have access to said box during her husband’s lifetime? A. No.
“Q. 19. Did the plaintiff at any time during her husband’s lifetime ever apply to the El Dorado National Bank for access to said box? A. No.
“Q. 20. If in the foregoing answers to any of the foregoing questions you have found that William P. Knox did give to the plaintiff the bonds in controversy, or any of them, then state:
“(a) Whether he delivered to the plaintiff the bonds so given to her, and if so, how such delivery was made or effected. A. By writing or causing her name to be written on containers.
“(b) Did William P. Knox intend when he made such gift or gifts to sur render and relinquish at that time all of his title and interest in the bonds so given, and all his control and dominion over them? A. No.”
Finding No. 15 was properly challenged in the district court, but the court let it stand. A distinct division of the brief for appellee is devoted to discussion of this finding, with particular reference to the volunteered addition of the words “as her agent,” to the answer “Yes.” It is contended there was no evidence to sustain a finding of agency. The contention is supported by the abstracts, and appellant in her reply brief points to no evidence which would sustain such a finding. Appellant contends, however, appellee may not question the finding in this court.
The statute relating to what is commonly called “cross appeal” is R. S. 60-3314. Not long after its enactment the statute was interpreted in the case of Jones v. Lampe, 85 Kan. 401, 116 Pac. 619. The syllabus reads:
“An appellee may secure a review of an adverse ruling by serving a notice upon appellant before the case is assigned for final hearing stating that he intends to present a particular ruling for review. The notice should be served early enough to afford appellant time to answer appellee’s contention, but, as the notice is not jurisdictional, delay in serving it might justify an application for a postponement of’ the hearing but would not deprive the court of power to review.” (p. 2.)
The case of Syndicate Co. v. Insurance Co., 85 Kan. 367, 116 Pac. 620, was decided the same day the case of Jones v. Lampe was decided. In the opinion it was said notice of purpose of the appellee to review a ruling is not necessary as a matter of jurisdiction.
While the statute speaks of service of notice before the case is assigned-for hearing, the decision in Jones v. Lampe was that delay in serving notice is not fatal, that fair opportunity to meet appellee’s contention is sufficient, and that in case of delay, hearing may be postponed to give appellant time to answer appellee’s contention, the purpose of the statute being that when an appeal is taken and the parties are in court, every ruling of which either party may complain shall be reviewable.
The effect of the decision in Jones v. Lampe was that notice may be by challenge of the ruling complained of in counter abstract and brief, and in Jackson v. Guss, 86 Kan. 280, 120 Pac. 353, the court said:
“The notice by the appellees that they desired a review of the rulings made against them is not jurisdictional (Jones v. Lampe, 85 Kan. 401, 116 Pac. 619), and is substantially supplied in their brief.” (p. 283.)
In the case of Bolinger v. Giles, 125 Kan. 53, 262 Pac. 1022, the court said:
“Under our simplified practice a cross appeal may be taken quite informally ■ — by notice to tlie adverse party any time before the cause is assigned for review (R. S. 60-3314), and the questions sought to be reviewed may be presented with other matters discussed in the briefs.” (p. 57.)
The reference here to time of service is a mere statement of the provision of the cited statute, and is not a fresh interpretation of the statute altering the effect of the decision in Jones v. Lampe.
In the case of Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756, a contention of appellee was stated, and the statement was followed by:
“But notice of a counter appeal was not given. (Civ. Code, §578.)” (p. 195.)
What the facts about notice were does not appear, but the statement did not overrule the previous decision interpreting the statute.
The statute speaks of notice “stating” in what respect appellee asks consideration or review of an order. There is no more formality about manner of stating than there is about method of notification. It is not necessary that the brief or other notice shall say in set phrase “The appellee asks review of the order of the district court relating to” so and so. It is sufficient that challenge of the order in fact be made as a challenge with reasonable definiteness.
In this instance there could be no doubt about what the division of appellee’s brief which has been referred to meant, and the ruling discussed is reviewable. For the reasons already stated, the latter part of the jury’s answer to question 15 should have been stricken out.
Doubtless the district court did not modify the jury’s answer because the court was of the opinion modification was not necessary to rendition of judgment for defendant on the special findings. Soundness of this view is easily demonstrable.
If plaintiff acquired the bonds, she did so by gift. Delivery was essential to effect the gift. The jury found delivery was effected by writing plaintiff’s name on the containers. (Finding 20 [a].) The bonds were in possession of Knox in the bank, and no change of possession occurred. (Finding 1 [c] '[d].) Knox did not intend to surrender all control over the bonds when the gift was made. (Finding 20 [b].) He did exercise dominion over them pretty freely for four or five years. The testimony was that when bonds matured, Knox exchanged them, and the finding was that when coupons matured he cashed them, and used the money as his own. (Finding 16.) Since, according to the jury’s theory, Knox had no interest in the bonds, this looked a little queer, and without having been asked about it, the jury undertook to explain it. The jury said Knox exercised dominion over the bonds given to Mrs. Knox, “as her agent.” Unless the bonds became property of Mrs. Knox, the explanation amounted to nothing, and it made no difference whether the explanation was left in or was stricken out.
The method of delivery specified in finding 20 (a) excluded all other methods of effecting transfer of these bonds by gift. The testimony relating to occasional possession of key to the box was ignored. The specified method of delivery was ineffective as a matter of law. The authorities in this state and elsewhere are uniform on the subject, and it is not necessary for this court to add anything to existing literature on the subject of delivery necessary to effect gift inter vivos.
The foregoing renders it unnecessary to consider another defense to the action.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Wesley M. Smith filed a petition on May 9, 1931, in a single count, alleging that the Veeder Supply Company was liable to the plaintiff upon two grounds, one for injury to an employee of the plaintiff. The plaintiff had obtained a gas-mining lease on the land of another, and had located a drill rig thereon and was drilling for gas. Plaintiff had already reached gas, and it was flowing from the well. It was alleged that defendant was engaged in the construction of a pipe line from the well to the main lines of a company to which plaintiff had sold the gas to be produced from the well, and that defendant was in the employ of the purchasing company and in no way in the employ of the plaintiff. It was alleged that it had constructed the line to within forty or fifty feet of the plaintiff’s well, had laid down the pipe line up to the well and was engaged in welding the same with a blow torch; that the employees of the plaintiff warned the defendant that it was unsafe to use the blow torch at that point, for the reason that the well was producing gas, and if they used the blow torch before the well was shut off they would set it on fire, endangering both the property of the plaintiff and the lives of his employees who were working around the well and drilling machine at the time, but that they continued to use the blow torch, which resulted in igniting the gas, causing an explosion, on May 10, 1929, setting plaintiff’s derrick on fire. That a metal wheel located on top of the derrick burned out and fell, striking Homer Cottengim, plaintiff’s employee, on the head, fracturing his skull and seriously injuring him; that Cottengim was rushed to a hospital, cared for at the expense of plaintiff, who has paid out and contracted to pay hospital bills, doctors’ bills, nurses and compensation to Cottengim as the result of said injury, in the total sum of $922.50; and also alleged that defendant was liable to plaintiff in the further sum of $142.08 for the destruction of the derrick, which was destroyed by the negligence of the plaintiff, and judgment was therefore asked for the sum of $1,064.58. To this petition, which attempted to set out two causes of action, a demurrer was filed on the ground that a cause of action was not stated by plaintiff against the Veeder Supply Company. On the 7th of November, 1931, the demurrer was confessed by plaintiff and sustained by the court. Plaintiff then asked and obtained leave to file an amended petition within twenty days. Another or amended petition was filed on the 14th day of November, 1931, which contained two counts, setting up, as counsel say, substantially the facts stated in the original petition, first, that for the damages sustained by-plaintiff by reason of the injury to its employee, and second, that for the damages sustained by the burning of the drilling rig.
A motion was made to strike the amended petition from the files on January 8, 1932, the ground being that the general demurrer had been previously sustained, no appeal taken from it, and that no cause of action having been stated in the original petition, the amended petition was barred by the statute of limitations. It may be noted that the original petition was filed one day before the statute of limitations ran, and it had run when the second pleading was filed. The motion to strike the amended petition from the files and a demurrer thereto were overruled, and from these rulings this appeal is taken.
The appeal involves the application of the two-year statute of limitations. The first petition was filed May 9, 1931, just one day before the bar of the statute fell, and the amended petition was not filed until November 14, 1931, more than six months after the bar had fallen.
Plaintiff contends that where the amended petition only enlarges, makes more perfect the allegations in the original, and contains no new cause of action, the amended petition relates back to the filing of the original petition and is not barred, although the limitation would have run before the second petition was filed. If the first petition alleges in general a cause of action, but does so imperfectly and with insufficient detail, and the amended petition is only an enlargement of the averments of the original by setting out more definitely that which was pleaded in general and does not set up a new cause of action, the fact that the statute had run when the amended petition was filed is not a bar to a recovery, as in such a case the amended petition relates back to the filing of the original one. (Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837; Service v. Bank, 62 Kan. 857, 62 Pac. 670; Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657; Taylor v. Railway Co., 81 Kan. 232, 68 Pac. 691.) However, if a cause of action is not pleaded in the original pleading, and the statute had run before the amended petition was filed, a different rule applies. Here the demurrer to the original petition challenging its sufficiency alleged that it did not state a cause of action against defendant. This question was submitted to the court, and thereupon plaintiff confessed that it did not set forth a cause of action, and the court then sustained the demurrer.
Upon plaintiff’s application the court gave him time in which to file an amended pleading. This was done within the allotted time, but the bar of the statute had fallen before it was filed. What was the defect in the original petition confessed by plaintiff and adjudged by the court, does not appear in the record, but that no cause of action was alleged was determined, and from that decision no appeal was taken. Indeed, error could not well be assigned on the ruling of the court where the plaintiff had confessed that the petition did not state a cause of action against defendant. It, therefore, stands adjudicated that no cause of action was alleged within the two-year statute of limitations.
Plaintiff is now insisting that a cause of action was in fact stated, and that the amended petition did no more than to amplify and make more definite the averments of the original petition. Plaintiff may have conceded too much when he voluntarily confessed that his petition lacked averments essential to a cause of action, and possibly the court was led by his confession to sustain the demurrer, but whatever the fact may be, it was adjudicated that plaintiff had not pleaded a cause of action against defendant when the statute of limitations against his claims had run. The cause of action then set forth in the amended petition was necessarily a new one, and it being filed after the cause of action was barred, it cannot be the basis of a recovery.
The original petition did not toll the statute. In Beneke v. Bankers Mortgage Co., 119 Kan. 105, 111, 237 Pac. 932, it was said:
“When a petition filed in due time fails to state a cause of action for lack of an averment relating, as in this instance, to substance and not to form, and the averment is supplied by amendment after the statute of limitations has run, the original petition does not toll the statute, and the amendment does not relate to the time of filing the petition so as to avoid the bar of the statute.” (See, also, Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254.)
Again, if the original petition in fact set forth a cause of action imperfectly, but one which warranted an amendment which would toll the statute, the confession of the demurrer, which practically invited the ruling sustaining it, the plaintiff is not in a position to complain. It is settled that no one may avail himself of an error which he by his own act invited arid led the court to commit. (Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879; Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; State v. Hibbard, 76 Kan. 376, 379, 92 Pac. 304; State v. McKinney, 76 Kan. 419, 421, 91 Pac. 1068.)
It must be held that there was error in overruling the motion to strike the amended petition and in overruling the demurrer to it. It follows that the judgment is reversed, with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
W. S. Tucker, a former county clerk, was found guilty of embezzlement of funds which came into his hands as such officer. He has appealed and contends that the court erred: (1) In overruling his plea in abatement and motion to quash, and (2) his motion to set aside or correct a journal entry pertaining to the first trial; (3) in denying his plea in bar, and (4) his challenge of a. certain juror for cause.
The question presented on the plea in abatement and motion to-quash arises in this way: A complaint was filed before the justice-of the peace charging defendant with embezzlement in twenty-two-counts, and a warrant of the same tenor was issued. Defendant was arrested under this warrant, and at the time set for his. preliminary examination he waived the same and was bound over to the district court. The entry made on his docket by the justice of the peace, after reciting the appearance of the county attorney for the state, reads:
“Defendant, W. S. Tucker, appeared in person . . . and waived preliminary examination. Whereupon the court finds that the crime of embezzlement has been committed and that there is probable cause to believe that the defendant W. S. Tucker is guilty of its commission ■. . . ”
The point made by defendant on his plea in abatement and motion to quash the amended information is that the magistrate found “the crime of embezzlement” had been committed, not that crimes of embezzlement had been committed. It is argued this is a finding that but one of the twenty-two offenses charged in the complaint and warrant had been committed and that it did not justify the filing of an information on more than one count. We do not so interpret the record. Possibly it would have been better to have used the word “crime” in the plural rather than in the singular, but as used it is not misleading nor seriously inaccurate. Defendant certainly waived his preliminary examination with relation to the crime of embezzlement committed under all the circumstances and in all the w.ays charged in the complaint and set forth in the warrant. In State v. Myers, 54 Kan. 206, 38 Pac. 296, it was held:
“Where the complaint and warrant in a criminal case state in general language the offense charged against the defendant, and such defendant waives a preliminary examination thereon, he cannot be heard, after an information has been filed setting forth fully and specifically the offense attempted to be charged in the warrant, to say that he has had no preliminary examination.” (Syl. U 3.)
To the same effect see State v. Bland, 120 Kan. 754, 756, 244 Pac. 860, and authorities there cited.
Appellant’s contentions concerning the motion to correct the journal entry pertaining to the first trial and his plea in bar may be considered together, and arise in this way: At the session of court prior to the trial in the first division of the court, from which this appeal is taken, there had been a trial in the second division of the court, at which the jury had been discharged before a verdict was reached, and, defendant contends, under such circumstances as to amount to former jeopardy.
The abstract before us discloses that the trial judge at the first trial kept exhaustive notes in his own -handwriting on loose sheets of paper. The trial appears to have covered the time from October 14 to October 22, 1931. After the jury had retired the trial judge handed these loose sheets to the court reporter and asked him to condense them into memoranda for his trial docket. This was done by the reporter writing a condensed statement of the notes on a sheet of paper, which was pasted in the trial docket. Among other things these notes show:
“Case submitted to jury at 10:05 a. m. October 1931, jury called in at 5:00 p.m. and reported unable to agree to a verdict. Jury polled. The court finds a mistrial.’’
The words italicized were in the judge’s handwriting.
It appears that no entry was made for the journal of the court at that time. At the next term of court, when the case came on for trial in the other division, the absence of an entry on the journal was noticed. Counsel for the state asked permission to prepare an appropriate recital of what took place and have it properly entered on the journal. This was done by the county attorney and the trial judge who had handled the case in the second division, and it was permitted to be filed by the judges of both divisions. This entry in the journal recites:
“Thereupon the plaintiff completed its argument and the case submitted to the jury at 10:05 a. m., October 21, 1931. At 12 o’clock noon jury was sent to lunch in charge of the sworn bailiff. 6 p.m. the jury was sent to dinner in charge of the sworn bailiff and the court instructed said bailiff to keep the jury together for the night.
“October 22 having arrived, the jury still being in deliberation, said jury was sent to breakfast in charge of the sworn bailiff. 12 o’clock noon jury was sent to lunch in charge of the sworn bailiff. Jury was called in open court at 5 p.m. on the 22d day of October, 1931, and represented to the court that they were unable to agree upon a verdict.
“At 5:05 p.m. the jurors are brought into open court, and being all present and separately inquired of, by the court, and each of them answers that the jury is unable to agree upon a verdict and answers that there is no reasonable probability or possibility of their agreeing upon a verdict in the event of more time being given for deliberation; and the court being fully advised in the premises finds that there is no reasonable probability of their agreeing upon a verdict and finds that upon investigation and inquiry that it is necessary for the said jury to be discharged, and thereupon they were discharged from further consideration of this cause and this cause was, by the court, continued until the next term of this court.”
Defendant moved to set aside or correct the entry made for the journal by the county attorney and trial judge of division two on the ground, first, that it had been done without proper notice to him or his attorneys; and, second, that it did not correctly recite what took place at the time the jury was discharged. Evidence was taken on this motion and it was overruled. Complaint is made of that ruling. It is true defendant and his counsel did not have proper notice of the preparation and filing of this entry for the journal. That should have been prepared soon after the discharge of the jury on the first trial. Delay in preparing appropriate records of courts is a matter that has caused much confusion, has sometimes affected substantial rights, and later has consumed expensive time of courts and of counsel. In an effort to avoid that this court has adopted rules 32 and 33 in relation thereto. Notwithstanding this, counsel sometimes neglect this important part of their work. Had these rules been complied with at the time of the discharge of the jury on the first trial the time of the trial court and this court to consider the matter could have been used for other purposes. Aside from the belated preparation of this record there is nothing wrong with the discharge of the jury. Indeed, the court’s temporary trial notes leave little room to question what was done. They show the jury reported it was unable to agree to a verdict, that the jury was polled, and from this report and the polling of the jury the court found a mistrial. This shows an appropriate inquiry and a definite finding of necessity to discharge the jury. The belated entry made in the journal shows this more fully and completely. The evidence taken discloses that the case was submitted to the jury at 10:05 a. m., October 21. It was kept together all night and continued its deliberations until 5 p. m., October 22, at which time the foreman informed the court that the jury had been unable to agree, he thought it not possible they could agree, that it stood numerically 'eight to four, and there had been no change in that standing since four o’clock p. m. the previous day. On being interrogated, each of the jurors concurred in that statement. From this, and in view of all the facts and circumstances, the court found that there was a mistrial. The evidence of what took place sustains the matters set forth in detail in the entry made for the journal and sufficiently shows that it was necessary to discharge the jury because of its inability to agree. It was proper for the court to complete its records. (State v. Curry, 74 Kan. 624, 87 Pac. 745; 16 C. J. 251.)
Appellant cites and relies strongly on State v. Allen, 59 Kan. 758, where it was held:
“Where a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned; and a discharge in such case unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.”
Appellant stresses the words “absolute necessity.” It will be noted, as used above, they are connected with “reasons which are sufficient in law.” That, of course, is the real test. The record made by the court in that case reads:
“. . . the jury, not having agreed upon a verdict in the above-entitled cause, the jury is discharged from further consideration of' this case. . . .” (p. 759.)
This was held not to show inability to agree. There was a similar holding in State v. Start, 62 Kan. 111, 61 Pac. 394, where the record was:
“. . . the jury, not having agreed upon a verdict was by the court discharged.” (p. 112.)
And in State v. Klauer, 70 Kan. 384, 78 Pac. 802, the jury, after deliberating twenty-four hours, returned with a statement that they were unable to agree, and were discharged. The judge was satisfied in his own mind they could not agree, but this conclusion was reached from, the length of time the jury had been deliberating and from inquiries which had been made by the jury. The court made no investigation or inquiry before the jury was discharged whether they could agree or not, and no judicial investigation or determination was made at the time, and no finding of the necessity for a discharge was entered of record. This was held to 'be insufficient.
The above cases are much like that of People, ex rel. Stabile, v. Warden, etc., 202 N. Y. 138, 95 N. E. 729. There a jury, deliberating on a case, was brought into court and the following colloquy took place:
“The Court: Mr. Foreman, have you agreed upon a verdict?
“The Foreman: Not as yet.
“The Court: Well, I am loath to keep you together any longer. You have been in session now for over five hours, and I have charged you as fully upon the law as I can charge you. I do not see that there is any additional explanation of the law that I can give you. I discharge you from further consideration of the case.” (p. 140.)
This was held to be insufficient and to amount to an arbitrary discharge, the court citing State v. Allen, 59 Kan. 758, 54 Pac. 1060, and other cases.
Our constitution reads: “The right of trial by jury shall be inviolate.” (Bill of Rights, § 5.) This applies to the trial of one charged with a felony. (State v. Simmons, 61 Kan. 752, 60 Pac. 1052.) It also provides: “No person shall be . . . twice put in jeopardy for the same offense.” (Bill of Rights, § 10.) Our statute (R. S. 62-1412; 60-2914) pertaining to the point reads:
“The jury may be discharged by the court . . . after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.” (R. S. 60-2914.)
Erom these provisions it is clear that when one is charged with a felony and a jury has been selected and sworn to try the case the court cannot arbitrarily and without a reason which is sufficient in law discharge the jury without the same operating as a discharge of the defendant, and the decisions above cited so hold. From the nature of things, however, there are circumstances which may arise which make it necessary that a jury be discharged. These are mentioned in the statute above quoted, one of them being after the jury has been kept together “until it satisfactorily appears that there is no probability of their agreeing.” To justify a discharge for that reason there should be a judicial inquiry into the facts of whether there is probability of the jury agreeing and a judicial determination that there is no such probability. Anything less than that results in the discharge of the defendant. Since the trial is in a court of record, these constitutional and statutory provisions contemplate that a record of the judicial determination of these facts should be made (State v. Allen, supra), although it is possible, if the proper judicial inquiry was had and judicial determination made, the record may be completed at a later date. (State v. Curry, supra.)
In State v. White, 19 Kan. 445, which was a trial on the charge of bigamy, after the jury had been deliberating about fourteen hours, in the absence of the defendant and his counsel the court, being satisfied that the jury could not agree, discharged them and had the record show that the discharge of the jury was granted after it had been made to appear to the court that the jury could not agree upon a verdict. In the opinion it was said:
“The irregularity of the court consisted in taking action in the absence of the prisoner and his counsel, not in the fact that the jury were discharged after it had been made to appear to the court that they could not agree upon a verdict, and after a finding and entry of this fact were duly made a matter of record. The court had a right to discharge the jury after they had been kept together until it satisfactorily appeared that there was no probability of their agreeing.” (Citing the statute and other authorities.) (p. 448.)
In State v. Rudy, 9 Kan. App. 69, which was a trial for a misdemeanor, it was held the jury may be discharged without a verdict “when it is made to appear to the satisfaction of the court that there is no reasonable probability of their agreeing upon a verdict.” In the opinion it was said:
“The record satisfactorily shows there was no probability of the jury agreeing; the jury twice reported to the court its inability to agree upon a verdict, and prior to its discharge each juror answered for himself that it was impossible for them to agree upon a verdict. Upon such a showing the court was authorized, in the exercise of its discretion, to discharge the jury.” (p. 72.)
In State v. Hager, 61 Kan. 504, 59 Pac. 1080, the syllabus reads:
“Where the record of the trial of a criminal case shows that the jury ‘were absent some time considering of. their verdict,’ and upon being returned to the jury box the foreman, in reply to an inquiry by the court stated, in the presence of the remainder of the jury and without dissent by any of them, that there was no probability of their agreeing upon a verdict, and the court thereupon discharged them, ‘because they were unable to agree upon a verdict,’ held, that such record does not show an arbitrary or unreasonable exercise of the court’s authority in discharging the jury, but does show facts from which a presumption of a correct exercise of judicial authority arises, and that it will not support a plea of former jeopardy when the defendant is again put upon trial.”
In the opinion it was said:
“Authority for the discharge of a jury trying a criminal case, therefore, exists if 'they have been kept together until it satisfactorily appears that there is no probability of their agreeing.’ The tribunal primarily intrusted with the duty of determining whether a jury has been kept together until there is no probability of their agreeing is the trial court. The questions whether they have been so kept together and whether there is a probability of their agreeing are judicial questions. As such they cannot be arbitrarily or capriciously determined by the court. The court must be satisfied that the jury in all probability cannot agree to a verdict before it should order their discharge. However, when it does become of that conviction and enters it of record, the correctness of its view and the soundness of its conclusions are not subject to review, unless the record of its action discloses it to be in error. Unless the record discloses hastily formed conclusions, immature judgment, or capricious conduct, the action of the trial judge cannot be reviewed by this or any other court.” (p. 508.)
In State v. Alexander, 66 Kan. 726, 72 Pac. 227, the pertinent syllabus reads:
“The record of a former trial reads: 'The said jury by order of the court were brought into open court., and it appearing to the court that the said jury are unable to agree upon a verdict, and that there is no reasonable probability of their being able to agree upon a verdict, they are discharged from further consideration of this case.’ This record sufficiently shows a disagreement of the jury, and a plea of former jeopardy based thereon was properly overruled.”
In State v. Curry, 74 Kan. 624, 87 Pac. 745, there had been two mistrials at previous terms. The record of each of these former trials recites that when the jury returned into court and announced they were unable to agree they were discharged. The syllabus reads:
“A plea of former jeopardy was based upon the failure of the record of a former trial to show affirmatively that the juiy were discharged for the reason that the court found they were unable to agree. Before the plea was heard the court made an order correcting the record so as to speak the truth, and as corrected it showed that on the former trial the court inquired of the jury and upon their answers found they could not agree. Held, first, that the court possessed ample power to correct its record in accordance with the fact; second, that upon the amended record the plea was properly overruled.”
Under the facts of this case as previously set forth, and in the light of the authorities which have been referred to, it was not error for the trial court to overrule the motion to correct the record of the former trial and to deny the plea in bar.
It is contended the court erred in not sustaining defendant’s challenge to a certain juror for cause. In his voir dire examination he stated that he had been in the court room and heard a part of the case when it was tried before and had formed an opinion which it would take evidence to remove. On being asked: “Is that such a belief upon the merits of the case as might weigh with you in arriving at your verdict?” he answered in the negative. This is said to be the test of competency. (State v. Henson, 105 Kan. 581, 185 Pac. 1059.) His further answers tended to show that he could sit as a juror and try the case fairly and impartially from the evidence produced on the trial and in accordance with the instructions of the court. Perhaps trial courts are too slow to excuse for cause a juror who says at any time in his examination that he has an opinion concerning the case which it would take evidence to remove, but his voir dire examination is a trial of his qualifications before the court, and ordinarily the ruling of the trial court thereon will not be disturbed where there is evidence to sustain it and it is not clearly erroneous. (State v. Stewart, 85 Kan. 404, 116 Pac. 489; State v. Molz, 91 Kan. 901, 139 Pac. 376; State v. Pratt, 114 Kan. 660, 220 Pac. 505; Seals v. Snow, 123 Kan. 88, 254 Pac. 348.)
There is another reason why this ruling does not constitute error in this case. The juror was excused peremptorily and did not sit in the trial of the case. It is not contended that any juror who was permitted to be-upon the jury in the trial of the case was in any way biased or otherwise disqualified. In other words, the record indicates that the defendant had a fair, impartial jury to try his case. If that be true errors with respect to persons examined as jurors but who did not serve as such become immaterial.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is by the defendants from a judgment rendered against them in an action for damages, on account of an automobile collision.
The first error complained of is in rendering judgment against the defendants when the answer of the jury to special question No. 9, together with the uncontradicted evidence, shows the plaintiff to have been guilty of contributory negligence as a matter of law, and .also shows one Joe Northern to have been guilty of the negligence causing the injury.
The collision occurred April 25, 1931, on highway No. 40 — sometimes called Victory highway — near Victory Junction. Three cars, including that driven by the plaintiff, were going west on this slab highway. The car driven by the defendant, George W. Hord, and owned by the defendant, Ralph LeRoy Nafziger, was going east on the same highway and the cars met about 8:45 that evening, which was somewhat cloudy. The defendants’ car is referred to as a Rolls-Royce. The plaintiff’s car was a Buick. Joe Northern’s car, also going west, was a Chevrolet, and George Burgess was driving his car going west.
The evidence of the plaintiff tends to show that these three cars going west were near together on the north side of the slab with Burgess in the lead followed by Northern, and the plaintiff in the rear, when the defendants’ car was observed coming from the west and weaving over on the north side part of the time; that Burgess turned to the north, but his left hind fender was struck by the defendants’ car in passing; that defendants’ car struck the left side of the Chevrolet car belonging to Northern, damaging it and turning it around facing the east, and the defendants’ car then ran into plaintiff’s car nearly head on.
The testimony of the defendants tended to show that the defendants’ car was clear over on the south side of the slab as it approached this procession of three cars going west, that Northern with his car, the Chevrolet, was in the rear of the three going west and all at once it turned out to pass the car ahead of it and in doing so drove far over on the south side of the slab and struck the defendants’ car, breaking its steering device and swerving it out of its course over in front of the plaintiff’s Buick. The driver could not guide it, but put on the brakes and checked the force of the collision.
The following answers of the jury to special questions are pertinent to the matter now under consideration:
“2. Was the oar driven by George Burgess followed by the Chevrolet car driven by Joe Northern and the Buick car driven by the plaintiff, in the order named? A. Yes.
"3. How close was the Chevrolet car to the car driven by Burgess at and immediately prior to the collision described in plaintiff’s petition? A. At a safe driving distance.
“5. At what speed was each of the cars west-bound traveling at and immediately prior to the collision described in the petition? A. (a) Burgess car, between 20 and 30 miles per hour; (b) Northern car, same; (c) plaintiff’s car, same.
“7. How quickly could the plaintiff, Tony Balano, stop his car going at the speed he was going immediately prior to the time of the collision between his car and the car driven by the defendants? A. About twenty feet.
“8. How far awaj' from the point of collision did the plaintiff observe the car of the defendants on the wrong side of the street? A. About 150 to 200 feet.
“9. If you find for the plaintiff, do you find that the defendant, George Hord, was guilty of negligence at and immediately before the collision between plaintiff’s car and the car driven by the defendant, George Hord? State fully. A. (a) Just prior to the collision. Yes, by being on wrong side of highway No. 40 at time of impact.”
Appellants direct special attention to the answer to question No. 9 and especially to the two apparently modifying features limiting the time to which the affirmative answer applies that the negligence was “Just prior to the collision,” and that it consisted of being on the wrong side of the highway “at time of impact.” Appellants reason that this answer is in perfect accord with the theory and testimony of the defendants, that their car was swerved over when the Northern car ran into it on the south side of the highway and broke its steering device, and swerved it across the' highway to the north and into the car of the plaintiff on the north side. Appellants call to the aid of this view a part of the testimony of the witness Powell, who was riding with plaintiff at the time of the collision, where he testified as follows as to the preliminary collision between defendants’ car and that of Northern, and said:
“When he hit Joe Northern's car he turned over to the south side.
“Q. And in swinging it about he got too far and came back on your side? A. I guess the impact of the car turned his car that way. Or he lost control of it or something.”
The question and answer that immediately followed is as follows:
“Q. Well, answer my question. Do you mean by that when he hit Joe Northern’s car he turned it over to the south side, and then in an effort to swing it up and get back, he got back on your side again? A. I don’t know what happened to him further up,, but he was weaving in and out and winding in and about all the way down. I could see by the lights on him.”
Appellants conclude from the answer of the jury limiting the negligence to being on the north side of the highway at the time of the impact, and this evidence of Powell and others along the same line, that the .claimed negligence of defendants so limited by this answer is fully accounted for by the negligence of Northern, who broke defendants’ steering gear and diverted their course, and further, with such limitation in mind, they urge the contributory negligence of the plaintiff from the answers to questions 7 and 9, that the plaintiff saw the defendants’ car approaching him for about 150 to 200 feet, and that he could stop his car at the speed he was going in about twenty feet. That he failed to stop his car when he saw the possible danger appellants insist is contributory negligence as a matter of law.
Of course the question of contributory negligence is a matter for the jury to determine under the instructions given by the court, and the general verdict for the plaintiff under those instructions is in effect a finding that he was not guilty of contributory negligence. But it is always proper for both the trial court and this court to find otherwise if it can be found as a matter of law notwithstanding the general verdict and the answers to special questions. In so considering the answers and the evidence we think it is necessary to read in connection with the time limitation put on the negligence in the answer to question No. 9 the answer to the question just preceding it, where it is found that the plaintiff observed the defendants’ car on the wrong side of the highway for about 150 to 200 feet. One of the limitations in question No. 9 was instantaneous, the other was exceedingly indefinite, “just prior,” and might have included considerable or all of the time required to travel the 150 or 200 feet.
It is not suggested how. the plaintiff could have avoided the collision by stopping his car when he saw the defendants’ car coming on the wrong side. Of course a head-on impact would not be' so bad naturally, if one car was not moving. Burgess in the first car hastened and turned to the right and yet his left hind fender was struck, he says. His hastening and turning to the right undoubtedly was better for him than stopping would have been. Plaintiff had a right to presume that the party approaching on the wrong side of the road would get on the right side in time to avoid a collision. (McComas v. Clements, post, p. 681, 21 P. 2d 895.)
Unless the evidence shows contributory negligence of such a char acter that would not cause reasonable minds to reach different conclusions thereon, it cannot be contributory negligence as a matter of law. And such is the exact situation here. Very different plans might be suggested by different persons in the situation as described by the different witnesses. Neither do the answers furnish an undebatable solution of the difficulty confronting plaintiff when he observed the approaching car on the wrong side of the road.
In the case of Insurance Co. v. Railroad Co., 110 Kan. 4, 202 Pac. 582, where at a railroad crossing sparks and cinders from a passing engine fell on a covered truck loaded with furniture like a shower of rain or hail, and after the train had passed, the driver went on for some distance before fire was discovered, whereas by looking the truck over carefully at the time the fire might have been discovered and extinguished, and it was held:
“. . . that the question of contributory negligence was not one of law, but of fact, for the reason that it does not appear that reasonable men, acting as the triers of fact, would find, without any reasonable probability of difference in their views, that the persons in charge of the truck knew and appreciated the danger, or that ordinarily prudent men, under the same circumstances, would have acquired such knowledge and appreciation.” (Syl. ¶ 2.)
“When the facts relating to contributory negligence are of such character that reasonable minds might reach different conclusions thereon, it is a question of fact for the jury to determine.” (Keir v. Trager, 134 Kan. 505, syl. ¶ 2, 7 P. 2d 49.)
The answers of the jury completely dispose of the theory of the defendants as to Northern, with the Chevrolet, being the last one in the procession and turning out to pass the car ahead of him and thus crossing over to the south side of the road. The jury found the order in the procession to be otherwise. This makes it impossible to follow the suggestion of the appellants by shifting, all or part of the negligence over on Northern.
Appellants urgently object to instruction No. 17, which is somewhat out of the ordinary because a third party is introduced by the defendants into the question of negligence, viz., Northern with his Chevrolet car. We do not think it in any way makes the defendants liable for the negligence of Northern if it should be found that they were each separately found to be guilty of negligence. Instruction No. 17 is as follows:
“If you find from the evidence that the plaintiff’s injuries, if any, were wholly and solely caused by the negligence or acts of one Joe Northern, with out contributing negligence on the part of the defendants in this case, you will return a verdict for the defendants. But the mere fact, if proven, that the said Joe Northern was guilty of negligence which contributed in causing the plaintiff’s injuries, if any, wo.uld not bar plaintiff’s recovery if it is further proven by the preponderance of the evidence that the defendants’ negligence also contributed as a proximate cause to plaintiff’s injuries, and that plaintiff was not guilty of contributory negligence.”
Appellants also criticize the setting out in the first instruction of the five allegations of negligence contained in the petition of plaintiff as giving them more prominence than usual or should properly be given to such allegations. They are presumably copied from the petition at length and not given in the language of the court. We see no harm or prejudice in using the language of the petition in telling .the jury the nature of the issues to be determined by it, provided the allegations quoted are supported by some evidence and are in plain and simple language capable of being easily and readily understood. (Williamson v. Oil and Gas Co., 94 Kan. 238, 146 Pac. 316.)
Serious objection is made to the extravagant statements made by the plaintiff in his testimony which possibly magnified and exaggerated some mattei’s in the giving of his testimony, especially concerning the injuries received by him. The description of such by his attending physician made them not nearly so serious. This is criticized as plain perjury that should result in a reversal of the judgment. Of course we cannot approve the giving of any testimony bordering on perjury, but no two witnesses see, feel or express things exactly alike, and we have no positive standard of accuracy in things and circumstances of this character, and for this very reason the jury is usually instructed, as it was in this case, that it is the judge of the weight of the evidence and the credibility of the witnesses.
Two other parts of the testimony are here criticized. A witness seems to have related that he heard Hord, one of the defendants, say to an occupant of his car, after the collision, something to the effect of taking out the baggage and letting the car burn. It would appear to be wholly immaterial and inadmissible, but we fail to see how defendants could be prejudiced. It might be very serious in an action between the owner and an insurance carrier, but surely not so here. The other was a picture of plaintiff’s car taken some time after the collision with strips of iron and a bumper piled on the running board. Of course it should not have been taken with these extras, but they could not affect the result seriously.
Is the verdict excessive? Is it such that shocks the conscience of the court? Nothing thus far has been said in this opinion as to the extent of the injury to plaintiff. The jury allowed the plaintiff $2,068 for permanent disability and $279 for pain and suffering and another item for hospital, making a total of $3,000, but the court eliminated the last item and rendered judgment for $2,347. The jury found he sustained injuries to his lungs and back. The attending physician testified that the plaintiff was under his care in the hospital for seven days — the injuries being to his lungs, his back and one of his legs. That of the leg consisted of a sprain, ■ bruise and contusion. There were no dislocations or fractures. The principal bleeding was from injury to the lung. He had a badly sprained back and is still being treated for it. After the first few days he had passed the danger of getting an acute infection, having recovered from the immediate effect of the injury to the lungs. He still coughs some and is still suffering. He cannot say whether or not he has a permanent injury. He thinks his lung is permanently handicapped; doesn’t think he could stand the strain of pneumonia or tuberculosis. His sprained back will never permit him to lift heavy» weights or regularly perform manual labor.
Both parties have helpfully cited cases where allowances were considered and held to be either excessive or not excessive. It is not necessary to enumerate them here or compare the amounts allowed and the extent of the injuries and incapacity therefrom with those facts in this case, but after a thorough examination of all such cases cited and many others, we are satisfied that the amount here allowed for the injuries and permanent disability sustained and the suffering and pain endured is not excessive in comparison with allowances approved for similar injuries and disabilities.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an election contest. The contest court decided against the contester. This decision was upheld by the four district judges of Sedgwick county, sitting en banc. The contester appeals.
John Free and John Wood ran against each other for county attorney. There were about 57,000 votes cast. Wood was declared to have received 17 votes majority.
• A statement of intention to contest the election of Wood was filed by Free. This notice charged errors, irregularities and mistakes on the part of the canvassing board; that in the ninth precinct of the ■third'ward a member of the election board counted about 100 ballots without any other member of the board seeing these ballots; that the result of this count was returned to the county clerk and that such returns were irregular and unlawful; that there were errors, mistakes and irregularities in the third precinct in the township of Ketchi and that the county clerk and county commissioner refused to count 52 absentee ballots that should have been counted. The notice alleged that these irregularities, mistakes and errors gave John Wood a plurality of seventeen votes, and that should they be corrected the result of the election would be changed.
When the case came on to be heard before the contest court the evidence was confined to the complaint about the ninth precinct of the third ward. The evidence showed that there were two boards at this precinct — one being referred to as the receiving board and the other as the counting board. ■ The counting board started counting ■state ballots about ten o’clock on the morning of election day. ■ The receiving board started counting state ballots as soon as the polls closed.
About four o’clock in the morning on the day after election a member of the counting board took about eighty ballots and called them off to the other members of the counting board without ■any other members of the board seeing them. The evidence showed that the counting board called 206 votes for county attorney, of which Free received 75 votes — that is, about 36 per cent — while Wood received 131 votes. This is-the board where the ballots were counted with only one member of the board seeing them. The receiving board counted 474 ballots for county attorney, and out of these Free received 281 votes — -that is, about 59 per cent — and Wood received 193 votes.
.Evidence was also offered that the member of the counting board who called the ballots without any one else seeing them had been an active worker for Wood and that she had been heard to say that “we would be in an awful mess if the ninth of the third were counted.” This proffer of evidence was rejected.
Evidence was also introduced as to the ratio of the vote that was counted by the two boards for the office of district judge. It was as follows:
"Per cent, Per cent, approx. approx.
NeSmith (D) ..................... 192 40 96 46
Sargent (R) ....................... 290 60 114 54
McCormick (D) .................. 199 41 91 44
Almond (R) ...................... 286 59 115 56
Pierpont (D) ..................... 309 67 125 61¿
Wightman (R) ................... 154 33 78 38¿”
It will be seen that the ratio of votes between the two boards for this office is about the same, while for the office of county attorney, as has been seen, there is a marked difference. After the sacks in which ballots were kept had been identified and the officer in charge of these had testified that they had been in his continuous custody and had not been tampered with the ballots were offered in evidence. The contestee objected to this offer on the ground that there had been no showing made to overcome the prima facie presumption of the correctness of the returns made by the canvassing board. The contest court sustained this objection. It held as follows:
“Wherefore, it is the ruling of the court that the demand for the recount of the ballots of the ninth precinct of the third ward has not been supported by testimony to show that any sufficient irregularity took place in the matter of the reception or tallying of these ballots to warrant a recount.
“That it is, in the Judgment of the court, a mere supposition that the ballots themselves will show a variance of count from the recorded result as termed by the judges of the election precinct and canvassed by the county commissioners.
“It is the further judgment of this contest court that it has no right to open this or any other individual ballot box on the mere asking without a proper basis therefor, and competent and sufficient evidence that a mistake, has occurred or an irregularity perpetrated either willfully or accidentally that would affect the result of the final count.”
The contester then offered the ballots of all the precincts in Sedgwick county. The introduction of these ballots was objected to and sustained on the same ground.
The contester then rested his case. The contestee then demurred to the evidence of contester on the ground that it failed to show any cause of action in favor of the contester, that the evidence was insufficient to show any mistake in the count, and for the further reason that the evidence did not show a probability that a recount of the ballots would decide the contest in favor of the contester. The contester also moved for judgment. The demurrer and motion for judgment were sustained and a motion for a new trial was denied.
The contester appealed to the district court. The four district judges of the county seat sat en banc and heard the appeal. The contester argued before the district court and urges here that the district court could sit as a trial court and make new findings of fact and conclusions of law. However, since no new evidence was tendered in district court and the hearing there was on the record made before the contest court, that court properly treated the matter as though it were an appellate court.
The case then presents two questions, as follows: Was there sufficient evidence presented to overcome the prima facie presumption of the regularity of the return of the election officials; and must the contester first make a showing sufficient to overcome the presumption of correctness of the official returns in order to be entitled to have the ballots counted? We will notice the latter question first.
The contester bases his right to count the ballots on the provisions of R. S. 25-419. The particular part upon which he relies reads as follows:
“In all cases of contested elections, either of the parties contesting shall have the right to have such ballots opened and to have all errors of the judges in counting the ballots corrected by the court or body trying such contest.”
This section should be considered in connection with R. S. 25-1411, and in particular the first and sixth subdivisions thereof, as follows:
“The election of any person declared duly elected to any county office may be contested bj'f any elector of the county—
“First. For malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of any member of either of those boards.
“Sixth. For an3>' error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.”
The judges of the trial court filed written opinions in this case for which they gave their reasons for the decision reached. The opinion of one of'them, among other things, stated:
“A reading of the entire act shows that the intention of the legislature was to preserve by every safeguard possible the secrecy of the ballot, both before and after voting. An exception was made in contested elections, as under such law without the proviso quoted above the ballots could not be produced or inspected in a contest. We think it clear that the proviso simply created an exception, rather than the creation of absolute and unqualified rights to an examination of ballots in a contest matter.
“Another reason why we reach such conclusion is that to give the proviso the effect claimed for it by the appellant, would be to destroy most of the provisions of the contest statute. This statute sets up the machinery for a contest, provides how it shall be commenced, the causes therefor, the creation of a special court, the hearing of the case, the determination of the issues, etc. (R. S. 1923, 25-1411 et seq.)
“If it had been intended to wipe out the causes for contest, the hearing thereon and a decision following such hearing it would have been easy enough for the legislature to have said so. It not having said so, the conclusion seems inevitable that the two statutes must be read together, and the causes must be proven before a recourse is had to the ballots; that the right exists only when preceded by proper proof. This conclusion is borne out by. the decision of our supreme court in Moorhead v. Arnold, 73 Kan. 132, which was decided after the statute was enacted. It was there held that there was not an absolute right to introduce the ballots, but that such right arose only after a proper preliminary foundation — in that case, proof that the ballots had not been tampered with.”
The rule is laid down in 20 C. J. 25'5, as follows:
“Since the ballots themselves, when their integrity has been established, are the best evidence of the result of an election, it is held by some authorities that in a statutory contest where error, mistake, fraud, misconduct or corruption in counting the ballots or declaring the result of an election is alleged, a recount of the ballots upon request of the complaining parties should be ordered as a matter of course. But a party has no right to demand a recount as a mere fishing excursion, and the better rule seems to be that a resort to the ballots cannot be had until the contestant produces evidence which indicates at least a probability that a recount would decide the election in his favor, that there were frauds, irregularities, or mistakes committed in the acceptance of the ballots and return of their count, or that there is error in the record declaring the result of the election; although the actual lawful result as disclosed by a recount will not be defeated by the fact that the recount is ordered before such proof is submitted.”
The majority of the court have reached the conclusion that the above rule from Corpus Juris is the better rule, and that this case is one where from the record it appears that the counting of the ballots would be a fishing expedition.
In Gray v. Huntley, 77 Colo. 478, the court held:
“A party to an election contest is not entitled, as a matter of right, to have ballot boxes opened and a recount made. Before such an order can be properly made there must be some preliminary evidence supporting the alleged charges, and then the matter is within the sound legal discretion of the trial court, the exercise of which is oi'dinarily held to be final on review.” (Syl. U 7.)
In Conaty v. Gardner, 75 Conn. 48, the court, in dealing with an election contest, said:
“The statute does not provide what facts must be proved, or what evidence must be offered, before the judge to whom the petition is toought may direct a recount of the ballots to be made. Before ordering such recount he should be satisfied that the petitioner’s claim is made in good faith and upon reasonable grounds; but what evidence should be considered sufficient for that purpose is a matter resting largely in the judgment and discretion of the trial judge, and it will ordinarily not be reviewed upon an appeal to this court.’’ (p. 52.)
In State v. Smith, 144 So. 333, that court said:
“And so it is that in every instance where charges of irregularity of procedure or inaccuracy of returns have been made, and such charges have thereafter been properly put in issue by the respondents’ return to an alternative writ of mandamus, the court must find as a fact that a legal basis for ordering a recount exists, before ordering such recount.” (p. 336.)
In Pearson v. Norton, 63 N. H. 379, that court said:
“A recount for such a purpose would not be within the usual range of judicial action, and so wide a departure from the ordinary course of judicial duty cannot be fairly inferred as the legislative intent from anything less than a plain expression of that intent. A design to require the court, without any exercise of judgment upon any question of law or fact, to order a recount merely because it is desired by one of the candidates, is not plainly expressed in the statute, and cannot be reasonably held to be its meaning.” (p. 380.)
In. Ellwood City Boro’s Contested Election, 286 Pa. St. 257, the court held:
“Whether or not a ballot box will be opened is within the sound discretion of the court, .and the findings of fact by the court below must be accepted by the appellate court unless clear abuse of discretion be shown.” (Syl. ¶ 1.)
In the case of In re VanNoort, 85 Atl. 814, the court held:
“Where a petition for a recount of election returns was based upon a mere conjecture that the result might be in the applicant’s favor, and- it appeared equally probable, in view of a partial recount already had, that the result would be to the credit of the incumbent, the petition could not be allowed; the petitioner having no ‘reason to believe’ an error had been made ‘whereby the result of such election has been changed,’ as the quoted words are used in Election Act (2 Comp. St. 1910, p. 2125), sec. 159, authorizing a recount.” (Syl. f 5.)
To a similar effect are the holding's in Lueders v. Ehlinger, 31 S. W. 2d, 1099; also Quigley v. Phelps, 74 Wash. 73, 132 Pac. 738.
The majority of the court have examined the cases cited in the brief of the contester. We realize that there are some authorities which hold that a contester is entitled as a matter of right to have the ballots recounted. The conclusion has been reached that the better reasoned cases are those that have been cited and quoted herein. The court has considered that which is well known to all who watch the progress of public affairs, that is, conditions have changed since the Australian ballot law was enacted. The number • of votes cast, the number of candidates for each office and the consequent work involved in making the count have increased tremendously. Not every slight deviation from the prescribed procedure will be regarded as sufficient to justify the contest court in opening the ballot boxes and recounting the ballots.
The contester urges that a sufficient showing was made to entitle contester to have the votes recounted. In answer to this, it may be said that this court is acting as an appellate court in this case. This is true also of the district court. Under the decisions it was the duty of the contest court to weigh the evidence to the end that it might decide whether there had been sufficient showing of irregularity as to make it probable that a recount of the ballots would change the result. At the outset the contester was met by the rule that the result of the count as officially announced was prima facie correct. The majority of the court have examined the record and are of the opinion that nothing was shown as to the ninth precinct of the third ward which would show that other than the correct result was reached in the count of the ballots of that precinct.
In the decision of the trial court one of the judges called attention to the fact that a Mrs. Brewer, one of the election officials, testified that no illegal vote was counted, no voter deprived of his right to vote and that, so far as she knew, the votes were properly called and tabulated. It was stipulated that the testimony of the other election officials would be the same as that of Mrs. Brewer. This testimony would tend to support rather than impeach the correctness of the count. The trial court and the majority of this court see in this testimony and stipulation some evidence that the person who is alleged to have counted the 100 votes with only herself seeing them would have testified to the same effect had she been called. It is thought that this is some affirmative evidence to sustain the finding of the contest court.
Contestee urges upon us the fact that as to the candidates for district judge the vote between the receiving board and the counting board did not vary while as to the office of the county attorney there was a wide variance between the two boards. This circumstance is not deemed of sufficient weight to justify a recount in view of the fact that the contest for county attorney was a vigorously fought one. Everything was done that could be done to effect the result. A different class of people vote at certain hours of the day. The probable explanation of the way the votes ran is that the board that showed the great discrepancy counted a number of votes that happened to be cast by a group of voters who came into the polling place at the same time and for some reason voted for contestee rather than contester.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
Elizabeth Ellsworth brought this action against C. A. Spray, J. F. Spray and L. H. Spray, to recover on a promissory note purporting to have been executed by the defendants on October 12, 1913. There were indorsements of the payment of interest from time to time, until July 26, 1931. The original payee of the note, which was transferred to Mrs. Ellsworth in 1924, was the Moline National Bank. No interest payments were made for a time after October, 1928, and when payment was demanded of the Sprays they were told by one of them, “I can’t pay it now.” Later when defendants were pressed for payment an extension agreement was made. The agreement was procured by W. H. McNeal, representing the plaintiff, a woman eighty-two years of age. The following is the agreement of extension:
“Moline, Kan., March 6, 1931.
“For and in consideration of $25 to me in hand paid and in further consideration of the promise of the undersigned to pay $50 on the first days of April, May, and June, 1931, respectively, the principal and accrued interest on the attached note for $1,040 is hereby extended to July 1, 1931. Upon failure, however, of the parties hereto to pay the sums as herein specified when due, this agreement shall become null and void, and the undersigned owner of such note shall have her remedies at law the same as if this extension had not been made. Such payments as made shall be credited on such note in reduction of past-due interest. Mrs. Elizabeth Ellsworth.”
“We, the undersigned, agree to the terms and conditions of the foregoing extension, and agree that the amount of such note is $1,040 plus interest at 8 per cent since October 12, 1928. q ^ Spray.
J. F. Spray.
“Witness: Wm. H. McNeal. L. H. Spray.”
When this action was brought, no defense was made by C. A. Spray, but J. F. Spray and L. H. Spray answered by denying that they ever signed the note and that they were induced to sign the extension agreement by reason of the representations of W. H. McNeal, the agent of plaintiff, and the threat that an action would be brought at once against all of said defendants unless they signed the extension agreement. They alleged that neither J. F. nor L. H. Spray ever saw the note until after this action was brought, and as soon as they examined it they found that the note had not in fact been signed by them or by either of them, and that the assertion of McNeal that they had. signed the note was untrue. They further alleged that neither of them had ever paid any sum whatever upon the note until the extension agreement was made.
The case was tried with a jury on the issue of whether answering defendants had executed the note, and the finding of the jury was a verdict in favor of the plaintiff. It may be said that C. A. Spray made no defense and having been duly served with summons judgment went against him by default. J. F. Spray and L. H. Spray appeal.
Besides the note which was presented at the trial, Mrs. Ellsworth, the plaintiff, testified that J. F. Spray — when she spoke to him on one occasion of the note and a demand for its payment — said: “I can’t pay it now.” In October, 1929, J. F. Spray, in answer to a letter asking for payment on the note, wrote:
“Your letter received, and as I have been busy I neglected to -answer it. It will be impossible for me to pay anything on that note at this time. I have just got through paying $1,225 on notes that I signed sometime ago, so it will be impossible now. Yours Resp. J. F. Spray.”
There was evidence of W. H. McNeal, a relative and representative of the plaintiff, a woman eighty-two years of age, that he applied to the defendants for payment of the note in March, 1931, and told them that the plaintiff was in dire need of money and made an appeal to them for some payment. J. F. Spray said in substance, I am ashamed that payment of the note is past due and have regretted many times that it had not been paid, adding: “I am in no condition to pay it now, but we own an ice plant that we hope to sell the first of July, when the ice season starts, and we will pay the note out of the proceeds of that sale of the ice plant if and when sold.” Mr. McNeal said: “There must be something done, there must be a definite understanding about payment. If something is paid on it each month it is not material that the principal should all be paid, as Mrs. Ellsworth can get along with a little money each month,” and J. F. Spray said: “Well, we might be able to pay something on the note each month.” Then the three Sprays and McNeal sat down in an office and proceeded to write out the extension agreement that has been quoted. McNeal prepared the agreement with the note in plain view of all of them, and in writing the agreement referred to the note in order to describe it and there was no suggestion by any of the defendants that the signatures were not genuine. When the writing was completed the Sprays signed it, whereupon J. F. Spray took $25 from his pocket and handed it to McNeal and the payment was indorsed on the note. In his testimony J. F. Spray acknowledged that he had paid the $25 on the note, saying: “We made arrangements to pay $50 a month,” and apparently in pursuance of the agreement there were three monthly payments of $50 each, which were afterwards made in April, May and June of 1931, and another of $25 in July of that year.
There was the testimony of E. A. Chaffin, the cashier of the Moline National Bank, to which the note was originally given and which had later been transferred to plaintiff. He testified that he prepared the note for signatures, was present in the bank when it was signed and that it was signed by C. A. Spray, L. H. Spray and J. F. Spray.
There was testimony, too, of J. C. Shearman, a handwriting expert, and who, after comparison of the signatures on the note with the number of signatures on papers which were admitted to be genuine, gave his opinion that the signatures upon the note were in the handwriting of the persons whose signatures they purported to be. The note was executed in October, 1913, more than nineteen years before the judgment was rendered and had indorsed thereon thirty-two payments of interest, extending down to July, 1931. After all these transactions, admissions and other testimony, the Sprays are here insisting that they had never signed the note and had not even seen it until after this action was brought.
Beyond question there was sufficient evidence to sustain the verdict of the jury. Indeed, it is hardly asserted by defendants that the verdict lacked adequate support in the evidence, but it is contended that errors were committed in the course of the trial.
First, it is insisted that the court erred in permitting an amendment of the petition during the trial. It had been alleged that the note was executed on October 12, 1913, the date named on the face of the instrument, and the only change made by the amendment was to write “on or about” that date. It is manifest that the amendment did not substantially change the claim of plaintiff. On the trial it appears to have been developed that October 12, 1913, was Sunday, and thinking a mistake was made in the date, and that it was unlikely to have been executed on that day, plaintiff asked for the amendment, which was granted. The issue in the case was, Did the defendants actually sign the note? And whether it was signed on the eleventh, twelfth'or thirteenth of October was not material to the controversy. The statute, R. S. 52-206, provides:
“The validity and negotiable character of an instrument are not affected by the fact that: (1) It is not dated;” etc.
Since the absence of a date does not impair its validity, the particular day of October when it was executed was not important in view of the issue presented in the case, and we think the amendment made did not change or affect that issue.
Another complaint is that the court failed to give a requested instruction which was to the effect that if the note was not signed by defendants or with their knowledge and consent, the person signing it was guilty of forgery and no recovery can be had as against the appellants, or either of them, without regard to the extension agreement relied upon by plaintiff, because no suit can be maintained upon a forged instrument, and no subsequent agreement to pay interest on a forged instrument can be enforced. The court, after defining the issues presented by the pleadings and the contentions of defendants under them, stated that defendants contended that they were induced to sign the extension agreement by the representations of McNeal, that three of them had signed the note, and that as such a long time elapsed they were led to believe and rely on his representations although none of them could recall the transaction, and to avoid a threatened lawsuit they did finally sign the agreement and did not discover until this action was brought that the note had not been signed by them or either of them.
After stating the contentions of defendant, the court instructed that the burden was on the plaintiff to prove that defendants did sign and deliver the note to the payee, and further that plaintiff is the owner of the note and that it or a part of it has not been paid, and if plaintiff has not established these facts she cannot recover, and the jury must find for the defendants. It is obvious that the real issue in the case was presented to the jury and that it was sufficiently stated without going into the details as to the law of forgery or its consequences. The rule has been stated that:
“Where the trial court’s instructions adequately define the issues and state the pertinent law of the case, it is not error to refuse to submit to the jury instructions prepared and requested by either of the parties to the action.” (ffausam v. Poehler, 120 Kan. 119, syl. ¶ 3, 242 Pac. 449.)
Another requested instruction refused related to the date of the note, a matter already discussed, and we think the criticism is without merit.
There is complaint, too, of instruction number six that was given, and is as follows:
“You are also instructed that it is not incumbent upon the plaintiff to prove that the defendants signed the note at any particular place, or upon the date as shown by the note, but it is sufficient if the plaintiff has established by a preponderance of the evidence that the defendants did actually sign the note in question; but the fact that the defendants were not present at the place where it is claimed that said note was signed, if such be a fact, or were not present at a particular place, where, and when, it is alleged that the note was signed, if such be a fact, may be considered by the jury as tending to show whether or not the defendants did sign the note.”
A witness called by defendants testified that one of them was not in Moline, the place the note purports to have been signed, but was in Arizona, at that time on a trip to California. ■ In view of that testimony and other of a similar kind, that the defendants were not present at a particular time, the court had reason to and took occasion to give the instruction, that if the defendants had signed the note, the place where or the date was not important, if the fact that it was signed was well established. In that connection the court added that:
“If you believe from the evidence that the defendants did not execute the note in controversy, that is, that they never signed the same, but that their signatures were placed on said note without their knowledge or consent, then it will be your duty to find for the defendants.”
There was no error in the giving of instruction number six.
Nor do we find error in instruction number eight, of which complaint is made. There the court referred to the extension agreement and directed the jury that the extension agreement was only to pay interest already due and unpaid upon the note when the agreement was made, and told the jury that they could only consider the agreement, “so far as it tends to show, If it does so tend to show, that the defendants recognized or admitted the existence of the note referred to therein, and of their liability thereon, and ratified the same.” This instruction, too, was without error.
Some other objections were made that are not regarded as requiring any special comment.
Finding no error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover a real-estate agent’s commission, originally filed in the city court at' Wichita and appealed to the district court. From an adverse judgment the de fendant, Dawson, appeals and assigns as error (1) the overruling of his demurrer to plaintiff’s evidence; (2) the giving of erroneous instructions; (3) the overruling of his motion for a new trial; and (4) the rendering of judgment for the plaintiff. In his brief appellant restates the questions involved as, (1) Was Brotton the agent of appellant for the sale or exchange, etc.? (2) Was Brotton the proximate, efficient and procuring cause of the exchange, etc.?
The only pleading filed in the action was plaintiff’s bill of particulars, which alleged that defendants were the owners of the real estate involved, and — •
“That while defendants were the owners of said lots, and during the month of July, 1930, the defendants listed said lots with this plaintiff for sale or exchange for other real estate, and agreed to pay this plaintiff the regular commission for the sale or exchange of said lots,”
and further, that plaintiff brought about the exchange of said lots for other real estate owned by one Gist; that plaintiff was the procuring cause of said exchange being made, setting up the value of his services; that defendants refused to pay, and praying judgment therefor.
It was held in Abel v. Hounsom, 107 Kan. 741, 193 Pac. 355, that an allegation in a petition that plaintiff was employed by defendant to find a purchaser for certain real property owned by him is admitted unless denied under oath, and under the ruling in that case, it is held that the appellant, not having put the question of agency in issue by filing a verified denial, the question of agency was settled.
Whether the appellee was the proximate, efficient and procuring cause of the exchange of properties was a question of fact. The jury saw fit to believe his testimony that he took appellant down to Sloan’s farm, that he and Sloan were working together as brokers in selling and exchanging real estate; that appellant’s attention was called to the farm for which he later traded and which adjoined Sloan’s farm; that he told appellant he had the Gist farm for sale, and that about a month thereafter appellant or his wife told appellee he had traded through Sloan. Appellant contends there is no evidence that appellee ever introduced him to Gist, but that was not necessary. (Osburn v. Moore, 108 Kan. 90, 193 Pac. 892; Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135.) And he further contends that the evidence of certain other witnesses shows that appellee had nothing to do with the exchange. Whether appellee did or did not have anything to do with the exchange was a question of fact which has been resolved by the jury in favor of the appellee, and its verdict was approved by the lower court and is conclusive here.
The complaint concerning the court’s instructions is based upon the question of agency, but for reasons heretofore stated the pleadings settled that question, and the instructions were correct. The appellant’s motion for a new trial was properly denied, and judgment for the appellee against the appellant was properly rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a fire insurance policy. A jury was waived. The trial court made findings of fact and rendered judgment for plaintiff. Defendant has appealed.
Plaintiff was the owner of a tract of about fifty acres of improved land in Neosho county. He carried a policy of fire insurance with the defendant on some of the improvements. The Investors Loan & Abstract Co. had a first loan upon the property for $2,000, and T. L. Youmans had a second mortgage for $1,000. On April 14, 1931, plaintiff made application to the defendant for a policy of insurance, against loss by fire, on a barn situated on the premises not covered by the other insurance policy. The application was made through C. H. Chambers, a resident of Neosho county, who was and for many years had been agent of the defendant company in that vicinity to accept applications for insurance, and defendant had for many years issued its policies of insurance to various parties based upon information furnished it by its agent, C. H. Chambers. The application for the insurance was in writing and when filled out by the agent and signed by defendant contained the following questions and answers;
“1. What title have you to the land described herein? A. Fee simple.
“2. How much encumbrance? To whom and when due? A. $2,000, Investors Loan & Abstract Co.
“3. Personal property, how much encumbrance? What covered? When due? A. None.
“4. Occupancy, owner or tenant? A. Owner.
“5. How many fires have you had? Give dates. A. No.
“6. What buildings are lighted with electricity. A. No.
“7. Has this risk ever been canceled or rejected?
“8. Has this company any other insurance on this location? If so, give policy numbers. A. House and barn No. 2, garage, policy 0S9958.
“9. How much other insurance on this property? What company? A. None. House over 100 feet.
“10. Do you want hail insurance? A. No.
“I warrant the foregoing application to contain a full and true statement as to the condition, situation, value, occupancy and title of the property to be insured; and I warrant the answer to each of the foregoing questions to be true; and it is expressly understood and agreed that the company will not be bound by any act or statement made to or by the agent restricting its rights or waiving its written or printed contract. I also agree to be bound by the conditions and requirements set forth in the policy and by-laws of this company.”
The policy was issued and a mortgage clause was attached for the benefit of the Investors Loan & Abstract Co. as mortgagee. Sometime in the latter part of June, 1931, plaintiff remembered or in some way learned that the second mortgage to Youmans on the property was not mentioned in the application and he then went to C. H. Chambers and orally notified him that he had neglected or omitted to have mentioned in the application the existence of this second mortgage. Chambers said he would advise the defendant company of that fact. The barn was totally destroyed by fire on September 29, 1931, and at that time was of a value in excess of the amount of the insurance policy. Plaintiff immediately notified Chambers of the loss of the barn by fire. He communicated such information to the home office of the defendant, which furnished a blank proof of loss, which was duly made to defendant about October 19, 1931. Under these facts the court found defendant liable and rendered judgment accordingly.
Appellant contends that under the statute relating to mutual fire insurance companies (R. S. 1931 Supp. 40-1001 to 40-1028), the bylaws of the defendant company, the warranty in the application, and the decisions of this court relating to such matters, the answer with respect to encumbrances was incomplete and the policy void. (Pettijohn v. Insurance Co., 100 Kan. 482, 164 Pac. 1096; Eikelberger v. Insurance Co., 105 Kan. 675, 189 Pac. 139; Henning v. Insurance Co., 108 Kan. 194, 194 Pac. 647; Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956; Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214.)
We first observe that if there had been but one mortgage on this property the answer to the question concerning encumbrances was incomplete in that it did not state when the mortgage was due. Hence, the defendant issued a policy on an obviously incomplete answer to the question respecting encumbrances. We also note that the defendant carried another policy on other improvements situated on the same tract of land. Whether the application for that disclosed this mortgage to Youmjans is not shown by the record, but whether it did or not defendant knew of both of these mortgages, certainly as early as the time it filed its answer in this case, yet it continued to carry its other policy up to the time this case was tried, at least. This tends to show that the defendant would have carried the policy in question had it been advised of both mortgages in the application. The argument that defendant might have declined to issue the policy had it known of the mortgage to Youmans has but little force.
The trial court found that C. H. Chambers was the agent of defendant for the purpose of taking applications and transmitting such applications and any information pertaining thereto to defendant, and that it was the duty of Chambers, on being informed by plaintiff of the existence of the Youmans mortgage, to advise his principal, the defendant, of that fact; that if he did not do so his default was one for which the defendant, rather than plaintiff, is responsible. Appellant complains of that finding and contends that Chambers was a soliciting agent only, and when he had once taken the application and forwarded it to his principal his duties with respect thereto had been performed. Under the evidence in this case the duties performed by Chambers for defendant were something more than a soliciting agent only. Plaintiff reported the loss to Chambers. He communicated that fact to defendant. Defendant received that information and acted upon it by sending a blank for the making of a proof of loss. Some of the evidence tends to show this was sent by defendant to Chambers and by him delivered to plaintiff, but it may have been sent directly to plaintiff. When proof of loss was made out it was delivered to Chambers and by him forwarded to defendant; so he was acting as moré than a solicit ing agent for defendant. Even if he be regarded as a soliciting agent only it would be an undue restriction of his duties to hold that as such it was not his duty to communicate to his principal a correction of an application which he had taken. Even though his authority were limited to taking applications and forwarding them to the company he should take a correction of the application and forward that to the company. He was a resident agent, taking and forwarding applications from persons who reside in the vicinity of his home, and had been doing so for eighteen years. His duties with respect to the application were continuous. Perhaps there might be some difference with respect to the duties of a traveling soliciting agent who simply took an application, forwarded it to his principal, and then went to some other locality. We have no difficulty in approving the holding of the trial court that Chambers, in receiving the information from plaintiff of the existence of the second mortgage, received such information for and on behalf of defendant.
This is not a case in which plaintiff is seeking to hold defendant with knowledge of its soliciting agent with respect to matters which did not pertain to the application, such as a later mortgage, or the later foreclosure of a mortgage, or other insurance later taken out, or with respect to his knowledge of the loss, as in cases cited above and relied upon by appellant. Neither is it a case in which plaintiff seeks to waive, or claims that agent of defendant waived, any provision of the policy or of the by-laws. Plaintiff concedes these are as contended by defendant. Appellant relies strongly on Kennedy v. Insurance Co., supra. There was a rather unusual situation presented because of the fraudulent conduct of the soliciting agent, known and acquiesced in by the insured. The specific question here involved was not presented or considered in that case. That it was not intended to be so rigid as appellant now contends is disclosed by later opinions of this court. (Haney v. Farmers Alliance Ins. Co., 134 Kan. 5, 4 P. 2d 460; Kimmi v. Brown County Farmers Mut. Fire Ins. Co., 135 Kan. 555,11 P. 2d 706; Burns v. Providence-Washington Ins. Co., 136 Kan. 152, 12 P. 2d 811; Svetlicic v. Farmers Alliance Ins. Co., 136 Kan. 551, 16 P. 2d 956.)
Aftér the fire of September 29,1931, defendant exercised its rights under the mortgage clause and purchased the mortgage held by the Investors Loan & Abstract Co. at the time the policy was issued and sought to be subrogated to the rights of the mortgagee. It alleged default in the payment of an interest coupon and sought to foreclose the mortgage. The trial court held the amount owed on the insurance policy should be applied on the mortgage debt and denied foreclosure. Appellant complains of that, but there is nothing wrong with it if plaintiff is entitled to recover on the insurance policy. The trial court allowed a fee for plaintiff’s attorney, proper in an action on the policy. (R. S. 40-416.) Appellant contends it was improper here, because the issue between the parties below was whether plaintiff was entitled to have the insurance applied upon the mortgage. The point is not well taken, for the real controversy all the time was whether plaintiff should recover under the insurance policy.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a declaratory judgment construing a mining lease. The trial court made findings of fact and rendered a judgment from which the lessees have appealed.
Plaintiffs, spoken of as the Wright heirs, owned in fee simple and as tenants in common two described tracts of land, containing lead and zinc, in Cherokee county. It had been leased for mining purposes, and large piles of chat were on the ground. On May 26,1923, they leased the land to the Wright Mining and Royalty Company, a corporation, for a term beginning at the expiration of the lease then on the land and ending February 17, 1937, for mining purposes only. The possession and use of the land, for all “purposes inconsistent with the thorough and proper mining thereof,” was reserved by the lessors. The lease provided that the lessee should, itself or through its sublessee, “mine said land continuously in good faith and in a good workmanlike manner,” unless the market price of zinc ore is less than $35 per ton, or delayed by unavoidable causes; that “the liberal terms of the lease” are predicated on lessee’s agreement “to fully develop- and make said land productive and to sink pump shafts and additional shafts . . . and mine and operate the same continuously;” and lessee agreed to drain the land of water so as to “permit thorough mining thereof, in good faith;” to timber securely all shafts and drifts on the land. The ore from the land was to be sold, the lessors to have 12% per cent of the gross price received; all ores were to be milled on the land, and the land should not be subleased at more than 15 per cent of the gross price received for the ore. Then occurs this paragraph — ■ the latter part of which principally gives rise to the controversy here:
“It is further agreed that no ores or rough stuff shall be brought from other lands and reduced and cleaned on said premises, and all chats and tailings to be the property of parties of the first part, except such as necessary for the buildings herein contemplated.”
The lease gave lessee the right to erect all necessary buildings or machinery on the land for the purpose of mining, draining, crushing and cleaning ores thereon; the lessee agreed to keep a correct account of all minerals mined, the kind and weight thereof, and the lessors had “the right to go upon or into any mine and inspect all mining operations on or in said land.” There was a provision respecting forfeiture, and lessee bound itself to the faithful performance of its provisions.
The Wright Mining and Royalty Company, March 12, 1925, subleased the lands for mining purposes to the Boska Mining Company, a corporation, for a term ending February 1, 1937, for 17% per cent of the gross value of the ore produced before February 17, 1927, and 15 per cent after that date. The terms of the lease are much like those of the lease just referred to, except with respect to tailings and chats. “All tailings . . . shall be the property of the first party after the first milling of the ore dirt;” and “All uses of the land not necessary for the proper mining of lead and zinc ore . . . are expressly reserved” to first party “together with all chat after the first milling of ore.”
On June 4, 1925, the Wright Mining and Royalty Company, as the first party, and the Boska Mining Company, executed an instru ment called a “contract and lease” which referred to the lease between the parties, recited that in the operation of the mining plant it is believed a loss of ore is sustained from lack of milling facilities adapted for saving ore from slimes and sands that now escape and have heretofore escaped; that there is a large pond of slimes and a large sand pile believed to contain ore which might be saved by the use of a suitable flotation system, and that current loss of ore might be saved by a good flotation system; and it was agreed the second party would install a flotation system adapted to save ore now lost in the current operation of the mill, and in reclaiming and saving the ore from the sludge pond, the slimes and the sand pile, and first party granted to second party the right to reclaim or mill tailings in the sand piles and from the slimes and from all places where the same has been heretofore lost, the second party to pay royalties as in the lease. It appears this instrument was not recorded.
On February 7, 1931, the Wright heirs, plaintiffs in this action, as first parties, and the Cortez-King Brand Mines Company, executed a “Retreatment Contract” by which the first parties gave and granted to the second party the exclusive right to rerun and re-treat, for the purpose of recovering the mineral contents thereof, all tailings, chats, sands, slime, sludge and other mineral-bearing dirt on the surface of the land, for certain royalties to be paid. This instrument became exhibit D' at the trial.
The controversy here is between the Wright Mining and Royalty Company and the Boska Mining Company, on one side, who claim the right to remill, or re-treat, the chats and tailings, and the Wright heirs and the Cortez-King Brand Mines Company on the other, side, who claim such right exclusively. There has been some substitution of parties, but since that does not affect the legal question to be determined it need not further be noticed. The question presented turns on the construction of the lease, dated May 26, 1923, from the Wright heirs to the Wright Mining and Royalty Company, a synopsis of which has been given, and particularly upon the phrase therein, “. . . all chats and tailings to be the property of parties of the first part. . . .” There also was presented, at the trial of the action, a question of the operative interpretation of the lease with respect to the remilling or re-treating of chats and tailings, and a question of estoppel. At the trial the parties stipulated:
“. . . that the words ‘tailings’ and ‘chats,’ wherever the same are used in the pleadings or exhibits in this case, shall be held to mean all mine refuse that has been milled, irrespective of the number of times the same has been milled and irrespective of the location of such refuse, whether after the first milling or any other milling, and includes sands, sludge and slime.”-
After hearing the evidence the court found (some findings are omitted because contained in the above statement), as facts:
“3. That in the year 1923, the date of this said lease, flotation plant's were not a part of the regular equipment of lead and zinc mills in the tri-state mining field, and as late as 1925 they were just beginning to be-installed in this field and were then in the experimental stage.
“4. That it is a matter of common knowledge in the tri-state district at this time, to wit, 1923, before the flotation system was used, that a large amount of good ore was not being recovered and was thrown upon the dumps or chat piles.
“6. That second-run ore, or float ore, is less valuable than first-run ore,, and that both the landowner and the mining company would profit by a proper mining and cleaning of the ore so that the greatest recovery possible should be had by the first milling of the ore.
“7. That at the present time flotation systems, or plants, are considered a part of the standard equipment of the large mill and such flotation system is used in the cleaning of both ‘ground ore’ and ‘float ore.’
“8. That the provision contained in the lease of May 26, 1923, between the Wright heirs and the Wright Mining and Royalty Company, as follows: ‘And all chats and tailings to be the property of the parties of the first part,’ is a reservation, reserving to the landowners the absolute title to all chats and tailings as soon as they become such; that the landowners were, by this reservation, vested with all of the rights incident to complete ownership, and the Wright Mining and Royalty Company and their successors, because of this reservation, lost any right therein or thereto, after the first milling.
“9. That A. J. Wright, one of the plaintiffs in this case, is an experienced mining man, but he was never on the lease in question but one time since 1925. He knew nothing about the installation of the plant to rerun chats until shortly before the Boska Mining Company was told by Russell Jarrett that the heirs objected to the rerunning of the chats. He did, however, know of the flotation system being installed after its installation, in the year 1924 [1925], and he also knew the nature and character of this type of equipment.
“10. Lester M. Jarrett and Russell S. Jarrett were often on the lease. Both, at different times, had been employed by the other Wright heirs to go to the property to check up the records of production. They were never the general agents of the heirs, and their authority extended only to checking the records and to see that the Wright heirs were getting the royalty which was due them as shown by the records of production.
“11. There is no evidence in this case that any of the Wright heirs, or tenants in common, knew anything about the conduct, operation or equipment used upon this lease, or that they had any experience in the mining or cleaning of minerals.
“12. That all of the Wright heirs knew, or should have known, that they were receiving royalties for float ore, but did' not know where the ore was coming from. They did not know that the Boska Mining Company was rerunning the chats until in June, 1929.
“13. That none of the Wright heirs knew that the Boska Mining Company was constructing equipment to rerun the chats until the same had been constructed and in operation. In June, 1929, Russell S. Jarrett notified the Boska Mining Company to stop rerunning the chats. The company, however, continued to run the chats until in December, 19.29, when they closed down the mill on account of the cold weather and the resultant freeze, and have never operated since that time because the price of ore has not justified their operation, it having been below $35.00 per ton as provided for in the lease for cessation of operations.
“14. That the landowners herein, the Wright heirs, are the owners of the tailings and entitled to possession thereof, subject only to their contract (exhibit D) with the Cortez-King Brand Mines Company.”
The court’s conclusions of law read:
“1. The contract between the landowners and the Wright Mining and Royalty Company is clear and unambiguous and capable of legal construction. Evidence of custom, therefore, is incompetent and was not considered by the court.
“2. The plaintiffs, by their conduct, are not estopped to deny the right of the Boska Mining Company to rerun the tailings.
“3. The clause ‘all chats and tailings to be the property of the first party’ is a reservation in the lease, reserving to the landowners the complete ownership in the same after they become chats and tailings; that is, after the first running of the ore.
“4. That since the landowners reserved the title in the chats and tailings to themselves, the Boska Mining Company did not inure to any right to rerun same by any contract with the Wright Mining and Royalty Company.
“5. That the landowners had the right to sell or convey the chats and tailings after the first run of the ore-bearing rock through the mill, and their contract, exhibit D, is valid and vests the right to rerun the tailings, as per contract, in the said Cortez-King Brand Mines Company.
“6. That the absolute right to mine on the premises in question is vested in the defendant, Boska Mining Company, subject only to the reservation of the ‘chats and tailings’ by the landowners as interpreted by this decision.”
Judgment was rendered in favor of plaintiffs and the Cortez-King Brand Mines Company. The defendants, the Wright Mining and Royalty Company and the Boska Mining Company, have appealed.
Appellants present and argue three questions:
“Point I. The terms of the mining lease itself show that the reservation of the property right in the chats and tailings does not restrict the number of times lessees may remill or rerun the chats and tailings to extract ores therefrom.
“Point II. The conduct of the parties has been such as to show their'own construction of the reservation of the property rights in the chats and tailings does not restrict the number of times lessees may remill or rerun the chats and tailings to extract ores therefrom.
“Point III. The conduct of the parties, proceeding under the mining lease, has been such as to estop lessors from denying lessees’ right to remill or rerun the tailings as many times as necessary to extract the ores therefrom.”
The second and third of these questions necessarily were determined from the oral testimony produced at the trial. The findings of the trial court are against appellants on these points. We have examined the testimony and find there is an abundance of it to support the findings. They are, therefore, binding in this court. (Lambert v. Rhea, 134 Kan. 10, 4 Pac. 2d 419; Carpenter v. Aldridge, 133 Kan. 465, 300 Pac. 1065.) It would serve no useful purpose to detail the testimony in this opinion.
This leaves but the first question above presented for our consideration. As to this the argument centers about the phrase in the lease, “all chats and tailings to be the property of parties of the first part.” The chats and tailings had a value, aside from their mineral content, for use in constructing buildings, surfacing highways and the like. Appellants say this phrase simply recognizes the right, or property right, to use the chats for other than mining purposes to be in the lessors — except as the lessees might use them for constructing necessary buildings on the lease — and appellants say they are not claiming any property right in the chats any more than they do in the ore or other substance of the land; that all they are claiming is the right to extract the lead and zinc from it as they would from other mineral-bearing ore or dirt found in or upon the land. If this is all the phrase means, it. might well have been omitted from the lease. The lease without it would have been construed the same as appellants now contend it should be construed with this phrase a part of it. (Erwin v. Hoch, 7 Sad. [Pa.] 477, 12 Atl. 149; Doster v. Zinc Co., 140 Pa. St. 147, 21 Atl. 251.)
Appellants ■contend that the lease should be construed as a whole to determine the meaning of the parties. This is correct. (Howerton v. Gas Co., 81 Kan. 553, 557, 106 Pac. 47; Berg v. Scully, 120 Kan. 637, 245 Pac. 119.) ' They further contend that, construing the lease as a whole, it is clear the principal interest the lessors have therein is the royalty they expect on lead and zinc mined and sold; that the lease contains many phrases and expressions requiring thorough and diligent' operation, continuous and faithful performance, and full development to make the lands productive. An examination of the lease, however, discloses that these terms are used in connection with sinking shafts, additional shafts, proper drainage, and the erection of necessary buildings and machinery for the purpose of mining, draining, crushing and cleaning ores. None of these general provisions indicates that the parties contemplated that the lessees would remill or re-treat chats and tailings, nor is there anything in them which pertains specifically to minerals on the surface of the land, but on the other hand they do apply specifically to shafts and underground mining. The only phrase in the lease dealing specifically with material on the surface of the land is the phrase, “all chats and tailings to be the property of parties of the first part.” We see no reason to place a limitation on the meaning of the word “property” as used in this phrase, which is tantamount to absolute ownership, with full right to possession and use, to the exclusion of such rights in any other person. (2 Bl. Com., ch. 1, p. 2; St. Louis v. Hill, 116 Mo. 527, 22 S. W. 859.) At the time this lease was made, in 1923, it was thought the chats and tailings contained considerable lead and zinc, but there was no known method in practical and common use for separating the minerals and making them commercially valuable. It cannot reasonably be said that the re-treatment of these chats and tailings was then within the contemplation of the parties. In this respect it was much like the situation in Haul v. Weed, 203 Pa. St. 586, 53 Atl. 489. There an owner of timber conveyed by deed “all and all manner of timber, down and standing, except hemlock timber” thereon. The grantees under the deed cut all of the timber except the hemlock above a certain diameter. When the deed was executed there were no chemical factories in the county, and no chemical or pulp wood was cut by. the grantees until after all the trees fit for timber had been cut and the logs removed. Thereafter the grantees cut trees for chemical and pulp purposes. Held, they had no right under the deed to do so, and were liable to the grantors therefor.
Appellants cite Giersa v. Creech, 181 S. W. 588 (Mo. App., not officially reported). There the lease gave the lessee the right of “digging, mining, and carrying away lead and zinc ores, or other ores, of whatsoever nature or description, which may be found in, on, or under said lands,” and provided for the payment of royalty-on the ores “to be extracted from said premises.” It was held that the lease gave the right to clean up and market ores mined ten or twelve years previously and thrown on the dump. But there the terms of the lease were much broader than they are in this case, and there was no specific reservation of the dump, as there is here of the chats and tailings. Marvin v. Brewster Iron' Mining Co., 55 N. Y. 538, cited by appellants, deals with an entirely different-situation and is not in point.
We conclude the court below correctly construed the lease in question, and its judgment should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to have a claim against a failed bank and its receiver established as a preferred claim. The trial court overruled a demurrer to the amended petition, and defendants have appealed.
It is alleged in the petition that plaintiff is a corporation, with its principal office in New York City; .that the defendant, the Commercial State Bank of Rosedale, hereinafter called the bank, was organized and conducted business under the banking laws of the state; that Del W. Yeamans & Company, Inc., was a depositor in the bank, and had to its credit on its account as such depositor a sum in excess of the check soon to be mentioned; that on August 16, 1930, it drew its check, payable to plaintiff, on the bank for $321.98, and sent the same to plaintiff; that plaintiff sent the check to the bank for collection and return, that the bank, on September 8, 1930, issued a draft for that amount, payable to plaintiff, drawn on the Home Trust Company of Kansas City, Mo., and sent the same to plaintiff, and wired plaintiff it was “remitting for Yeamans’ check to date;” that “soon after” September 11, 1930, plaintiff presented the draft to the Home Trust Company, but the same was protested and not paid; that before the draft was cashed the bank went into the hands of the bank commissioner, who later appointed a receiver; that after the appointment of the receiver, and in March, 1931, plaintiff filed his claim for the amount of the draft, with protest fees; that the receiver recognized the claim and allowed it as a general claim, but refused to allow it as a preferred claim. The prayer is that the court adjudge the claim to be a preferred one.
Ordinarily, before one can have a claim such as is involved here allowed as a preferred claim against a failed bank and its receiver it is necessary to allege and establish two things: First, that the sum or fund in question is a trust fund, as that term is used in that class of cases, and, second, that as such it passed into the hands of the receiver (State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000). The underlying principles governing the allowance of such a preferred claim, and the reasons for allowing it as such, are well stated in Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, and commented upon again in Schoen v. Johnson, 134 Kan. 612, 7 P. 2d 117. It is well established that the relation between the ordinary depositor and the bank is that of debtor and creditor. Under the allegations of the petition the Yeamans company, by reason of former business transactions, had a credit with the bank at the time it issued its check to plaintiff. When plaintiff sent the check to the bank, the bank charged the Yeamans company’s account with the amount of the check and issued its own draft, payable to plaintiff, on the Home Trust Company. No new money or fund was placed in the bank either by the plaintiff or by the Yeamans company. The bank, by issuing the draft to plaintiff, directed the Home Trust Company to pay plaintiff the amount, and thereby became a debtor to plaintiff, and would have become indebted to the Home Trust Company in the event that company had paid the amount of the draft to plaintiff. The bank was still indebted for the amount, no longer to the Yeamans company, but to plaintiff, since the draft was not honored by the Home Trust Company. Since no new fund was placed with the bank, such a fund could not pass to the receiver. There is nothing in the petition which tends to show that the funds which passed to the receiver were increased or changed in any manner by the transactions recited in the petition. The only thing changed was the party to whom the bank was indebted. Plaintiff is not entitled to a preferred claim.
The facts pleaded present a case much like that ruled upon in Guymon-Petro Mercantile Co. v. Farmers State Bank, 120 Kan. 233, 243 Pac. 231. There plaintiff received checks on the Farmers State Bank of Cunningham in payment of accounts due it from Cunningham retail merchants. These checks were forwarded direct to the Cunningham bank for returns. That bank charged the checks against the checking accounts of the makers and sent drafts in payment, but before the drafts were presented the Cunningham bank failed, and the drafts were dishonored. It was held plaintiff was entitled to a common claim against the assets of the Cunningham bank, but not to a preferred claim, and that the transaction did not give rise to a trust fund in the hands of the receiver. Other cases in accord with it are Clark v. Bank, 72 Kan. 1, 82 Pac. 582; State Bank v. State Bank, supra; First Nat’l Bank v. Farmers State Bank, 119 Kan. 198, 237 Pac. 652; El Dorado Nat’l Bank v. Butler County State Bank, 120 Kan. 109, 242 Pac. 475; First Nat’l Bank v. Farmers State Bank, 120 Kan. 706, 244 Pac. 1039; Massey-Harris Harvester Co. v. First State Bank, 122 Kan. 483, 252 Pac. 247; Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743.
To sustain the ruling of the court below appellee cites and relies upon Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992; Secrest v. Ladd, Receiver, 112 Kan. .23, 209 Pac. 824; Nelson v. Paxton, Receiver, 113 Kan. 394, 214 Pac. 784; Griffith v. Burlington State Bank, 128 Kan. 279, 277 Pac. 42; and Holsinger v. Commercial State Bank, 137 Kan. 387, 20 P. 2d 451.
Without taking space to analyze those cases with care it is sufficient to say that the facts ruled upon in each of them differ materially from the facts pleaded here.
The judgment of the court below is reversed, with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hutchison, J.:
Ten of the eleven cases consolidated in this appeal are actions for injunction, and one is for a writ of habeas corpus. They were filed in the district court of Shawnee county and appealed to this court from the separate judgments and rulings of that court by the plaintiffs in the injunction actions and the petitioner in the habeas corpus proceeding.
The plaintiffs in the injunction actions are public utility corporations under the jurisdiction of the public service commission of the state of Kansas (now state corporation commission) doing business in ten different cities of Kansas in “the manufacture, purchase, supply and distribution of artificial and natural gas” and in “the production and supply of light, heat and power by electricity,” as authorized by their several charters. Eight of these plaintiffs are Kansas corporations, one is a West Virginia corporation and one a Delaware corporation, both admitted to do business in Kansas.
The defendants in the ten injunction actions are Roland Boynton, attorney-general of the state of Kansas, and another defendant in each of the ten injunction actions is the county attorney, by name, in each of the ten counties in which the particular city lies, where such utility company does business.
The petitions allege that chapter 238 of the Laws of 1931 is unconstitutional and void for nine reasons, and that the attorney-general and the respective county attorneys are threatening to enforce the law which would result in a great loss, injury and possibly deprivation of liberty, and that there is no adequate remedy at law, concluding with a prayer that the court find that an actual controversy exists between the parties and that a declaratory judgment be entered determining and adjudging chapter 238 of the Laws of 1931 to be unconstitutional and void, and that the defendants and their agents and employees be enjoined and restrained from enforcing or attempting to enforce the provisions and penalties of the statute.
The nine reasons alleged and assigned in the petitions why the law is unconstitutional and void are as follows:
“1. Because of uncertainty and ambiguity in defining the act or acts attempted to be prohibited as the same are set out in section 1 thereof.
“2. Because it undertakes to deprive the plaintiff of certain of its rights, powers and privileges granted to it by its charter, without an express amendment to said charter and without including in the title to said act such amendment to its charter, contrary to section 16 of article 2 of the constitution of the state of Kansas.
“3. Because it deprives plaintiff of its property and property rights without due process of law, and denies it the equal protection of the law, all in violation of the constitution and laws of the state of Kansas and the fourteenth amendment to the constitution of the United States.
“4. Because said act constitutes an unreasonable and arbitrary exercise of the police power of the state, said statute not being in the interest of the public morals, safety, health and welfare.
“5. Because the subject matter of said act is not clearly expressed in its title.
“6. Because it undertakes to prevent the misuse of merchandising by public utilities by prohibiting the proper and lawful use of merchandising in connection with such business.
“7. Because said act contains more than one subject.
“8. Because said act attempts to vest the public service commission of the state of Kansas with certain powers and duties in respect thereto, all of which are not clearly indicated in the title.
“9. Because said act impairs the obligation of the contracts of plaintiff in violation of clause 1 of section 10 of article 1 of the constitution of the United States.”
The deféndants in their answers admit many of the formal allegations of the petitions, but deny that the law is unconstitutional or void for any of the reasons assigned, or any other 'reason, and allege that plaintiffs abuse the privilege of handling and selling merchandise and have attempted to and have in fact monopolized the business of selling merchandise along the lines prohibited by the act, that the act is in the interest of the public generally and their protection is a matter of public welfare.
The habeas corpus proceeding was brought by L. L. Roesle, an employee of the Capital Gas and Electric Company, doing business in Topeka, which company is one of the plaintiffs in the injunction actions. Roesle had been convicted in the court of Topeka, was fined and committed to the jail of Shawnee county for selling a hot plate used in burning gas for cooking purposes, it not being an article which had been owned by the Capital Gas and Electric Company of Topeka in manufacturing, distributing or selling its utility service or an article which was the direct product of the business of manufacturing or distributing said utility service, and in violation of the provisions of chapter 238 of the Laws of 1931 of the state of Kansas. Upon verified petition with appropriate exhibits, a writ was issued by one of the district judges of Shawnee county directed to C. L. Lavin, marshal of the court of Topeka, who made a return admitting the custody of the petitioner and setting up the conviction and sentence and validity of the law under which the petitioner had been convicted and sentenced, and prayed that the petitioner be remanded to his care and custody. This proceeding was by agreement consolidated with the ten injunction actions for hearing.
■ Evidence was introduced by plaintiffs and petitioner and then by defendants and respondent, and judgment was rendered in favor of defendants in the injunction actions and the respondent in the habeas corpus action, upholding chapter 238 of the Laws of 1931 as valid and constitutional and subject to enforcement by punishment under the penal provisions thereof. The temporary injunctions theretofore granted were dissolved and the writ of habeas corpus was denied and the petitioner remanded to the custody of the respondent. From these judgments the several plaintiffs in the injunction actions and the petitioner in the habeas corpus action appeal, assigning error as follows:
“I. The court erred in denying the application of the plaintiffs, and each of them, for the temporary injunction and in dissolving the restraining order which had theretofore been issued.
“II. The court erred in denying the application of L. L. Roesle for a writ of habeas corpus and in remanding him to the custody of the officer.
“III. The court erred in not holding that the act of the legislature, commonly called the utility merchandising act, being chapter 238 of the Laws of 1931, was unconstitutional for the following reasons:
“1. Because of uncertainty and ambiguity in defining the act or acts attempted to be prohibited as the same are set out in section 1 thereof.
“2. Because it undertakes to deprive the plaintiff of certain of its rights,' powers and privileges granted to it by its charter, without an express amendment to said charter and without including in the title to said act such amendment to its charter, contrary to section 16 of article 2 of the constitution of the state of Kansas.
“3. Because it deprives plaintiff of its property and property rights without due process of law, and denies it the equal protection of the law, all in violation of the constitution and laws of the state of Kansas and the fourteenth amendment to the constitution of the United States.
“4. Because said act constitutes an unreasonable and arbitrary exercise of the police power of the state, said statute not being in the interest of public morals, safety, health and welfare.
“5. Because the subject matter of said act is not clearly expressed in its title.
“6. Because it undertakes to prevent the misuse of merchandising by public utilities by prohibiting the proper and lawful use of merchandising in connection with such business.”
The following is a full copy of chapter 238 of the Laws of 1931, including the title to the act:
“An Act providing for the protection of the public as consumere of electricity, gas and water from unjust charges in rates; aiding the public service commission at arriving at just rates; preventing unfair discrimination in wholesale, retail and manufacturing business of public utilities;. preventing misuse of merchandising by public utilities by making unlawful the manufacturing, leasing, distributing and selling of merchandise by public utilities; and relating thereto.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. From and after the first day of August, 1931, it shall be unlawful for any individual, firm or corporation engaged in the manufacturing, transporting, distributing or selling of heat, gas, water, electricity or electrical current to engage in the manufacture, wholesale or retail, by sale or lease, of any chattel, article, commodity or manufactured product, except those articles which have been owned by such utility company in manufacturing, distributing or selling its utility service, or those articles which are the direct product of the business of manufacturing or distributing said utility service.
“Sec. 2. The public service commission of the state of Kansas shall have the same powers in investigating complaints of the violation of section 1 hereof as is provided for in chapter 66 of the Revised Statutes for 1923, and all amendments thereto.
“Sec. 3. Any individual, firm or corporation guilty of violating any of the terms of this act shall be adjudged guilty of a misdemeanor and shall be fined not less than $100 nor more than $500 for every offense, and the manufacturing, wholesaling, retailing or leasing of each article so manufactured, wholesaled, retailed or leased shall be held to be a separate and distinct offense; and in addition to the penalty herein provided, any such individual, firm or corporation may be enjoined in the district court of any county in which such act is being committed by an action brought by the public service commission or by the state of Kansas, by and through the attorney-general or the county attorney, or by an interested person, from violating further the terms of this act.
“Sec. 4. This act shall be in force and take effect from and after its publication in the official state paper.”
There is no question in these cases but that an actual controversy existed between these parties at the time of the trial before the district judge and still exists, so that the determination of the issues here involved comes properly under the provisions of the declaratory-judgment statute, R. S. 60-3127 to 60-3132.
One of the errors assigned by the appellants is that the trial court failed to hold the act unconstitutional because it deprives appellants of property and property rights without due process of law and denies them the equal protection of the law, in violation of section 1 of the bill of rights of the state of Kansas and the fourteenth amendment to the constitution of the United States.
A preliminary question for consideration before this constitutional question can be determined is, whether the right to engage in merchandising of appliances is implied in the purposes named in the charters of the plaintiff companies, which are for the distribution and sale of natural gas, because the use of such appliances and the sale of them for that purpose is incidental to the sale of gas and essential to the success of the business of the sale of gas and distribution of natural gas. The eight charters held by the plaintiffs do not contain specific provisions authorizing the companies to engage in merchandising appliances for the use of their utility product. This preliminary question in particular depends upon the facts as to the nature, character, growth and development of the utility business of these gas companies in the vicinities in which they are located. A quantity of evidence was introduced in the trial court by plaintiffs and defendants on this subject. It was not conflicting but was along different theories as to the progress and growth of the utility business, the increased sale of merchandising appliances, and the effect upon the public generally and particularly those engaged in the sale of such merchandising appliances. While the trial court did not make findings of fact, denominated as such, yet the opinion filed by the trial court contains a summary statement of the evidence introduced by both parties which will fully meet the requirement of this opinion as to the facts in this case, as follows:
“This evidence shows that the Gas Sendee Company owns all of the stock of the ten plaintiff companies; that prior to 1925 the gas business was poor, and one of the companies, at least, was in the hands of a receiver; that the present ownership was acquired about that date and there was then established what is known as the ‘new business departments’; that these departments of the plaintiffs, with funds of the company, bought merchandise consisting of gas appliances; that agents of the companies got contact with gas users and with gas prospects; that these agents solicited the users for a larger use and nonusers to use gas, -by putting before them the economical and convenient features of the use of gas as a fuel for cooking and heating. In connection with this campaign for the use of gas the merits of the gas appliances sold by plaintiff companies and the convenience of the terms upon which they could be bought were laid before the prospect. It was a practice of the companies, at least in the larger cities, to have employees survey the premises of prospects and give them estimates as to the cost of heating with gas as compared with other fuel. If the prospect was sold on gas and purchased appliances from the plaintiffs, the companies serviced the appliances for a year.
“The appliances sold by the companies are kept on display at their central offices where customers paid their bills. The merchandise for all of the companies was bought by the parent concern, the Gas Service Company, on orders from the particular company. The price of the articles was marked up so that there was a fair difference between the purchase and selling price. The appliances were sold on time and on small monthly installments under sales contract retaining title in the company until wholly paid for with the right of repossession in the company in case of default. The monthly gas bill would be accompanied by a bill for the installments on the appliances. The expense of operating the .‘new business departments,’ including the purchase price of the merchandise, caused the departments to be operated at a loss, which loss is charged up as the operating expense of the companies and thus becomes a factor in its rate structure. Since the inauguration of this system the business of the gas companies using it has greatly increased, more customers are supplied and more gas is used by each customer, and it is the contention of plaintiffs this great increase in the business of the companies has been brought about by the activities of the ‘new business departments.’ Evidence was introduced by plaintiffs concerning its industrial customers and contract with them containing ‘shut-off’ clauses by which the companies were enabled, when domestic demand was heavy, to shut off the industrial concerns, thus giving them more gas with which to supply their domestic customers; that the companies surveyed and made estimates for the installation of gas appliances for the particular uses of industrial concerns and employed engineers for this purpose, and sold such appliances to industrial concerns, and that such appliances were not such as could be supplied by merchants dealing in gas appliances, and it -is the contention of plaintiffs that to prohibit the sale by plaintiffs of industrial appliances that it will lose these customers and would be deprived of disposing of its gas at a time of little demand on the part of domestic customers.
“Evidence was introduced on behalf of the defendants that industrial concerns could be supplied with gas appliances for their use by merchants other than the plaintiff companies. Defendants also claim that the increased use of gas since the inauguration of the ‘new business departments’ was not caused by this system but by the fact that the companies had for the first time a sufficient supply of gas, and on account of this the people generally have acquired a growing confidence that if they install gas they will always have it for their use. I am of the opinion that the ‘new business departments’ and also the increased supply of gas are both factors in the increase of gas consumption in the last half dozen years but am of the opinion that the activities of these departments is the greater cause. The evidence shows that the plaintiff companies have sold and are selling from eighty to ninety per cent of the gas appliances sold in the communities where they operate, and that since 1925 the total gross sales of appliances by Kansas companies have amounted to $4,992,000.00.
“The evidence shows that the appliances sold by plaintiff companies are safe and standard, many of them being carried in stock by the merchants in the community. They are sold at fair and reasonable prices, and the companies allow a flat rate for used appliances of the customers, which appliances are taken in as part of the purchase price. This rate is an arbitrary one and has no exact relation to the value of the appliances so taken in. The appliances sold by the companies are serviced by them, while those installed by the merchants are not serviced by the companies. On the whole the court is of the opinion that the selling of this merchandise by the plaintiff companies has been of benefit to them by causing an increased consumption of gas and also on account of the liberal terms of the payment to customers. The take-in rate on used appliances and the servicing of the appliances free by the companies has been of benefit to the gas users. The court is also of the opinion that merchants dealing in appliances could not and would never have brought about the increase in the use of gas, and that they could not and cannot afford to handle and sell appliances upon the same terms as these plaintiff companies.”
In an opinion written by the late Justice Brewer in the case of Whetstone v. Ottawa University, 13 Kan. 320, it was held, where a chartered town-site company made a donation of many of its lots to a company proposing and promising to build a university outside of, but near the town site, that—
“. . . - The purpose of securing improvements on the town site is not simply that the improvements be there, but that thereby the property the corporation has to sell may be enhanced in value. ... If the direct and proximate tendency of the improvements sought to be obtained by the donation is the building up of the town, and the enhanced value of the remaining property of the corporation, the donation is not ultra vires." (p.340.)
“Corporations may transact, in addition to their main undertaking, all such subordinate and connected matters as are, if not essential, at least very convenient, to the due prosecution of the former.
“A corporation organized for the purpose of ‘manufacturing and supplying illuminating and heating gas’ may not only supply the gas itself, but may also incidentally deal in such patented appliances and conveniences as will induce new customers to use gas, or old ones to use more.” (Malone v. Lancaster Gas, Light, etc., Co., 182 Pa. St. 309, syl.)
“In considering the question of a legitimate mode of extending a corporation’s business in direct furtherance of its charter objects, much weight must be allowed to the judgment of the officers and stockholders of the company, and, while they will not be permitted, as against the commonwealth or a dissenting stockholder, to go outside of the legitimate corporate business, yet, where the act questioned is of a nature to be fairly considered incidental or auxiliary to such business, it will not be unlawful because not within the literal terms of the corporate grant.
“A corporation chartered for the purpose of supplying heat, light and power by electricity, may sell, as an incident to its business, electrical appliances, such as electric refrigerators, by means of which power is delivered to and utilized by its customers.” (Com. ex. rel., Aplnt., v. Phila. Electric Co., 300 Pa. St. 577, syl. ¶ 1, 2.)
Appellees cite among other cases the case of Fifth Ave. Coach Co. v. New York, 221 U. S. 467, where a coach company, organized in New York state and engaged in the business of transporting passengers on Fifth avenue of the city of New York, sought an injunction against the city to prevent it from enforcing an ordinance prohibiting such passenger transportation companies from advertising on the outside of their coaches, and the ordinance was upheld, but it contained a provision that nothing therein was to prevent coach companies from advertising the business in which they were engaged, but did prohibit them from engaging in the business of general advertising for hire as not being implied in their charters nor incidental to their business.
“The modem rule has been well stated thus: ‘If that act is one which is lawful in itself and not otherwise prohibited, is done for the purpose of serving corporate ends and is reasonably tributary to the promotion of those ends, in a substantial and not in a remote and fanciful sense, it may fairly be considered within charter powers.’ ” (14a C. J. 256.)
In the case of Wichita Gas Co. v. Public Service Comm., 126 Kan. 220, 268 Pac. Ill, a gas rate fixed by the public service commission was the issue and the “new business expense” was considered by the court and treated as follows:
“There was other evidence, and the commission challenged particularly an item of $66,000 designated as ‘new business expense.’ The evidence was the company was faced with an alarming decrease in consumption of gas. The witnesses for the company and for the commission agreed financial success of the company depended on increasing consumption of gas. The'new business expense was incurred in putting into effect a plan for increasing gas consumption which was devised by Doherty years ago, and which has since been adopted by many public utilities. . . . The commission is not the company’s business manager. The company has a business manager of its own, who must be allowed good-faith exercise of judgment, discretion, and initiative.” (p. 226.)
Many well-known cases are cited by the attorney-general as to corporations undertaking to do things which were readily held not to be implied within their charter privileges nor incidental thereto, such as railroad companies selling coal, operating public warehouses and guaranteeing interest on bonds issued to build summer hotels. In line with the general rules referred to above we have no difficulty in approving the conclusion reached by the trial court on this point, to the effect that the sale of gas appliances by these plaintiff gas companies is intimately connected with and incidental to the sale and distribution of gas, and is an implied power of such companies because it directly and proximately tends to accomplish the general purpose for which these companies were incorporated.
It is claimed that if the charters of the plaintiff corporations can be construed as authorizing the sale of gas appliances, the legislature has the power to annul such right, and that the act now under consideration took away such implied authority. But that cannot be maintained because nowhere, either in the title or the body of the act, is there any intimation of amending or repealing any corporation law or corporation privileges or rights, and to be effective it must not only have been in the body of the act but also clearly expressed in the title thereof.
Appellants claim and insist that the act under consideration is unconstitutional as being in violation of section 1 of the Kansas bill of rights and of the fourteenth amendment to the constitution of the United States. Section 1 of the bill of rights is as follows: “All men are possessed, of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” and the last part of section 1 of the fourteenth amendment to the constitution of the United States is as follows: “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
In the consideration of this question the distinction must be plainly made between the power of the legislature to pass the act and the wisdom and justice of its doing so. In the case of State v. Wilson, 101 Kan. 789, 168 Pac. 679, known as the trading-stamp case, it was said:
“The question for our determination is not whether in our judgment the objections urged against the trading-stamp device, on which the statute is based, are sound, but whether they are so plainly unsound that they may confidently be characterized as unreasonable and capricious.” (p. 796.)
This distinction brings into operation the police power of the legislature in making its enactments, a power which it is generally recognized to possess, and while such power includes all questions which affect the health, morals, safety and general welfare of the people, it is agreed in this case that the health, morals and safety of the people are not involved in the sale of gas appliances, and only the question of the general welfare of the people is involved. Under the heading of the general welfare of the people of the state, the attorney-general advocates the theory that the legislature was prompted to enact this law to prevent a monopoly, which might be proper in the exercise of its police regulation for the welfare of the public.
It should be noticed in the first place that this act, unlike the trading-stamp act, is not related to a questionable business, or something harmful to the best interests of the people. It concerns the sale and distribution of articles which everyone would properly wish to possess. They are all useful and necessary to the equipment and furnishing of a modern home. The evidence showed these articles were being sold and distributed at a fair and reasonable retail price, and were installed without expense to the purchaser, and the use of any that were complicated was made plain to the purchasers; also, old appliances were taken back in exchange at substantial prices. In none of these features can we discern anything detrimental to the welfare of the public.
The act is not a fair or reasonable attempt to regulate public utilities, as that could readily have been done through the public ■service commission, now the state corporation commission. Neither can the complaint that the loss on the sale of these appliances was taxed up as expense of the corporation and recovered through the collection' of an increased price for the natural gas furnished its customers be a matter for consideration here. The business of the state corporation commission is to see that such increase is not charged or any return of such loss permitted to be made in that way.
A monopoly is defined as the exclusive right, privilege or power of selling or purchasing a given commodity or service in a given market. These plaintiffs have no exclusive right or privilege concerning the sale of these appliances. Any merchant or individual can sell them. The effect of the law is to create a monopoly rather than prevent one. The obvious result of the enactment, if upheld and enforced, would be to limit the sale of such appliances to merchants and others whose present prices, according to the testimony, are as high as those of the plaintiff corporations. Is this, then, an exercise of police regulation in the interest of public welfare?
. . to justify the interposition of the authority of the state in enacting police regulations, it must appear that the interests of the public generally as distinguished from those of a particular class require such interference, for it is a rule that police power cannot be invoked to protect one class of citizens against another class unless such interference is for the real protection of society in general.” (6 R. C. L. 199.)
“The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived. Hence a law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, or destroys its value, or restricts or interrupts its common, necessary, or profitable use, or hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it, and thereby seriously impairs its value.” (6 R. C. L. 196.)
“As a general rule the valid exercise of the police power includes all things essential to the conservation of the public safety, public health, and public morals; but that rule is modified, in consideration of the rights of the private individual, to the protection of the public generally as distinguished from that of a particular class, and to the use of means reasonably necessary to accomplish the purpose and not unduly oppressive to individuals.” (United States v. Cohen, 268 Fed. 420, syl. 113.)
“. . . the legislature — cannot, under the pretense of regulation, deprive a utility of any of its essential rights and privileges, but all regulations must be in fact within the police power. Any regulation, therefore, which operates as a confiscation of private property or constitutes an arbitrary or unreasonable infringement of personal or property rights is void because repugnant to the constitutional guaranties of due process and equal protection of the laws.” (51 C. J. 10.)
The evidence unmistakably shows the primary purpose of the appellants is to promote the sale of gas, and the ultimate fear of a monopoly is not well founded, because if a monopoly be acquired and prices be raised and quality diminished the quantity of gas used by consumers will be reduced.
We must not confuse this constitutional question with the right of the legislature to prescribe regulations for public utilities, to be enforced by the state corporation commission, even to the extent, in a matter like this, of denying a corporation a certificate of convenience to engage in the utility business unless it would agree to refrain from certain lines of business — for instance, the selling of appliances. That is far from the question here. Our question is whether this particular class of corporations can be singled out by statute and deprived of a right and privilege that belongs to all individuals and most other corporations and would be right and proper for them to perform. It appears to be strictly class legislation without any reasonable relation to the welfare of the public.
It may be observed here that the plaintiffs in these actions are all corporations, but the statute limits the rights of individuals and firms engaged in the utility business as well as corporations, a distinction between this case and the well-known cotton-gin case, Crescent Oil Co. v. Mississippi, 257 U. S. 129, which is limited in its consideration of the similar question there involved to the restriction and the relation of corporations only.
In the case of State v. Haun, 61 Kan. 146, 59 Pac. 340, an act which undertook to do away with the rule and custom of paying miners their wages in scrip and requiring all such wages to be paid in lawful money of the United States was made by statute to apply only to those mines where ten or more were employed, and it was held to be unconstitutional as being in violation of the fourteenth amendment in denying to persons the equal protection of the law.
A law of this state requiring all railroads of the state to transport soldiers for one cent per mile was, in the case of In re Gardner, 84 Kan. 264, 113 Pac. 1054, held to deny railroad companies the equal protection of the law, when the country was not in the peril of war or similar general distress.
A city ordinance discriminating in the amount of license fees to be charged resident and nonresident bakers was held, in Hair v. City of Humboldt, 133 Kan. 67, 299 Pac. 268, to violate the fourteenth amendment by depriving the nonresidents of the equal protection of the law.
A statute which makes it unlawful to discharge an employee because he belongs to a labor organization was held, in Brick Co. v. Perry, 69 Kan. 297, 76 Pac. 848, to be void for the same reason.
It was held, in Little v. Smith, 124 Kan. 237, 257 Pac. 959, that—
“While the police power is wide in its scope and gives the legislature broad power to enact laws to promote the health, morals, security and welfare of the people, and further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislation or that which is in violation of the fundamental law.” (p. 240. See, also, Chicago Board of Trade v. United States, 246 U. S. 231.)
Many cases are cited by the attorney-general upholding acts designed to regulate public utilities. As suggested above that might very properly be done, but the act here under consideration does not attempt to do so. Its sole purpose is to deprive certain utility companies of a general privilege, which is an implied power under their charters and incidental to their general business.
With no feature of public welfare actually involved the conclusion surely must follow that to deprive these plaintiffs of an implied power and privilege incidental to their general business is unreasonable, arbitrary, unjust and. oppressive. Other individuals, firms and corporations can engage in merchandising these appliances, but this particular class cannot. They are deprived of the equal protection of the law. We therefore conclude that the act is unconstitutional as being in violation of the fourteenth amendment to the constitution of the United States.
The injunctions prayed for by the plaintiffs against the enforcement of this act should be allowed and a writ should be granted the petitioner in the habeas corpus case.
The judgments in the several cases are reversed and the causes are remanded with directions to issue injunctions and a writ in accordance with the conclusions herein reached and expressed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by F. M. Pipkin against the Midland Valley Railroad Company under the federal employers’ liability act to recover damages for injuries which he sustained while employed by the defendant as a locomotive fireman, caused, it is alleged, by a defective and unsafe track negligently maintained and, also, the excessive speed of the train over the defective track. At a trial with a jury the general verdict was in favor of plaintiff, awarding him damages in the sum of $15,000, and with it the jury returned the following special findings of fact;
“1. Was the plaintiff familiar with the track in question and with the operation of locomotive and trains over it? A. Yes.
“2. How much experience had the plaintiff had as a locomotive engineer and fireman? A. 17 years.
“3. State approximately the extent of the 'experience of the plaintiff either as a locomotive engineer or fireman operating a locomotive over the track in question. A. 11 years.
“4. How many times had the plaintiff worked as a-fireman on a locomotive over this particular track from October 24, 1928, to the date of the accident? A. 27 times.
“5. If you find that there existed a defect in the track at the time of this accident causing plaintiff to fall, state of what such defect consisted. A. Bad track, bad ties and low joints.
“6. If you find there was a defect, state whether or not it was such as to render the track unsafe and dangerous to employees operating trains over the same. A. Yes.
“7. If you find the track was defective and thereby unsafe and dangerous to employees operating trains over it, how long had such condition existed? A. Middle of November, 1928.
“8. If you find that the track was defective and thereby unsafe and dangerous to employees operating trains over it, was such defective condition and the danger therefrom obvious to an ordinarily prudent person, with the experience of the plaintiff, operating over the same under the same circumstances under which-the plaintiff operated over it? A. No.
“9. Was the condition of the track in question such that a person of ordinary care and prudence under similar circumstances as the defendant would anticipate danger or injury therefrom? A. Yes.”
Defendant- operates a railroad from Fort Smith, Ark., to Wichita, Kan., which passes through Silverdale, near which the defendant has a water tank. At the time of the accident plaintiff was operating as a fireman on a passenger train, and as it approached the tank where water was to be taken for the engine, plaintiff prepared a solution, designed to improve the quality of the water, which it was his duty to prepare and carry over the tender to the water tank on the engine and there pour it into the tank of the engine before taking water from the track tank. It was his practice to mix the solution and carry the bucket containing the solution from the engine out over the tender, which was his duty, and be ready to pour the solution when the train stopped. Then he was to open the manhole, pour the solution into the tank of the engine and pull down the spout and fill the tank of the engine with water. Plaintiff testified that on December 5, 1928, as he left the engine and started over the tender, it made a big sway back and forth, and the lurch threw him from the tender about fifteen or twenty feet on stony ground at the side of the track with such force that his body bounced about five feet from where it struck the ground, breaking both arms, one at the elbow of the left arm, and causing other severe injuries of a permanent character. There seems to be little if any controversy as to the character and extent of his injuries. There was testimony that as the train approached the tank around a sharp curve on the side o'f a hill over the defective track, it was traveling at a speed of thirty miles an hour. The controversy between the parties at the trial centered largely on the condition of the track on the curve approaching the water tank at the side of the track.
Testimony was offered tending to show that the curve was six hundred feet long, and the track on it was laid about six feet from the edge of a bluff, and at times the water from above had moved the track; that there was a lack of ballast of the track, and that the section men had even used wet soil for the purpose of tamping, raising and adjusting the track; that many of the ties under the rails were rotten and some of them broken; that the track had slipped as much as five inches, and that when it was straightened by the section men, mud was tamped about the ties. There had been excessive rains just prior to the accident, weather records showing that 6.17 inches of rain had fallen during the month preceding the accident, and that trains passing over the curve rocked violently back and forth, especially when driven over the low joints in the track. Testimony was to the effect that the train entered the curve at a speed of thirty-five miles an hour and that when brakes were applied it was slowed down. The application of the brakes, it is claimed, caused the lurch of the tender which threw the plaintiff from the train.
There was great conflict in the evidence as to the condition of the track. Witnesses- for the defendant stated that in fact there was nothing wrong with the track. The jury, as we have seen, found that it was “a bad track, bad ties and low joints.”
Defendant insists that the plaintiff’s evidence was insufficient to sustain the charge of defective track or excessive speed, and that negligence of the defendant was not established. Manifestly there was evidence tending to show that the track was defective and so defective as to warrant the finding that there was negligence in its maintenance, and that the fall and injury to plaintiff was the result of the negligence.
Among the witnesses produced by plaintiff was that of a section man who worked on the section which included the curve where the accident in question occurred. He had been working on that section from the middle of October, 1928, until the accident occurred on December 5, 1928. The day following he and other section men were ordered to look after the track at the curve, and he said that the track was muddy, that it had slipped and was out of line five or six inches, both rails had slipped about two car lengths of the curve; that the outside rail was lower than the inner rail and should have been higher; that there was no ballast between the ties nor at the end of the ties; that it was just a swinging track, only the centers of the ties were resting on the ground; that many of the ties were rotten and the spikes which they drove in the ties would not hold; that about every fourth tie in the track was broken and that they had to shift the track back in line about five or six inches, and after raising and gauging the track had to tamp it with mud as they had no ballast to use. He further testified that the track was on a short curve on the side of the bluff and was very rough. He also said that it had been in that condition for two or three months, and in going back and forth over it on a motor or handcar, he found that it rocked back and forth both ways and was hard riding, as joints wrere open and low. He stated that he had lived in the community where this part of the track was located, and that it had been in the condition he described for two years and was in fact a skeleton track, with nothing to prevent it from slipping, and that the section gang had done no work on it during that time. There was other evidence tending to show the track was in bad condition. The express messenger on the train at the time of the injury noticed that the track was very rough on the curve, and there was an unusual swing to the cars of the train, so much so that express packages were knocked over and it seemed to be an unusual movement. There was testimony that the train went into the curve over the slipping and swinging track at a speed of thirty miles an hour and did not slow down until they were close to the water tank.
Taking the testimony as given, the defects and damages were obvious and could not escape the observation of the engineer and fireman if they were awake and in the performance of their duties.
Defendant contends that the evidence is insufficient, being mainly that of a single witness who is no longer in the employ of defendant and had removed to another state, and further that his testimony was given by deposition. It is insisted that his testimony was incredible, impossible and contrary to human experience. Of course, testimony may be rightly given by deposition, and no reason is seen why it may not be as truthful and convincing as though it had been given orally in court. The witness whose testimony is challenged was cross examined at length by the defendant. It cannot be said that it is beyond human experience that a railroad track should become defective and dangerous, as described by the principal witness, and still be in operation, nor can we say against evidence that trains are not run over defective tracks or that there was no negligence in its management. The reports of our own decisions and those of other jurisdictions show that such instances do occur, and that the injury caused by bad railroad tracks and bad operation has been determined to be due to the negligence of operating railroad trains.
Testimony was offered by defendant contrary to that of the plaintiff as to the condition of the track and the dangers of traveling over it. The credence to be accorded to witnesses and. the weight of the evidence was the exclusive function of the jury, and its findings, approved as they were by the trial court, founded upon conflicting evidence, is binding on this court. As so often stated and consistently followed, the court cannot on appeal weigh conflicting evidence or pass upon the credibility of witnesses. Certainly there was evidence that the track was defective. It is not open to controversy that it was the duty of the defendant to its employees,to exercise reasonable care to make and keep its track fit and safe for use and if, through its negligence in this regard, it caused or contributed to an injury of its employee, it is liable to him unless he was himself negligent or had assumed the risk. It must therefore be held that there was evidence sufficient to sustain the finding of negligence in failing to maintain a fit and safe track, and that its negligence caused or contributed to plaintiff’s injury.
We still have the question pressed by defendant that the plaintiff assumed the risk of the defective track. It appears that plaintiff had been employed by the defendant as a locomotive fireman or engineer for about seventeen years prior to the accident. For about eleven years he had been operating over the track and around this defective curve where the accident occurred. From October 24, 1928, to December 5, 1928, and the rainy season intervening between these dates, he had operated over the tracks twenty-seven times. He testified that during the eight years before the accident he traveled over this part of the track at least once each week and most of that time as engineer. He produced proof of the most perceptible defects, which no fireman could- run over repeatedly without observing and understanding the dangers. To establish negligence he offered evidence, as we have seen, that at the time of the accident the tracks on the curve were without ballast and, in fact, without a roadbed. That the track was slipping back and forth in the mud, and part of it out of line as much as five or six inches. He produced proof that the ties were rotten and broken and were lying in a foot of slick mud, and that when trains went over the low joints of the curve the cars rocked back and forth and had been doing so for four or five months before the accident. These conditions which he emphasized were.so obvious and the dangers so manifest that they could not have escaped the attention of an experienced fireman, even one of low intelligence. Plaintiff was a railroad man of large experience, and while the defects might not have been noticed by him on one or a few trips over the dangerous curve, the defects had existed for a long time and he had run over them very many times. We think on his own proof that he knew of the danger incurred but had continued in the service and concluded to take the risk of the conspicuous defects and dangers.
In his testimony he said that he did not see anything wrong with the track. It looked to be as it usually had, nothing unusual or unsafe, and that he did not anticipate any danger in starting over the tender to carry his mixture to the water tank. Plaintiff contends that the risk is not assumed unless the injured person not only knows of the physical facts, but also knows and appreciates the danger. If the defects were of such character and plaintiff, in possession of his faculties, was brought in such relation to them that he could not escape knowledge of them, it is futile to contend that he did not see them nor recognize the danger. In Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138, a brakeman undertook to make a coupling between cars and was injured. He claimed the roadbed was defective and unsafe, but it appeared that the brakeman had worked on the track for more than a year, was familiar with the conditions of the roadbed, and it was held that—
“Where the servant has equal knowledge with the master of the construction and condition of the roadbed of a railroad company, and knows all the dangers and hazards incident to his work thereon, such servant assumes all the risks and hazards of his employment.” (Syl. IT 1.) ,
In Railway Co. v. Click, 78 Kan. 419, 96 Pac. 796, the railway employee suffered an injury which caused his death, and assumption of the risk was involved. The employee was a switchman in the yards of the company, and the negligence charged was that the company had permitted obstructions in the nature of cinders to remain in the yards, and that these caused the accident. He had worked for the company a number of years and was familiar with the obstructions and the condition of the railroad yards, including, the fact that cinders were deposited along the tracks, and it was held that the switchman assumed the risk. It was contended that it must be proven that he had actual knowledge of the obstructions which caused the accident, and that it was not enough that he was familiar with the condition of the track at the time of his injuries. It was said:
“It is the ordinary rule that a person of full age and in possession of all his faculties, when brought in such relation to physical objects that he would naturally observe their presence, will be presumed to know and take cognizance thereof; in other words, it is too much to require proof, under such circumstances, that one actually did know such facts as a person ordinarily would know if placed in the same position.” (p. 422.)
In Briggs v. Railroad Co., 102 Kan. 441, 175 Pac. 105, a fireman left his train at a station to eat a lunch, and the train was started before he returned to the train. He chased after the train and climbed upon it, and while walking over the train stumbled and fell between the cars and was killed. He was an experienced railroad man. The action brought, as here, was under the federal employers' liability act, and it was held that he assumed the risk. The jury found that the deceased knew or should have known the risks and dangers which he would normally and necessarily encounter in walking over the moving train. Among other things, it was said:
“The danger, therefore, was the normal danger attending the way which the fireman chose of reaching his place on the engine of the moving train. This danger was perfectly obvious to anyone. The fireman had a right to assume that the engine would not be started until he was in the engine cab. It was started, however, without him. When he came out of the lunch room the engine and a number of cars had already gone by, and the train was going forward. He was immediately and manifestly confronted with all the difficulties and dangers to be encountered in reaching his place on the engine. It would be fatuous to say he was not aware of them, and it would be an impeachment of the mental capacity of a competent man to say he did not appreciate them. . . . The whole situation created by the engineer’s negligence lay before the open eyes of this experienced trainman the moment he stepped out of the lunch room. He voluntarily chose his course, and voluntarily assumed the risk attending his choice.” (pp, 445, 446. See, also, McDougall v. Railway Co., 106 Kan. 135, 186 Pac. 1028.)
Knowledge of the risk is essential to the defense of assumption of risk, and while the plaintiff in the present case now disclaims any knowledge of the risk, he has shown by his own proof that the danger was so plainly visible to one with his faculties that he could not have avoided observing it if he had exercised the slightest diligence. The accepted rule is that a man is charged with a knowledge of that which is plainly visible to him. He is chargeable with such knowledge as the reasonable exercise of his ordinary faculties would disclose, and if the defects complained of, on which the negligence of the railroad company is predicated, are so plainly visible that the fireman must have known of it unless he shut his eyes, he will be held to have known it and to have assumed the risk.
Here the jury was asked the question: “Was the condition of the track in question such that a person of ordinary care and prudence, under similar circumstances as the defendant, would anticipate danger or injury therefrom?” and its answer was “Yes.” An experienced trainman should know and comprehend as much about defects in a railroad track as a person of ordinary care and prudence, and plaintiff cannot be permitted to stultify himself by saying he could not see what anyone in possession of his faculties could know and appreciate. In Butler v. Frazee, 211 U. S. 459, which involved the question of an assumption of risk by a workman in a laundry, who was injured in a mangle and claimed that she was not aware of the danger, the court said:
“The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence, and adequate experience, and all these elements of the problem appear without contradiction, from the plaintiff’s own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly.” (p. 466.)
In Choctaw, O. & G. R. Co. v. Holloway, 191 U. S. 334, involving a like question, the court approved an instruction, saying:
“A man cannot shut his eyes and say he don’t want to see anything which a reasonable man could not help but see if he keeps his eyes open. Now, if for that reason — that is, if the fact that there were not any brake shoes on that engine was obvious to any reasonably prudent man who runs on it as a fireman for several hours, as the evidence shows that plaintiff did for six hours, from Hulbert to Brinkley, before he went back again before the accident happened — that is perfectly obvious to a man who is fireman and traveling for six hours (without hunting for it), then the court will tell you that he had knowledge of, and ought to have known it, and he is chargeable with it as if he had known it.” (p. 337. See, also, Jacobs v. Southern R. R., 241 U. S. 229; Southern Pacific Co. v. Berkshire, 254 U. S. 415.)
Many cases are cited, in which the defense of assumed risk was not sustained, but these were controlled by circumstances differing from those of the present case, and upon the record we conclude that the plaintiff assumed the risk, and hence the judgment is reversed with directions to enter judgment for defendant.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in accounting. A referee was appointed who made findings of fact and conclusions of law, on which the court rendered judgment for plaintiff for $717.48. Defendant has appealed.
This court has heretofore determined six cases (Overlander v. Overlander, 115 Kan. 478, 223 Pac. 304; id., 118 Kan. 340, 235 Pac. 93; id., 119 Kan. 348, 239 Pac. 751; id., 125 Kan. 386, 265 Pac. 46; id., 126 Kan. 429, 268 Pac. 828; id., 129 Kan. 709, 284 Pac. 614) involving controversies among the over-litigious sons of Rufus B. Overlander, deceased, respecting property left them by his will. The property so left consisted in part of a 200-acre farm in Doniphan county. Defendant, claiming to act for all the devisees, looked after the renting of this farm for several years. In this action, begun July 2, 1924, plaintiff alleged he had not received his share of the rents collected, or which should have been collected, by defendant for the years 1919 to 1923, inclusive (later 1919 was omitted and 1924 included), stating the amount due him was $2,370.98; asked an accounting of the rents and of any sums defendant had expended for taxes or upkeep, and for judgment for the sum found due. Defendant’s demurrer to this petition was overruled and he appealed (119 Kan'. 348, 239 Pac. 751). Pending this, and on September 2, 1924, the defendant here, as plaintiff, brought an action against the plaintiff here, as defendant, in the supreme court of New York, in which state both parties reside, in which action plaintiff (defendant here) claimed: (a) 12,852.09 for rents and profits received and applied from the land in question, insurance and repairs on buildings, and improvements; (6) $273 as the share of the defendant (plaintiff here) as taxes paid on the land; (c) $48.90 on account of estate taxes paid; (d) $710.22 for commissions claimed to be due; and (e) $540 for services in work and labor on the farm. Issues were joined in that action. A referee was appointed, who found, with respect to (a) that there was no balance due from Rufus M. Overlander to Jacob A. Overlander because there was a balance remaining in Jacob A. Overlander’s hand; (b) that Jacob A. Over-lander had a cause of action against Rufus M. Overlander for taxes in the sum of $273, less $38.18 which had been paid, but the cause of action was res judicata, having been determined by the supreme court of Kansas; (c) that Jacob A. Overlander had.a cause of action against Rufus M. Overlander for the ratable share of estate taxes assessed against their mother, but this cause of action was adjudicated in the supreme court of Kansas; (d) that Jacob A. Over-lander was not entitled to commissions; (e) that the reasonable value of services, repairs and improvements was $400, and that Jacob A. Overlander was entitled to recover $88 from Rufus M. Overlander therefor, but there was a sufficient balance remaining in the hands of Jacob A. Overlander to reimburse him for this amount. The referee further found that this was not an action in accounting. These findings of the referee were adopted by the court August 28, 1928, and judgment for costs for $952.60, less $80, was entered in favor of Rufus M. Overlander against Jacob A. Overlander.
Pending the disposition of the New York case this action remained inactive in the district court of Doniphan county. Thereafter the defendant in this case filed an amended and supplemental answer and counterclaim in which he sought to recover from plaintiff, (a) $2,852.09 on account of repairs, insurance on buildings, and moneys expended on account of the land; (b) $273 as plaintiff’s share of taxes paid on account o'f the land; (c) $48.90 on account for estate taxes paid on account of plaintiff; (d) $710.22, being the reasonable value of defendant’s services in receiving the proceeds from the farm and disbursing the same; (e) $540 for services rendered on account of work and labor on the farm; (/) $279.06 because of plaintiff’s failure to execute a lease.
To this amended answer and counterclaim plaintiff replied by-setting up the adjudication in the New York case.
In November, 1929, defendant asked leave of court to file an amended answer and counterclaim, restating in different language much he had previously alleged, but adding thereto a claim of $210.55 for expenses, or damages, alleged to have been caused- by the fact that plaintiff, in July, 1919, had filed an unfounded claim for $500 against the estate of the father, Rufus B. Overlander, deceased. This request was denied. The referee found that defendant had received as rent from the lands in question, for the year 1920, $3,549.77; for 1921, $411.36; for 1922, $722.13; for 1923, $254.55; and for 1924, $1,129.09, making a total of $6,367.79, and that defendant also received and is chargeable with a note given for com amounting, with interest, to $998.80; that plaintiff should be charged with $641.94 received from defendant on account of rents collected; that plaintiff had paid his share of the taxes for 1919 and 1920, but should be charged with his share of the taxes for the years since 1920; that plaintiff’s share of such taxes for the remaining years is $273, less $38.18 paid, leaving $234.82; that defendant should be allowed credit for expenditures he made on the farm for certain items totaling $634.14. The referee allowed defendant no compensation for fourteen days’ services claimed by him, for the reason that no agreement was shown to compensate defendant for such services, nor did he allow anything on account of estate taxes claimed to have been paid by defendant, for the reason that it was not clear from the testimony for whom or for whose benefit these taxes were paid. He allowed defendant nothing as a commission for services, for the reason the evidence failed to establish any contract to pay therefor. The referee allowed nothing to defendant on his claim for damages for plaintiff failing to execute a lease. Summarizing, the referee found:
“The plaintiff is entitled to one-fifth of $7,357.59, which is the total of the rentals, to wit, $6,367.79, and the Withers note and interest, $989.80, to wit, $7,357.59.
“The plaintiff should have charged against this sum the following items, to wit:
One-fifth of $634.14, amount expended on farm by defendant...... $126.82
Taxes, $273, less $38.18........................................... 234.82
Amount received by plaintiff from defendant from rentals.......... 641.94
Total ......................................................... $1,003.58
Leaving a balance of $467.93, with interest at the rate of 6 per cent from May 23, 1924, due the plaintiff from the defendant.”
Specific exceptions were made to these findings. A hearing was had thereon September 28, 1932. The court approved the findings of the referee, with the exception of a $2 item for which he gave defendant credit, and rendered judgment accordingly.
Appellant contends: First, that the court erred in refusing permission to file an amended answer setting up> a claim for expenses incurred in defending an ill-founded claim of plaintiff against the estate of their father. We find no error in this. Ordinarily, expenses incurred in defending a claim or action which is not established do not in themselves form the basis of an action. No reason is pointed out to us why it should do so in this instance.
Second, that it was error not to allow defendant’s claim against plaintiff for taxes paid for the years 1919 and 1920. The referee found plaintiff had paid his share of those taxes, and this was approved by the trial court. There is nothing in the record brought to us which overcomes that finding.
Third, that it wTas error not to charge plaintiff with one-fifth of certain estate taxes paid by defendant. The referee refused this on the ground that it “is not clear from the testimony for whom or for whose benefit these taxes were paid.” The reason given is not sufficient. The evidence discloses that on the death of Rufus B. Overlander, father of the litigants here, the amount of the federal estate tax was determined. By his will he had given his wife $500 and the income for life, with remainder to his children, of certain property — not the 200 acres, the rents of which are in controversy here. When the amount of this federal estate tax was determined someone in the internal revenue department divided it into six parts, there being the widow and five children. The children each paid one part. The widow, not having money with which to do it, did not pay the sixth part. Eventually the appellant paid it. A one-fifth of that part amounts to $48.90. He asked that it be charged to the plaintiff in this accounting. That should have been done. The federal revenue act of 1918 (§ 409) made the tax a lien for ten years on the gross estate of the decedent. (United States v. Cruik shank, 48 F. 2d 352.) A similar provision is in the present act (U. S. C. A., Title 26, § 1115). Hence, the part of the estate tax unpaid by the children was a lien upon the land, the rents of which are in controversy here. It was as much the duty of the plaintiff as it was of the defendant to pay this. When defendant paid it he should have had credit for the amount on an accounting with plaintiff.
Fourth,'that railroad fare in the sum of $793.70’ should have been allowed as part of the expense of managing the farm, one-fifth to be charged to plaintiff. Appellant lived in New York and testified that he came to Kansas at least once, and sometimes as many as five times, a year. While he went to the farm each time and gave it some attention it seems he had other business, representing his father’s estate in the probate court and attending to other litigation. Clearly, all of this should not have been taken into account. No effort was made by defendant to separate it or allocate it in any way to the various purposes of his trips. The referee in the trial court cannot be criticized for refusing an allowance on this item, since the burden of proof was on defendant to establish his claim in this respect.
Fifth, that there were losses on a farm lease by reason of the fact that plaintiff declined to join with the other heirs in its execution. We find no evidence in the record which would have justified an allowance on this item.
Sixth, that no allowance was made for work and labor on the farm. Defendant claimed to have worked fifty-four days, for which he asked $10 per day, amounting to $540. H'e made the same claim in the New York case and was allowed on the basis of $400 for this item, one-fifth of which was charged to the plaintiff here. He now claims there were fourteen days more for which he should have been allowed by the referee and the trial court in this case. This was denied on the ground that there was no evidence tending to show any agreement either to employ him or to pay him for his services. We are unable to find any such evidence in this record. More than that, we see no reason why appellant is not bound by the New York judgment with respect to this item.
Seventh, that he is charged with the Withers note with interest thereon. It is contended, first, that the amount of the note should not have been taken into account for the reason that this is not a suit on the note, and it is not mentioned in the pleadings. The point is not well taken. The note was given for corn grown on the farm, and it is proper to take it into account as a part of the rents received. Second, it is contended there is error in computation. The note was given March 14,1923, for the sum of $674.50. The referee computed interest on this note at the rate of seven per cent per annum from May 23,1924, which was the date of striking a balance, to January 9, 1931, the date he made his report. This interest, as computed, amounted to $315.30. This was added to the face of the note, making the note, with interest, $989.80. This was added to the total cash received from rentals, $6,367.79, making a total of $7,337.59, of which plaintiff was entitled to one-fifth. From this was deducted the items charged against the plaintiff, leaving a balance due plaintiff of $467.93, as found by the referee as of the date of May 23, 1924; but to this balance is added interest at six per cent to the date of his report, January 9, 1931. It is clear that this method of computing the interest duplicates the interest on this note. We understand it to be plaintiff’s contention that defendant had no authority to sell the proceeds of the farm for other than cash. No authority to take a note is shown by- the evidence. Defendant should have been charged with this note as though he received cash for the corn sold. This would make the correct charge against plaintiff as follows: Total cash rentals received, $6,367.79, plus the face of the Withers note, treated as cash, $674.50, making a total of $7,042.29, of which plaintiff should have received one-fifth, amounting to $1,408.46. Prom this should be deducted the amount properly chargeable to plaintiff, as follows: Total found by the referee, $1,003.58, plus $2 added by the court, plus $48.90, being the portion of the estate tax paid by defendant properly chargeable to plaintiff, making a total of $1,054.48. This leaves a balance due plaintiff of $353.98 as of the date of May 23, 1924, to which sum should be added interest at the rate of six per cent per annum to the date of the judgment, which was finally rendered in this case September 28, 1932, making the amount $531.27. With respect to this error of computation appellee says that the same method was used by the referee in this case that is used in the accounting case of Overlander v. Overlander, 126 Kan. 429, 268 Pac. 828. We have reexamined the abstracts in that case and find that the same method was used, but we also find that defendant did not contend in the trial court that there had been an error in the computation. His motion to correct and set aside the findings of the referee did not raise that question. He did raise it in his brief in this court, but of course that was too late; hence the court found that the mistake in computation was not available.
Appellant complains of the referee’s fee of $250 allowed by the trial court. Naturally, it was a matter which rested in the sound discretion of the court. Considering the nature of the litigation, the contention over numerous items, some of which had been formerly litigated and others of which had no substantial merit, we are unable to say that the fee was excessive. There is a further complaint as to the computation of interest on certain items. So far as these have any merit they have been disposed of heretofore in this opinion.
In harmony with what has been said the judgment of the court should be modified and reduced to $531.27 as of the date of September 28, 1932, and, as so modified, affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant insurance company from a judgment rendered in the trial court against it and in favor of the plaintiff for $375 for the loss of an eye. The judgment was rendered in an action to reform an accident insurance policy issued by defendant to plaintiff so as to conform to the oral agreement made between the agent of the defendant company and the plaintiff, and to recover'thereon.
The petition alleged that the 'defendant’s soliciting agent represented to plaintiff that the policy he was offering was an unlimited policy and would protect him against accidents he might suffer in the course of his business as a blacksmith; that these statements were false, and the agent made them knowing they were false and with the intent to deceive the plaintiff and for the purpose of inducing him to act upon such representations and apply for a policy; that plaintiff did rely upon such statements and the policy issued was limited to protection only while traveling.
The answer pleaded estoppel by reason of the plaintiff signing a formal application and later receiving and accepting the policy which bore on its face the request, “Please read your policy,” and the policy provided that “No agent has authority to change this policy and waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the company and such approval be indorsed thereon.”
Defendant denied that the agent Flanders, who was only a soliciting agent, had any authority to sell anything but a limited policy or to bind the defendant in any manner whatever by any different policy or contract of insurance.
The case was tried upon an agreed statement of facts, the pertinent facts thereof being as follows:
“That on or about April 7, 1929, one J. R. Flanders was an agent of the defendent company, authorized to solicit applications, collect premiums and remit the same to said company and deliver such policies of insurance as were issued and approved by the company and sent to him for delivery; and the company authorized him to solicit only limited policies in forms designated as ‘Perfection $20.00 Policy,’ ‘Equitable $6.00 Policy,’ ‘Equitable $10.00 Policy’ and ‘Equitable $16.00 Policy.’ That said Flanders was authorized by the commissioner of insurance of Kansas to solicit insurance for said company.
“That on April 7, 1929, said Flanders called on the plaintiff and solicited him for a policy of insurance in said company. Flanders did not explain the policy to plaintiff. He had no sample policy with him. He told the plaintiff the policy was good any place he got hurt or any how he got hurt; blacksmiths were being hurt every day; that it was the kind of a policy for a man in business to have. He said the policy was good any place. Plaintiff signed an application. . . . About ten days later the plaintiff received the policy through the mail. . . . Plaintiff further says that Flanders did not tell him how much the policy was good for in case he got hurt; he said it was good for what the policy called for, nothing more, but he stated no amounts. He thought Flanders said something about $375 for an eye, but plaintiff does not remember just what he said; plaintiff does not remember what Flander said with reference to the contents of the policy. Plaintiff states further that he put the policy in the bank after he received it, without reading it. After his accident he got the policy and read it. . . .
“On October 31, 1929, and while the plaintiff was engaged in the regular course of his trade, the said plaintiff, by accidental means, received a foreign substance in his left eye, causing the necessity of having the eye removed; that shortly after said injury and while he was in the hospital he notified the company of his accident by letter.”
The stipulation contains further facts concerning tender, hospital and doctor bills, loss of time and attorney fees, none of which will be necessary to the issues here involved on review.
The application signed by plaintiff was very brief. It commenced by saying, “I hereby apply for limited accident and sickness insurance in the Commonwealth Casualty Company of Philadelphia, Pa., to be based upon the following representations of facts”: This was followed by his name, residence, occupation, date and signature.
Appellant assigns error in two particulars, viz., that no fraud was proved or facts established on which a reformation could be based, and that plaintiff is estopped from recovering compensation contrary to the terms of the policy.
There is no dispute about the amount" of the premium required. Plaintiff paid the amount asked. The stipulation says the agent said the policy was good for what it called for and the copy of the policy attached to the answer shows it called for $375 for loss of one eye.
The policy itself shows plainly it was limited to travel accidents, specifically stating the six kinds of common carrier and passenger service that would be recognized. One of the agreed statements of facts, above quoted, is that this agent was not authorized to issue any other kind than limited policies. Then follows that “He told plaintiff the policy was good any place he got hurt or any how he got hurt; blacksmiths were being hurt every day; that it was the kind of a policy for a man in business to have. He said the policy was good any place.” We are compelled, by' reason of these and other facts in the agreed statement and the attitude of the defendant as to the kind of a policy it was that the agent was selling, to brand this statement of the agent as false. We can hardly be heedless of, or insensible to, the human purpose of making such misrepresentations. The only purpose conceivable in an agent falsifying to a prospective purchaser is to induce him to rely upon such misrepresentations and thus accomplish the desired purpose of effecting a sale. Neither is it conceivable nor suggested that a reputable and responsible company, like the defendant, had in its service as an authorized soliciting agent either a child or an imbecile who innocently made such misrepresentations without knowing the facts about the only kind of policies he was handling. When we put together these facts found in, and necessarily drawn from, the stipulation, we have the false statements made by the agent, knowing them to be false and made with the intent to deceive, which is all that is necessary to constitute the element of fraud on his part.
Of course the insurance company is not always liable for the acts and representations of its authorized soliciting agent, nor does the agreement made by such agent always bind the company, but, generally speaking and when within the bounds of his work of soliciting and procuring applications, he can bind the company as to the nature and character of the protection he is offering, and for these purposes he has the power of the company, as was said in Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245.
“An agent for a life insurance company whose authority is limited to negotiating for, taking and transmitting applications for the approval or rejection of the company is the agent of the company and not of a person whom he solicits to take insurance, and for those purposes he has all the power the company itself possesses.” (Syl. ¶ 1.)
“The-acts, assurances, and representations of an agent done and made within the apparent scope of his authority are binding on the insurer. . . . Consequently, where the agent makes misrepresentations to the applicant for insurance, as to the scope of the policy, or the risks covered by it, it has been held that the company will be estopped to deny such representations.” (1 C. J. 406.)
In the case of Cue v. Insurance Co., 89 Kan. 90, 130 Pac. 664, the insurance company was held bound by the waiver of the agent writing the application of the requirement that no gasoline be used on the premises.
In Shinn v. Benefit Association, 102 Kan. 134, 169 Pac. 215, the insurance company was held bound by the terms of the policy notwithstanding the application by its agent contained many misstatements inserted by the agent and not read by the applicant.
Plaintiff relies strongly on the case of Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111, where it was held that—
“Representations, apparently within the scope of bis authority, made by an insurance agent authorized to solicit insurance, take applications, collect and remit premiums, and to receive and deliver policies, to an insured whom he solicits, and relied upon by the insured, are binding upon the insurance company.” (Syl.)
Appellant cites the closing sentence of a reference to this decision in the opinion in Myers v. Anti-Automobile Thief Ass’n, 129 Kan. 506, 283 Pac. 503, where it disapproves the decision so far as it tends to sanction the power of a soliciting agent to bind the company by an oral contract of insurance. The Myers case, supra, was an action purely upon an oral contract and not on a contract corresponding to an application for a policy, or any kind of a policy which the company put out, and the party making the oral contract was not known to the insurance company. The Nichols case, supra, did not concern nor involve an oral contract. The policy issued in that case did not cover the accident which caused the injury and the question involved was the extent to which the insurance company was bound by representations made by its soliciting agent. The result was as quoted above, but this enumeration of particulars is only to show that it did not concern an oral contract and therefore was not an authority in a case such as the Myers case.
Appellant insists that plaintiff is estopped to ask for reformation after having had the policy in his possession for six months, and cites the case of Pierce v. Liberty Life Ins. Co., 120 Kan. 86, 242 Pac. 133, where, under similar preliminary circumstances, the insured made demand very shortly after receiving the policy for the return of the premium paid by him, but the questions of suffering an injury and failing to read the policy were not there involved.
It was said in Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87, where the insurance company extended in the policy the iron-safe requirement further than the application stated it should be applied, that the insured “may assume that the company has discharged its duty and has written the policy on the basis of the application, and he is not obliged to read the policy to see if it conforms to the application.” (Syl. ¶ 3.) In the same case it was further held:
“If such an application be received and retained by the company, a policy be written and delivered, and the premium be paid by the applicant and kept by the company, a binding contract of insurance is effected on the basis of the application.” (Syl. If 4.)
Another case involving estoppel for failure to read the policy and, also, fraud and mistake in making the policy different from that for which the application was made and the question of reformation, is Hammond v. Insurance Co., 100 Kan. 582, 165 Pac. 291, where it was held:
“Where a policy of insurance different from that applied for has been fraudulently issued, the recipient of the policy may, without reading it, assume that it conforms to the application; and an action thereon is not barred until two years after the fraud is discovered.
“Where fraud in issuing a policy of insurance and a mistake in the policy are alleged and reformation is asked, and where the evidence supports the allegations, the court is justified in reforming the policy and in rendering judgment thereon.” (Syl. ITII1,2.)
“An applicant for insurance, without knowledge to the contrary, may assume that the agent has prepared the application according to agreement and that the company has written the policy according to the application, and he is not negligent in failing to examine such instruments for errors and omissions.” (Pfiester v. Insurance Co., 85 Kan. 97, syl. If 7, 116 Pac. 245.)
We think the insured had a right to assume, without reading the policy, that it conformed to the application and positive agreement he had made with the company’s authorized soliciting agent, where this is not dependent upon conflicting testimony but is contained in the stipulation as a description of the kind of a policy that was being offered and accepted.
Appellant cites the recent case of Supica v. Metropolitan Life Ins. Co., 137 Kan. 204, 19 P. 2d 465, where it was held the agent could not bind the company by taking a part instead of the whole premium due, and extending the policy, that being in effect a waiver of a requirement of the policy, which was not one of the duties of a soliciting and collecting agent.
The well-reasoned case of Drogula v. Federal Life Ins. Co., 248 Mich. 645, is cited and strongly relied upon by appellant. It is very much like the case at bar, but holds that ten months after receiving the policy and after an accident occurred the insured was not equitably entitled to have the policy reformed to cover the oral representations of the agent. The concluding part of the opinion shows that it is based almost entirely upon the negligence of the insured in not reading the policy sooner. This is quite different from the trend of the decisions on that question in this state, as shown by cases above cited. On the question of the right to reform the policy and recover thereon, see, also, Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886; Pfiester v. Insurance Co., supra; Mercantile Co. v. Insurance Co., 101 Kan. 522, 168 Pac. 323; Chambers v. North American Accident Ins. Co., 118 Kan. 494, 235 Pac. 859; 1 C. J. 420 and 32 C. J. 1140.
It is suggested that the decision of the trial court must have been on the second cause of action, because the judgment does not state that the policy was reformed. The journal entry of judgment is very brief, as set out in the abstract, but it shows that judgment was rendered “for the sum of $375 on plaintiff’s first cause of action.” The first was the reformation cause of action and the judgment upon that cause of action included the reformation therein asked.
The- judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to enjoin the issuing of tax bills to pay for the improvement of a street in Kansas City. Judgment was for plaintiffs. Defendants appeal.
The proceedings to improve the street were carried on under the terms of R. S. 1930 Supp. 13-1078 to 13-1089, commonly known as the tax-bill act. The petition alleged many defects in the proceedings. The answer of the defendant city and city officials described the proceedings in detail and denied that there was anything irregular in them. The answer further pleaded that plaintiffs were estopped from bringing the action to enjoin.
Trial was to the court. Findings of fact and conclusions of law were made. It is not deemed necessary to set out the findings of fact in detail here. The defect in the proceedings upon which plaintiffs rely is that the petition, which was filed as the first step in initiating the improvement, was not signed by resident owners of a majority of the real estate fronting on the street to be paved.
One of the conclusions of law is as follows:
“1. That the petition for the improvement in question was not signed by sufficient resident owners to confer jurisdiction upon the board of city commissioners to make the improvement; that the insufficiency of the petition was apparent on its face.”
The findings of fact upon this point cover a number of signatures that the court found were not made by the parties whose signatures they purported to be. The question, of these signatures would be an interesting subject for study, but is not necessary to be answered in order to reach a decision in this case. The matter is settled by two of the findings of fact, which are as follows:
“3. One-half of the feet fronting or abutting on Eighth street between Central avenue and the south line of Vermont avenue was 1,141.6 feet. The petition was signed by resident owners of less than one-half of the feet fronting or abutting upon .Eighth street between the south line of Central avenue and the south line of Vermont avenue.
“4. At the time of the proceedings involved, all of the owners of all of the frontage on said Eighth street from Central avenue to the south line of Vermont avenue were residents of Kansas City, Kan., and all of the signers of said petition were residents of Kansas City, Kan. The total frontage signed for on said petition by resident owners was 555.5 feet, which was 586.1 feet less than one-half of the feet fronting or abutting upon said Eighth street owned by residents. Notations on the face of the second sheet of the petition, which the city engineer testified were made by him and were correct, and which were approved by the board of city commissioners (in lead pencil), are as follows:
“2) 2283.2
1141.6 required,
1201.7 signed,
60.1 majority.
C. E. P. — 8/21/1930.”
It will be noted that while these findings state the petition was signed by resident owners of less than one-half of the real estate fronting on the street to be paved, the petition contained notations from which the city commissioners must have concluded that the petition was signed by the required number of property owners. The petition in this case does not charge the city officers with any fraud or bad faith. The paving petition shows on its face that it was sufficient. Under such circumstances when the board, whose duty it is to pass on matters of this kind, has passed on it and found the petition sufficient, in the absence of fraud or bad faith, that ends the matter. This question was dealt with in the case of Kansas City v. Gray, 62 Kan. 198, 61 Pac. 746. There the court said:
“So far as the petition to the mayor and council is concerned, it shows a conformitj' to the provisions of section 171 of chapter 32, General Statutes of 1897. There is a certificate by the city engineer, to which officer we presume the petition was submitted, stating that the same is signed by the owners of a majority of the front feet owned by residents abutting on Ann avenue between Sixth and Tenth streets, and a further certificate by the city attorney showing that the petition is signed by the parties having a legal right to sign for the property set opposite their names as shown by abstracts furnished by the city abstracters. These certificates, with the petition, were before the council when the prayer of the property owners was granted.” (p. 200.)
See, also, Doran v. Barnes, 54 Kan. 238, 38 Pac. 300; Kansas City v. Kimball, 60 Kan. 224, 56 Pac. 78; Hutchin v. State Highway Comm., 136 Kan. 702, 18 P. 2d 124. The latest case in which this rule is followed is State v. City of Hutchinson, 137 Kan. 231, 19 P. 2d 714. In that case an attack was made upon the action of the city commissioners in finding that some petitions seeking to call a franchise election were insufficient. The court said:
“As we have seen, the commissioner’s have expressly and formally found and declared that the petitions were’ insufficient to require the calling of the election. Was the finding and determination of the duly constituted commission of binding and conclusive force, or may there be a resort to the court to retry the issues of fact? Under what is deemed to be the settled law of this state, the decision of such a commission is final and conclusive in the absence of fraud or corruption or misconduct that is the equivalent of fraud. The court may not interfere with their decision because of a mere mistake or error of judgment on the part of the commission in reaching a decision.” (p. 234.)
In this case the petition bore on its face the notation by the city engineer that it had the required number of signatures. It also bore the certificate of the city attorney to its sufficiency. The members of the board were not required to make an independent investigation into the circumstances under which each signature was made. We have concluded that the conclusion of law heretofore referred to in this opinion is not sustained by the findings and admitted facts.
Defendants pleaded and argue here that plaintiffs were estopped from attacking the regularity of the proceeding on account of the fact that they waited till the street was improved and the paving finished before bringing the action. On that question there is nothing to distinguish this case from that of Haffey v. Kansas City, 136 Kan. 187, 14 P. 2d 729. That was a case from Kansas City. The work was done under the same statute and the same attack was made. The court said:
“This case is one for the application of the above principles. Here all the plaintiffs but one had actual knowledge that the street in front of their residences was being paved. They had actual knowledge that the work was being done under the ‘tax-bill’ act. They all had notice under the act of the time fixed to hear objections of lot owners as to the value of any lot as fixed by the appraisers. During all this time appellees stood by and watched the work being done, saw the contractor incur expense and their property improved to a greater extent than the cost of the assessments. It was the duty of these appellees to bring an action t.o stop the work from being done before so much expense had been incurred by the contractor, or in the' words used in the reports ‘before the position of the parties had so changed due to the failure of appellees to act on their rights that it would be inequitable and unjust to give them the relief sought for now.’ ” (p. 191.)
We see no reason for a distinction between that case and the one under consideration.
The judgment of the trial court is reversed with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, C. M. Walker, brought this action asking for a divorce from the defendant, Rachael Walker, and in a cross petition she asks for a divorce from him because of his fault. The result of the trial was that she was granted a divorce, and in the decree she was granted permanent alimony in the sum of $1,500, payable in installments at fixed times, and a division of some personal property was made. She appeals and contends that the award of alimony was inadequate and wholly out of proportion to the financial situation of the parties and the necessities of the defendant.
The parties, it appears, were married on February 2, 1930, and the divorce was granted in June, 1932. As both parties asked for a divorce, which was granted, neither is in a position to complain of that feature of the decree or of any ruling inhering in it. Having got what they both sought, and neither asking to have the divorce set aside, that chapter of the marital controversy is at an end. (Hay v. Hay, 130 Kan. 81, 285 Pac. 520.)
There is a complaint that the court erred in denying defendant’s application made prior to trial for suit money and temporary ali mony. It appears that $50 was allowed for counsel fees towards the preparation of the trial of the action and in the decree $190 was awarded for counsel fees.
As to the allowance of temporary alimony, it may be said the statute provides that the court may require the husband to pay such reasonable expenses of the wife in the prosecution or defense of the action as may be just and proper considering the respective parties and the means and property of each. (R. S. 60-1507.) It is conceded, however, that the matter of the allowance of alimony is largely within the discretion of the trial court, and it is enough to say that under the circumstances there was no abuse of that discretion. (Swalp v. Swalp, 104 Kan. 171, 178 Pac. 415.)
As to the permanent allowance of alimony it. appears that the plaintiff was employed as a locomotive engineer for a railroad company, but there was no evidence of how long the employment was likely to continue. At the time of the trial his earnings which had been deposited in a bank amounted to $742.29. He owned a residential property of the value of about $3,000, and another residence of about the value of $2,000, and had an undivided one-fourth interest in a quarter section of land in Oklahoma, the value of which was not shown, and also an old automobile of little financial worth. It appears that defendant brought nothing to the estate except some furniture and furnishings of a value not shown. As we have seen, the court in the final decree awarded permanent alimony to defendant in the sum of $1,500, and as suit money and counsel fees $190. She was given certain furniture, including what she owned before her marriage. The amount of alimony which should be awarded in cases of this kind is not easy for an appellate court to determine. The trial court, with the parties’ before it, and having witnessed the details of the trial, has a much better opportunity to decide what is just between the parties. In Miller v. Miller, 97 Kan. 704, 156 Pac. 695, there is a quotation that — •
“ ‘The determination of the amount of permanent alimony is controlled by no fixed standard, but rests, rather, in the sound discretion of the court, which, being judicial in character, is not liable to be reviewed by an appellate court except where it is evident that there has been a clear abuse thereof.’ ” (p. 705.)
See, also, Leach v. Leach, 46 Kan. 724, 27 Pac. 131; Galutia v. Galutia, 72 Kan. 70, 82 Pac. 461; Miller v. Miller, supra; Corbett v. Corbett, 101 Kan. 1, 165 Pac. 815; Hay v. Hay, supra.
The Walker estate was not large. Defendant brought nothing into it by the marriage and in the short period of the existence of the marriage relation she had not the opportunity to, and did not, aid in acquiring the accumulations that plaintiff possessed. Indeed, it appears that most of the plaintiff’s property was inherited from his deceased wife, Ruth Walker.
The court found that during the marriage plaintiff had used his means to provide support for defendant commensurate with his ability and her social and physical standing. An award of alimony cannot be set aside by this court unless it clearly appears to have been an abuse of the discretion vested in the trial court. In view of all the circumstances we are unable to say that the court abused its discretion in the award that was made.
A complaint is made that defendant was not allowed to inquire of plaintiff as to the wages he earned as an engineer. The inquiry was made by defendant on the cross-examination of plaintiff, and upon an objection that it was not proper cross-examination the objection was sustained. The court remarked that he would wish to know that fact, but for the time being he would have to pass it over because it was not proper cross-examination. The matter of plaintiff’s earnings and his financial condition was in one way and another brought out later in the trial, and it cannot be said that defendant suffered prejudice by the ruling, but in any event it was not proper cross-examination and not a ground of reversal.
A number of-other objections are made, but we find nothing substantial in them, nothing worthy of discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
L. R. Kershaw, receiver of the Montgomery County National Bank, brought an action before a justice of the peace against S. W. Squier, and on August 9, 1932, obtained a judgment against him for $105.19. About the same time he procured the issuance of garnishment summons upon several tenants of a business building owned by the defendant, Squier. Squier had previously procured a loan from the Railroad Building, Loan and Savings Association, hereinafter spoken of as the loan company, and executed a mortgage on the building as security for the loan. The tenants garnished joined in an answer stating that they were indebted to the defendant, Squier, in the aggregate sum of $235. The loan company was permitted to intervene and joined the defendant in a motion to discharge the garnishment upon the ground that the indebtedness due from the several garnishees is not due to the defendant as an individual but as trustee for the loan company.
Upon the hearing of the motion the justice of the peace decided in favor of the defendants, and plaintiff then appealed to the district court, and that court, upon an agreed statement of facts, decided that the motion of defendant and the interpleader to discharge the garnishment should be sustained. From that rulipg, plaintiff appeals.
The agreed facts disclose that Squier had obtained the loan and about the same time he and the loan company entered into an agreement in writing, designated as an “assignment of rents,” which provided that in the event of a default in the monthly payments on the mortgage loan the rentals should be collected by a third party as trustee and applied by the trustee on monthly payments due on the loan, which were in default, that S. W. Squier should act as such trustee and that this instrument should remain in effect so long as the loan was in force, binding on executors, administrators and assigns, and that any conveyance, lease or mortgage of the property should be subject to the assignment. Default was made in the monthly payments of the loan by the defendant, and in May, 1932, the loan company notified the defendant that it declared the assignment of rents to be operative and required him to collect all rentals from the building as trustee for the loan company and remit the same to it, less necessary operating expenses. Defendant consented and did act in that capacity up to the bringing of these proceedings. The assignment has not been recorded or filed in the office of the register of deeds, and it may be said that neither the tenants nor the plaintiff had actual knowledge of the agreement at the time the garnishment summons was served.
It appears that Squier is not resisting the claims of the mortgagee as to its right to possess itself of the rentals of the mortgaged property. On the other hand he is cooperating with the mortgagee and has consented and is acting as trustee and had acted in that capacity about two months, collecting rentals and paying them to the mortgagee after deducting certain operating expenses. This had been done for about sixty days prior to the time when the plaintiff’s judgment was obtained and the garnishment proceedings begun.
The plaintiff contends that the mortgage was only a lien, and that the mortgagee under it and the assignment acquired no rights to the possession of either the mortgaged property or the rents and profits of the same, except by foreclosure or some proper judicial proceeding. He argues that even the stipulation in the mortgage did not have the effect of transferring title to the rents and profits of the building mortgaged, citing Seckler v. Delfs, 25 Kan. 159; Caldwell v. Alsop, 48 Kan. 571, 29 Pac. 1150; Beverly v. Barnitz, 55 Kan. 466, 42 .Pac. 725; Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659. These cases do sustain his contention so far as regards the mortgagor’s right and that a stipulation in the mortgage that the rents shall be applied to the payment of the mortgage debt does not confer title on the mortgagee but gives him only a lien enforceable by the ordinary judicial procedure. But, as we have seen, the mortgagor is not contesting the right of the mortgagee but has voluntarily consented and is helping to enforce the mortgagee’s right. It is competent for the mortgagor to yield possession to the mortgagee and apply the rentals to the defaulted payments of the loan, notwithstanding the mortgagee could not claim that possession as against the mortgagor under the executory contract of the assignment.
In the Goldsworthy case it is said that if the mortgagee desires the possession of the mortgaged property under a contract, “such possession must be obtained and voluntarily consented to by the mortgagor.” It has also been said that:
“It is competent for the parties to agree that the rents shall be collected by the mortgagee or a trustee and applied in reduction of the debt, . . . Unless acted upon by the parties, such provisions do not become effective, however, until the mortgagee actually obtains possession, or until he asserts his rights by securing the appointment of a receiver or impounding the rents and profits pending foreclosure, or taking some action equivalent thereto.” (41 C. J. 628, 629.)
Here the parties, mortgagor and mortgagee, have acted, and'the rentals have been yielded by the mortgagor and are being applied in accordance with their original agreement. It is conceded that in the absence of such action, including the voluntary consent of the mortgagor, the rule contended for by plaintiff would govern. Farmers Union Jobbing Ass’n v. Sullivan, 137 Kan. 196, 19 P. 2d 476, is a case quite similar to the present one. There it was held, in effect, that it was competent for the mortgagor to give possession to the mortgagee of the rents and profits of the mortgaged property, and where this is done that no judicial proceeding is necessary to gain possession of that right, and that the right so acquired is superior to that of a garnishing judgment creditor. Here, the mortgagor not only stipulated that the mortgagee might possess himself of the rentals in a certain contingency but actually joined the mortgagee in carrying out the stipulation. Pie consented to act as trustee, and did act in that capacity for a time, collecting rentals and having them applied on the default payments due on the mortgage. Under the circumstances the loan company was in effect a mortgagee in possession with a right to the rentals, having obtained them with the consent and cooperation of both parties.
The district court committed no error in holding that the Railroad Building, Loan and Savings Association was entitled to the rentals as against the claim of a subsequent garnishing creditor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a mortgagee in possession asking the court to determine the rights of the parties and to fix a time within which the defendant might redeem, and in default thereof that the defendant be barred from further rights or interest in the property. The trial court made findings of fact and decreed that the property should be sold as upon foreclosure and that defendant have the statutory period of eighteen months within which to redeem. Plaintiff has appealed and contends that the court erred in requiring that the property be sold and in giving defendant possession and rents during the eighteen-months period of redemption.
Briefly the petition, filed December 8, 1931, alleges that on May 1, 1927, Edwin O’Donovan and wife executed their note to plaintiff in the sum of $1,500 and secured the payment of the same, with interest, by a mortgage on described real property in Brown county, owned by them, and thereafter conveyed the property to R. G. Vickery; that on November 5, 1928, R. G. Vickery, in writing, assigned the rents from the real property to plaintiff, which writing recited that it was understood that plaintiff, “from and after this date . . . shall be deemed a mortgagee in possession of said premises,” and that plaintiff should collect the rental “as mortgagee in possession” and apply the same to taxes, repairs, insurance, and interest on the debt due plaintiff; that thereupon plaintiff took possession of the real property and has since been in the exclusive possession thereof; that plaintiff has used due diligence in renting and realizing an income therefrom, but has been unable to realize a sum sufficient to pay taxes, make necessary repairs, maintain insurance, and pay the interest accruing upon the indebtedness; that the defendant, R. G. Vickery, has forcibly and wrongfully taken possession of the premises and should be required to pay a reasonable rental therefor and give immediate and peaceable possession; that the conditions of the mortgage have been broken; that defendants have failed to perform and to do the things agreed to be done by them; that plaintiff is entitled to have its rights determined and to have a time fixed for defendants to redeem, and plaintiff offered to make full accounting of all moneys received and expended as mortgagee in possession.
The defendant, R. G. Vickery, filed an answer, which was withdrawn when the case was called for trial, and for that reason need not further be noticed, but orally contended that he was entitled to the rights of redemption provided by our redemption statute. The trial court made findings of fact, which may be summarized as follows: (1) The facts set forth in plaintiff’s petition are true; (2) that plaintiff is entitled to judgment against Edwin O’Donovan and wife in the sum of $1,728.22 with interest and costs, and that the same constitute a first lien upon the real property in question; (3) that on November 5, 1928, R. G. Vickery, being then the owner of the legal title to the real property in question, executed and delivered to plaintiff an assignment of rents accruing from the real estate and placed plaintiff in possession thereof as mortgagee in possession; that plaintiff actually took possession of the real property and at all times since has been entitled to the exclusive possession thereof, and that plaintiff has used due diligence in the collection of rents and in paying taxes, repairs, insurance and interest as far as possible; (4) that on February 1, 1931, R. G. Vickery forcibly and wrongfully took possession of the premises against the right of plaintiff as mortgagee in possession.
Among other things the court adjudged that plaintiff’s lien on the real property be foreclosed and that the real estate be advertised and sold, as provided by law, and the proceeds applied to the payment of costs, taxes, and plaintiff’s judgment, and if the sum derived from the sale be insufficient to pay those items that plaintiff have a deficiency judgment for the balance against Edwin O’Donovan and wife, and further adjudged that R. G. Vickery shall have the statutory period of eighteen months within which to redeem the property from and after the sale, and at-the end of such period, in default of redemption, that a deed issue to the purchaser or his assign, and that a writ of assistance issue to place said purchaser in possession.
In Stouffer v. Harlan, 68 Kan. 135, 137, 74 Pac. 610, it was said:
“The expression ‘mortgagee in possession’ has been adopted by the courts and law writers as a convenient phrase to describe the condition of a mortgagee who is in possession of mortgaged premises under such circupastances as to make the satisfaction of his lien a prerequisite to his being dispossessed, even in jurisdictions where the mortgage itself can confer no possessory right either before or after default.”
In the syllabus of that case it was ruled:
“A mortgagee of real property in possession of the mortgaged premises after condition broken may not be dispossessed without the payment of the mortgage debt.”
This has been the uniform holding of this court. (See Kelso v. Norton, 65 Kan. 778, 70 Pac. 896; Henthorn v. Security Co., 70 Kan. 808, 79 Pac. 653; Walters v. Chance, 73 Kan. 680, 85 Pac. 779; Jaggar v. Plunkett, 81 Kan. 565, 106 Pac. 280; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; Pearcy v. Bankers Mortgage Co., 129 Kan. 163, 174, 281 Pac. 873, and authorities cited in the opinions in those cases.) It is well settled, also, that a mortgagee in possession cannot be dispossessed by force, stealth or fraud. (Stouffer v. Harlan, 84 Kan. 307, 114 Pac. 385; Charpie v. Stout, supra.)
It also is well settled that a mortgagee in possession may bring an action to compel redemption, or to have the rights of redemption barred. (Henthorn v. Security Co., supra; Jaggar v. Plunkett, supra.) In such an action the time which the court may fix for defendant to redeem is not controlled by our redemption statute applying to judicial sales. (See Case v. Lanyon, 62 Kan. 69, 72, 61 Pac. 406.) It is to be determined in the exercise of the powers of a court of equity from the facts of a particular case. Ordinarily there is no occasion for the sale of the property, with the expense incident thereto. It is within the power of the court to fix a time, reasonable under all the facts and circumstances disclosed by the record, within which defendant should redeem or be barred from all right, title and interest in the property. A mortgagee in possession is still a mortgagee (41 C. J. 613-615). He is not the owner of the property. If the mortgagor or owner of the record title does not take steps -to terminate the relation, the mortgagee in possession is at liberty to do so. Perhaps he could bring an action to foreclose his mortgage (Bank v. Myers, 99 Kan. 60, 160 Pac. 979). He may bring an action to require defendants to redeem. Naturally, the relief to be granted is addressed to the sound judicial discretion of a court of equity. Perhaps there are circumstances under which a court of equity would be justified in requiring that the mortgaged property be sold, but the facts here do not warrant such an order.
In this case plaintiff, who had been in possession of the property for two years and nine months, alleged that it had used diligence to realize an income from the property, but had been unable to realize a sum sufficient to pay taxes, repairs, insurance and accruing interest on its debt. The court found those facts to be true. Plaintiff did not seek a sale of the property in order to determine the amount of a possible deficiency judgment against the mortgagors, and the record does not disclose that such a judgment would be equitable, either to plaintiff or to the mortgagors. It was clearly inequitable for the court to add to the expense incident to this property the cost of a foreclosure sale, and the court was not justified under the law in taking from plaintiff the rents and profits for eighteen months.
The judgment of the court below will be reversed, with directions to set aside the order of sale and the order giving the defendant, R. G. Vickery, the statutory right of redemption, with the rights to possession and rent for the period of redemption, and to fix a period of redemption in accordance with the views herein expressed. 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 personal injuries alleged to have been caused by the negligence of defendant’s agent and employee. Defendant’s answer did not put the question of such agency in issue. The case proceeded to trial. Plaintiff had introduced all her evidence when defendant asked leave of court to file an amended answer putting the question of agency in issue. The court permitted the amended answer to be filed, and at plaintiff’s request continued the case to enable plaintiff to take depositions on that issue. Defendant is a resident of Missouri and was not personally present at the trial. When plaintiff went to take his deposition he refused to give any information with respect to the question and refused to produce his books and records relating thereto. Proceeding under our statute (R. S. 60-2821) plaintiff moved to strike the amended answer from the files. Notice was given of the motion, a hearing was had thereon, and it was sustained by the court. Whereupon defendant’s counsel withdrew from the court room. The court called a jury, which heard the evidence and assessed plaintiff’s damages at $1,000, for which judgment was rendered. Defendant has appealed.
The principal point argued by appellant is that the court abused its discretion in striking the amended answer from the files. Our statute (R. S. 60-2821) reads as follows:
“In any action now pending or hereafter instituted in any court of competent jurisdiction in this state, any party shall have the right to take the deposition of the adverse party, his agent or employee, and in case the adverse party is a joint-stock association, corporation or copartnership, then of any officer, director, agent or employee of any such joint-stock association, corporation or copartnership, when such adverse party, or officer, director, agent or employee of such adverse party is without the jurisdiction of the court or cannot be reached by the process of the trial court; and in case said adverse party, when duly served with notice of the taking of such deposition, as provided by the code of civil procedure for the taking of depositions, shall fail to appear at the place fixed in said notice, which place shall be in the city or county of the usual place of residence or place of business of said witness, and testify and produce whatever books, papers and documents demanded by the party taking such deposition, or shall fail to produce at the time and'place specified in such notice such officer, director, agent or employee, the court before whom such action is pending may, upon application of the party seeking to take such deposition, and upon notice to the adverse party of such application, and upon hearing had to the trial court, strike the pleadings of such adverse party from the files and render judgment in favor of the party so seeking to take such depositions, in whole or in part, as prayed for in his pleadings.”
It is designed to meet just such situations as arose in this case, or at least is specifically applicable thereto. “It is a valid exercise of the legislative power.” (Edmonds v. Federal Securities Co., 131 Kan. 11, 290 Pac. 3.) It is quite obvious in this case that defendant was not only seeking delay, but was resorting to subterfuge to prevent a judicial determination of the issues before the court. Perhaps there was no issue of agency which honestly could have been raised under the facts. If there were, it should have been raised in the first answer filed. The court was liberal with defendant when it permitted him to file an amended answer raising that issue after the cause had proceeded to trial and all of plaintiff’s evidence had been introduced. The court very well might have refused to permit such an amendment at that stage of the trial. The continuance of the trial was for the purpose of taking the deposition of defendant and his employees on that question. Those depositions had to be taken in Missouri, because defendant carefully avoided coming into Kansas. There, under the advice of his counsel, he flatly refused to answer pertinent questions relating to that issue and refused to disclose what books or records, if any, he had that would throw any light on the question, and declined to produce such books or records as he had for examination. That attitude of itself tended to show that his testimony on that point and his books and records, if produced, would not be favorable to him. But, passing that thought, defendant by his pleadings had raised an issue in his action pending in this state. Common fairness dictates that he should not withhold material evidence in his possession relating to an issue which he had asked the court to determine.
Appellant argues that no demand was made prior to the date of taking depositions for defendant to produce books, papers or documents at the taking thereof. The statute (R. S. 60-2821) does not require that the demand be made prior to the taking of the deposition. It is sufficient, under the statute, if it be made at that time, provided, of course, that ample time to produce them be given. Appellant cites R. S. 60-2850 and 60-2851 and decisions thereunder on the question of demand and subpoena duces tecum for the production of books, records and documents, and the decisions of this court construing these sections, and contends that the same rule should be applied to proceedings under R. S. 60-2821. The point is not well taken. The last cited section is designed to be “cumulative of all the laws of this state and ... as providing an additional means of securing evidence.” (R. S. 60-2822.) Neither is it essential that the demand be in writing. If it be argued that under this interpretation of the statute a plaintiff might take undue advantage of a defendant it may be answered, the statute was not designed to- permit either party to take an unfair advantage of the other. If the record in a case should disclose that plaintiff was taking an unfair advantage of defendant the court has ample power to deal with the question; but we have no such situation here.
Appellant next argues that there were no records specified which were shown to be in existence and material to any issue in the case. If this is true it arises from the fact that defendant and his counsel refused to permit the facts to be disclosed. It is true defendant, at the taking of his deposition, quibbled over the question of whether there were any records, said such records as were made were kept by an employee then out of the state, questioned his own authority to examine the records of his business, and finally declined to produce such as he had. On the hearing of the motion to strike the answer from the files his counsel appeared in court and said, in effect: Yes, we have some records. They are here in court. We are now willing to let counsel for plaintiff use them in the trial of the case. Naturally, counsel for plaintiff declined to go into trial blinded in such a manner on a material point in issue.
Appellant argues that the refusal of defendant to answer the questions propounded to him was not sufficient grounds to justify the court in sustaining plaintiff’s motion to strike the answer from the files. This point lacks merit. The refusal of the witness went directly to the question at issue. Apparently defendant, or his counsel, conceived the notion that he could raise an issue — whether well founded under the facts or not — which plaintiff could not overcome without taking depositions of defendant and his employees, and then, by staying out of the state and refusing to give testimony on the issue, defeat a judicial determination of that issue by the courts of this state. Our laws would be lame indeed if they did not provide a remedy for such tactics.
Lastly, it is argued that plaintiff’s petition is insufficient and does not state facts to support the judgment. The point was not raised in the trial court. No demurrer had been filed to this petition, nor was any objection made to the introduction of evidence under it. Under these circumstances it will be liberally construed in favor of the judgment rendered. So construing it, there is no difficulty in holding that it states facts sufficient to constitute a cause of action which will support the judgment.
We find no error in the record, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for a declaratory judgment to determine the proportionate share due to the appellant under royalty deeds in which he was the grantee.
Prior to the execution of the royalty deeds the owners of two tracts of land executed oil and gas leases which provided that the owners’ shares were one-eighth of all oil and gas produced. Booth, the owner of the east half of the southwest quarter of section 32, township 11, range 15, sold a one-fourth interest in and to his royalty to Hawes. Hawes sold a one thirty-second interest in the royalty to Ludeman. Dodge, the owner of the west half of the southwest quarter, sold a one-eighth interest in the royalty to Hawes. Hawes sold a one thirty-second interest in the royalty to Ludeman. This placed a one thirty-second interest in the royalty in both tracts in Ludeman, who sold a one sixty-fourth interest to appellant, the deed being recorded in book 8 of leases, page 210, and a one sixty-fourth interest to Hewitt, who later sold a one ninety- sixth interest to the appellant, the deed being recorded in book 8 of leases, page 277. Thus the appellant became the owner of a one sixty-fourth interest and a one ninety-sixth interest in the royalty in both tracts.
The Sinclair Crude Oil Purchasing Company — later succeeded by the Stanolind Crude Oil Purchasing Company — is purchasing the crude oil produced and saved and seeks to make disposition of the proceeds.
The parties have disagreed. The appellant claims in his petition that he is entitled to have the defendant prorate to him the equivalent of one barrel of crude oil from each sixty-four saved from the east half of the quarter section, and that he is entitled to have the equivalent of one barrel of crude oil from every ninety-six produced and saved from the west half of the quarter section, and that defendant claims to be making said proration from a proration order signed by the plaintiff which plaintiff denies having executed. The prayer of the petition is that the court interpret said contracts and adjudicate the rights of the parties thereunder and render a declaratory judgment as to such rights and obligations. The defendant filed its answer denying that plaintiff is entitled to one barrel out of each sixty-four produced from the east half of said quarter section and alleging that under the above royalty deed plaintiff is entitled to receive one sixty-fourth of the one-eighth royalty oil produced and saved from the southwest quarter of section 32, and denying that plaintiff is entitled to receive one barrel from every ninety-six barrels produced and saved from the west half -of the southwest quarter, and that under and by virtue of royalty deed plaintiff is only entitled to receive one ninety-sixth of the one-eighth royalty oil produced and saved from the southwest quarter of section 32. Defendant further alleged the execution and delivery by plaintiff of transfer orders for one sixty-fourth of the one-eighth royalty and one ninety-sixth of the one-eighth royalty in both of which the real estate is described as the southwest quarter of section 32, township 11, range 15.
On trial the court found in favor of the defendant company, and that under the royalty deed recorded in book 8 of leases, at page 210, plaintiff is the owner of an undivided one sixty-fourth of the one-eighth royalty of all oil produced and saved from the southwest quarter of section 32, township 11, range 15, amounting to one barrel out of five hundred and twelve barrels gross production of oil therefrom, and that under the royalty deed recorded in book 8 of leases, at page 277, plaintiff is the owner of an undivided one ninety-sixth of one-eighth of all oil produced and saved from the above premises, amounting to one barrel out of seven hundred and sixty-eight barrels gross production of oil, and directing the defendant to make settlement with the plaintiff for such royalty on the basis of transfer orders executed by the plaintiff to the defendant company. The plaintiff appeals.
So far as the record shows, the royalty deeds are of the same general form and the property conveyed is described in the following language: “an undivided one sixty-fourth” (and one ninety-sixth) “interest in and to the oil . . . royalties which is or may hereafter be reserved by said party of the first part ... in and under the following described property situate in Russell county . . .”
It is conceded that the royalty interest reserved is one-eighth, and the plain meaning and import of the one conveyance is one sixty-fourth of that interest or one sixty-fourth of one-eighth, which is one five hundred and twelfth, and of the other is one ninety-sixth of one-eighth, which is one seven hundred and sixty-eighth. This is what the court found to be the appellant’s share, and a careful reading of appellant’s abstract and brief fails to disclose how it can be otherwise.
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto brought by the city of Council Grove to inquire into the right of the Kansas Electric Power Company to a franchise to supply the city with light and power. The question is before the court now on a motion to dismiss on the ground that a former action fully adjudicated all points raised in this case.
The facts are simple. Council Grove is a city of the second class. It has the commission form of government. On August 15, 1922, the board of commissioners passed ordinance No. 233 granting defendant a franchise. Certain petitions were presented to the commission asking that the proposed ordinance be submitted to the electors of the city in accordance with the provisions of R. S. 12-824. The commission determined that the petitions were insufficient, declined to submit the proposition to a vote, and passed the ordinance. A quo warranto action was filed in district court. That court held the ordinance to be null and void and ousted the company from exercising any rights under the franchise. The judgment was appealed to this court, where it was reversed, in State, ex rel., v. Electric Power Co., 116 Kan. 70, 226 Pac. 254. That action was brought by the state on the relation of the county attorney. This action is brought in the name of the city. It can safely be said that in the first action the state was only the nominal party and that the city was the real party in interest.
The disagreement arises on account of two different statutes with reference to franchises. One is R. S. 12-824. Its pertinent provisions are as follows:
“All incorporated cities in the state of Kansas . . . into or through which any corporation operating a system for the transmission of electric current between two or more incorporated cities in the state shall have heretofore built ... its transmission lines, are hereby authorized and empowered upon such terms and conditions as any such city may by ordinance prescribe to grant franchises to such . . . transmission corporations for any public utility purposes for which they are . . . incorporated, for a period not greater than the time for which the charter under which said company or corporation is then operating shall continue to run but in no case to exceed 35 years: Provided, That such franchise shall not be granted until notice of the proposition to grant the same has been given for twenty days by publication in some newspaper in general circulation in such city, and if within said twenty days 10 per cent of the legal electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit said franchise proposition to a vote of the people before such franchise bo granted and be governed by result of such vote.”
This act, chapter 94 of the Laws of 1921, amended section 836 of the General Statutes of 1915 by making the terms of that statute with reference to franchises, ordinances and elections apply to transmission companies as well as to interurban railroads. It will be noted that this section applies to all cities of whatever class and whatever form of government. It will be further noted that the election need not be called unless after the proposed ordinance is published ten per cent of the qualified electors petition for an election.
The other statute is R. S. 14-1701. Its pertinent provisions are as follows:
“The board of commissioners of any city governed and controlled by the provisions of this act may permit any person, firm, or corporation to manufacture, sell and furnish artificial or natural gas light and heat, electric light, power . . . and may permit . . . conduits, cables, and all appliances, necessary for the construction and operation of gas and electric lights . . . over and along the streets and alleys of such city, upon the express conditions hereinafter imposed, and not otherwise, in this act . . . .”
And,
“No such right, privilege or franchise shall ever be granted until the same is approved by a majority of the electors of such cities voting thereon at a general or special election called for the purpose by the mayor.”
This section is section 30 of chapter 82 of the Session Laws of 1909. That act amended chapter 123 of the Session Laws of 1907. They both provided a commission form of government for such cities of the second class as elected to come under it. It will be noted that this act was passed several years before R. S. 12-824, and that it applies only to cities of the second class that are under the commission form of government. It will be further noted that it provides that no franchise shall be granted until the proposition has been submitted to the electors without the necessity for petitions.
Keeping in mind the differences in the two statutes, we will examine what was done in the former case and what is pleaded and argued in this one.
In the former case the petition alleged, among other things, as follows:
“That the rights and privileges purported to have been granted to said defendant by the franchise heretofore set out are such rights and privileges as only can be granted by a vote of the majority of the voters of said city. That no such election was held nor is contemplated.”
The answer of defendant alleged that the franchise ordinance was valid and in full force and effect. In that case the defendant devoted several pages of its brief to this question. It stated the question thus:
“We desire to take up first plaintiff’s contention that chapter 94 of the Session Laws of 1921 does not apply to Council Grove, because it operates under the commission form of government, and that the franchise in question could only have been granted by the city under section 1860 of the General Statutes of 1915. This view we hold to be erroneous for the following reasons”:
The plaintiff treated the question in its brief in that case and stated the proposition thus:
“Section 836, Revised Statutes of 1915, as amended by chapter 94 of the Laws of 1921, does not apply to the city of Council Grove, being a city of the second class, operating under the commission form of government.
“The act, above referred to, is an amendment of section 836, G. S. 1915, and the amendment made only included corporations organized to transmit electric current between two or more cities (State, ex rel., v. City of Kansas City, 83 Kan. 431.) This is a general statute applying to all cities not under the commission form of government.”
When the case was submitted this court first dealt with the matter of the sufficiency of the petitions. This matter was settled largely on a question of the sufficiency of the evidence as to the number of qualified electors. This question was settled in favor of the defendant in that case. With this question out of the way the court still had to consider the question of whether R. S. 12-824 or R. S. 14-1701 applied. Had it been decided that R. S. 14-1701 applied, then, regardless of the petitions, the franchise would be null and void, because that section required all franchises to be'submitted to a vote. With that in mind, we will examine the second syllabus of State, ex rel., v. Electric Power Co., 116 Kan. 70. It is as follows:
“The act referred to authorized incorporated cities to grant franchises for the purposes named therein without regard to whether the cities are operating under a commission form of government or a mayor and council.”
The pertinent part of the opinion is as follows:
“There is a further contention by the plaintiff that the act under which the franchise is granted has no application to cities acting under a commission form of government. It is said that the act providing for that form of government contains its own provisions relating to the granting of franchises, and since the later act, 1921, did not reenact the provisions of the earlier one as to granting franchises, it should be interpreted as only applying to cities not under the commission form of government. The act of 1921 (R. S. 12-824) expressly authorizes the granting of franchises by all incorporated cities of the state without regard to form of government under which they are operating. It provides that such cities may by ordinance grant a franchise to any corporation operating a system for the transmission of electric current between two or more incorporated cities or to one proposing to build such lines. The act is later in time than the acts referred to by plaintiff and may be said to be supplementary to them. If there be any conflict between them the later act will, of course, control. The city authorities with power to enact ordinances, whatever their designation, is given power to grant franchises upon compliance with the conditions named in the act. It follows that the judgment of the trial court annulling the franchise and ousting the defendant from the exercise of any rights and privileges under the ordinance must be reversed. Under the evidence the defendant was entitled to judgment in its favor, and therefore the case is remanded with directions to enter judgment for defendant.”
We will examine the petition of plaintiff in the present case. The petition sets out the passing of ordinance No. 238 under R. S. 12- 824 and the fact that defendant is operating under it. It then makes a specific allegation as follows:
“Plaintiff states that, notwithstanding the fact that the said ordinance was passed granting such extension of said franchise to the said defendant, the city of Council Grove, Kan., denies that the said ordinance is effective and denies that said defendant is operating under the extension of said franchise for the reason that the section and provision of the statute, to wit: 12-824, R. S. Kansas, 1923, is in conflict with section 14-1701, R. S. Kansas, 1923, and that the governing body of the city had no power or authority to grant such extension thereunder.”
It will be noted that the reason pleaded why the ordinance granting the franchise is void is that it was done under R. S. 12-824 and that this section is in conflict with R. S. 14-1701.
This question was met with and answered in State, ex rel, v. Electric Power Co., supra. The answering of the question was essential to the conclusion reached. While the nominal parties are not the same, as has been heretofore stated, the real parties in interest are identical. One of the points litigated in the former case is the point that is raised in this case. We have concluded that this is a case where the rule laid down in C. K. and W. Bid. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96, governs. In that case the court said:
“When a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated; and this determination is binding, as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made.” (p. 767.)
This rule is universal and needs no further citations.
The motion of defendant to dismiss the action is therefore sustained. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries and injury to an automobile which was struck at a crossing by defendant’s interurban car. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Defendant’s interurban electric railway line extends west from Kansas City, Kan. Its right of way at the place in question, about a mile west of the city, is adjacent to a paved highway known as Southwest, or Merriam, boulevard. Extending north from this highway, across defendant’s tracks, is a private road to a farmhouse, sometimes spoken of as the Turner road. On October 1,1930, plaintiff, then about sixteen years of age, driving an automobile which belonged to his parents, drove to the country to get pears. Two nuns, whose names he did not know, were riding in the back seat. Justin Walleck, a boy about fifteen years of age, was riding in the front seat with him. He drove out Southwest boulevard and stopped at a nursery to inquire the way to the farmhouse. In doing so and returning to the highway he crossed defendant’s tracks twice. He turned off the boulevard on the Turner road, proceeded to the farmhouse, obtained the pears, and was driving back to the boulevard. The road was a winding one through some brush and trees and was a steep incline covered with gravel and rock. He was driving about ten miles per hour. He could see the trolley wires and the trolley pole of the interurban car. When within about fifteen feet of defendant’s track he noticed the trolley pole on the interurban car about 100 to 110 feet west of the crossing. The automobile was equipped with two-wheel brakes, which were in good order. He applied the brakes, but the automobile slid onto the track. He shifted to low gear and tried to get off the tracks, but did not have time to do so before he was struck by the interurban car.
“Q. Did you see the' interurban car when you were fifteen feet away from the track? A. I saw the top of the trolley.
“Q. Saw the top of the trolley? A. Yes, sir.
“Q. And did you stop? A. I stepped on the brakes, but I couldn’t stop.
“Q. You couldn’t stop? A. No, sir.
“Q. Well, did you ever stop? A. I stopped when I got out to the track.
“Q. Out to the tracks? A. Into the tracks.
“Q. You stopped on the tracks, did you? A. Yes, sir.
“Q. Did you come to a complete stop? A. Well, I don’t know, for sure. I tried to get the car in low there—
“Q. Just answer my question. Did you come to a complete stop? You remember about the occasion? A. Yes, sir.
“Q. And you remember whether you came to a complete stop, don’t you? A. Yes, sir.
“Q. Well, did you? A. No, sir.
“Q. Your car was still traveling? A. Yes, sir.
“Q. When you got on the track? A. Yes, sir.
“Q. And then you endeavored to put the car in low? A. Yes, sir.
“Q. How fast was your car going when you got on the' track? A. Well, about a mile an hour, or something like that. It was going slow, when we got right there. It was just sliding along.
“Q. Sliding along? Were your wheels sliding? A. Yes, sir.
“Q. And you think you were going about a mile an hour when you got on the track? A. Yes, sir.
“Q. And you endeavored to put it in low? A. Yes, sir.
“Q. Did you put it in low? A. I got it in low; yes.
“Q. Well, after you got the car in low, did you let your clutch out and start up again? A. I didn’t have time; the car ran into me at the time.
“Q. Well, how far would it have taken you to stop the car going ten miles an hour on this road where you were, this grade — going down this grade at ten miles an hour — an emergency stop? A. About twenty foot, I imagine.
“Q. It would take you twenty feet to stop it on this grade. And you didn’t look for the interurban car until you were within fifteen feet of the crossing? A. No, sir.
“Q. Now, when you reached the track, was your brake on all the time? A. Yes, sir.
“Q. And did your car slide onto the track with your brake' on? A. Yes, sir. “Q. Were you in high, neutral, low or second? A. It was high.
“Q. And did you attempt to shift from high to low? A. Yes, sir.
“Q. Did you have a chance to put it into low and get out of there? A. No, sir.”
Justin Walleck testified that they left the farmhouse and started back, and when about fifteen feet from the tracks he saw the top of the trolley pole of the interurban car. At that time plaintiff put on the brakes.
“Q. And what happened to the car, when the brakes were applied? A. The back wheels stopped.
“The Court: What? A. The back wheels stopped, and it skidded.
“Q. All right. Now, how far did the car skid? A. About five foot or three or something like that.
“Q. Then what happened to the car? A. It skidded into the tracks.
“Q. All right. Did it stop skidding before it got onto the tracks? A. No, sir.
“Q. Then where was it when it started to skid? How far from the tracks? A. About seven — five or seven foot.
“Q. When the car started to skid, could you see any more of the street car than the trolley? A. No, sir.
“Q. Now, when you started to skid, Justin, I want to know how far you were from the street-car tracks. A. When we started to skid?
“Q. Yes. A. About ten foot.”
When the automobile was five or ten feet from the track the interurban car was from 110 to 115 feet away, and when the automobile went on the track the interurban car was eighty-five or ninety feet away. The automobile stopped on the track.
A witness, who had formerly worked for the street-car company and operated a car of the type used by defendant, testified that such a car, on practically level track, in dry weather-, going at thirty miles an hour, could be stopped in fifty feet. It would take more or less time to act after observing an object, and the fifty feet means from the time the air gets to the brakes until the car stops. That distance would be varied by the particular operating conditions at the time, and the car could not at all times be stopped within fifty feet, even though the track were level. He could not expect a better stop than that.
There was other evidence as to plaintiff’s injuries and as to the damages to the car, but since the amount of the verdict, $500, is not complained of — if plaintiff is entitled to recover — this need not be detailed.
Defendant demurred to the evidence. On the hearing of the demurrer plaintiff abandoned all the allegations of negligence in his petition except those pertaining to the doctrine of the last clear chance. The court overruled the demurrer. Defendant then introduced its evidence, the court instructed the jury, and the case was submitted, with the result above stated.
By predicating his right to recover solely on the doctrine of the last clear chance plaintiff necessarily conceded his own negligence in getting on the track in front of defendant’s-oncoming interurban car. In Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 308, 252 Pac. 472, it was said:
“This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him with out injury or damage through, the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 132 and note; Juznik v. Railway Co., 109 Kan. 359, 364, 365, 199 Pac. 90; Williams v. St. Louis-San Francisco Rly. Co., ante, p. 256, and citations.)”
See, also, the following cases and the authorities cited therein: Gilbert v. Railway Co., 91 Kan. 711, 718, 139 Pac. 380; McMahon v. Railway Co., 96 Kan. 271, 273, 150 Pac. 566; Atherton v. Railway Co., 107 Kan. 6, 190 Pac. 430; Gilbert v. Railway Co., 109 Kan. 107, 110, 197 Pac. 872; Mourning v. Railways Co., 110 Kan. 417, 204 Pac. 721; Morlan v. Hutchinson, 116 Kan. 86, 89, 225 Pac. 739; Muir v. City Railways Co., 116 Kan. 551, 555, 227 Pac. 536; Engle v. Bowen, 122 Kan. 283, 285, 251 Pac. 1108; Dennis v. Kansas City, K. V. & W. Rly. Co., 133 Kan. 214, 220, 299 Pac. 941; Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 300 Pac. 1108.
The doctrine of the last clear chance, as set forth in the authorities cited, may be said to be made up of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaintiff Was injured.
The evidence in this case clearly discloses that plaintiff was negligent in at least two respects. First, as he was approaching the track he should have looked for an interurban car early enough to have stopped his automobile before he got on the track. This he did not do. It took as much as twenty feet for him to stop his automobile and he did not look for an interurban car until he was within fifteen feet of the track. Second, when he saw the car and was too close to the track to stop, instead of letting his car proceed at the rate it was going, which, under the evidence, would have got him across the track in safety, he applied his brakes, slid his wheels, slowed his car down to about one mile an hour on the track, with the brakes still on, shifted to low gear, and was struck. It is clear that his negligence in this respect continued until his automobile was struck. The case is much like that of Williams v. St. Louis- San Francisco Rly. Co., supra; Jamison v. Atchison, T. & S. F. Rly. Co., supra, and Mourning v. Railways Co., supra. In short, there is not much in this case except that plaintiff drove onto defendant’s track in front of an oncoming interurban car and did not have time to get across. Certainly the doctrine of the last clear chance cannot apply in such a case. The demurrer to the evidence should have been sustained.
The judgment of the court below is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
Allen Frizzell was charged with the offense commonly known as bank robbery, and in a second count with robbery in the first degree. He was convicted on both counts and has appealed. A former judgment of conviction was reversed by this court (State v. Frizzell, 132 Kan. 261, 295 Pac. 658) because certain incompetent ■evidence prejudicial to the defendant was received. That error was not repeated at the trial from which this appeal is taken. A general statement of facts made in the former opinion need not be repeated here.
Appellant first contends that the court erred in admitting the testimony of one Otis Baker in rebuttal and argues if the evidence were competent at all it should have been offered in chief. Defendant had offered evidence of his whereabouts on a date in question, which evidence tended to support the defense of alibi. In rebuttal the state called Otis Baker as a witness, who testified that he saw defendant with two other men at a place near the scene of the crime at a time shortly after it was committed, which tended to rebut testimony of witnesses of defendant as to his whereabouts at that time. The evidence was competent in rebuttal. (R. S. 62-1438; 16 C. J. 870; State v. Abrams, 115 Kan. 520, 223 Pac. 301; State v. Haines, 128 Kan. 475, 477, 278 Pac. 767; State v. Bauman, 133. Kan. 27, 298 Pac. 772.)
Appellant complains that the court admitted evidence of another similar offense. That question was determined adversely to the contention of the appellant in the former decision of this case, where it was pointed out the purposes for which such evidence might be Used and the limitations thereon. There is no contention that the-evidence was not offered in strict conformity with the ruling of this, court; neither is any complaint made concerning the instruction of' the court on that point.
Appellant next contends that the verdict is contrary to law. By its verdict the jury found the defendant “guilty of bank robbery as charged in the first count of the information.” Appellant argues that the words “bank robbery” are not found in the statute, hence-that the conviction was of an offense not mentioned in the statute. It is true the words “bank robbery” are not found in the statute-itself. The revision committee used them as head notes (R. S. 21-531). They were used in the former decision of this case as a short, description of the offense charged (132 Kan. 261, 262, 295 Pac. 658), and are fairly appropriate for that purpose. The verdict, however,, does not rest on those words alone, but contains the further language “as charged in the first count of the information.” This language-would have been sufficient in the verdict had not the words “bank robbery” been used, for the information charges facts constituting-the offense defined by the statute (R. S. 21-531) under the subhead of “Bank robbery.” In this connection see State v. Treadwell, 54 Kan. 513, 38 Pac. 799; State v. Dietrich, 117 Kan. 105, 230 Pac. 329; State v. Tower, 122 Kan. 165, 173, 251 Pac. 401; State v. Caton, 134 Kan. 128, 4 P. 2d 677; and State v. Phillips, 136 Kan. 407, 15 P. 2d 408.
Appellant contends that the verdict is contrary to the evidence. There was a sharp conflict in the evidence as to plaintiff’s partici pation in the robbery of the Corbin bank. A number of witnesses for the state positively identified him as being one of the persons participating in the robbery. Other witnesses called by defendant testified to his presence elsewhere at the time of the robbery. The weight to be given to all of this evidence was for the jury and the trial court. There is an abundance of substantial competent evidence to support the conviction. Indeed, it is not contended otherwise. The verdict will not be disturbed. (State v. Davis, 106 Kan. 527, 188 Pac. 231; State v. Scott, 82 Kan. 856, 107 Pac. 558.)
A question is raised as to the sentence. At the time of passing sentence the court had before it evidence of the conviction of the defendant of robbery and larceny at a previous time, and that under those convictions he had been confined to the state reformatory at Hutchinson in punishment for his crimes. On that showing the court, under the authority of R. S. 1931 Supp. 21-107a, pronounced sentence -for double the time that would have been given had this been his first conviction. Appellant complains of that and says that because he was confined in the state reformatory under the previous conviction and not confined in the state penitentiary the increased time of punishment was not justified under the statute. It was argued that the punishment actually imposed under the prior conviction is controlling rather than the nature of the offense. We think this not a correct interpretation of the statute. It reads:
“Every person eonvioted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.” ■
We think the fact of the former conviction of a felony committed by the prisoner is the controlling factor irrespective of the particular punishment that might have been imposed.
We find no error in the record, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the plaintiffs in an action in the nature of a creditor’s bill from a judgment sustaining the validity of an assignment of an undivided interest in an oil and gas lease, alleged by plaintiffs to have been assigned by their judgment debtor without consideration and with intent to- defraud creditors.
Appellants urge three particular errors: that the assignment of the lease was void under R. S. 33-101, because it was made in trust for the use of maker; that the plaintiffs had a lis pendens lien on the lease superior to the claim of the assignee; and that the judgment is not supported by the evidence.
The name of the judgment debtor was Christy. The plaintiffs held his note, and he was the original lessee in the King lease, an undivided one-fourth interest in which is here involved, a conditional option on which had been sold by Christy to Markus in a complicated drilling deal. The lease was on land in Greenwood county. In December, 1930, plaintiffs commenced an action in Sedgwick county against Christy on his note, and recovered judgment thereon February 13, 1931. Execution was immediately issued thereon and placed in the hands of the sheriff of Greenwood county, who advertised this lease for sale to satisfy the judgment. In the meantime Christy had, on January 21, 1931, after the suit was commenced but before judgment had been rendered, assigned this undivided one-fourth interest in the lease to H. R. Allen as security for his note to Allen for $850 for the purchase of an interest in an oil and gas venture in Cowley county. This assignment to Allen was not placed of record until Juñe 24, 1931. On March 6, 1931, Christy moved the district court of Sedgwick county to open up the judgment rendered against him on February 13, and let him in to defend. This was done, but the court, after being informed of the execution in the hands of the sheriff of Greenwood county, enjoined Christy from assigning or transferring the lease during the pendency of the action. On May 2, 1931, plaintiffs filed in the office of the register of deeds of Greenwood county an affidavit showing the former judgment and execution thereon and the injunction order of the district court, as a notice of lis pendens. Judgment was again rendered in the district court of Sedgwick county against Christy on the note on June 29,, 1931, and immediately thereafter execution was issued thereon to the sheriff of Greenwood county. The record at that time showed the recording of the assignment to Allen made January 21, and recorded June 24,1931.
Appellants strongly rely upon the decisions in the cases of Manley v. Larkin, 59 Kan. 528, 53 Pac. 859, and Mullinville State Bank v. Olson, 134 Kan. 497, 7 P. 2d 37, as applying the provisions of R. S. 33-101, which are as follows:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same, shall be void and of no effect.”
The former case is one where a son was indebted to the estate of his father, and when sued he confessed judgment, and because he was entitled to a one-seventh interest in the estate it was held he confessed judgment in favor of himself, and it operated as a secret trust in his own favor, and the confession of judgment under the statute above quoted was void as to existing creditors. In the Olson case, supra, the facts were quite similar. Olson assigned to one Olds his distributive share of his father’s estate under a contract which provided that the assignment was made for the purpose of securing the payment of a debt with the residue of the property to be returned to the wife of Olson to whom he owed nothing, and the court there concluded:
“An assignment by a debtor to, one of his creditors in which he reserves to himself and for his own use and benefit a portion of the assigned property amounts to a fraud on other creditors, is void, and of no effect.” (Syl. ¶! 1.)
Appellants maintain the facts in the instant case are similar to those in the two cases just cited, in that the assignment of the lease to Allen by Christy to secure a debt much smaller than the value of the lease assigned was in effect a secret reservation to himself of all the residue after paying the Allen debt and it was void as being in fraud of other creditors. The distinction between the case at bar and the two cases cited is that fraud was found in both of those cases and none was found in this case, although it was fully and sufficiently alleged in the petition. The court found in the instant case that Christy was indebted to Allen, which was evidenced by a promissory note, and that Allen had a valid and first-mortgage lien on Christy’s interest in the lease to secure the indebtedness of Christy to him. The court also found that Allen took this lien subject to the option of Abe Markus. Under these findings, and particularly the failure of the court to find any fraud or fraudulent intent, as alleged in the petition, the case at bar does not come under the provisions of the trust statute above quoted nor the forcible application of them in the two decisions cited. Not only was it necessary under the trust statute to establish an intention on the part of the debtor to defraud his creditors, but fraud on the part of the assignee should also have been shown, which was not done in this case.
“One who in. good faith and for a valuable and sufficient consideration purchases a tract of land, will be protected in such purchase, although the grantor was in debt and intended by such sale and conveyance to hinder, delay, and defraud his creditors.” (Farlin v. Sook, 30 Kan. 401, syl. ¶ 2, 1 Pac. 123.)
The fact that the value of the interest assigned amounted to more than the debt secured thereby, which would naturally leave a residue for the assignor, does not in and of itself make the assignment fraudulent, but it is in harmony with the usual and general rule in securing obligations. Neither does the fact alone that there is or will be such residue make such assignment a gift or conveyance in trust for the assignor as mentioned in the statute above quoted.
As to the feature of lis pendens and the failure of Allen to record the assignment of the lease to him until five days before the final judgment was rendered and execution issued against the lease, it should be noted that both parties recognize that an assignment of an interest in an oil and gas lease is governed by the recording acts relating to real property (R. S. 67-221 and 67-223), as was held in Derby Oil Co. v. Bell, 134 Kan. 489, 7 P. 2d 39:
“An ordinary oil and gas lease is a conveyance of such an interest in real property as to come within the provisions of R. S. 67-221 and 67-223.” (Syl. If 2.)
The provisions of the recording act just cited determine the rights of the parties here involved rather than the provisions of the lis pendens statute, R. S. 60-2601 and 60-2602, for it has regularly been held that a judgment creditor is not a purchaser for a valuable consideration, as he must be to avail himself of the benefits of the provisions of the recording act above cited.
“R. S. 67-223 is for the protection of a purchaser of real property for a valuable consideration without actual notice of an outstanding unrecorded conveyance.” (Edwards v. Myers, 127 Kan. 221, syl. ¶ 1, 273 Pac. 468.)
In the case of Fitzgerald v. Fitzgerald, 97 Kan. 408, 155 Pac. 791, it was said:
“Judgments are liens on the real estate of the judgment debtors. (Civ. Code, § 416.) Judgment lien holders are not purchasers. Their liens are upon the lands and tenements of their debtors, and not upon lands not in fact belonging to their debtors. (Swarts and Others v. Stees and Bryan & Hard-castle, 2 Kan. 236, 241.) They are never considered bona fide purchasers, even if purchasers at all.” (p. 412.)
“While our own statute (Gen. Stat. 1915, § 2070) provides that an unrecorded deed shall be valid only between the parties or such as have actual notice thereof, it may doubtless be safely said that such an instrument is to be given full force except as against the claims of innocent purchasers for value, or persons having equities of substantially equal strength. Thus, a creditor of the holder of the apparent title to land can take no benefit from the failure of the real owner to record his deed.” (Nuckles v. Tallman, 106 Kan. 264, 266, 187 Pac. 654.)
The finding of the trial court in favor of the validity of the indebtedness due Allen from Christy on his note, to secure which the assignment of this lease was made January 21, 1931, makes Allen entitled to a lien for a valuable consideration, viz., the sale of an interest in the Cowley county well, and he did not have to record his assignment to protect himself against the claims of a judgment creditor obtaining his judgment in another county and transferring it to the county of the lease after the recording of the assignment. The verified statement as to a judgment obtained and later set aside and injunction granted against an assignment, filed with the register of deeds in the county where the land was located on which the lease was executed, might bind other creditors or give a priority between them but could not affect the rights of the assignee of the lease for value executed prior to the filing of any such lis pendens notice.
Appellants cite and rely strongly upon the forceful language in the decision of the case of Smith v. Worster, 59 Kan. 640, 54 Pac. 676, where the grantee of an unrecorded deed to real estate, sold him subject to a prior mortgage, had actual knowledge of the pend-ency of the foreclosure proceedings and had never been in possession of the land, was held, in an action to quiet title, to be a purchaser pendente lite, the action being between him and the purchaser at the sheriff’s sale. But toward the close of the opinion the following distinction was plainly made between cases where purchasers are mortgagees for value, as all parties were in that case, and where some of the parties involved were judgment creditors.
“The decision in the case was rested upon the further ground that a mere judgment creditor is not a bona fide purchaser and parts with nothing to acquire his lien, as does a purchaser for value; and, as a further ground of distinction, not adverted to in the case because not necessary to the decision, it may be remarked that a case in which a general judgment only, and not a specific lien is sought, is not a Us pendens as to third parties. No one not a party to such case can be charged with notice of it until the judgment is obtained, and inasmuch as the statute rests the lien of such judgment only upon actual and not apparent interests, the judgment itself does not become Us pendens as to the actual owner of the land. If in such case a sale were made with the conveyance or mortgage still unrecorded, the purchaser would acquire the land to the exclusion of the real owner, not because the suit, or judgment, or levy, or sale, or all of them together, constituted a lis pendens as to the grantee or mortgagee of the unrecorded instrument, but he would acquire it as he might do by voluntary conveyance from the owner of the apparent title, that is, because he would buy in ignorance of the real ownership of the land.” (p. 646.)
Appellants contend that the evidence was insufficient to support the findings of the trial court as contained in the journal entry, urging particularly the misleading and incorrect statements of opposing parties to the court when the injunction in the Sedgwick county case was issued, and the failure to prove the fact of the acknowledgment of the assignment by the assignor before a notary. Any misstatements made to the court with reference to the assignment of the lease, when the injunction was granted, are to be regretted, but the ultimate merits of the case are not affected thereby since the injunction was ineffectual, and the evidence as to the execution of the assignment could very easily have been understood as including or not including the acknowledgment of the assignment of the lease in connection with the signing of it if the matter had been pursued further in cross-examination to develop such omission, if any. However, the main question raised by the pleadings concerning the acknowledgment of the assignment was the date of such acknowledgment, and the evidence plainly shows the date.
We find no error in the findings of the trial court nor in the judgment as rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The controversy involved in this proceeding is-the proper distribution of the proceeds of two industrial insurance. policies among several claimants. The policies-were taken out on the life of Rose Soptich in the Prudential Insurance Company. After her death Mary Bojczulc and Anna Mehring, both sisters of the insured, claimed an interest in the insurance. They brought this action, claiming the insurance because of their relationship to the insured and also because of the care they had given her in her last illness. John Skradski, who was named as a defendant, also claimed an interest in the insurance because of the payment of the premiums on the policies. The plaintiffs and Skradski had arranged with John Stine, an undertaker; to furnish what was necessary for the funeral and burial of Rose Soptich, which was provided by him at a cost of $501. Of this expense the sum of $151 had been paid by Skradski, leaving $350 still due to Stine. The Prudential Insurance Company intervened in the case, admitting the existence of the policies and the death of the insured, and offered to pay the amount due on the policies into court, which was done, and asking the court to direct a proper distribution of the proceeds of the policies after all claimants had been brought into court and their claims determined.
Skradski demurred to plaintiff’s petition upon the ground that plaintiffs did not allege a right of recovery in plaintiffs, and this demurrer was sustained; but it appears that he did not procure an entry of the order, but submitted the cause on an answer he subsequently filed. After this demurrer had been sustained the plaintiffs went out of the case and did not appear to present any claims at the trial. Skradski did challenge the jurisdiction of the court to determine the questions involved, but this challenge was overruled, whereupon he filed the answer mentioned, upon which the case was tried. An order of distribution was made from which Skradski appeals.
The policies contained what is known as a “facility of payment clause.” No beneficiary was designated in the policies, and it was stipulated that the insurance company could exercise an option to pay the policy to anyone appearing to be entitled to the same. This class of insurance has for its principal object providing a fund with which the insured might procure in his last sickness needed aid by way of medical attention and nursing, and secure for him a decent burial. Skradski was only a remote cousin of the insured and was not shown to have any special claim beyond that of the payment of premiums and the payment he made to the undertaker. It is con tended that he had no claim on the fund by reason of the voluntary payment of premiums and burial expenses. The order of the court was that $1,052, which had been deposited with the clerk by the insurance company, should be distributed by paying Skradski the amount expended by him for the premiums he had paid and the funeral expenses which he had paid to John Stine; that Stine be paid out of the fund the $350 yet due him for funeral and burial expenses; that the balance, $437.64, should be paid to Mary Bojczuk, who had later been appointed administratrix of the estate of the insured; that the Prudential Insurance Company should be discharged from any liability for claims under the policies; and that the administratrix should pay the costs of the action out of the fund adjudged to her.
No inequity is apparent in the distribution made by the court. In his appeal Skradski contends that it was exclusively a case for the probate court; but there were equitable considerations involved in the controversy which required the aid of equity. In Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642, it was said:
“The probate court has no jurisdiction, to try the title and finally determine the ownership of such securities so claimed by the executor himself and by another person not a party to the proceeding. Such adverse claims can only de determined in a court of competent jurisdiction.” (Syl. ff 2.)
He further contends that the evidence did not warrant the findings and judgment, and that there was error in denying his motion for a new trial. The industrial policies, as we have seen, contain the “facility of payment” clause, and the insurance company had the right to pay the insurance to anyone appearing to be entitled to it. In Wilson v. Insurance Co., 110 Kan. 232, 203 Pac. 916, it was said of a similar policy:
“All the company contracted to do in case of the insured’s death was to pay the amount to the beneficiary named or to the executor or administrator or to any person appearing to the company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured or for his burial. It was also a very plain part of the contract that the production of a receipt signed by any one of such named persons should be conclusive evidence that all claims under the policy had been satisfied. It was not a contract to pay to the person who had provided for medical and funeral expenses. It was not even one to pay to the person actually entitled to it, but simply an agreement to pay to anyone appearing to the company to be equitably entitled by reason of having incurred expenses on behalf of the insured or for his burial.” (p. 235.)
See, also, Lewis v. Metropolitan Life Ins. Co., 178 Mass. 52; Pettit v. Prudential Ins. Co. of America, 231 Mass. 394; Prudential Insurance Co. of America v. Godfrey, 75 N. J. Eq., 484; Metropolitan Life Ins. Co. v. Chappell, 151 Tenn. 299.
The insurance company did not elect to pay the insurance to Skradski. Perhaps it might have done so because of his payments of premiums and part of the burial expenses, but it did not, nor did it waive its right to exercise the right given in the policy. Skradski was not named as a beneficiary and had no insurable interest in the life of Rose Soptich and no contract relation with her or the insurance company. The court, we think, dealt justly and liberally with him when it allowed him the amount he had paid towards the premiums and also what he had contributed to the funeral and burial expenses incurred.
Other objections of a procedural nature have been advanced by appellant, but we discover nothing of merit in them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Thomas M. Smith brought this action to specifically enforce a contract alleged to have been made with John Houston, that the latter would will to plaintiff all of his property in consideration that Smith should look after and care for Houston the remainder of his life. In the action L. H. Marshall, J. P. Marshall and Samuel T. Marshall, nephews of John Houston, were named as defendants. A trial of the action resulted in favor of the plaintiff, and defendants appeal.
The allegations and claim of plaintiff are that in 1915 the wife of John Houston died and that there were no children in the family. In 1916, when Houston was about seventy-five years of age, he entered into a contract with Thomas M. Smith to devise to him all of the property owned by Houston at his death in consideration that Smith would care for Houston and be a home companion to him the remainder of his life. Houston, it was further alleged, was taken to the home of Smith and was there cared for, entertained, nursed through periods of sickness, until the death of Houston in 1931, a period of about fifteen years; that Smith fully performed his part of the contract, and to do so had given up other avocations and activities and had done all the things contemplated by the parties in the agreement made in 1916.
The defendants, who were found to be the only surviving heirs of Houston, filed a general denial and are insisting that the evidence produced does not support the judgment, and that the special findings are inconsistent with the judgment rendered.
A reading of the evidence leaves no doubt that the contract alleged was made, and its existence was afterwards recognized and confirmed by Houston from time to time during the fifteen years that he was cared for by plaintiff. It appears that Houston was about seventy-five years of age, living alone, when the contract was made. Smith cared for him in the Houston home from the fall of 1916 to the spring of 1917, and then took him to the Smith home where he was kept until his death in 1931. There was no disagreement between them as to the care given to Houston throughout the period. In the later years of Houston’s life he was very feeble, almost blind, and at times was delirious. Smith bathed and dressed him, read to him, played his favorite games with him and gave him needed care. The court found upon the evidence—
“That the plaintiff Smith has fully performed the covenants and conditions on his part required to be performed; that since the making of said contract said Smith has cared for the said Houston; has since the year 1917 provided the said Houston a home in said Smith’s residence in Geuda Springs; has been the constant companion during the years of the lifetime of the said Houston since the making of said contract; has entertained the said Houston at his favorite pastime of cribbage; has nursed and cared for him during his periods of sickness and has refrained from other vocations in order to provide the care and companionship as stipulated by agreement of the parties, and has in all respects done those things contemplated by the parties to be performed by the said Smith.”
This finding, we think, is well sustained by the evidence and we have no hesitation in holding that the findings support the judgment.
It is true the contract was oral, and defendants contend that it was not definite enough in its conditions to be enforceable. While it was not elaborate, it did specify what was to be done by Smith and the consideration he was to receive for the service. The contract was simple and easily understood. It was made by parties competent to contract. There is no question as to its mutuality. It is sufficiently definite as to purpose and subject matter, we think, to be open to proof and, if proven, to warrant a court in adjudging a specific performance. It has been said of a similar contract that — ■
“When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts.” (Anderson v. Anderson, 75 Kan. 117, 123, 88 Pac. 743.)
While the contract was oral, it was fully performed by Smith. Such a contract, if sufficiently definite, if well established, fully performed, not in conflict with the statute of frauds and free from inequity, may be specifically enforced. The performance was shown to have been full and faithful, and the situation and circumstances show that there would be no inequity in specific performance. In Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, it was held that:
“Where a man and his wife, who have no children, orally agree that in consideration of a young girl’s becoming a member of their family and giving to them love, obedience and service they will rear and treat her as .their own child and at their death leave her all of their property, and there is full and faithful performance of the agreement by the girl, such agreement will be enforced by a court of equity, providing there are no circumstances or conditions which would render enforcement inequitable.” (Syl. If 1.)
In Nordboe v. Frye, 107 Kan. 291,191 Pac. 282, is was ruled that:
“The evidence is held sufficient to justify findings that when the plaintiff was 14 years of age a contract was made between him and his mother on the one hand and the decedent whose estate is in controversy on the other, that at the death of the latter the plaintiff was to have all of the property he left, in consideration of remaining with him and working for him until the plaintiff should become of age, and that the plaintiff had carried out the agreement on his part.” (Syl. ¶ 2.)
And it was further held—
“That enforcement of the contract referred to should not be refused either on the ground of inequity or because of the statute of frauds.” (Syl. f 3.)
Objections to rulings on the admission of evidence are suggested but not argued, and are held to be without merit as grounds of reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a bank as chattel mortgagee to recover for conversion of wheat by Mike Peters. Judgment was rendered for plaintiff. Then judgment was rendered against the bank and in favor of Mike Peters for the cost of harvesting and threshing the wheat with a combine. The judgment included other parties whose relation to the controversy will be indicated. Both sides appeal.
Alfonzo .Peters rented the Gering farm, paid the rent, and raised wheat which was harvested in 1930. Mike Peters harvested the wheat with a combine under an arrangement which Alfonzo said included exchange of work. The harvested wheat was stored in the barn on the farm, some in the driveway and some in the haymow. Mike made no pretense of perfecting a thresherman’s lien, but in January, 1931, he hauled away enough wheat to pay for the har vesting and sold it to Ponton and Stehley, doing business as the Ponton Grain Company. Later he took some more wheat. The bank, holding a recorded chattel mortgage on the wheat to secure indebtedness of Alfonzo Peters, sued Mike Peters and Ponton and Stehley for conversion. Alfonzo was made a defendant merely to establish the bank’s lien. Alfonzo filed no answer, made no appearance in his own behalf, and attended the trial merely as a witness under subpoena.
Mike Peters and Ponton and Stehley filed a joint answer. The answer contained a general denial. Ponton and Stehley pleaded they bought the wheat in good faith and for a valuable consideration from Mike Peters, who represented the wheat belonged to him. This part of the pleading stated no defense to the bank’s action. Likewise having no defense to the action, Mike Peters pleaded with abandon. He said Alfonzo owed him approximately $2,000, but he did not relate the indebtedness in any way to the wheat business or any other business, or pray judgment against Alfonzo for anything. Mike Peters then told about harvesting the wheat under an arrangement by which he was to be paid the “going” charge for the work, and he named what he said was a reasonable charge per acre. He said he cut 150 acres and hauled part of the grain not to the barn, but to a bin on the farm rented by Alfonzo. The remainder he sold. As the wheat was cut and threshed and “desiring to preserve his lien,” he took possession of 550 to 575 bushels and placed the wheat with “the rest of the wheat which he owned and was stored in said bin.” At the time he took the wheat it was worth sixty-one cents per bushel net — the market price, sixty-five cents, less the hauling charge, four cents. He said that at that figure he, “the defendant Mike Peters received $350.75 upon his thresherman’s lien.” The answer was discreetly silent with respect to how Mike got a lien. The answer then told about hauling wheat to the Gering place and putting it in the loft of the barn and about the hauling away of wheat, and this part of the answer concluded as follows:
“The defendant, Mike Peters, . . . hereby admits he is indebted to his son, Alfonzo Peters, or his mortgagee, for approximately sixty-four bushels of wheat which sold for fifty-five cents less four cents hauling charge or fifty-one cents delivered or $32.64.
“The defendant, Mike Peters, specifically denies that he is indebted to his son, Alfonzo Peters, or his mortgagee in any sum greater than above tendered.”
The answer then said the mortgage securing the indebtedness claimed by the bank against Alfonzo Peters covered personal propr erty greatly in excess of the indebtedness, and said Mike Peters believed the action was in pursuance of a conspiracy between the bank and Alfonzo to defraud Mike out of the amount “paid to him” for threshing the wheat. The prayer of the answer follows:
“Wherefore, the answering defendants pray that they go without day and for their costs, except for the $32.64, which is admitted to be due, and for their costs.”
A jury was called, wheat prices were agreed to, and the trial commenced with the following announcement by the court:
“I suppose the only thing for the jury to determine is the amount of wheat in controversy, and the other is just a question of whether there is a lien or not, and the priority of it, what liens there are and which liens are prior.”
The jury believed the testimony of Alfonzo Peters and returned the following findings of fact:
“How much wheat, raised on the Gering place in 1930, was stored on said place at harvest time: (a) In the hay mow? Four hundred thirty-seven bushels. (b) In the driveway? Six hundred seventy-five bushels.”
At the conclusion of the trial the court rendered the following judgment:
“And the court, after listening to the arguments of the respective attorneys, rendered and entered a judgment herein for plaintiff against the defendants, Harry Ponton and C. W. Stehley, for the sum of $351 with interest at 6 per cent from Feb. 1, 1931, and for costs. To which judgment the said defendants, Harry Ponton and C. W. Stehley, duly objected, and the court further rendered and entered a judgment for plaintiff against Mike Peters for the sum of $27.82 with interest at 6 per cent and costs . . .”
On the same day the court on its own motion set aside the judgment for plaintiff against Mike Peters and rendered judgment for Mike Peters against plaintiff for $360 with interest at 6 per cent and costs. The next day the court set aside the judgment last referred to and finally rendered the following judgment:
“1. A judgment for plaintiff against Mike Peters, Harry Ponton and C. W. Stehley for the sum of $351 with interest at 6 per cent from February 1, 1931, and costs.
“2. A judgment for plaintiff against Mike Peters for $36.93 with interest at 6 per cent and costs.
“3. And a judgment for Mike Peters against Alfonzo Peters and against the plaintiff for the sum of $360 for combining and delivering the mortgaged wheat to market mentioned in this action.”
The first part of the judgment was necessarily based on an implied general finding for plaintiff, which in turn was necessitated by the evidence. The second part of the judgment was based on the admission made in Mike Peters’ answer.
The third paragraph of the judgment, so far as it gave judgment in favor of Mike Peters against the bank, was contrary to the established law of this state. Mike Peters had no contract with the bank to cut and thresh the wheat with his combine. He testified he did not know the bank had a mortgage on the wheat, and in the absence of contract the bank was under no obligation to pay him for cutting or threshing or marketing the wheat. (Bank v. Equity Exchange, 113 Kan. 696, 216 Pac. 278.)
The portion of the third paragraph of the judgment which gave Mike Peters judgment against Alfonzo Peters for combining and delivering the wheat was unwarranted.
As indicated, Mike Peters put in his answer a claim, irrelevant to the subject matter of the litigation, that Alfonzo owed Mike $2,000. The claim was abandoned in the prayer of the answer, and the judgment finally rendered had nothing to do with that indebtedness. Mike asserted in his answer he had been paid for combining the wheat, and there was nothing in the answer to apprise Alfonzo Alfonzo was being sued for the price of harvesting the wheat.
The court has read the transcript of 150 pages, and there was nothing in the proceedings at the trial to apprise Alfonzo he was sued for the price of harvesting the wheat. It will be recalled the wheat involved was harvested in the summer of 1930. The bank’s first witness at the trial was Alfonzo Peters. When counsel for Mike Peters commenced the cross-examination, the following occurred :
“By Mr. Noah: Q. Who paid the rent on the Gering place for 1927?
“Mr. Jordan: We object as immaterial. (No ruling.)
“A. Dad did; he took everything.
“Q. Yes, and who in 1928? A. He paid part of it.
“Mr. Jordan: We object as immaterial.” (No ruling.)
Beginning in this illegitimate way at the outset of the trial, the evidence was finally extended to show that Mike and Alfonzo each made claims and counterclaims against the other growing out of farming operations during a period of years. Counsel for Mike Peters finally offered some evidence bearing on the question, as counsel stated it, of “who was indebted to who and how much.” The court said each had claims against the other and the only purpose for which the evidence was admissible was to show interest and affect credibility of the witness, and the question of who was indebted to whom and how much never was tried. The evidence which got in was not such that the court could make an accounting to determine who was indebted to whom and how much, and the judgment in favor of Mike against Alfonzo for a single item of a harvest bill was as lacking in justification as the judgment against the bank for the same harvest bill.
The judgments in the first.and second paragraphs of the court’s final judgment are affirmed. The judgment in the third paragraph is reversed, and the cause is remanded to the district court with direction to strike out that paragraph. | [
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The opinion of the court was delivered by
Smith, J.:
In this case the defendant was convicted of murder in the second degree, and appeals.
The defendant shot and killed Ernest Penny. He made the plea of self-defense. He was living in Atchison with a woman who was not his wife, but whom he married some time between the killing and the trial. On the day of the homicide the deceased with two other men came to the home of defendant. Their story was that they came there to buy a drink. One of them testified that he had bought liquor there in the past. Defendant denied this.
At the time the three men came to the home of the defendant there were present defendant, the woman with whom he was living and another colored woman named Mrs. Waterhouse.
The story of one of the survivors was that when he came into the kitchen some buttons in the front of his pants were unbuttoned. His story of the tragedy is that Mrs. Waterhouse made the remark, “You must be advertising,” and that one of the men said, “You have a right to.” His story is that he then said he had to “go out and take a leak”; that while he was outside he heard loud voices and when he came into the room Ryan was in the corner near a chest of drawers. When the witness came into the room the witness took hold of deceased and said, “Let’s go.” Deceased shoved the witness away and he fell. Deceased then put his hand in his pocket, and defendant then said to him, “Take your hand out of your pocket.” The witness stated that deceased took his hand out of his pocket and opened it up and that then defendant reached into the chest of drawers, got a gun and shot deceased three times. That is the story as told by the white witnesses.
The story told by the colored witnesses was somewhat different. The colored woman with whom defendant was living testified that when the three men came in the door, one of them made an indecent proposal to her; that one of them dropped his pants to the floor exposing his private parts; that Ryan objected to such actions in his house and shortly after this incident defendant left the room. She further testified that while defendant was out of the room the men kept after her and that Ryan called to them to come out. Her story agreed with the story of the white witnesses — that one of the witnesses took hold of the deceased, attempted to get him to leave and was shoved away and pushed down just before the shooting occurred. According’, to her story deceased was walking toward defendant saying, “If you are talking to me I will see about it damned quick.” Just at this time the shots were fired. The story of all. the colored witnesses substantially agreed with this.
After the shooting defendant fled and went to Kansas City. He testified that he did this because he was afraid of mob violence. He was arrested about three months later in Leavenworth and brought back to Atchison for trial. He was at first held in the city jail, and while there he made a statement to the county attorney. The statement was about the same as the story told by the colored witnesses. It was testified to by the county attorney at the trial.
Several errors are argued by defendant. The court gave the following instruction to the jury:
■ “Evidence .has been offered in this case tending to show flight by the defendant from the state of Kansas to - the state of Missouri, at and immediately after the time of the crime charged against him in this case. If you find from the evidence that the defendant did immediately after the killing flee to a distant section of the country, and that such flight was induced by the killing and the belief on the part of the defendant that he would be charged with the killing in a criminal case, then this circumstance may be considered by you in connection with all the other evidence in the case to aid you in determining the question of his guilt or innocence.”
Defendant argues that this instruction was erroneous because it did not further instruct the jury that if it was found from the evidence that the flight, if there was any, was induced by fear of mob violence, that such action should have no detrimental effect upon the defendant’s presumed innocence when considering the question of his guilt or innocence.
The answer of the state to this argument is that such an instruction was not requested by. defendant. It is argued that the failure of the court to give a particular instruction is not error when the failure is not called to the attention of the trial court till after the verdict. This is the general rule, but where the court on its own-motion gives an instruction on a particular phase of the case it is error if the instruction does not as fully cover that phase as the evidence warrants. The instructions in a criminal case are given by the court pursuant to R. S. 62-1447, which is, in part, as follows:
“The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause. In. charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict.”
In the case of State v. Winters, 81 Kan. 414, 105 Pac. 516, this court said, in speaking of an argument that a certain instruction was not requested:
“From all the decisions noted it may be concluded that the statute means what it says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request suffi dent to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the' evidence itself may point so plainly to the necessity for such instructions that no request- is necessary.” (p. 421.)
This decision was followed in State v. Curtis, 93 Kan. 743, 145 Pac. 858, where the court, after quoting the language just given from State v. Winters, said:
“A request for instructions upon the lesser degrees, which the court by this instruction held not applicable, would only direct attention again to a matter considered and acted upon. There was no ambush.” (p. 752.)
In State v. Fairlamb, 121 Mo. 137, the court said:
“It is not every going away from the place of the homicide that raises the presumption of the guilt of the accused, and when the facts tend to show that the purpose of going away was not to avoid arrest, the instruction should be so framed as to include all the circumstances, that the. defendant may have the benefit of such explanatory facts.” (p. 148.)
This opinion is the basis for the rule laid down in 16 C. J. 985. In this case all the circumstances surrounding the homicide, like the-flight of the defendant and the testimony of defendant, together with his statement, make it imperative that besides the instruction which called the attention of the jury to the flight of defendant there should have been one which called attention to the claim of defendant that he fled to escape mob violence.
Another error of which complaint is made is with reference to the selection of the jury. The journal entry recites that during the process of impaneling the jury there were not enough jurors present to form a panel and both parties agreed that the court might make a list of persons having the qualifications of jurors and order the sheriff to summon these persons as jurors. The journal entry then recites that a jury was impaneled to try the case. At the hearing of the motion for a new trial defendant introduced an affidavit that in fact the sheriff picked the list of jurors and that the names of the father and father-in-law of the sheriff were included in the list of jurors. The affidavit of defendant stated that he and his counsel were ignorant of this relationship and did not learn of it until the trial had been proceeded with, when it was discovered by them. The affidavit stated that defendant did not ask for the discharge of the jury but “left it to the court.” In the affidavit and the oral argument it was urged that this was ground for a new trial. It would seem that the ordinary practice would be for counsel for the de fense to inquire of a prospective juror about his relationship with people interested in the outcome of the case. Evidently that was not done in this case. On the other hand, it would seem in a county as populous as Atchison enough people could be found to make a jury without calling relatives of court officers. By itself this would not be sufficient to warrant a reversal, in view of the fact defendant did not raise the point till the hearing of the motion for a new trial. It is a practice, however, of which this court cannot approve.
Another matter urged by defendant is the difficulty which his counsel encountered in talking to him in company with the wife of defendant. At the hearing of the motion for a new trial an affidavit of defendant was introduced in which he swore that he was not permitted to see counsel, except with a police officer present, until a few days before the trial. From what has been said' by counsel for both sides it appears that hardly sufficient opportunity was given defendant and his wife to consult with counsel. It is a well-settled rule that one accused of crime and confined in jail awaiting trial must be accorded every opportunity to prepare his defense compatible with his safe-keeping. This court is not able to say that such opportunity was given defendant in this case.
Another matter brought to our attention in this case is the fact that the county attorney testified as to the statement defendant made to him and continued to act as counsel for the state. This statement was an important part of the state’s case and had a marked bearing on the question of the plea of self-defense. It tended to contradict in some particulars the evidence of defendant as given from the stand. There is danger that a jury will attach more importance to the testimony of a lawyer in a case than to an ordinary witness. The better practice would have been for the county attorney to have stepped out of the case when it became necessary for him to testify. (See Canons of Professional Ethics No. 19,135 Kan., p. iii.)
The judgment of the district court is reversed with directions to grant defendant a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a fire insurance policy. Judgment was for plaintiff in the amount of $75. Plaintiff appeals and argues that the judgment should have been for the full amount of the policy.
Plaintiff was the owner of a frame bam located within the fire limits of Topeka. It was insured for $400 in defendant company. One night the barn caught fire. It was partially destroyed. The next day the fire marshal sent plaintiff the following letter:
“Upon a recent inspection of the old barn at the rear of 607 N. Kansas avenue of which you are the owner:
“We find that the fire which occurred last night and the dilapidated condition of the building previous to the fire, has caused this building to become dangerous and unsafe.
“You are hereby notified that this building must be taken down and removed from the premises, without delay.
“Kindly give this your immediate attention.”
This action is' to recover for the full amount of the policy under the valued policy law, which is R. S. 1931 Supp. 40-905, and is as follows:
“Whenever any policy of insurance shall be written to- insure any improvements upon real property in this state against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages, and the payment of money as a premium for insurance shall be prima facie evidence that the party paying such insurance is the owner of the property insured: Provided, That any insurance company may set up fraud in obtaining thq policy as a defense to a suit thereon.”
The authority under which the fire marshal acted when he sent the letter in question is an ordinance of the city of Topeka. In part this ordinance is as follows:
“Sec. 102. Dangerous Structures. Section 13. Every building or part thereof (which) shall appear to the department to be especially dangerous by reason of bad condition of walls, over-loaded floors, defective construction and lack of guards against fire, or other causes, shall be held to be unsafe; and the building inspector, and his assistant, or any employee of the department shall immediately notify the owner or lessee to cause the same to be repaired, and shall also affix a notice of the dangerous character of the structure in a conspicuous place on the exterior wall of such buildings, and no person shall remove or deface such notice so affixed. The department may order that no person shall be permitted to enter, occupy or use such building until the same shall have been made safe, and may post such order in a conspicuous place on the exterior wall of such building, and thereafter until such building shall have been made safe, no person shall enter, occupy or use same, except for the purpose of repairing and making the same safe. The owner or party having an interest in such unsafe building or structure, upon being notified thereof in writing by the inspector, shall immediately cause the same to be made safe and secure; and if such building or part thereof shall be used for any purpose requiring a license therefor, the mayor may revoke said license in case of failure to comply with the notice served as herein provided. When the public safety requires immediate action, the inspector, or any employee of the department, may enter upon the premises with such assistance as may be nécessary, and cause the said structure to be made secure or taken, down without delay at the expense of such owner or party interested.”
The theory upon which plaintiff based his right to recovery was the rule announced in many cases that where a building is insured for a certain amount and is so damaged by fire that the municipal authorities cause it to be removed or demolished, the owner can recover on his policy the same as though the building had been completely destroyed by fire.
The answer of defendant to this is, briefly, that in this instance the building was not so damaged that it could not be repaired and that the letter from the fire marshal, upon which plaintiff relies, was solicited by plaintiff.
There is a conflict in the evidence on the latter point. The plaintiff testified that he asked the fire, marshal for permission to repair the building, while the fire marshal testified that plaintiff asked permission to rebuild the building.
For the purpose of this review these questions were settled by the jury in the answers to special questions, as follows:
“1. Could the fire damage have been repaired and' the building made secure in a manner which would have received the approval of the fire marshal? A. Yes.
“2. If you answer question 1 in the affirmative, then what would have been the cost of repairing and replacing the burned portions of the building, using material of like kind and quality, in order to make said building secure? A. Seventy-five dollars (175).
“3. Did the plaintiff make any objection to tearing down or removing the building in question? A. No.
“4. Did the plaintiff acquiesce in or consent to the order of the fire marshal that said building should be removed? A. Yes.
“5. Did the plaintiff invite or solicit the letter written to him by the fire marshal under date of April 15, 1931? A, Yes.
“6. Was any agent or representative of the defendant present at the time the order of the fire marshal was under consideration or given opportunity to be heard, or notice of the issuance of the order, prior to the making of the same? A. No.
“7. Did Mr. Jacob Kotlarsky ask the fire marshal on the 15th of April, 1931, for a permit to repair the burned building? A. No.
“8. Was the condition of the burned building, at the time the policy was .issued, approximately the same as it was immediately before the fire? A. Yes.
“9. Has the plaintiff in this case been guilty of any fraud or bad faith in connection with any phases or transaction in connection with the loss in question? A. No.
“10. If you answer the foregoing question in the affirmative, then state in detail what the same consisted of. A.-.
“11. Did the fire marshal use good faith in issuing the order of April 15, and on his own judgment? A. Yes.
“12. Was the order of April 15 by the fire marshal made upon the information gained by his personal inspection or otherwise? State what he acted on. A. Information and inspection.
“13. Was the building so burned as to be beyond repairing? A. No.”
The first error urged by plaintiff is that the trial court should not have permitted the fire marshal to testify to anything that varied or contradicted his letter written to plaintiff. In this connection he points out that the letter was written after an independent investigation by the marshal. We have seen the letter. The testimony of which complaint is made was that plaintiff asked the witness not for permission to repair, but to rebuild, and that in the opinion of the fire marshal the building could have been repaired for about $50 and the reason the letter was written was' that plaintiff did not ask to repair the building. It is urged that this evidence tended to contradict and vary the terms of a written instrument and was not admissible. The point is not good. In order for the rule against the use of parol evidence to vary the terms of a written instrument to apply the written instrument must be contractual in its nature. See 22 C. J. 1142, where it is said:
“A writing which does not vest, pass,-nor extinguish any right either by contract, operation of law, -or otherwise, but is used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts.”
The written instrument under discussion was not contractual in its nature, but was merely evidence of the action of the fire marshal. It did not operate to vest or pass any property right.
Plaintiff next urges that he should have judgment for the full amount of the policy on account of the answers to questions 7, 8, 9, 10, 11 and 12. We have seen what these answers were. All the answers must be considered together. When we so consider these findings, in order to sustain the argument of plaintiff this court would have to say that when a building is damaged by fire but can be repaired and made secure by the expenditure of $75 in a manner of which the fire marshal would approve; when the owner 'consents- to- and solicits an order of the fire marshal to tear the building down; when no representative of the insurance company carrying the risk is permitted to be heard on the matter of the issuance of the order; when the owner of the building does not ask permission to repair it; when the condition of the building is the same at the time of the fire as it was at the time the policy was issued; when the owner of the building is guilty of no bad faith; when the fire marshal uses good faith in the issuance of the order and the order is made upon his personal investigation, and the building is not so burned as to be beyond repair, the owner of the building could proceed to demolish it and recover the full amount of the policy.
In considering the above proposition we should also consider the fact that the fire marshal included in his order a statement that the order was issued partly on account of “the dilapidated condition of the building previous to the fire.” Such a statement of the case makes it plain that the thing which caused the removal and destruction of the barn was not the fire, against which defendant had insured plaintiff, but its dilapidated condition which the jury found had been the case for some time previous to the fire and the apparent desire of plaintiff to tear the barn down for some purpose unknown to us, but not an unlikely situation in view of its condition.
The plaintiff cites many authorities which hold that the insurance companies are liable in the full amount of the policy where the building in question was partially destroyed by fire and municipal authorities ordered its destruction. • None of them, however, goes so far as to hold the company liable for the full amount where the building could have been repaired by the expenditure of a small percentage of the amount of the policy and the municipal authorities would have permitted such repair and the order to destroy was solicited by the owner.
Under the provision of the policy where the loss was not a total loss, and where the building could be repaired, as in the present case, the liability of the insurance company is limited to the amount it would have cost to repair the building. See 26 C. J. 353, where it is said:
“And where a statute or the policy limits the amount of recovery to the cost of restoring or replacing the property the measure is not the cash or market value of the damage or loss, but the cost of such restoration or replacement.”
In this case the fire marshal testified and the jury found that the building could have been repaired to the satisfaction of the fire marshal at a cost of $75. This was the amount for which the court gave judgment.
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The opinion of the court was delivered by
Larson, J.:
This is an appeal from the district court’s ruling upholding a decision of the Kansas Dental Board wherein Robert E. Lacy, D.D.S., was found to have violated K.S.A. 65-1435(c) and K.S.A. 65-1436(a)(l) and (13) and ordered suspended from the practice of dentistry for a period of 30 days. Issues of statutory construction, existence of substantial competent evidence, and claimed violations of due process rights are raised. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion).
Procedural summary
Dr. Lacy was the subject of a disciplinary action by the Kansas Dental Board (Board) based on claims of false or misleading information placed on claim forms submitted to Delta Dental Insurance and allegations that Dr. Lacy conducted a dental office in Wichita without being present a majority of the hours that it was open. The Board affirmed the decision of the administrative law judge (ALJ) finding Dr. Lacy violated both statutes. The decision was appealed to die district court, which affirmed the Board’s decision. It is from the district court’s decision diat Dr. Lacy appeals to us.
Findings of the ALJ and additional facts
The ALJ made findings of fact numbered 1 through 20:
“1. The respondent, Dr. Robert E. Lacy, is a licensed dentist in the state of Kansas. Dr. Lacy has been practicing in the state of Kansas since 1962.
“2. The Kansas Dental Board is vested with authority to discipline its licensees.
“3. Dr. Lacy’s primary dental practice is located in Topeka, Kansas. However, Dr. Lacy has also operated dental offices in Oswego, Kansas; Fredonia, Kansas; and in Wichita, Kansas.
“4. Regarding the Wichita dental office, Dr. Lacy acquired this office in June 1995, and operated the office through March 1996.
“5. Dr. Lacy did not personally perform any dental services in the Wichita office. Dr. Lacy hired Dr. James Murphy to perform dental services in the Wichita office.
“6. Dr. Lacy would visit tire Wichita office approximately twice a week.
“7. Dr. Lacy’s agreement with Dr. Murphy called for Dr. Murphy to charge for Dr. Lacy’s normal operating procedures as done in Dr. Lacy’s other offices. This would include charges for periodic and emergency exams.
“8. Dr. Murphy did not make charges for services as contemplated by Dr. Lacy. Dr. Murphy did not always charge for periodic and emergency examinations.
“9. Dr. Lacy sewed as a participating dentist in tire Delta Dental Plan of Kansas, Inc., from June 1995 through December 1996.
“10. Dr. Murphy, while employed in Dr. Lacy’s Wichita office, was not a participating dentist in the Delta Dental Plan.
“11. Under dre Delta Dental Plan, a participating dentist is paid directly from Delta Dental. Non-participating dentists are not paid by Delta Dental and instead Delta Dental payments are paid direcdy to dental patients.
“12. In July 1995, officials of Delta Dental met with Dr. Lacy. During this visit, Dr. Lacy was advised that the Delta Dental claim form must be completed by the treating dentist. The treating dentist certifies that the dental procedures were completed, were necessary, and the fee charge was the usual fee to be collected. Additionally, the certifying dentist states that they intend to collect the fee unless otherwise noted.
“13. In March 1996, Dr. Lacy was concerned that Dr. Murphy was not performing according to his contractual agreement and was concerned at the loss of revenues from the Wichita office. As a result of these concerns, Dr. Lacy ended his business relationship with Dr. Murphy.
“14. Dr. Lacy’s employees began to examine the dental records contained in the Wichita office and the billings to Delta Dental done by Dr. Murphy. In reviewing these records, Dr. Lacy’s employees determined certain services were not billed. For example, the dental records indicated, in some cases, that periodic exams were not billed. In other cases, x-rays were taken and there were no billings to Delta Dental for the x-rays.
“15. As a result of Dr. Lacy’s review of the billings from the Wichita office, Dr. Lacy began to submit claims to Delta Dental, Inc., for additional fees. Dr. Lacy signed claim forms, which included the following statement:
‘I hereby certify that the procedures as indicated by date have been completed by me and were necessary in my professional judgment and the fees shown as the usual fee and fee intended to collect except where noted. I request payment in accordance with DDPK rules and regulations.’
“16. Of the billings submitted by Dr. Lacy for patients of the Wichita office, Dr. Lacy received approximately $120.00. Most of the claims submitted by Dr. Lacy were denied. The basis for the denial was that the claims were filed six months after the services were performed or that the services were not performed by Dr. Lacy, but instead were performed by Dr. Murphy.
“17. As a result of his review of the operations of the Wichita office, Dr. Lacy became convinced that Dr. Murphy embezzled funds from Dr. Lacy. Dr. Lacy sought criminal charges against Dr. Murphy and Dr. Lacy filed a claim with his insurance carrier for Dr. Murphy’s alleged malfeasance.
“18. Ultimately, Dr. Murphy and Dr. Lacy setded their disputes through litigation. Thereafter, Dr. Murphy sought relief through bankruptcy proceedings. “19. Dr. Lacy’s insurance company ultimately paid him the maximum allowable under the terms of the policy. Payment made from the insurance company to Dr. Lacy was $10,000.00.
“20. The dental records completed by Dr. Murphy in the Wichita office did not indicate that patients would be charged for the services that Dr. Lacy ultimately submitted billings to Delta Dental. Dr. Murphy would either not bill for the services or would indicate that there was no charge for the services. Dr. Lacy’s billings to Delta Dental conflicted with Dr. Murphy’s records that indicated the patients should not be charged.”
The evidence presented to the ALJ further showed that Dr. Lacy called his Wichita practice “Kansas Dental Service,” which is the same name he sometimes uses for his own practice. Kansas Dental Service is not a professional corporation. Dr. Lacy paid Dr. Murphy a salaiy and provided him a vehicle which was surrendered when Dr. Murphy was fired by Dr. Lacy near the end of March 1996.
Dr. Murphy denied he took money from Dr. Lacy and claimed the practice income declined because his advertising budget was cut by Dr. Lacy. He said that some of his patients were rebilled by Dr. Lacy after his services were terminated. He claims the Wichita police did not find him guilty of wrongdoing, and he was not subject to an investigation by the Kansas Dental Board.
Dr. Lacy testified that Dr. Murphy was required to use the same billing practices that were used at Dr. Lacy’s Topeka office, but that Dr. Murphy violated these agreements. Dr. Lacy contended he submitted the claim forms to Delta Dental Insurance to make a record of Dr. Murphy’s embezzlement scheme. Dr. Lacy testified he did not provide dental services to or see patients at the Kansas Dental Service office in Wichita.
After Dr. Murphy left in March 1996, Dr. Lacy had his employee, Angie Leprich, review the Wichita files and submit claims for which Dr. Lacy would have charged for but Dr. Murphy did not. Highly summarized, the extra claims generally involved x-rays or periodic or emergency examinations for which charges had not previously been made. According to Delta Dental’s employee, Ju~ netta Everett, approximately 80 claims were processed from the Wichita office between January 1 and June 1, 1996. The records of seven of the claims were admitted at the administrative hearing. The claims were dated in late April-1996; most were signed in the name of Dr. Lacy indicating he was the treating dentist. The signature line also stated the signor agreed to pursue collection of the fees. One of the claim forms did note that the “operating Dentist” was Dr. Murphy, but the remaining ones utilize Dr. Lacy’s name only.
Applicable Law and Conclusions ofALJ and Kansas Dental Board.
The ALJ’s decision referenced K.S.A. 74-1406, K.S.A. 65-1436(a)(1) and (16), and K.S.A. 65-1436(b) and (c). As a point of clarification, the ALJ and district court referred to subsection (a)(16). However, the statute in effect at the time of the alleged violations was K.S.A. 65-1436(a)(13). Amendments to 65-1436 in 1996, 1997, 1998, and 2001 resulted in the renumbering of the subsections so that (a)(13) is now (a)(16). See K.S.A. 2001 Supp. 65-1436(a). With the exception of the addition of language not relevant to this opinion, the two subsections are identical. Our discussion, however, will reference (a)(13). The ALJ reached the following conclusions:
“CONCLUSIONS
“1. The petitioner makes two allegations concerning the respondent’s dental practice insofar as it relates to the Wichita office. First, the petitioner alleges that Dr. Lacy has violated K.S.A. 65-1435(c) in that he failed to personally be present in the Wichita office and that he personally failed to oversee the operations of the office during the majority of the time the office was operating. Second, the petitioner alleges that Dr. Lacy’s submission of claims to Delta Dental were misleading and false and were in violation of K.S.A. 65-1436(a)(l) and (16).
“2. Turning first to the alleged violation of K.S.A. 65-1435(c), the evidence presented establishes that Dr. Lacy was not in the Wichita office during the majority of the time the office was being operated and that he did not personally oversee the operations of this office. Dr. Lacy did not perform dental services nor supervise the dental services that were performed in the Wichita office. As such, Dr. Lacy has violated K.S.A. 65-1435(c).
“3. The respondent argues that he did not ‘conduct’ a dental office, and therefore a violation of 65-1435(c) has not been established. The term conduct is not defined in the statute. However, Dr. Lacy certainly was operating the Wichita office as his facility. Dr. Lacy on two occasions in his testimony referred to Dr. Murphy as an employee. Dr. Lacy directed Dr. Murphy on how to bill and for which services he was to bill. Dr. Lacy went to the Wichita office twice a week to ‘check on the operations of the office.’
“4. Under K.S.A. 65-1435(c), Dr. Lacywas required to be personally present in the office or personally overseeing such operations during the majority of the time the Wichita office was being operated. Dr. Lacy did not do this. As such, a violation of K.S.A. 65-1435(c) has been established.
“5. The petitioner’s second violation involves multiple misleading insurance claim forms submitted to Delta Dental in violation of K.S.A. 65-1436(a)(l) and (16). It is undisputed that claim forms indicating that Dr. Lacy performed services in the Wichita office were submitted to Delta Dental. These claim forms purport that Dr. Lacy performed services for patients in the Wichita clinic and that payment was due for these services.
“6. The facts establish that Dr. Lacy did not perform any services for patients in the Wichita office. This is a misrepresentation. Further, the facts establish that the patients in many of the cases were not to be billed for the services provided. Since the patients were not to be billed, this is also a misrepresentation.
“7. Dr. Lacy argues that Delta Dental knew that he was not performing services in the Wichita office, and therefore the claims were not misleading. Whether Delta Dental knew Dr. Lacy was not practicing in Wichita or not is irrelevant. The fact is that Dr. Lacy signed a claim form certifying that services were performed by him when services were not performed by him. This was a misrepresentation by Dr. Lacy to Delta Dental and whether Delta Dental was misled or deceived is irrelevant.
“8. Dr. Lacy also argues that it was necessary to submit these claims to Delta Dental to establish that Dr. Murphy had embezzled from Dr. Lacy’s office. This argument has no merit. Whether Dr. Murphy embezzled from Dr. Lacy would not be established by submitting claims to Delta Dental. Dr. Murphy’s failure to submit claims to Delta Dental would not show Dr. Murphy embezzled from Dr. Lacy.
“9. Finally, Dr. Lacy argues that there is no evidence that he was paid on claim forms submitted to Delta Dental after the Wichita office closed, and therefore there is no violation of K.S.A. 65-1436(a)(1). This argument is also without merit. Dr. Lacy signed Delta Dental claim forms as well as other forms seeking payment from Delta Dental. In each of these signings, Dr. Lacy purports to have performed dental services for patients in the Wichita office and seeks payment for these services. This is untrue. This violates K.S.A. 65-1436(a)(l). Dr. Lacy did not perform any services for patients in the Wichita office yet he told Delta Dental he did. This is a clear misrepresentation of the facts. Turning to K.S.A. 65-1436(a)(16) this was an untrue or fraudulent misrepresentation in the practice of dentistry or on any documents connected with the practice of dentistry by knowingly submitting any misleading, deceptive, untrue or fraudulent misrepresentation on a claim form.’ Dr. Lacy’s submission cannot be said to be anything less than a deceptive, untrue, and fraudulent misrepresentation. Dr. Lacy has violated both K.S.A. 65-1436(a)(1) and K.S.A. 65-1436(a)(16).
“10. The petitioner has established by clear and convincing evidence that Dr. Lacy has violated K.S.A. 65-1436(c) and K.S.A. 65-1436(a)(l) and (16). At the request of the Kansas Dental Board, the license to practice dentistry of Dr. Robert E. Lacy is hereby suspended for a period of thirty (30) days.
“11. The thirty-day (30) suspension of Dr. Lacy’s license shall be completed within six months from the date of this Initial Order or any appeal thereof. Dr. Lacy shall advise the Kansas Dental Board and the Dental Board’s attorneys of record in writing of what thirty (30) consecutive day period in which his license will be suspended. Dr. Lacy shall select this 30-day period to allow Dr. Lacy to coordinate the suspension of his license with his practice for the continued treatment of Dr. Lacy’s patients.”
The Kansas Dental Board approved and adopted the findings and conclusions of the ALJ.
Appeal to the District Court
Dr. Lacy appealed the findings and conclusions of the ALJ and the Board to the Shawnee County District Court. He there contended, for the first time, that his due process rights were violated by the agency’s failing to hear charges against him within 90 days of the initial filing. Dr. Lacy further contended the Board erroneously interpreted K.S.A. 65-1435(c) and the finding that he operated a dental office in Wichita without being personally present in violation of K.S.A. 65-1435(c) was not supported by clear and convincing evidence.
Dr. Lacy additionally argued that the Board’s findings that he violated the provisions of K.S.A. 65-1436(a)(1) and (13) were not supported by clear and convincing evidence. He also argued the disciplinary action against him was arbitrary and capricious when measured against his employee, a licensed dentist. This last argument was not made in the appeal from the denial of his petition for judicial review by the district court, and it will not be further discussed.
The district court set forth in detail the factual allegations of the parties, which need not again be repeated. The district court concluded that its standard of review was as follows:
“Orders of the Kansas Dental Board are subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. § 77-601 et seq. ‘The burden of proving the invalidity of the agency action is on the party asserting invalidity.’ K.S.A. § 77-621(a)(1). When reviewing an agency’s decision, the findings of fact, ‘if supported by substantial competent evidence, are conclusive and may not be set aside by a reviewing court.’ Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 441, 885 P.2d 1233 (1994). The evidence of the defendant board, to justify its conclusion needs to be ‘substantial’ and ‘competent,’ and it need not rise to the level of being ‘clear and convincing’ as urged by the plaintiff. Also, on disputed issues of fact, the evidence must be reviewed in the light most favorable to the prevailing party in determining whether there is substantial competent evidence to support the findings. (Sunflower, supra, p. 441; Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992). This Court should not reweigh the evidence. (Sunflower, supra, p. 441). Additionally, when reviewing such a decision, the court is to engage in de novo review of issues of law. Citizens’ Utility Ratepayer Board v. State Corp. Comm’n, 264 Kan. 363, 410, 956 P.2d 685 (1998). However, the court should grant deference to the agency’s statutory interpretation if it is supported by a rational basis. National Council on Compensation Ins. v. Todd, 258 Kan. 535, 905 P.2d 114 (1995). On review, relief will be granted by the Court only if it determines any one of the following:
(1) The agency action, or the statute or rule and regulation on which tire agency action is based, is unconstitutional on its face or as applied;
(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
(3) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied die law;
(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by agency, that is not supported by evidence that is substantial when viewed in light of tire record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary, or capricious.
(See K.S.A. § 77-621(c)).
“An agency order is arbitrary or capricious when it is not supported by substantial evidence. Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989). ‘Substantial evidence’ is evidence possessing both relevance and substance that furnishes substantial basis of fact from which issues can reasonably be resolved. City of Wichita v. Public Employee Relations Bd., 259 Kan. 628, 913 P.2d 137 (1996).”
The district court denied Dr. Lacy’s petition for judicial review in its memorandum decision, which as to the issues raised before us is summarized as follows:
1. As to the alleged due process violation for not having a hearing within 90 days under K.S.A. 77-511(b)(2), the court held this statute applied only to applications for license or renewal and this contention was denied for lack of any compelling legal authority.
2. The wording of K.S.A. 65-1435(c) was set forth and the court’s decision pointed to that wording.
“It shall be unlawful . . . to associate together with persons licensed to practice medicine or surgery in a clinic or professional association under a name that may or may not contain the proper name of any such person or persons and may contain'the word, ‘clinic,’ unless such licensee is personally present in the office operating as a dentist or personally overseeing such operation as are performed in the office or each of the offices during a majority of the time the office or each of the offices is being operated.”
Apparently Dr. Lacy’s argument was that to violate this statute the Board would have had to find the office or clinic was in his name. The district court noted Dr. Lacy owned the Wichita office, was not there a majority of the time, and failed to oversee Dr. Murphy’s work when the office was being operated. The decision held that the “name” was secondary and while a dentist may own or have several offices, it is illegal unless he or she is personally present or personally oversees the office whenever it is operated. The district court decision further stated the obvious intent of the statute “is to prevent absentee ownership which might create a chain or franchising for the delivery of dental services.” By requiring a dentist’s personal presence, the statute eliminates absentee ownership of dental offices.
The district court found there was substantial evidence to support the Board’s finding that Dr. Lacy owned and operated the Wichita office without being present or supervising the performance of dental services as required by K.S.A. 65-1435(c). The decision held there was a rational basis for the Board’s interpretation of K.S.A. 65-1435(c).
3. As to complaints concerning K.S.A. 65-1436, the district court’s memorandum decision and order looked only to the wording of subsection (a)(1), which provides:
“ ‘(a) The Kansas dental board may . . . take any of the actions with respect to any dental . . . license as set forth in subsection (b), whenever it is established . . . that . . . any licensed dentist . . . has:
‘(1) committed fraud, deceit or misrepresentation in obtaining any license, money or other thing of value.’ ”
The district court found Dr. Lacy had represented that dental work had been done by him when it had in fact been done by Dr. Murphy without his assistance, presence, or supervision in the claims he filed for compensation with either Delta Dental or Cincinnati Insurance Company. Dr. Lacy’s acts, plans, and representations were held to be tainted with fraud, deceit, and misrepresentation. These misrepresentations were held to include the representation that he had performed dental work which he had not done and for adding services not separately billed by Dr. Murphy, all after being warned by representatives of Delta Dental not to make claims in this manner.
The district court decision held there was substantial evidence that while Dr. Lacy may not have expected payment from Delta Dental, he did from Cincinnati, and he did receive $120 from Delta. Fraud was defined as “anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence resulting in damage to another.” It was held there was substantial evidence to support the Board’s findings of fraud.
It is from the district court’s decision that Dr. Lacy now appeals to us.
Standards of Review of Decisions of Administrative Agencies
The standards of review set forth in the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., were previously stated herein from the district court’s decision. We have further said in Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999):
“As stated in Lawrence v. Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan. App. 2d 93, 102-03, 819 P.2d 138 (1991), rev. denied 250 Kan. 805 (1992):
‘The standard of review for appeals from administrative action is well-settled:
“ ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
“ ‘In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, malee the same review of the administrative tribunal’s action as does the district court.’ ” Board of Johnson County Comm’rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986) (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ ¶ 1 and 2, 436 P.2d 828 [1986]).
See DSG Corp. v. Shelor, 239 Kan. 312, 315, 720 P.2d 1039 (1986); K.S.A. 77-621.’
“The Court of Appeals added that the administrative action may be found to be invalid if the governing body erroneously interpreted or applied the law. 16 Kan. App. 2d at 103.”
Here, we have clear issues of statutory construction. We must follow the rules of statutory construction set out in GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001):
“This case involves the interpretation of a statute, which is a question of law over which our review is unlimited. Hamilton v. State Farm, Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). Our rules of statutory construction are well known and require us to interpret a statute to give the effect intended by the legislature, State ex rel. Stephan v. Kansas Racing Commn, 246 Kan. 708, 719, 792 P.2d 981 (1990), construe,the statute to avoid unreasonable results, Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983) , and read the statute to give effect, if possible, to the entire act and every part thereof. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997). Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984) .”
In addition, as the basic review in this case is from the actions of the Board, we are obligated to apply the doctrine of operative construction, which we defined in GT Kansas in this manner:
“ ‘ “The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. . . . Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts. [Citation omitted.]” ’ McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999) (quoting State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 [1991]).” ’ ” 271 Kan. at 317.
With this background of our standards of review, we move to the three issues raised by Dr. Lacy in this appeal.
Did Dr. Lacy’s owning and operating of a dental office in Wichita where he was not personally present during the majority of the time the office was open violate the provisions ofBLS.A. 65-143S(c)P
The specific language of K.S.A. 65-1435(c) is as follows:
“It shall be unlawful, and a licensee may have a license suspended or revoked, for any licensee to conduct a dental office in the name of the licensee, or to advertise the licensee’s name in connection with any dental office or offices, or to associate together for the practice of dentistry with other licensed dentists in a professional corporation, organized under the professional corporation law of Kansas, under a corporate name, established in accordance with the professional corporation law of Kansas, that may or may not contain the proper name of any such person or persons or to associate together with persons licensed to practice medicine and surgery in a clinic or professional association under a name that may or may not contain the proper name of any such person or persons and may contain the word ‘clinic,’ unless such licensee is personally present in the office operating as a dentist or personally overseeing such operations as are performed in the office or each of the offices during a majority of the time the office or each of the offices is being operated.”
We also consider the following language of subsection (d) of K.S.A. 65-1435, which reads: “Nothing in this section shall be construed to permit the franchise practice of dentistry.”
The ALJ in his conclusions of law, paragraph 3, stated that Dr. Lacy argued that he did not “conduct” a dental office. Dr. Lacy continues this argument in his appeal before us. The ALJ noted that Dr. Lacy’s operation was consistent with ownership, he referred to Dr. Murphy as an employee, he directed Dr. Murphy as to what services to bill for, and he went to Wichita to check on the operations of the office. Each of the ALJ’s conclusions is clearly supported by substantial competent evidence. In addition to the ALJ’s findings, the record reflects that Dr. Lacy controlled the advertising budget of the Wichita office, he provided a vehicle for Dr. Murphy and took it away when he terminated Dr. Murphy’s employment, he sent a Topeka employee to examine the operations of the Wichita office, and in all relevant respects, owned, controlled, and managed the Wichita practice.
When an analysis is made of K.S.A. 65-1435(c), it shows there are four categories under which a practice is conducted which re quire the presence of the licensee. We break down the operative language of 65-1435(c) in the following manner:
“It shall be lawful . . . for any licensee
“to conduct a dental office in the name of the licensee, or
“to advertise the licensee’s name in connection with any dental office or offices, or
“to associate together for the practice of dentistry with other licensed dentists in a professional corporation, organized under the professional corporation law of Kansas, under a corporate name, established in accordance with the professional corporation law of Kansas, that may or may not contain the proper name of any such person or persons, or
“to associate together with persons licensed to practice medicine and surgery in a clinic or professional association under a name that may or may not contain the proper name of such person or persons and may contain the word ‘clinic.’ ”
After setting forth tire four categories of operation of a practice, 65-1435(c) concludes with the limitation and requirement that malees it unlawful to so operate in any of the ways set forth above “unless such licensee is personally present in the office operating as a dentist or personally overseeing such operations as are performed in the office or each of the offices during a majority of the time the office or each of the offices is being operated.”
The facts in this case make it clear that Dr. Lacy’s actions amount to conducting a dental office in Wichita. When we look to the definition of “conduct,” we find that it means “to direct the course of: CONTROL ... to guide or lead.” Webster’s II, New College Dictionary 235 (1999). Everything about the Wichita office of Dr. Lacy showed that it was under his direct control. He was the owner. He hired and fired employees, he directed the manner of operations, he used the business name of Kansas Dental Services under which he did business at other locations, and he applied for reimbursement to Delta Dental on numerous occasions under Kansas Dental Service, Robert E. Lacy, D.D.S.
There is substantial competent evidence that Dr. Lacy conducted a dental office “in the name of the licensee” which K.S.A. 65-1435(c) specifically prohibits “unless such licensee is personally present . . . during a majority of the time the office . . . is being operated.” It is also clear by his own testimony and admissions that Dr. Lacy was not personally present in the office operating as a dentist, nor did he oversee the operations during a majority of the time the office was being operated.
Unfortunately, while the result reached by the district court was correct, the portion of K.S.A. 65-1435(c) upon which it focused simply was not applicable to-Dr. Lacy. He has not associated himself with another licensed dentist in a professional corporation. This third category of dental practice, to which K.S.A. 65-1435(c) refers and that was underscored in the trial court memorandum decision previously set forth, does not directly apply to Dr. Lacy. But, as we have often stated, a trial court’s reason for its decision is immaterial if the ruling is correct for any reason. KPERS v. Reimer & Roger Assoc., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997).
The trial court correctly noted that the intent of K.S.A. 65-1435 is to prevent absentee ownership which might create the franchising of the delivery of dental services. This intent is clearly stated in K.S.A. 65-1435(d), which sets forth the legislature’s intent to prohibit the “franchise practice of dentistry.”
We have previously disposed of the argument that Dr. Lacy made on appeal that he did not “conduct” a dental office in Wichita because he provided no services there. He further argues that the intent of K.S.A. 65-1435 is to preserve the relationship between a patient and his or her dentist and that such intent was accomplished by Dr. Murphy’s treatment of the patients. Dr. Lacy then points to amendments by other states of statutory provisions similar to K.S.A. 65-1435 to delete the “majority of the time” requirement and argues he did not violate the true purpose of K.S.A. 65-1435, the protection of the relationship between the patient and the dentist.
The arguments the Board makes are more persuasive. There is no exception in K.S.A. 65-1435(c) permitting a dentist to own the practice of another dentist, and Dr. Lacy in fact owned, operated, controlled, and conducted the Wichita practice of Dr. Murphy, which is prohibited by the plain language of the statute. The action taken by other states is not persuasive. If, in fact, the statute’s plain wording does not fit the business plan which Dr. Lacy desired to pursue, his remedy is with the Kansas Legislature to amend the existing statutory language to permit ownership of the practice of another dentist. Until it does so, we must apply K.S.A. 65-1435 as it is written. A reading of the entire statute, which must include subsection (d), shows that the ALJ, the Board, and the district court were correct in their construction and application of K.S.A. 65-1435(c): Dr. Lacy utilized his license as a dentist to conduct the Wichita practice which he operated in his name and conducted its operation without being personally present or overseeing the operations during a majority of the time that the office was being operated, contrary to the statute.
Are the Kansas Dental Board’s findings that Dr. Lacy violated KS.A. 65-1436(a)(l) and (13) supported by substantial competent evidenceP
K.S.A. 65-1436(a)(l) and (13) state:
“(a) The Kansas dental board may refuse to issue the license provided for in this act, or may take any of the actions with respect to any dental or dental hygiene license as set forth in subsection (b), wherever it is established, after notice and opportunity for hearing in accordance with the provisions of the Kansas administrative procedure act, that any applicant for a dental or dental hygiene license or any licensed dentist or dental hygienist practicing in the state of Kansas has:
(1) Committed fraud, deceit or misrepresentation in obtaining any license, money or other thing of value;
(13) engaged in a misleading, deceptive, untrue or fraudulent misrepresentation in the practice of dentistry or on any document connected with the practice of dentistry by knowingly submitting any misleading, deceptive, untrue or fraudulent misrepresentation on a claim form, bill or statement.”
Subsection (b) of K.S.A. 65-1436 grants the Board the right to (1) revoke the license, (2) suspend the license for such period of time as may be determined by the Board, (3) restrict the practice, and (4) grant probation.
The principal argument that Dr. Lacy makes on appeal is that violations of subsections (a)(1) and (13) require proof of fraud by intentional acts. Dr. Lacy further contends there was no intent to receive anything of value from Delta Dental, as his submissions were only intended to substantiate his claims against Cincinnati Insurance Co. He argues that the statutes were misinterpreted and the holdings of the ALJ, Board, and district court were not based on substantial competent evidence.
The Board counters by arguing there is substantial evidence that Dr. Lacy’s actions show a knowing violation of both subsections (a)(1) and (13). Additionally, tire Board contends it is not limited to proving only fraud, as the statute’s plain language authorizes discipline for “fraud, deceit or misrepresentation” in subsection (a)(l) and of “misleading, deceptive, untrue or fraudulent misrepresentation” in subsection (a) (13). The Board contends and the record amply reflects that multiple claim forms were submitted to Delta Dental certifying that Dr. Lacy was the treating dentist in the Wichita office and would attempt to collect charges he never intended to collect.
The Board admits that Dr. Lacy offered justification for the submissions and contended there was no intent to mislead or deceive. But, the Board argues that Dr. Lacy had been warned by Delta Dental in 1995 not to submit the same type of false claim forms which he submitted in April 1996 and that the common definitions of “misleading, deceptive, untrue and misrepresented” all apply to his actions of submitting the false claim forms in violation of subsection (a)(13).
Further, there was a direct conflict between the testimony of Dr. Lacy and Dr. Ed Hall; which the ALJ resolved to Dr. Lacy’s detriment. Dr. Lacy contended the forms he submitted were done under the instruction and knowledge of Dr. Hall, who contracted to provide claim review services to Delta Dental. Dr. Hall testified he was unaware of Dr. Lacy’s problems with Delta Dental and never advised him how to file claim forms with Delta Dental.
In our discussion of this issue, we point out that the language in subsections (a)(1) and (13) is similar as to the wrongdoing required but that subsection (a)(1) also requires that “money or other thing of value” be obtained, while there is not a financial element to subsection (a)(13), and a submission which is a misleading, deceptive, untrue, or fraudulent misrepresentation claim form is sufficient to be a violation.
In addition, the plain meaning of both subsections is not limited to require proof of fraud in order to substantiate a violation, as is centered by Dr. Lacy s arguments. While the Board may show fraud, it may also show deceit or misrepresentation to prove a violation of subsection (a)(1) and/or acts or actions which are misleading, deceptive, or untrue to show a violation of subsection (a)(13).
We will not limit our discussion to the district court’s finding of fraudulent conduct as that is not necessary to uphold the Board’s decision. The evidence is clear that the claim forms submitted to Delta Dental, which did in fact result in a minimal payment, represented work which had in fact been done by Dr. Murphy, not Dr. Lacy. The actions of Dr. Lacy taken in their entirety show deceit and misrepresentations. They were misleading, deceptive, and untrue.
For something to be “misleading” means “to lead into error or wrongdoing: DECEIVE.” “Untrue” means “contrary to fact: FALSE; deviating from a standard of correctness.” Webster’s II, New College Dictionary 701, 1211 (1999). It is clear that the actions of Dr. Lacy fall within both of the above definitions of the statutory elements of subsections (a)(1) and (13). They were shown by substantial competent evidence from the claim form exhibits, as well as by the testimony of Everett, Leprick, and to an extent by the testimony of Dr. Lacy himself, although he offered justification which, in the final analysis, the ALJ, as the finder of fact, did not find sufficient to authorize his misleading, deceptive, and untrue actions.
The testimony of Dr. Lacy by which he contended his filings were made as suggested by Dr. Hall was not found by the ALJ to be credible. Nor was the explanation convincing that Delta Dental understood the reason for the filing of the claims in light of direct testimony and documentary evidence to the contrary. As the Court of Appeals said in Boutwell v. Domino's Pizza, 25 Kan. App. 2d 110, 112-13, 959 P.2d 469 (1998), rev. denied 265 Kan. 884 (1998):
“The appellate court cannot pass on the credibility of witnesses or weigh conflicting evidence. City of Wichita v. Rice, 20 Kan. App. 2d 370, 373 889 P,2d 789 (1995). It is the function of the administrative hearing body to determine the weight or credibility of the testimony of witnesses. See Swezey v. State Depart- merit of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 98, 562 P.2d 117 (1977).”
We accept the findings of the ALJ and hold that there was substantial competent evidence to show violations of both subsections (a)(1) and (a)(13) of K.S.A. 65-1436 and the subsequent imposition of the suspension as authorized by subsection (b)(2) of the same statute.
Were Dr. Lacy’s due process rights violated?
Finally, Dr. Lacy argues that his constitutional rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and K.S.A. 77-511(b)(2) were violated by the delay in bringing this case to an administrative hearing. The principal prejudice claimed is that Dr. Hall was unable to recall conversations which Dr. Lacy asserts would have justified his actions.
We have consistently held that “where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review.” Ruddick v. Boeing Co., 263 Kan. 494, 498, 949 P.2d 1132 (1997). The record reflects Dr. Lacy did not raise this defense or argument during his administrative hearing. Having failed to raise the issue where a proper and full record could have been developed, we hold he is precluded from doing so at this time. We further point out the issue attempted to be raised is not the claimed constitutional infirmity of a statute or regulation, which could not have been raised before an administrative agency. See U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 81, 90-91, 966 P.2d 68 (1998).
We have considered all of the arguments raised and hold that the rulings of the ALJ, Board, and district court are affirmed.
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The opinion of the court was delivered by
Larson, J.:
This is a tenured teacher termination dispute under K.S.A. 76-lla04 et seq., the statutes covering employees, of the Kansas State School for the Blind and the Kansas State School for the Deaf.
Charles Marsh’s employment as a long-time teacher at the Kansas State School for the Deaf (KSSD) was terminated by the Kansas State Board of Education (Board) as the result of an investigation following the death of a KSSD student, Justin Barrett, who was struck by a train while moving railroad ties to Marsh’s property in Missouri. Marsh requested a due process hearing under K.S.A. 76-lla06.
The three-person hearing committee held a due process hearing and reversed the Board’s decision and ordered Marsh reinstated.
The Board appealed the decision to the district court as allowed by K.S.A. 60-2101(d), and the district court reversed the committee’s decision. Marsh appeals. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer on our own motion).
Factual and procedural background
Testimony of numerous witnesses will be summarized and discussed later, but the following facts were stipulated to by the parties before the hearing committee:
“1. In August, 1996, Charles Marsh, a teacher at tire Kansas State School for the Deaf (‘KSSD’), purchased approximately forty acres of unimproved land with a small fishing lake near Hume, Missouri.
“2. Access to Mr. Marsh’s property is via gravel road approximately 2.3 miles from Missouri Highway ‘V’, a hard surface road.
“3. Approximately lYz to 2 years ago, in an activity independent of the Kansas State School for the Deaf, Mr. Marsh arranged for students and staff to work on or near the property to improve it.
“4. Chris Kurz, a teacher and coach at the Kansas State School for the Deaf and a close friend of Mr. Marsh’s son, had worked on Mr. Marsh’s property in 1998.
“5. Mr. Marsh states that staff and students at the KSSD who were Mr. Marsh’s nephews, over the course of years, had been involved in moving railroad ties from railroad property.
“6. Mr. Marsh’s goal for developing his property in Missouri is to create an area for uses such as camping.
“7. On February 28, 2000, Mr. Chris Kurz asked Assistant Football Coach Kevin Milner to recruit KSSD football players to go to Mr. Marsh’s property to move railroad ties. Because of the weight of the ties (150 lbs.) only KSSD football players were asked to participate.
“8. The field trip was originally planned for March 4, 2000, however because the written request for the trip was not received one week in advance as required by KSSD policy, the request was denied by LuAnn Ward, Head Teacher.
“9. Mr. Kurz eventually gained approval for the field trip from Ms. LuAnn Ward who signed the request form on March 6, 2000. ... It was agreed that the field trip would occur on March 11, 2000. On this form Mr. Kurz is identified as the lead teacher of the activity. The list of participants included Mr. Kurz, Mr. Marsh, Justin Barnett, Brian Harmon, Shane Qualls, and Tony Green. Students Shane Qualls and Tony Green did not attend the March 11, 2000 field trip.
“10. On the field trip request form the purpose of the trip was stated to be ‘Community servicehelp Charles Marsh move train tracks to his Haven.’ ‘Haven’ is the name of the property owned by Mr. Marsh.
“11. Before Ms. Ward gave her approval for the field trip, she asked Mr. Kurz for clarification of the words, ‘train tracks.’ Ms. Ward was told that it meant moving railroad ties to Mr. Marsh’s property.
“12. According to Mr. Kurz, Mr. Marsh did not disagree with the explanation when it was given to Ms. Ward. Ms. Ward stated that she understood the activity involved moving railroad ties to Mr. Marsh’s land, but did not understand that it would involve activity in close proximity to active railroad tracks. In fact, Ms. Ward advised the fact-finding committee appointed by the Commissioner of Education that if she had known that the activity was to be in close proximity to an active railroad track, the activity would not have been approved.
“13. On Saturday, March 11, 2000, approximately 5-8 inches of snow fell at the location of Mr. Marsh’s property. Mr. Kurz picked up Justin Barnett and Brian Harmon at KSSD and transported them in a KSSD van to Mr. Marsh’s property where they arrived at 10:30 A.M.
“14. Shane Qualls and Tony Green did not go to Mr. Marsh’s land on March 11, 2000. Tony Green slept in and missed the trip, and Shane Qualls went to Florida for spring break.
“15. Mr. Marsh met Mr. Kurz, Justin Barnett and Brian Harmon at his property, gave the group a tour of the property and then led them to the railroad tracks to search for railroad ties.
“16. Both Mr. Marsh and Mr. Kurz reported that they talked to the students about safety, particularly constant looking because trains came by periodically on the tracks.
“17. From approximately 10:30 A.M.-11:30 A.M., the students and Mr. Kurz moved railroad ties from the east side of the track to Mr. Marsh’s property.
“18. Mr. Marsh did not have formal approval from the railroad to be on the right-of-way of the railroad and the railroad tracks.
“19. At some point in the morning of March 11, 2000, Charles Marsh left the others at the railroad tracks and returned to his property to prepare lunch. Mr. Marsh stated that as he prepared lunch, he could not see the activities on the railroad track.
“20. According to Mr. Kurz, at about 11:30 A.M. the group decided to obtain ties on the west side of the tracks. Mr. Kurz crossed the tracks to get the railroad ties. He then brought them back over the tracks and deposited them on the east side of the tracks. At this point in time, only Mr. Kurz and the two students were working.
“21. The moving of the ties as agreed to by Mr. Marsh and Mr. Kurz also involved Mr. Kurz and one of the boys putting a railroad tie across the tracks and scooting it on the tracks toward the gravel road. They then placed [it] on Mr. Marsh’s property.
“22. Mr. Kurz reported that he told Justin to stand in the ditch and keep watch while he and Brian moved the railroad tie toward the van. After that tie was put in the van, Brian and Mr. Kurz would return, and then Brian would stand watch while Justin and Mr. Kurz moved another railroad tie. The rationale for this procedure was to give each boy a rest because of the strenuous activity involved in moving railroad ties and to instill the concept of teamwork into the project.
“23. Kurz reported as he and Brian Harmon were moving a railroad tie down the tracks, Mr. Kurz looked up and saw a train approaching from the south. Mr. Kurz also stated that he also saw that Justin had left the ditch on the east side of the tracks and was standing, supporting a railroad tie that rested against his shoulder, immediately adjacent to tire track. According to Mr. Kurz, both he and Brian Harmon attempted to warn Justin Barnett of the oncoming train by throwing snowballs and waving their arms, but were unsuccessful.
“24. Justin Barnett was struck by the train and died from the impact.”
The Board is the governing body of the KSSD and investigated the above incident. The appointed investigative committee interviewed seven witnesses and issued a report to the Board, outlining the events which occurred. The report also reached several conclusions concerning the three faculty members most involved in the incident. Concerning Marsh, the committee found:
“The Committee believes that Charles Marsh, the owner of the property and a teacher at the school, was the only person who had full knowledge about the nature of the activity. He knew that the students and his colleague, Mr. Kurz, would be moving railroad ties in close proximity to active tracks. He also was aware that he did not have formal written permission from the railroad to be on that property or to remove ties from it. Mr. Marsh’s statement that he was willing to share his land with students and staff of the Kansas School for the Deaf and the community at large notwithstanding, his request to use students to improve personal property was completely inappropriate and not consistent with the School’s policy of non-fraternization with students. The Committee believes that Mr. Marsh’s conduct throughout the planning and completion of the activity did not reflect the high standards of professional conduct expected of teachers in general, and especially teachers who should be hyper-alert to the safety needs of students who are deaf. Mr. Marsh’s failure to fully inform Ms. Ward, the Head Teacher, and other individuals of the nature of the activity when he had several opportunities is inexcusable.”
The committee found Chris Kurz, a teacher who assisted Marsh in gathering students and getting permission to do the project, should have cancelled the project immediately when he discovered that it would involve working on and around active railroad tracks. The committee also noted that LuAnn Ward, the Head Teacher of KSSD, should have been alerted to the possible nature of the project when the words “train tracks” were used on the field trip request form and that Ward should have solicited additional information about the project.
The Kansas Commissioner of Education, Andy Tompkins, gave Marsh notice that the Board had adopted a motion to terminate Marsh’s contract at KSSD for the following reasons:
“1. [Marsh] jeopardized the health and safety of two students of [KSSD], as well as [himself] and another staff member, by engaging in an inappropriate and dangerous activity, which resulted in the accidental death of one of those students on March 11, 2000;
“2. [Marsh] failed to exercise appropriate professional judgment and care regarding student safety in the planning and execution of an activity involving two students of [KSSD], which activity resulted in the accidental death of one of those students on March 11, 2000.
“3. [Marsh] faded to comply with the school policies, orders and regulations concerning student safety and activities; and
“4. [Marsh] failed to conduct [himself] in a manner reflecting positively on the school and to maintain the respect and confidence of the other professional employees, students and the employer.”
The notice also stated that Marsh had a right to have the matter heard before a hearing committee. Marsh exercised that right.
The hearing committee was composed of former Kansas Attorney General Robert T. Stephan, Washburn School of Law professor William Rich, and Topeka attorney W. Robert Alderson. The parties stipulated to the above-stated facts and presented additional evidence.
The Board called Charles Marsh, Chris Kurz, Brian Harmon, Bill Tappanna (special agent of the Kansas City Railroad), LuAnn Ward, Roberta Burnett (mother of Justin), Richard Whelan, and Andy Tompkins.
Marsh called Kevin Lee Milner, Sr., Sue Qualls, Brian Hedrick, Rebecca J. Rosenthal, Dr. Barbara Luetke-Stahlman, and Herb Shuey.
Highly summarized, other than testimony relating to the accident by Marsh and Kurz, the witnesses for the Board openly criticized Marsh for his decision in organizing an activity which placed a deaf person on an active railroad track.
Marsh’s witnesses, who were largely a part of or directly connected with the deaf community, opined that educational experiences for deaf students should in no manner be limited and Marsh’s organization of and participation in the railroad tie activity was reasonable under the circumstances.
Marsh testified that he did not feel that he needed permission to take the railroad ties because they were abandoned, another resident had been taking the discarded ties for several years, and Marsh had previously waved to the engineer of passing trains when he had taken ties. The agent for the railroad, Tappanna, testified individuals needed permission to come on the railroad tracks and remove the used ties, although he admitted it was common practice for people to remove the ties without permission because they did not realize it was an act of trespass.
There was direct conflict in the testimony of the other boy at the scene, Brian Harmon, who testified that neither Kurz nor Marsh gave the boys warnings or told them to be careful around the tracks and to look in both directions when approaching the tracks. Kurz and Marsh specifically testified they warned both boys of the danger from trains, and that the person not assisting in mov ing a railroad tie had been instructed to remain in the ditch until the tie being moved by the other boy and Kurz had been delivered.
In the final analysis, the Board’s witnesses opined that Marsh’s actions were dangerous and termination of his employment was justified. Marsh’s witnesses testified directly to the contrary — that his actions were not unreasonable and were clearly within what individuals in the deaf community believed to be mainstream practices. The hearing committee resolved this conflict in Marsh’s favor.
The hearing committee’s decision commented on its scope of authority and found the statutes and case decisions relating to providing tenured teacher due process hearings upon termination or nonrenewal of their contracts, K.S.A. 72-5436 et seq., could be applied to terminations and due process hearings under K.S.A. 76-11a04 et seq.
The hearing committee relied on the wording of Gillett v. U. S.D. No. 276, 227 Kan. 71, 78, 605 P.3d 105 (1980), to find its purpose was to conduct a hearing that would “afford an opportunity to test the good faith and sufficiency of the notice to terminate Marsh’s contract and to ascertain whether good cause exists for the reasons stated in the notice of termination.” It was noted that K.S.A. 76-11a10(b) places the burden of proof upon the Board. Also, the Board’s reasons for the termination must constitute good cause and its decision must be supported by substantial evidence.
The hearing committee concluded that the essence of the first two reasons for termination given by the Board for the termination of Marsh’s employment were similar and characterized Marsh’s actions as inappropriate and dangerous and involving the failure to exercise appropriate professional judgment and care as to student safety, thereby jeopardizing the health and safety of two KSSD students, Kurz and Marsh. The hearing committee found the Board’s evidence could be placed in three categories: (1) that Marsh failed to properly inform the parents as to the nature of the project, (2) that Marsh did not have permission from the railroad company to remove the ties, and (3) that Marsh improperly organized an activity around an active railroad track.
The hearing committee found there was no evidence Marsh was required to inform the parents of the students who were to participate in the project, as this was the responsibility of the head teacher, LuAnn Ward. The hearing committee stated there was evidence Marsh had not obtained permission from the railroad to use the abandoned ties, but there was no evidence his actions were knowingly violative of railroad rights, as it was common practice for ties to be removed without affirmative railroad approval.
The hearing committee found the Board’s evidence did not rise to the level of being substantial evidence of Marsh’s lack of professional responsibility. As to the question of whether the removal of the ties was an inappropriate and dangerous activity and showed a failure to exercise appropriate professional judgment, it was noted there was evidence offered by both parties on this issue. The specific testimony to support the opposing positions was not stated, but the hearing committee held that it “believes that the overwhelming weight of the evidence on these points supported Mr. Marsh.”
The hearing committee pointed to the lack of a representative of the deaf community on the Board’s investigative committee and stated the testimony of such witnesses showed that KSSD undertakes to educate the “entire student” and that the students are taught how to live in the hearing world. The hearing committee found KSSD encouraged students’ participation in life activity that many individuals outside the deaf community would believe to be particularly dangerous to deaf students. The hearing committee specifically found and stated:
“On balance, the testimony and evidence offered by representatives of the deaf community found that it was completely acceptable to allow a 15 or 16 year old KSSD student to work on or around train tracks. Witnesses included a professor in deaf education, who is a parent of two deaf children himself, the Executive Director of the Kansas Counsel for the Deaf and Hard of Hearing, who has a hearing child, the parent of a middle-school student at KSSD, a deaf KSSD teacher with a hearing child, a parent of a former KSSD student and a deaf parent of a current KSSD high school student who originally was to participate in the project with Marsh.”
The hearing committee found adequate instructions were given to the students regarding train traffic and the execution of the project. The conflict in the testimony of Brian Harmon and Kurz and Marsh was resolved in favor of adequate planning and warnings being given by the two teachers which had not been followed.
As to reason three, relating to violation of school regulations, the hearing committee found no such regulations existed; thus, it had no relevance to Marsh’s actions.
The final reason for termination by the Board related to Marsh’s failure to maintain the respect and confidence of other professional employees, students, and employers. It was specifically found that no evidence showed any lack of confidence in Marsh; in fact, the evidence was to the contrary.
The hearing committee then stated:
“[Slaving considered each of the reasons advanced by the Board for terminating the employment of Marsh at KSSD within the context of the evidence and testimony offered at the hearing, the Hearing Committee has concluded that the Board has failed to sustain its burden of proving by substantial evidence that good causes existed for terminating Marsh’s employment.”
The Board appealed the decision to the district court. The district court found the hearing committee’s decision was not supported by substantial evidence and that it was arbitrary and capricious. The court also held the hearing committee erred in adopting a stricter standard than what the Board was operating under and, in doing so, had acted outside the scope of its authority. The court held the Board’s conclusion that to excuse Marsh’s actions because of Justin’s failure to follow instructions was an abuse of discretion that is “so wide off the mark that its unreasonableness lies outside the realm of fair debate.”
The court found the hearing committee disregarded undisputed evidence in failing to find the activity Marsh planned was inappropriate and dangerous. The court concluded: “The Hearing Committee changed the standard for the proposed termination of Marsh’s employment and then disregarded material undisputed evidence which established the basis for his discharge from employment by the Board.”
Standard, of review
Although the standard of review appeared to be a point of contention before the hearing committee and in the district court, the parties now appear to be in agreement as to this court’s standard of review on this issue of first impression.
The KSSD, as well as the Kansas School for the Blind, have separate statutory provisions for termination of teachers and the necessary procedure. See K.S.A. 76-11a04 et seq. These statutes have never been directly interpreted by any Kansas appellate court; however, the counterpart statutes generally applicable to all Kansas teachers, located at K.S.A. 72-5436 et seq., have been the subject of numerous decisions of this court and the Court of Appeals. A review of the statutes reveals two major distinctions, neither of which would preclude applying existing tenured teacher caselaw to K.S.A. 76-11a04 et seq.
First, K.S.A. 76-11a06 mandates that the KSSD hearings be held before a three-person committee, while K.S.A. 72-5438 now calls for only a single hearing officer. Previously, teacher termination proceedings were heard by three persons. Second, the decision of the three-person hearing committee is only binding on the Board if it is unanimous, while the hearing officer’s decision is automatically binding on all parties. K.S.A. 72-5443(b); K.S.A. 76-11a11(b), (c). In all other respects material to this appeal, the statutes are so substantially similar that we may apply the numerous decisions relating to the termination of employment of a tenured teacher.
K.S.A. 76-11a05 requires that a teacher be given written notice prior to termination of his or her contract. K.S.A. 76-11a06 states that the notice must include “(1) a statement of the reasons for the proposed. . . . termination, and (2) a statement that the teacher may have the matter heard by a hearing committee upon written request.” The Board in this case gave Marsh notice of termination, specifying four grounds for termination, and Marsh timely requested the matter be heard before a committee.
The procedural requirements to be afforded teachers are enumerated in K.S.A. 76-11a07 and include the right to counsel, cross-examination, and presentation of witnesses and testimony. The requirements also include “the right of the teacher to a fair and impartial decision based on substantial evidence.” (Emphasis added.) K.S.A. 76-11a07(f). As further expounded in K.S.A. 76-11a10, which describes the powers of the hearing committee: “[T]he burden of proof shall initially rest upon the state board in all instances other than when the allegation is that the teacher s contract has been terminated . . . by reason of the teacher having exercised a constitutional right.” (Emphasis added.)
The hearing committee must render a written opinion “setting forth its findings of fact and recommendation as to the determination of the issues.” K.S.A. 76-11a11(a). If the decision is unanimous, as it was in our present case, the Board is required to adopt the opinion. K.S.A. 76-11a11(b). The decision, if unanimous, shall be considered final, “subject to appeal to the district court as provided in K.S.A. 60-2101.” K.S.A. 76-11a11(b).
K.S.A. 60-2101(d) provides: “A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal.” No standard of review for district courts is specified by statute.
In a recent decision by this court in which we considered the appropriate standard to review a hearing officer s decision under K.S.A. 72-5443 (analogous for all material purposes herein to K.S.A. 76-11a11), the applicable standard of review was clearly pronounced:
“ ‘The three factors that should have guided the hearing officer in his decision were: (1) The burden of proof was on the school board, (2) the school board’s reasons for termination had to constitute good cause, and (3) the decision had to be supported by substantial evidence. See U.S.D. No. 434 v. Hubbard, 19 Kan. App. 2d 323, 326, 868 P.2d 1240, rev. denied 255 Kan. 1007 (1993).’
“ ‘The standard of review of a due process hearing officer’s decision is limited to deciding if: (1) the hearing officer’s decision was within the scope of the officer’s authority; (2) the hearing officer’s decision was supported by substantial evidence; and (3) the hearing officer did not act fraudulently, arbitrarily, or capriciously. See Hubbard, 19 Kan. App. 2d at 326.’
“ When a district court’s decision is appealed, we review the hearing officer’s decision as though the appeal has been made directly to us, and we are subject to the same hmitations of review as the district court. See Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989).’ 22 Kan. App. 2d at 894-95.” U.S.D. No. 500 v. Robinson, 262 Kan. 357, 361, 940 P.2d 1 (1997).
It is also important for our review that the hearing committee held the Board failed to sustain its burden of proof for terminating Marsh’s employment. This negative finding requires us to apply our standards of review in light of this additional factor. In HCA Health Services of Kansas, Inc. v. State Dept. of SRS, 21 Kan. App. 2d 141, 155, 900 P.2d 838 (1994), in an appeal of an administrative officer’s decision, it was held that where a negative finding had been made, “[a]bsent a showing of arbitrary disregard of undisputed evidence or an indication of bias, passion, or prejudice, this negative finding cannot be disturbed. See Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).”
Issues raised by the parties
The contentions of the parties on appeal before us are predictable. Marsh argues: (1) The hearing committee acted within the scope of its authority in finding the Board did not meet its burden of proof to establish good cause existed for his termination and the hearing committee’s decision was supported by substantial evidence and not fraudulent, arbitrary, or capricious, and (2) the district court applied a de novo standard of review and exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing committee.
The Board counters: (1) The hearing committee erred by not finding Marsh’s actions were inappropriate and by imposing a higher standard on the Board for an activity that was inherently dangerous as a matter of law, and (2) the legal issue is whether the hearing committee’s unanimous decision to reinstate Marsh’s employment contract was arbitraiy, unreasonable, or capricious, or not supported by substantial competent evidence, and more pointedly, whether it is wrong for “Kansas school teachers [to put] their students to work on active railroad tracks as a school-related project.”
Analysis
Although our facts differ from U.S.D. No. 500 v. Robinson, the discussion therein is critical to our resolution of the question of whether the hearing committee acted within the scope of authority granted to such a body of the Kansas Legislature. Robinson was a tenured teacher termination case where we held the standard of review of a hearing officer remains as established by Brinson v. School District, 223 Kan. 465, 469, 576 P.2d 602 (1978), and Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989).
In response to U.S.D. No. 500’s arguments in the Robinson case that if the Board presents substantial evidence to establish good cause, it has met its burden of proof and the hearing officer must accept its decision to nonreview even if the hearing officer would reach a different conclusion, we recounted the history of earlier procedure and stated:
“The 1991 statutory amendment placing the authority to make the final good cause determination in an independent hearing committee (HO after the 1992 amendment) eliminated the conflict of interest the board faced under the earlier procedure.
“The statements in Gillett that the district court cannot substitute its judgment for that of the school board, pertained to the board’s reviewing authority, not the board’s advocacy role, under the earlier statutory procedure. The District’s reliance on Gillett for the contention that the [¶] cannot substitute his judgment for that of the school board is misplaced. KS.A. 72-5443 gives the [¶] authority to make the final good cause determination.” (Emphasis added.) 262 Kan. at 363.
As we have previously stated, the provisions of K.S.A. 76-lla06 through 76-llall are comparable to those found in K.S.A. 72-5438 through 72-5445. We conclude that the hearing committee, like a hearing officer, has the authority to make the final good cause determination. The hearing committee determined that “its purpose is to conduct in good faith a fair and just hearing that will afford an opportunity to test the good faith and sufficiency of the notice to terminate Marsh’s contract and to ascertain whether good cause exists for the reasons stated in the notice of termination.” The hearing committee appropriately recognized its legislative authority, which we recognized in Robinson, to make the final determination as to the existence of good cause.
There were four reasons submitted by the Board to support its decision to terminate Marsh’s employment.
The third reason was that Marsh failed to comply with the school policies, orders, and regulations concerning student safety and activities. Testimony and evidence failed to show that KSSD had any rules and practices applicable to this situation. This reason was not an issue on appeal from the hearing committee to the district court and is likewise not an issue on appeal to our court that requires consideration except to observe it was considered and properly rejected by the hearing committee.
Likewise, the fourth reason put forth by the Board was that Marsh failed to conduct himself in a manner reflecting positively on the school and to maintain the respect and confidence of the other professional employees, students, and his employer. The hearing committee found and we agree that the Board produced no evidence that showed a loss of confidence in Marsh by any of the employees and teachers. The testimony from members of the deaf community was all to the contraiy. Again, this is not an issue on appeal in the proceedings before the district court or in our court. Reasons three and four of the Board’s grounds for dismissal were properly found to have no merit.
This causes us to return to reasons one and two, which read as follows:
“1. [Marsh] jeopardized the health and safety of two students of [KSSD], as well as [himself] and another staff member, by engaging in an inappropriate and dangerous activity, which resulted in the accidental death of one of those students on March 11, 2000;
“2. [Marsh] failed to exercise appropriate professional judgment and care regarding student safety in the planning and execution of an activity involving two students of [KSSD], which activity resulted in the accidental death of one of those students on March 11, 2000.”
The hearing committee characterized these grounds as being similar in scope and substantially alleging that Marsh engaged in inappropriate and dangerous activity and failed to exercise appropriate and professional judgment and care regarding student safety, which jeopardized the health and safety of two students, himself, and another staff member and resulted in the accidental death of a student on March 11, 2000.
It is important to note that the hearing committee here, as did the hearing officer in Robinson found the Board failed to present substantial evidence supporting the stated reasons for nonrenewal. There was evidence supportive of the Board’s decision that was presented, but it was the finding of the hearing committee that the Board failed to sustain its burden of proving by substantial evidence that good cause existed for terminating Marsh’s employment.
We will not here review each of the specific findings of fact and conclusions of law made by the Board. While reasonable minds could certainly differ in the conclusions reached, “[i]t is not the function of an appellate court to reweigh the evidence; we are concerned only with the evidence which supports the findings below, and not the evidence which might have supported contrary conclusions.” In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 21, 687 P.2d 603 (1984).
It was shown that while Marsh did not inform the parents of the nature of the project, under the KSSD’s procedures that responsibility fell on the office of the head teacher of KSSD. This finding of the hearing committee is supported by substantial evidence.
As to Marsh’s failure to have specific railroad company approval for the removal of discarded ties, the hearing committee’s conclusion that this did not rise to the level of being substantial evidence of Marsh’s lack of professional responsibility was supported by testimony that this was a common practice, the removal is generally done by people who do not realize it is an act of trespass, and Marsh did not believe his actions were inappropriate. We cannot condone an unlawful act, but it was a matter the hearing committee did not view as a sufficient violation of professional judgment and responsibility to justify good cause for termination of employment, and we may not “substitute our judgment for that of the administrative agency or tribunal and may not examine the issue de novo.” Gillett, 227 Kan. at 79 (citing Brinson, 223 Kan. 465).
The question of whether the railroad tie moving project was so inappropriate and dangerous as to show the failure to exercise appropriate professional judgment sufficient to justify termination of employment was the crux of the decision of the Board and, subsequently, the hearing committee. It was here that the greatest conflict in the evidence and opinions was offered by the Board and Marsh. The hearing committee did not summarize this evidence but found “the overwhelming weight of the evidence on these points supported Mr. Marsh.”
Essentially, the Board’s witnesses opined that Marsh’s project was so ill conceived and so poorly planned and executed that it showed a sufficient lack of professional judgment and care such that termination of employment was the appropriate sanction.
Marsh’s evidence discounted his obligation to the parents by placing KSSD’s administration between himself and the parents. He then presented the view of what can be classified as the “deaf community” — that there should be no limitation in how non-hearing students are taught to live in the hearing world.
This testimony came from a professor in deaf education who is the parent of two deaf children, the Executive Director of the Kansas Council for the Deaf and Hard of Hearing who has a hearing child, the parent of a middle school student at KSSD, a deaf KSSD teacher with a hearing child, a parent of a former KSSD student, and a deaf parent of the current KSSD high school student who was originally to participate in the project with Marsh. This group’s unanimous testimony and opinion was to the effect that Marsh’s actions were well within the parameters of activities for a nonhearing student of high school age.
The hearing committee resolved the direct conflict in the evidence concerning the instructions and warnings to the two participants by finding that adequate instructions were given and, had the plan devised been followed, the project would have been safely carried out. We have great concerns over these conclusions, but we cannot reach a contrary result without abandoning our required standard of review and making contrary findings of fact by reweighing the evidence. As we have said previously on numerous occasions in this opinion, we do not have the legal right to redetermine diese questions de novo. The evidence was conflicting, and the opposite result could certainly have been reached. But, it was not, and giving the finder of fact the consideration to which it is entitled, we must not substitute our judgment for that of the hearing committee.
The hearing committee did act within the scope of its legislatively designated authority. It properly set forth its authority and obligations and followed the dictates of Gillett, Hubbard, and Robinson.
The hearing committee’s usage of the phrase “inherently dangerous” did not change the scope of its authority from the “inappropriate or dangerous” language which the Board used in its notice of termination to Marsh. The hearing committee said: “While the removal of railroad ties from land adjacent to active tracks might be considered inappropriate for any organized student activity, it was not so inherently dangerous as to preclude reasonable differences of opinion regarding that issue.” Whether the actions of Marsh were considered to be inherently dangerous or inappropriate and dangerous appears to be a matter of semantics and does not require reversal of the hearing committee and approval of the district court’s contrary finding and result.
The hearing committee fully discussed and reviewed the four stated reasons for dismissal. It did not ignore undisputed evidence, although it did find and hold that the Board had failed to sustain its burden of proving by substantial evidence that good cause existed for terminating Marsh’s employment.
It is not our place to decide cases such as this one as if we were members of the hearing committee. We are obligated by our standard of review, which requires us to decide:
(1) Whether the hearing committee’s unanimous decision was within the scope of its authority. We find that it was.
(2) Whether the hearing committee’s decision was supported by substantial evidence. The evidence was conflicting, but these conflicts were resolved by the hearing committee and there was substantial evidence to justify its opinion.
(3) Whether the hearing committee acted fraudulently, arbitrary, or capriciously. The hearing committee conscientiously heard testimony for 2 days from 14 different witnesses. We can find nothing which compels a finding of any fraudulent, arbi trary, or capricious action and would require the reversal of its decision.
There is no way anyone can have any positive thoughts or feelings about the tragic facts of this case. But, the procedure established by the Kansas Legislature in K.S.A. 76-11a04 et seq. was followed, and based on our standard of review under the facts and circumstances of this case, we are required to uphold the decision of the hearing committee.
Under Butler and Robinson, we make our review as though the appeal has been made directly to us. We have done so. We do not comment on or review each finding and conclusion of the district court.
The decision of the district court is reversed. The decision of the hearing committee is affirmed. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an appeal by Carol Lynn Phillips from the district court order that her former husband Rick D. Phillips and she would have joint custody of the two minor children, with Rick having primary residential custody. Carol’s appeal is based principally on the ground that Rick is not the biological father of the children. An appellee’s brief was filed by the guardian ad litem requesting that the district court’s decision be affirmed. The case was transferred from the Court of Appeals by this court. K.S.A. 20-3018(c).
The sole issue before this court on appeal is whether the district court erred in ordering joint custody of the children with the father having primary residential custody.
The district court made the following findings of fact with regard to the issues of paternity and custody. The parties do not challenge the findings of fact made by the district court, and they are therefore conclusive for purposes of this appeal. State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 618, 7 P.3d 1194 (2000).
Paternity
“1. Rick . . . and Carol . . . were married February 14, 1987.
“2. Two children were bom of the marriage, namely [ J.D.], date of birth February 25, 1990, and [J.N.], date of birth June 2, 1992. Rick is shown as the father on the birth certificates of both children ....
“3. Rick acknowledged paternity of the children by verified Petition of Divorce filed June 7, 2000.
“4. [J.D.] and [J.N.] have only known Rick as their father and Carol as their mother throughout their lives.
“5. No other person besides Rick has had a father-child relationship with [J.D.] or [J.N.] and there is no father who has provided financial, emotional or legal support for [J.D.] or [J.N.] other than Rick. Rick is known as the father of [J.D.] and [J.N.] by their school staff, their doctor, and their friends and family.
“6. There is no other pending litigation concerning the custody of [J.D.] or [J.N.] in this or any other jurisdiction.
“7. There is no person or entity who is claiming rights of custody or visitation with [J.D.] or [J.N.] other than Rick and Carol.
“8. Rick is not the biological father of [J.D.] or [J.N.]. This was confirmed through genetic testing which Rick requested after [J.N.j’s birth.
“9. Carol testified that the two children were conceived through artificial insemination using sperm from a known donor other than Rick.
“10. After the genetic testing was completed, Rick sought advice from an attorney, and was advised that it was unnecessary for Rick to initiate an adoption or paternity action to assert legal rights to die children, since they were bom of the marriage.
“11. No written consent to the artificial insemination process was ever presented to Rick.
“12. Carol testified that both children were conceived through an artificial insemination procedure, and Üiat the donor of the semen for both procedures was a Steve Triple, from Minnesota. She testified that the procedure was con ducted at the K.C. Reproductive Center, and that a John Beth was the physician supervising the procedures. Carol now claims that the K.C. Reproductive Center is no longer in business; that Dr. Beth is deceased; and that the records of the procedures were destroyed in a cave fire.
“13. Jane Collins, a mutual friend of Rick and Carol’s, testified that Carol told her that she had told Rick that the children were conceived through artificial insemination, but that this was not true. Carol told Jane Collins that she, ‘had them with some guy in Minnesota.’ The Court, in observing Carol’s demeanor during the testimony of Jane Collins, noticed that Carol was smiling and laughing.
“14. Although genetic testing has confirmed that Rick is not the biological father of the children, there is no presumption of anyone else’s paternity.
“15. Petitioner’s Exhibits 3 and 4 exclude Rick as the biological father, but seem to suggest that the biological father of [J.D.] and [J.N.] are two different persons, not one person as testified to by Carol.”
The trial court made the following conclusions of law with regard to the issue of paternity:
“16. Considering all of the evidence presented concerning the issue of paternity, and having observed Carol’s demeanor during the course of the trial, the Court finds that Carol’s testimony lacks credibility on this issue.
“17. Rick Phillips is presumed to be the father of [J.D.] and [J.N.] pursuant to K.S.A. 38-1114(a)(l).
“18. A presumption under K.S.A. 38-1114 may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man, or if two or more conflictng presumptions arise which the Court shall resolve. If a presumption is rebutted, the party alleging the existence of a father-child relationship shall have the burden of going forward with the evidence.
“19. Carol has not rebutted tire presumption of Rick’s paternity by clear and convincing evidence, there is no court decree establishing paternity of the children by another man, there are no conflicting presumptions under the statute, and Carol has failed to meet her burden of going forth with the evidence concerning this issue.
“20. K.S.A. 38-1114(f) provides that the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife, is treated in law as if he were not the birth father of the child thereby conceived, unless agreed to in writing by the donor and the woman. Carol presented no evidence that she and Steve Triple had an agreement in writing that he would have any legal rights to [J.D.] or [J.N.J. Carol argues that this section of the statute, although perhaps precluding Mr. Triple’s paternity, does not establish Rick’s paternity. Rick’s paternity, however, is established pursuant to K.S.A. 38-1114(a)(l).
“21. It is not in the best interest of [J.D.] or [J.N.] to order paternity testing of Steve Triple or to join him as a party in this proceeding, pursuant to In re Ross, 245 Kan. 591 (1989).
“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Rick D. Phillips is the father of [J.D.] date of birth February 25, 1990, and the father of [J.N.] date of birth June 2, 1992.”
Custody
“Rick is requesting sole custody of [J.D.] and [J.N.]. Carol is requesting sole custody under the theory that Rick has no legal rights to the children. The Court has determined that Rick is the legal father of the children. The Court having considered the evidence and the papers and pleadings filed concerning the issue of custody, malees the following findings and orders:
“1. Dr. John V. Spiridigliozzi conducted a thorough child custody evaluation pursuant to an Agreed Order for Custody Evaluation filed August 16, 2000.
“2. The Court finds that the child custody evaluation of Dr. Spiridigliozzi which was agreed to by the parties, was a valid and appropriate evaluation and study. Dr. Spiridigliozzi’s findings are incorporated by reference as though set forth fully herein.
“3. Dr. Spiridigliozzi concluded that the children’s best interests will be served if Rick maintains primary physical custody of them. Mark Doty, the attorney guardian ad litem appointed by the Court, recommended that Rick have sole custody of the children.
“4. George A. Harris, a Ph.D. psychologist (not licensed in Kansas) retained by Carol, testified and submitted a confidential psychological report in which he criticized Dr. Spiridigliozzi’s interpretation of die MMPI raw data. Dr. Harris further opined that Dr. Spiridigliozzi had not dealt adequately with the issue that Rick is not tire children’s biological father.
“5. Dr. Harris’ summary at page 9 of his report, implies that Carol should have primary residence of the children, and characterizes the current custodial arrangement as, ‘a strange set of facts.’
“6. Both before and during the litigation concerning this issue, Carol has engaged in bizarre conduct.
“7. Carol gave the children a camera, instructed them to taire a bath together at Rick’s residence and to taire pictures which she could use against Rick.
“8. Carol submitted to Dr. Spiridigliozzi for his consideration in the custody determination a three (3) page letter purportedly authored by Kenneth R. Holladay, the children’s family physician, which describes in glowing terms Carol’s suitability as a parent and recommends that [J.D.] and [J.N.] return to Carol’s ‘happy loving environment.’ When shown the letter . . . Dr. Holladay denied knowledge of any of the contents of the letter and stated unequivocally that the letter was not signed by him.
“9. The parties stipulated to the testimony of Det. Harold W. Hughes from the Crimes Against Property Unit of the Johnson County Sheriffs Office. Det. Hughes investigated a burglary reported by Carol at her Desoto residence. Carol told Det. Hughes that [J.D.] and [J.N.] had noticed that Rick’s gloves were outside an open window to the residence along with an empty bottle of beer which they recognized as Rick’s brand. Det. Hughes investigated her claim and concluded that the gloves in question were both right handed; that a knife which Carol claimed was stuck in a picture of her and one of the children, had been stuck in the picture twice; that based on his examination of the window sill with a finger print brush and observing that dust was still present and undisturbed on the window sills, it was his opinion that no one entered the residence through the window. Det. Hughes concluded that Carol had staged the burglary and confronted her with this fact. She denies that she staged the burglary.
“10. The Court has received several letters from [J.D.] and [J.N.] and after the last evidentiary hearing received computer photographs of Carol and the children engaging in normal happy activities.
“11. The Court finds that throughout this entire matter, Carol has attempted to cast Rick in a negative light, and to manipulate the court proceedings.”
The trial court made the following conclusions of law with regard to the issue of custody:
“12. The key issue concerning custody was aptly expressed by Dr. Spiridigliozzi in the conclusion of his report to the Court, ‘the court must weigh the harm inflicted upon the children by Ms. Phillips’ efforts to estrange the children from Mr. Phillips versus their need to have a close relationship with their mother.’
“13. In applying the factors under K.S.A. 60-1610 which the Court shall consider;
a) The length of time that the children have been under the actual care and control of any person other than a parent - this factor is not applicable to this case.
b) The desires of the children’s parents as to custody or residency. Both parents have the ability to parent their children and desire that residency be placed with them. Rick has qualified his position by stating in the long term he feels that the children would be better off with Carol if she would address her mental and emotional issues. Although Carol is a loving parent, the Court is not totally convinced that her desire for primary residency or sole custody of the children is motivated by her desire to help the children. Rather, Carol seems to be focused on her needs and her desire to hurt Rick. The evidence weighs in Rick’s favor as to this factor.
c) The desires of the children as to their custody or residency. Both children express the desire to live with Carol and certainly to spend more time with her. The evidence weighs in favor of Carol as to this factor.
d) The interaction and interrelationship of the children with parents etc. The evidence concerning this factor is that Carol has been the primary caregiver for the children. Therefore the evidence weighs in her favor as to this factor.
e) The children’s adjustment to the children’s home, school and community. The evidence is that J.D. and J.N. are adjusted to Rick’s home, to Carol’s home, that they are adjusted to their friends and activities in the Wellsville school district although they have experienced some problems at school. They have never attended school in Desoto, therefore no evidence was presented concerning that school situation. The Court finds that the evidence is about even concerning this factor.
f) The willingness and ability of each parent to respect and appreciate the bond between the children and the other parent and to allow for a continuing relationship between the child and the other parent. Carol has demonstrated neither the willingness nor the ability to appreciate the bond between the children and Rick. Rick has at least expressed the willingness and demonstrated some ability to respect Carol’s role as the mother of the children. The evidence weighs in favor of Rick on this factor.
g) Evidence of spousal abuse. The Court finds that this factor is not applicable in this case.
“14. After analyzing the statutory factors as applied to the facts of this case, the Court finds that the statutoiy preference for joint legal custody should be followed in this case, and that Rick and Carol should have joint legal custody of [J.D.] and [J.N.].
“15. The Court finds that it is in the best interest of [J.D.] and [J.N.] that their primary residence be with their father the petitioner, Rick D. Phillips. Although Carol has been the primary caretaker historically of the children, her persistent and bizarre attempts to alienate the children from Rick are causing damage to the children and need to cease before she can be considered for primary residence.
“16. The Court does find that it is in the best interest of [J.D.] and [J.N.] that Carol’s access be expanded from the temporaiy orders.
“17. Generally speaking, during the school year the children should reside with Rick during the week, and Carol on the weekends.”
The district court ordered anger management counseling for Rick and “counseling with a licensed doctoral level psychologist who has experience with persons who have attempted to alienate their children from the other spouse” for Carol. Noting that its orders concerning custody and visitation are subject to reconsideration, the district court stated: “If Carol complies with Court’s orders regarding counseling in good faith, the Court may in the future consider changing tire primary residence to Carol. If Carol does not comply with the Court’s orders with regards to counseling, the Court may in the future consider restricting Carol’s access with [J.D.] and [J.N.].”
Carol argues that the district court’s custody decision is improper because Rick is not the biological father of the children. The appellee contends that the district court correctly applied Kansas statutes in determining that Rick is the children’s father.
Although Carol did not seek judicial determination of paternity under the Kansas Parentage Act, K.S.A. 38-1110 et seq., the Act is necessarily implicated because she challenges the custody order on the grounds that Rick is not the biological father of the children.
The district court cited provisions of the Kansas Parentage Act and In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), in reaching its decision. In Ross, this court construed the provisions of the Kansas Parentage Act in rejecting the trial court’s determination that Robert Ross was not the biological father of the minor child. Sylvia Ross had been granted a divorce from Robert. In the divorce proceedings she alleged Robert was the father of the children bom during the marriage. Almost 2 years later, Sylvia filed a petition under the Parentage Act alleging that Robert was not the biological father of the children. The trial court ordered blood tests, which determined that Charles, not Robert, was the biological father of the children. The trial court found Charles to be the father and ordered that he pay child support and continued the order granting Robert visitation rights with the children. In reversing the trial court which had ordered blood tests without first determining if such tests were in the best interests of the children, we said:
“The present case is a vivid example of what can occur when a court, in the pursuit of judicial economy, bastardizes a child and then determines that because of bonding it is in the child’s best interests to continue his or her relationship with the presumed father. The court has not only bastardized the child and relieved the presumed father of all necessity of support, but it has placed the obligation to support the child on the biological father, who has never had a bonding relationship with the child. Such is not the purpose of the Act or our public policy. Once the judge, in the interest of judicial economy, ruptures the father/child relationship, the judge cannot return the parties to the position they were in prior to the blood test, no matter how wise or great his or her judicial power. That is a fact of life.
. Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child, including physical, mental, and emotional needs. The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child. Although someone may suffer, it should never be the child, who is totally innocent and who has no control over or conception of the environment into which he or she has been placed. In re Marriage of Ross, 13 Kan. App. 2d 402, 772 P.2d 288 (1989).
“Under the facts of this case, the district judge abused his discretion. The mere filing of a paternity action does not automatically imply that the action is in the child’s best interests. A court must reach this conclusion independently based on the facts in the record McDaniels v. Carlson, 108 Wash. 2d at 313. We realize, of course, that Charles’ paternity has been determined and cannot be undone; however, our decision in this case will have meaningful application to similar cases in the future.” 245 Kan. at 601-02.
Here, the district court found that Rick acknowledged paternity of the children in a verified writing. Although his acknowledgment of paternity was not made on forms that included a written description of the rights and responsibilities of acknowledging paternity, as described in K.S.A. 38-1138(a) and (b), his acknowledgment is not invalid for that reason, K.S.A. 38-1138(d). An acknowledgment of paternity “creates a permanent father and child relationship which can only be ended by court order.” K.S.A. 38-1138(b)(l). An acknowledgment of paternity also creates legally enforceable duties of care and support of the child as well as rights of custody and parenting time that can only be altered by court order. K.S.A. 38-1138(b)(2) and (3). In Rick’s case, where the father and child relationship always existed and he always fulfilled the duties of care and support, his acknowledgment of paternity amounted to a written confirmation of his commitment to his fatherhood of J.D. and J.N. The district court appropriately treated Rick’s acknowledgment of paternity as valid.
With regard to Rick’s paternity, moreover, K.S.A. 38-1114(a)(l) provides that “[a] man is presumed to be the father of a child if . . . [t]he man and the child’s mother are, or have been, married to each other and the child is bom during the marriage . . . .” Recause [J.D.] and [J.N.] were born while Rick and Carol were married, the statutory presumption arises that Rick is the father of the children.
K.S.A. 38-1114(b) provides that the presumption maybe rebutted only by clear and convincing evidence. The district court cor- reedy concluded that Carol did not present clear and convincing evidence that would rebut the presumption of Rick’s paternity. According to the district court, although genetic testing has established that Rick is not the biological father of the children, there is no credible suggestion of anyone else’s paternity. The court observed that Carol’s claim that the children were conceived through artificial insemination of semen donated by Steve Triple was unsubstantiated, contradicted by the testimony of a friend, and seemingly contradicted by the genetic testing results, which suggested that the children do not have the same father. The district court expressly found that “Carol’s testimony lacks credibility on this issue.”
Carol contends that the presumption was rebutted by evidence of the paternity test results, which Rick entered into evidence. The cover letters on the test results are dated January 11, 1993. Although the letters informed Rick that he could not be the biological father of either child, he continued to fulfill the paternal responsibilities for care and support of the children. In his subsequent actions, Rick has demonstrated his ongoing commitment to paternity. His verified petition for divorce, filed in 2000, included written acknowledgment of his paternity of the children. In the divorce proceedings, he willingly became obligated to support the children and sought custody of them. Rick’s offering of the paternity test results into evidence manifestly was not intended to rebut the presumption in his favor, and, in the circumstances of this case, the district court acted properly in not considering the test results for that purpose. K.S.A. 38-1114(b) provides that a presumption of paternity may be rebutted, not that evidence contrary to biological paternity must necessarily overcome a presumption. “The stated purpose of the [Kansas Parentage] Act is to ensure that the legal obligations, rights, privileges, duties, and obligations incident to . . . the father/child relationship are carried out.” In re Marriage of Ross, 245 Kan. at 595. That purpose would not have been furthered by the district court’s finding that the presumption of Rick’s paternity, which he willingly acknowledged, was rebutted by evidence offered by him as relevant to some other question. The district court acted, as required by the Act, in the best interests of the children in the circumstances by not permitting Rick’s paternity presumption to be undermined where there is no other credible suggestion of paternity. As the court stated in Ross, the bastardization of the children would achieve none of the purposes of the Act. 245 Kan. at 597.
Carol argues that Rick is not the children’s father and has never adopted them, that Kansas does not recognize equitable adoption, that the name and whereabouts of the biological father are known, that artificial insemination law is the key to paternity, and that it would be an unacceptable fiction if Rick were determined to be the father of the children. She further argues that because Rick is not the children’s father, the district court erred in placing them in primary residency with Rick without finding that the mother was unfit or that the children were in need of care. The statutory presumption that Rick is the father of the children was established in the district court due to the lack of clear and convincing evidence rebutting it. Carol has not challenged the district court’s findings of fact on appeal. There is no basis, therefore, for her arguments on appeal, all of which are premised on her contention that Rick is not the father of the children.
Finally, Carol argues that the district court abused its discretion in placing tire children in primary residency with Rick because the children told the trial judge that they would prefer primary residency with their mother. She contends that the children’s preference coupled with all other circumstances of the case should have convinced the district court to place the children in primary residency with her. In fact, it was all other circumstances of the case that undoubtedly convinced the trial judge to place the children in primary residency with Rick in spite of their expressed preference otherwise. We find no abuse of discretion by the trial judge.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Jack M. N. Shelton, of Topeka, an attorney admitted to the practice of law in Kansas.
A formal complaint was filed against respondent in July-2000 encompassing complaints from seven clients. Later, four more clients were added to the list of complainants. A formal hearing was held before a panel of the Kansas Board for Discipline of Attorneys on December 19, 2001. Stanton Hazlett, Disciplinaiy Administrator, appeared for that office. Respondent appeared pro se. The parties entered into a stipulation which was adopted by the panel as its 41 findings of fact relative to the 11 cases before it. Those 41 stipulations of fact as recited by tire panel are as follows:
“COUNT I — Case No. DA7959
“2. The respondent was retained in October of 1999, by Sharon Colleen Heenan to represent her in a divorce. Ms. Heenan completed a Divorce Questionnaire provided by the respondent. She paid the respondent a $1,000.00 retainer with the understanding that the respondent would bill his time at $100.00 an hour.
“3. On November 11, 1999, Ms. Heenan signed a verification of the Petition for Divorce. That petition was filed by the respondent on November 29, 1999.
“4. In connection with the representation of Ms. Heenan the respondent prepared a Property Settlement Agreement. The document was completed in March of 2000, and provided to the complainant. After Ms. Heenan obtained a copy of the agreement she called the respondent on numerous occasions to ask about provisions contained in tire agreement. The respondent failed to return the phone calls and provide the information requested. The respondent admits that [the] conduct described in paragraph 4 violated KRPC 1.3 and KRPC 1.4[(a)].
“5. In late March of 2000, Ms. Heenan fired the respondent and retained the services of Dale Somers. She first met with Mr. Somers on March 31, 2000. Mr. Somers immediately requested that the respondent provide him Ms. Heenan’s file. The respondent provided a copy of his file to Mr. Somers. The file contained a copy of the Petition for Divorce and a first draft of the Property Settlement Agreement. A final Property Settlement Agreement was prepared by Mr. Somers on May 1, and a divorce was obtained for Ms. Heenan on May 11, 2000.
“6. Mr. Somers wrote letters to the respondent on March 31, 2000, April 18, 2000, May 11, 2000, and May 31, 2000. In each of these letters Mr. Somers requested that the respondent provide an accounting of his time spent on Ms. Heenan’s case and a refund of any unearned retainer.
“7. On June 28, 2000, the respondent provided an accounting to Mr. Somers. The respondent refunded $405.00 to Ms. Heenan. The failure of the respondent to provide an accounting and refund of the retainer to the complainant from March 31, 2000, until June 28, 2000, constitutes a violation of KRPC 1.15(d)(2)[iv],
“COUNT II — Case No. DA8008
“8. The complainant, Kimberly S. Campbell, retained the respondent on June 22, 1999, to obtain a divorce from James Campbell. A retainer of $600.00 and a filing fee were paid to the respondent by July 2, 1999.
“9. The respondent filed a Petition for Divorce on July 13, 1999. A Counter Petition was filed on July 21, 1999. A January court date was set for the divorce hearing. That court date was continued at the request of the complainant’s ex-husband. The hearing was reset for April 18, 2000. On that date the parties appeared at the courthouse and negotiated a settlement which was read into the record before the judge hearing the case.
“10. On May 16, 2000, counsel for the husband, Darla Ottensmeir, submitted a proposed Decree of Divorce to the respondent. Despite correspondence from Ms. Ottensmeir and calls from her to the respondent, the respondent never contacted Ms. Ottensmeir about the proposed divorce decree. On July 25, 2000, Ms. Ottensmeir submitted the proposed Decree of Divorce to the court for approval without input from the respondent. The conduct described in paragraph 10 violated KRPC 1.3.
“11. On June 14, 2000, the complainant and her father met with the respondent and reviewed the proposed Divorce Decree. The complainant requested that certain changes be made to the decree. On July 20, 2000, in a letter from the respondent to the complainant, the respondent agreed to send the proposed changes to the husband’s counsel by fax. The respondent failed to do so. On July 25, 2000, the complainant received an unsigned and undated letter from the respondent informing her that the requested changes would be added to the proposed Divorce Decree. The respondent never took action to relay the proposed changes to opposing counsel. Subsequent to the June 14, 2000, meeting with the respondent, the respondent failed to return phone calls from the com plainant. The divorce was granted on July 28, 2000. During the time period described in this paragraph the respondent failed to properly communicate with the complainant about the status of her case and failed to act diligently in violation of KRPC 1.3 and KRPC 1.4[a], The [complainant] learned from her ex-husband that the divorce had been granted.
“12. Subsequent to the granting of the divorce the complainant was able to set up a meeting with the respondent on September 12, 2000. The meeting was set up to discuss the preparation of an Income Withholding Order. The respondent agreed to prepare the forms, but failed to do so. Eventually, the order was prepared by opposing counsel and filed with the court. The respondent failed to provide a copy of the Divorce Decree to the complainant despite numerous requests by the complainant and her father to do so. The respondent’s actions described in this paragraph violated KRPC 1.3.
“COUNT III — Case No. DA8006
“13. The respondent was retained by the complainant, Brenda Eldridge, in November of 1999. Ms. Eldridge paid the respondent $350.00 designated by the respondent as a flat fee. She was renting a house under a lease/purchase agreement. The house sustained some water damage. She attempted to have the landlord fix a continuing mold and mildew problem. Instead, die landlord filed an action to evict her.
“14. The respondent agreed to represent die complainant in the eviction action as well as file a counter suit regarding issues related to the mold and mildew problem. The respondent resolved the eviction matter.
“15. Throughout the representation the respondent would not return phone calls or correspondence from the complainant. At some point in time he advised die complainant to obtain other counsel, but he has not formally withdrawn from representing her. The complainant has not been able to find new counsel to represent her interests. Widi respect to die counter suit, the respondent advised the complainant that she should obtain other counsel. Throughout the representation of the counter suit the respondent did not properly communicate with the complainant in violation of KRPC 1.4[(a)].
“16. The respondent failed to cooperate in die investigation of the Eldridge complaint in violation of Supreme Court Rule 207[(b)].
“COUNT IV — Case No. 7991
“17. On October 25, 1999, the complainant, John Ferguson, retained the respondent to file a Chapter 13 bankruptcy. The respondent was paid a $1,375.00 retainer with $175.00 of that being applied to the filing fee. Throughout die representation the respondent failed to communicate with die complainant and to adequately keep the client advised about the status of the case. The respondent’s conduct violated KRPC 1.4[(a)].
“18. On the same date of the confirmation hearing the Trustee’s Objection To Exemptions was heard. The trustee’s objection was sustained.
“19. The respondent was terminated on April 28, 2000, by the complainant. At the time of the termination of the representation, confirmation of the plan had been denied. While attorney for the complainant, the respondent failed to secure confirmation of the Chapter 13 Plan. The respondent did not diligently obtain confirmation of complainant’s Chapter 13 Plan in violation of KRPC 1.3.
“20. Eventually, the complainant hired new counsel and had to pay an additional $1,200.00 to that attorney. The second attorney filed a Motion To Disgorge Attorney’s Fees paid by the complainant to the respondent. On February 21,2001, a hearing was held on the Motion To Disgorge Attorney’s Fees and the court ordered that the respondent return $700.00 of the fees to the complainant. The court noted that the respondent had failed to secure confirmation for tíre complainant. To date, the respondent has not paid this money as ordered by the court. The failure of the respondent to promptly return the $700.00 to the complainant violated KRPC 1.16(d).
“21. The complainant has received reimbursement of $700.00 from the Kansas Client Protection Fund Commission. The respondent has failed to reimburse the Commission for that payment.
“COUNT V — Case No. DA8109
“22. The complainant, Lamont Jackson, retained the respondent to obtain a visitation schedule for the complainant. The respondent was retained on October 27, 2000, and was paid a $350.00 retainer on that date.
“23. The complainant fired the respondent on November 28, 2000. The respondent admitted in his response to this complaint that he did not properly communicate with the complainant or diligently handle the complainant’s case. The respondent’s conduct violated KRPC 1.3 and 1.4[(a)].
“24. The respondent agreed to repay . . . the $350.00 retainer to the complainant. The respondent has not done so. In the meantime, the complainant filed a claim with the Client Protection Fund and has been reimbursed $350.00. The respondent has not reimbursed the Client Protection Fund as of this date. Failure of the respondent to promptly refund the $350.00 retainer violated KRPC 1.15(d)(2)[(iv)].
“COUNT VI — Case No. DA8162
“25. The respondent was retained by the complainant Walter Bradbury to represent the complainant in a post-divorce matter involving child support and transportation arrangements. The [respondent] was paid a $500.00 retainer on September 22, 2000. The complainant had first contacted the respondent in Tune of 2000.
“26. The respondent remained the attorney for the complainant until January 31, 2001, when his services were terminated. During the entire representation die respondent did not communicate with his client or return phone calls. The respondent was not diligent in pursuing the child support and transportation problems. The respondent’s conduct violated KRPC 1.3 and 1.4[(a)].
“27. The respondent has offered to repay the complainant $375.00 as an unearned retainer. However, none of that money has been paid to the complainant by the respondent. The respondent‘s conduct violated KRPC 1.15[(d)(2)(iv)] and 1.16[(d)].
“COUNT VII — DA8164
“28. The respondent was initially retained by the complainant, Jean T. Speranza, to file a bankruptcy for her. The complainant paid the respondent a $500.00 retainer on November 10,2000. Later, the complainant decided not to go through with the bankruptcy and to file for divorce. The respondent agreed to represent the complainant in her divorce for the fee which had already been paid for the bankruptcy.
“29. After consultation with the respondent, the complainant then decided to seek an annulment. The respondent agreed to represent her in the annulment and prepared the annulment paperwork. The paperwork was reviewed and signed at the respondent’s office by the complainant on January 8,2001. The respondent represented to the complainant that he would file the paperwork with the court no later than January 9, 2001. The annulment paperwork was never filed [by] the respondent as he told the complainant he would do. The respondent’s conduct violated KRPC 1.3.
“30. The complainant has requested a refund of the retainer paid to the respondent. No refund has been made. The complainant made a claim with the Client Protection Fund Commission and the commission has reimbursed the complainant. The respondent has not reimbursed the commission. The respondent’s conduct violated KRPC 1.15[(d)(2)(iv)] and KRPC 1.16[(d)].
“COUNT VIII — Case No. DA8171
“31. The respondent was retained to represent the complainant, Mark Hetherington, in a post-divorce child support matter. The respondent was paid a $350.00 retainer.
“32. The respondent admitted in his response to the complaint that he did not handle the complainant’s case diligently and did not communicate with the complainant about the status of the complainant’s case. The respondent’s conduct violated KRPC 1.3 and 1.4[(a)].
“33. The respondent’s services were terminated and the respondent has not returned the unearned retainer to the complainant. The respondent’s conduct violated KRPC 1.15[(d)(2)(iv)] and 1.16[(d)].
“COUNT IX — Case No. DA8212
“34. The respondent was retained by the complainants, Dean and Janet Rep-pert, in September of 1999, to file a Chapter 13 bankruptcy. The respondent was paid a $600.00 retainer and was to be paid an additional $600.00 through the Chapter 13 Plan.
“35. The respondent filed a bankruptcy petition. Issues remained in the bankruptcy regarding unpaid taxes and repossession of the complainants’ vehicles.
“36. From October of 2000, until March of 2001, the complainants tried to call the respondent at least once a week. During that time period the complainants were only able to talk to the respondent on two (2) occasions. The respondent did not return phone calls. In March of 2001, the complainants terminated the services of the respondent because of the lack of communication. The complainants had to hire new counsel. The respondent admitted in his response to this disciplinary complaint that he did not properly communicate with the complainants. The respondent’s conduct violated KRPC 1.3 and 1.4[(a)].
“37. The respondent has failed to return any unearned retainer to the complainants. The respondent’s conduct violated KRPC 1.15[(d)(2)(iv)] and 1.16[(d)].
“COUNT X — Case No. DA8221
“38. The respondent was retained [in] August of 2000, to represent the complainant, Rick Woodward, in a child visitation and support matter. The respondent was paid a $750.00 retainer.
“39. In October of 2000, the respondent represented the complainant in a child support hearing.
“40. The respondent failed to take any action on the visitation problem and failed to communicate with the complainant about the visitation problem. The respondent’s conduct violated KRPC 1.3 and 1.4[(a)].
“41. Eventually, the complainant fired the respondent. The respondent has agreed to return the entire fee paid by the complainant to the complainant, but has failed to do so. The respondent’s conduct violated KRPC 1.15[(d)(2)(iv)] and 1.16[(d)]."
From these stipulations in the 11 cases called for hearing, the panel concluded respondent had violated KRPC 1.3 (diligence and promptness in representing a client) (2001 Kan. Ct. R. Annot. 323); KRPC 1.4(a) (status communications with client) (2001 Kan. Ct. R. Annot. 334); KRPC 1.15(d)(2)(iv) (returning funds, securities, or other properties to the client) (2001 Kan. Ct. R. Annot. 376); KRPC 1.16(d) (protecting clients’ interests upon termination of representation) (2001 Kan. Ct. R. Annot. 387) and Supreme Court Rule 207(b) (assisting in investigations concerning complaints) (2001 Kan. Ct. R. Annot. 246), as admitted in said stipulations.
There were, however, three additional stipulations of particular significance by virtue of subsequent developments. These additional stipulations are as follows:
“42. The respondent acknowledges that twenty-two (22) additional complaints have been docketed by the Disciplinary Administrator’s Office and are presendy under investigation. The respondent admits that in five (5) of those cases he did not properly communicate with his clients and failed to return unearned retainers. The respondent agrees that he will assist the Disciplinary Administrator’s Office in the investigation of the remaining complaints, take whatever action is necessary to protect the interests of those clients who have filed complaints that are still under investigation by the Disciplinary Administrator’s Office and will return all unearned retainers in a timely fashion.
“43. The respondent agrees to reimburse the Client Protection Fund Commission for any payments made by the Commission as a result of claims made against the respondent and to provide a written response to the Commission regarding each claim.
“44. The Disciplinary Administrator will recommend indefinite suspension to the panel and the Kansas Supreme Court as the appropriate discipline in this case. The Disciplinary Administrator will recommend that the indefinite suspension be effective as of December 6, 2001, the date the respondent’s temporary suspension commenced. The respondent understands that any recommendation made is not binding on either the panel or the Kansas Supreme Court. The respondent shall have the opportunity to malee his own recommendation to the panel as to the appropriate discipline. The continuing recommendation of indefinite suspension by the Disciplinary Administrator is contingent upon the respondent complying with the responsibilities set out in paragraph 42.”
RECOMMENDATION
The panel then made the following recommendation:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide adequate communication and diligent representation. Additionally, the Respondent violated his duty to his clients to safeguard their property.
“Mental State. The Respondent knowingly violated his duties to his clients.
“Injury. The Respondent’s clients suffered actual injury as the result of the Respondent’s misconduct.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Selfish Motive. At the hearing on this matter, the Respondent testified that he continued to take cases because he needed money to pay his bills.
“Pattern of Misconduct. Included in this case are eleven complaints. Each complainant encountered similar problems with the Respondent. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4(a), KRPC 1.15(d)(2)(iv), KRPC 1.16(d), and Kan. Sup.'Ct. R. 207(b). As such, the Respondent committed multiple offenses.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent has failed to express a clear recognition of regret or remorse for engaging in the misconduct.
“Vulnerability of Victim. The Respondent’s clients are the victims of this case. Many of the clients hired the Respondent to immediately file post-divorce motions or actions in bankruptcy and were vulnerable to the Respondent’s misconduct.
“Indifference to Making Restitution. While the Respondent stated that he would like to refund the unearned fees to the clients and reimburse the Client Protection Fund, the Respondent has made no efforts to this end.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Inexperience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1998. At the time the misconduct began, the Respondent was inexperienced in the practice of law because he had been practicing law for approximately one year.
“The Respondent presented extensive testimony at the hearing on this matter regarding his previous good character. The evidence of the Respondent’s previous good character is not persuasive as a factor in mitigation, because the Respondent’s character witnesses were unfamiliar with the allegations in the eleven complaints and because their testimony mainly related to the Respondent’s general character and not specifically to his ability or character in the practice of law.
“Finally, the Respondent presented the testimony of Dr. Cornelia Daluza regarding his mental disability. In certain situations, evidence of a mental disability can be considered as evidence in mitigation of the misconduct. In order for a mental disability to be a factor in mitigation, the Respondent must establish that (1) the Respondent was affected by a mental disability, (2) the mental disability caused the misconduct, (3) the Respondent’s recovery from the mental disability was demonstrated by a meaningful and sustained period of successful rehabilitation, (4) the recovery arrested the misconduct, and (5) recurrence of that misconduct is unlikely. See Standard 9.32(h).
“In this case, Dr. Daluza established that the Respondent suffers from two mental disabilities: attention deficit disorder and depression. Additionally, Dr. Daluza established that the Respondent’s mental disability caused or, at least, contributed to the Respondent’s misconduct. However, the Respondent failed to present evidence of the remaining criteria. The Respondent failed to establish that he has recovered from the mental disability, that he has successfully completed a meaningful and sustained period of successful rehabilitation, that the misconduct has arrested, and that recurrence of the misconduct is unlikely. As such, the Hearing Panel concludes that the Respondent’s mental disability is not a mitigating factor.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standards 4.41 and 4.42. Standard 4.41 provides, in pertinent part, as follows:
‘Disbarment is generally appropriate when:
'(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
‘(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
‘Standard 4.42 provides:
‘Suspension is generally appropriate when:
‘(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
‘(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
“At die conclusion of the hearing held in this matter, the Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. The Respondent requested that he be suspended for six months. The Respondent acknowledged that he should repay his clients and the Client Protection Fund before he is allowed to resume the practice of law in this state.
“After reviewing the Agreed Stipulation entered into by the parties, and considering the arguments of the parties, the Hearing Panel strongly considered recommending to the Kansas Supreme Court that the Respondent be disbarred. However, because the Respondent has begun the treatment process and because the Disciplinary Administrator recommended that the Respondent be indefinitely suspended, the Hearing Panel unanimously recommends that Respondent be indefinitely suspended from the practice of law in the state of Kansas. The Hearing Panel recommends that before tire Respondent is allowed to practice law in the state of Kansas again, the Respondent prove that he has repaid, in full, all of his clients, as well as all the funds paid on his behalf to the Respondent’s clients by tire Client Protection Fund. Additionally, the Hearing Panel recommends that the Respondent be required to establish, by the testimony of qualified medical or other professional witnesses, that he has received the appropriate professional care and treatment, that he has actively and meaningfully participated in efforts to identify, treat, and control his conditions, that he has recovered from the mental disability as demonstrated by a meaningful and sustained period of successful rehabilitation, that his recovery arrested the misconduct, and that recurrence of that misconduct is unlikely.”
SUBSEQUENT DEVELOPMENTS
On April 25, 2002, the Disciplinary Administrator filed an unusual pleading herein. It is as follows:
“NOTICE OF DISCIPLINARY ADMINISTRATOR’S CHANGE IN RECOMMENDATION FOR DISCIPLINE
“COMES NOW the Disciplinary Administrator’s Office, through Stanton A. Hazlett, and provides notification to the respondent, Jack M. N. Shelton, and the Kansas Supreme Court of its change of recommendation for discipline in the above entitled cases. In support of said change of recommendation tire Disciplinary Administrator’s Office states the following:
“1. The respondent was the subject of a disciplinary hearing held on December 19, 2001, as a result of 11 separate complaints filed by his clients. Misconduct was found on the part of the respondent in each instance. The Disciplinary Administrator recommended that the respondent be indefinitely suspended. The panel recommended that the respondent be indefinitely suspended from the practice of law. The case was docketed before the Kansas Supreme Court on February 14, 2002 and is set for oral argument before the Kansas Supreme Court on May 28, 2002. On December 6, 2001, the respondent was temporarily suspended by the Kansas Supreme Court pursuant to Supreme Court Rule 203(b) (2000 Kan. Ct. R. Annot. 224) during the pendency of the disciplinary proceedings against him. Subsequent to that order, representatives of the Disciplinary Administrator’s Office took possession of the respondent’s active case files. Various members of the Bar in Shawnee County volunteered to take over the respondent’s cases and protect the interests of the respondent’s former clients.
“2. At the respondent’s disciplinary hearing he entered into an Agreed Stipulation. The respondent acknowledged violations of the Kansas Rules of Professional Conduct in the 11 complaints which were the subject of the December 19th hearing. He also acknowledged that 22 additional complaints had been docketed by the Disciplinary Administrator’s Office and were under investigation at that time. Since that time an additional 15 complaints have been docketed for investigation by the Disciplinary Administrator’s Office. All 48 of the complaints filed with the Disciplinary Administrator’s Office involve allegations of lack of communication, lack of diligence and unearned retainers.
“3. In the Agreed Stipulation the respondent agreed to reimburse the Client Protection Fund Commission for any payments made by the Commission as a result of claims made against the respondent. He also agreed to provide a written response to the Commission regarding each claim. A total of 32 claims have been made against the respondent with the Client Protection Fund Commission. Of those only 1 claim has been denied. One claim is presently pending. The rest of the claims have been reimbursed by the Commission in the total amount of $23,760.00. The respondent, in spite of his agreement to do so in the Agreed Stipulation, has failed to provide any written response to the Commission with respect to the claims made against him. 23 Client Protection claims have been lodged against the respondent since the Agreed Stipulation was signed by the respondent.
“4. The change in the Disciplinary Administrator’s recommendation has occurred as a result of the respondent’s failure to abide by his agreement to provide written responses to claims made with the Client Protection Fund in addition to the fact that 15 additional complaints have been docketed by the Disciplinary Administrator’s Office against the respondent since the hearing of December 19, 2001. The respondent’s misconduct has caused a great deal of inconvenience as well as loss of money to his clients, has caused inconvenience for the courts of this state as well as harm to the profession.
“WHEREFORE, the Disciplinary Administrator’s Office provides notification that it will malee a recommendation of disbarment as opposed to the recommendation of indefinite suspension made to the panel hearing this case on December 19, 2001.”
At the hearing before us, respondent objected vigorously to the Disciplinary Administrator’s change in recommendation from indefinite suspension to disbarment. Respondent argues that the Disciplinary Administrator is locked into the stipulated recommendation regardless of later developments such as his failure to make the agreed upon reimbursement to the Client Protection Fund and to provide a written response as to each claim before the Client Protection Fund Commission. At the hearing before us, we were advised that the situation remains the same — the respondent has not made restitution to the Client Protection Fund and he has not provided written responses to the Commission. We note that the stipulation entered into by the parties conditions the Disciplinary Administrator’s recommendation of indefinite suspension on respondent’s compliance with the requirements contained in paragraph 42, whereas the recommendation is being altered for failure to comply with those items set forth in paragraph 43. Respondent does not specifically raise this issue, but it is not significant. The court routinely seeks an update on relative facts between the date of the hearing before the panel and the date of the hearing before the court. The failure to comply with the agreed-upon obligations set forth in stipulation 43 is, to us, an important consideration. In any event, the recommendation of a panel as to sanctions to be imposed is advisory only and does not prevent the court from imposing discipline greater or less than that recommended by the panel or disciplinary administrator. Supreme Court Rule 212(f) (2001 Kan. Ct. R. Annot. 263); In re Farmer, 263 Kan. 531, 540-41, 950 P.2d 713 (1997).
We also note that 15 additional complaints have been docketed for investigation since the panel hearing. Thus a total of 48 complaints have been filed against respondent, which is believed to be a record, albeit an unenviable one, for an individual who has only been practicing law in Kansas since 1998.
DISCUSSION
The panel’s findings of fact and conclusions of law are taken directly from the stipulations of the parties. No exceptions have been filed. Indeed, taken as they are from the parties’ stipulations, exceptions thereto would hardly be viable. We conclude the panel’s findings of fact and conclusions of law are supported by clear and convincing evidence, and we adopt the same. The pattern of misconduct repeats itself. Respondent takes a retainer, does not perform the services he has promised, will not communicate with or return calls to the client, and keeps unearned retainers. There is no indication that respondent has undergone any changes that would alter the pattern if he were to resume the practice of law. A minority of the court would disbar the respondent, but a majority finds that indefinite suspension is the appropriate discipline.
It Is Therefore Ordered that Jack M. N. Shelton be indefinitely suspended from the practice of law in the state of Kansas effective the date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that respondent reimburse the Client Protection Fund of the State of Kansas for all amounts paid on his behalf and that such payment is a condition to any reinstatement.
It Is Further Ordered that in the event respondent should seek reinstatement, he shall be subject to all reinstatement requirements, including a hearing as required by Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285).
It Is Further Ordered that respondent comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David L. Mat-son, of Topeka, an attorney admitted to the practice of law in the state of Kansas. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys wherein respondent appeared pro se.
The hearing panel concluded respondent had violated KRPC 1.1 (competent representation) (2001 Kan. Ct. R. Annot. 312); KRPC 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323); and KRPC 1.4(a) (client communication) (2001 Kan. Ct. R. Annot. 334). The panel recommended respondent be suspended from the practice of law for 6 months.
The panel made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“2. The Respondent graduated from law school in May, 1999. The Respondent passed the Kansas Bar Examination in July, 1999. While the Respondent looked for employment as an attorney, he worked in various non-legal positions. In July, 2000, the Respondent entered the private practice of law. The Respondent was a solo practitioner and shared an office with another attorney.
“Representation of Rudolpho Cervantes Rodriguez — DA8113
“3. In September, 2000, Rudolpho Cervantes Rodriguez retained the Respondent to represent him in a criminal case. At the time he retained the Respondent, Mr. Rodriguez paid the Respondent $2,000.00. Mr. Rodriguez was charged with one count of aggravated kidnapping (level 1 person felony), four counts of kidnapping (level 3 person felony), four counts of aggravated assault with a firearm (level 7 person felony), one count of attempted aggravated robbery (level 5 person felony), and one count of cruelty to animals (class A misdemeanor). At the time the Respondent entered the case, Mr. Rodriguez had already been bound over for trial following a preliminary hearing. Mr. Rodriguez’ case was pending before the Honorable John Anderson, III, Johnson County District Court Judge.
“4. Before entering his appearance in Mr. Rodriguez’ case, the Respondent had made a few appearances, concerning minor matters, before Judge Anderson. When Judge Anderson learned that Respondent, a lawyer relatively new to the practice, had entered his appearance in Mr. Rodriguez’ case, Judge Anderson became concerned that Respondent was too inexperienced to handle Mr. Rodriguez’ case.
“5. Shortly after the Respondent entered his appearance in Mr. Rodriguez’ case, Judge Anderson met with the Respondent to informally discuss whether the Respondent was experienced enough to handle Mr. Rodriguez’ case.
“6. After this informal discussion, Judge Anderson telephoned the Disciplinary Administrator regarding the Respondent’s representation of Mr. Rodriguez. Following that conversation, Judge Anderson contacted the Respondent and asked him to come see him.
“7. On November 2, 2000, the Respondent came to see Judge Anderson. At that time, Judge Anderson held an in camera meeting with the Respondent regarding his ability to represent Mr. Rodriguez at trial. Judge Anderson’s court reporter recorded the meeting. During the meeting, Judge Anderson asked the Respondent to consider whether he was able to handle the representation. Judge Anderson suggested to the Respondent that he read KRPC 1.1 and In re Docking, 254 Kan. 921, 869 P.2d 237 (1994).
“8. Following the November 2, 2000, meeting, the Respondent asked several attorneys to assist him with the representation of Mr. Rodriguez. The Respondent offered to pay the other attorneys the entire fee that he received if they would assist him at trial. The Respondent was unable to find anyone willing to assist him in the case.
“9. Shortly before trial, Judge Anderson held another meeting in chambers. At that meeting, the Respondent and opposing counsel were present. Judge Anderson again asked die Respondent to consider whether he was experienced enough to represent Mr. Rodriguez.
“10. While the Respondent considered withdrawing from his representation of Mr. Rodriguez, the Respondent decided against it and proceeded to trial. Mr. Rodriguez’ trial began December 10,2000. It was the Respondent’s first jury trial.
“11. At trial, the Respondent did, by his own admission, a poor job representing die interests of Mr. Rodriguez. For example, during voir dire, the jurors were informed that the Court expected that the case would take four days to try. At die end of voir dire, when asked by die Court if there was any other reason why die jurors would not be able to fairly and impartially decide the case, one juror complained that he did not know if he could sit through four days of Respondent’s stumbling performance.
“12. Also, during the cross-examination of the alleged victim, Alisha Lucero, the Respondent and the witness got into a “shouting match.” Judge Anderson was forced to intercede. According to Judge Anderson, Ms. Lucero was clearly in control of the examination. Most of the questions the Respondent asked were objectionable. Finally, during the same cross-examination, the following exchange occurred:
‘Q [Ry the Respondent] Okay. Then what happened? What was the — I mean, was she crying at this point or was she kind of holding it together? Or was she totally cool, was she laughing?
‘A [Ry Alisha Lucero] Laughing? There was no joking matter about anything. Nobody was laughing.
‘Q Okay.
'A Nobody was having fun. Guns were being waved. Rudy was talking about how he was going to Mil Anthony. I don’t find that funny whatsoever.
‘Q Okay. I didn’t ask you if you were laughing. I was asMng what was Lisa doing.
‘A Lisa was bawling.
‘Q Rawling?
‘A Crying, shaMng, petrified, just trembling —
‘Q So —
‘A — has guns waving at her. Her friend is about to die. She thinks that she is going to die.
‘Q If my hand is shaking, which my hands do shake, it is hard for me to roll up my marijuana cigarette joints.
‘A Yes, it was. That is why a lot was falling out on the floor. She was trembling so bad she couldn’t even —
“13. Shortly after Ms. Lucero’s testimony (during the second day of the trial), Mr. Rodriguez made a pro se motion for mistrial and informed the court that he wished to fire the Respondent. After careful consideration, Judge Anderson made the following ruling:
‘[T]he representation Mr. Rodriguez has been receiving from [the Respondent] during the course of the trial falls short of the representation required to zealously and professionally represent a defendant charged with crimes of this severity level. It is my belief that Mr. Rodriguez is not receiving a fair trial as a result of this.
‘Let me emphasize and say that there is absolutely no question that [the Respondent] has had the best of intentions as he has gone along. I believe that with my heart. I believe that he has had the best of intentions and he has been maMng every effort within his ability to try to represent Mr. Rodriguez.
‘There is certainly no malice that I’ve seen of any land from [the Respondent], He has been in the face of some fairly embarrassing situations in regard to this and been quite professional with the Court and has never taken this personally, but he simply has not exhibited a sMll level that would meet the minimum standards required for effective representatifon] of Mr. Rodriguez.
\ . . I grant Mr. Rodriguez his pro se request for a mistrial.’
“14. At the hearing on this matter, die Respondent testified that he had naively believed that he would be able to the handle Mr. Rodriguez’ case. According to the Respondent, however, at the trial he was “very nervous” and did a “poor job.” The trial was a “humiliating” experience for Respondent, who clearly recognized that he took a case he was not capable of handling.
“15. Judge Anderson testified, at the hearing on this matter, about filing the complaint. Specifically, Judge Anderson said the following:
. . I have been lucky enough, I think, that I have never been in a posture where I had to make a complaint. I really did not want to do this, but I felt that I had to do this under the canons. And I should also say that what I really wanted to have happen as we went along in this case was for Mr. Matson to get somebody to help him learn how to practice law, because you don’t learn how to practice law going to law school, you learn how to practice law with the mentoring help of other attorneys. And I think he’s an intelligent young man. He is a pleasant young man. And I think this is a horrible beginning to his career. But I guess all I’m saying is that I would hope that there could be a resolution of this that would result in him being able to use the skills that he spent many years acquiring in school in some way.’
“Representation of Rafael Zamora — DA8322
“16. On February 16,2001, Rafael Zamora hired the Respondent to represent him in a post-divorce modification of child support and maintenance. At that time, Mr. Zamora paid the Respondent $520.00.
“17. On March 1, 2001, the Respondent informed Mr. Zamora that a hearing on the motion for modification of child support and maintenance was scheduled for April 19, 2001, at 9:30 a.m.
“18. Mr. Zamora and his friend, Rebecca Thibodeaux, placed numerous telephone calls to the Respondent, beginning shortly after retaining the Respondent and continuing through April 18, 2001. Even though Mr. Zamora and Ms. Thibodeaux had Respondent’s office, home, and cell phone numbers, they were unable to reach the Respondent on most of the occasions. Additionally, the Respondent failed to return most of the telephone calls to Mr. Zamora and Ms. Thibodeaux.
“19. On April 19, 2001, at approximately 8:30 a.m., the Respondent called Ms. Thibodeaux and advised Ms. Thibodeaux that he had failed to file the necessary documents to proceed with the hearing.
“20. On May 1, 2001, the Respondent informed Mr. Zamora that a hearing on the motion for modification of child support and maintenance had been scheduled for June 21, 2001, at 10:30 a.m. On June 13, 2001, Ms. Thibodeaux called the Johnson County District Court and learned that the hearing was being continued. The Respondent later advised Ms. Thibodeaux that the continuance was requested by opposing counsel, who had a conflicting appointment. The Respondent had agreed to the continuance without first consulting Mr. Zamora.
“21. On June 13, 2001, the Respondent returned a call from Ms. Thibodeaux and left a message indicating that he would come by Mr. Zamora’s residence and refund the $520.00.
“22. On June 20, 2001, Mr. Zamora received a check for $500.00 from the Respondent. Thereafter, on June 25, 2001, Mr. Zamora terminated the Respondent’s employment and asked that the Respondent return his client file. Two weeks later, the Respondent forwarded Mr. Zamora’s client file to Mr. Zamora’s new attorney.
“23. The Respondent testified that he was negligent in his representation of Mr. Zamora.
“24. The Respondent informed the Hearing Panel that he is currently under an administrative suspension for failure to comply with the annual requirements to maintain his license to practice. The Respondent also testified that he is currently taking medication for depression and is undergoing therapy. The Respondent believes that, currently, he is mentally unable to practice law.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel malees the following conclusions of law:
“1. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessaiy for the representation.’ Id. The Respondent lacked the requisite skill to competently represent Mr. Rodriguez at trial. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. Zamora when he failed to timely file and prosecute a motion for modification of child support and maintenance. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Zamora, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“3. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id. The Respondent failed to keep Mr. Zamora informed regarding the status of his case. Additionally, the Respondent failed to return numerous telephone calls to Mr. Zamora and Ms. Thibodeaux. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“4. The Disciplinaiy Administrator alleged in the Formal Complaint that the Respondent also violated KRPC 1.15(b), KRPC 3.3, and KRPC 8.4(g). The Panel finds that the evidence does not support findings that the Respondent violated KRPC 1.15(b), KRPC 3.3, and KRPC 8.4(g). Therefore, the allegations in the Formal Complaint that the Respondent violated KRPC 1.15(b), KRPC 3.3, and KRPC 8.4(g), are dismissed.
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered die factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by die lawyer’s misconduct, and die existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and reasonable communication.
“Mental State. The Respondent testified that he has been diagnosed widi severe depression and attention deficit disorder. Additionally, die Respondent testified that he is currendy taking two prescription medications to treat these conditions. Based upon the Respondent’s testimony, die Hearing Panel concludes diat die Respondent is currently suffering from ongoing personal or emotional problems. The Hearing Panel further believes that Respondent’s mental healtii may have adversely impacted the Respondent’s ability to represent these clients more than he realized.
“Injury. As a result of the Respondent’s misconduct, his clients suffered injury; however, Mr. Rodriguez received a new trial and Mr. Zamora has retained otiier counsel.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in die degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following aggravating factors present:
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, and KRPC 1.4. As such, the Respondent committed multiple offenses.
“Failed to Comply widi Rules or Orders of die Disciplinary Process. In this case, the Respondent failed to file an answer.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in tíiis case, found the following mitigating circumstances present:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems. As noted previously, die Respondent testified that he has been diagnosed widi severe depression and attention deficit disorder and that he is currendy taking two prescription medications to treat these conditions. Additionally, the Respondent testified diat, at present, these conditions have left him unable to practice law.
“Inexperience in the Practice of Law. The Respondent was admitted to the practice of law in die state of Kansas in 1999. At die time of the violations, the Respondent was inexperienced in the practice of law, in that, he had been actively practicing law for less than a year.
“Remorse. Clearly, at the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42 and Standard 4.52.
"Suspension is generally appropriate when:
‘(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
‘(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
‘Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.’ Standard 4.52.
“Rased upon the above findings of fact, conclusions of law, aggravating and mitigating circumstances, and standards, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law in the state of Kansas for a period of six months. The Hearing Panel also recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that he has received the appropriate professional help to enable him to prevent a repeat of the misconduct present in this case."
A. J. Focht, a member of the hearing panel, filed the following concurring opinion.
“CONCURRING OPINION
“I write to express my personal opinion in this matter. While I concur in the Findings of Fact, Conclusions of Law and the Recommendations, I join the latter for a very narrow reason. I would not have voted for suspension had it not been for the fact that the Respondent volunteered under oath that he was not presently mentally competent to practice law and was not presently doing so. Absent that testimony my recommendation to my fellow Hearing Panel members would have been for censure.
“This judicial admission put the Hearing Panel in the position that a recommendation to suspension was necessary to carry out the function of both protection of the public and service to the Respondent.
“Without the admission of mental incompetency I would have argued that it is important to the legal community and to the public that there be, so far as possible, a sense of consistency in the sanctions meted out for violations of the Kansas Rules of Professional Conduct. The only way one can seek to bring consistency is to weigh the facts of an individual case on the scale of public opinions by the Kansas Supreme Court in similar cases. No two cases are identical.
“When I consider tire conduct of the Respondent, without an attempt to minimize it, I believe he got in over his head in a criminal case that he was not ready for and did not properly handle and he failed to file an appropriate motion in a domestic situation. Other than that, the factors in favor of mitigation would lead me to believe that on the following scales censure was appropriate for the found violations of KRPC 1.2, 1.3 and 1.4(a).
“I would not find that the Respondent’s conduct and the applicable factors for and against sanctions were as serious as those in these cases wherein suspension was ordered. In re Johnson, 272 Kan. 284, 32 P.3d 1132; In re Craig, 272 Kan. 299, 32 P.3d 1174; In re Rishel, 271 Kan. 644, 23 P.3d 820; In re Farrell, 271 Kan. 291, 21 P.3d 552; In re Zimmerman, 270 Kan. 855,19 P.3d 160; In re Cole, 268 Kan. 171, 991 P.2d 422.
“Neither do I believe his misconduct was as serious as that spelled out in the following cases where probation was granted. In re Zimmerman, 270 Kan. 855, 19 P.3d 160; In re Kellogg, 269 Kan. 143, 4 P.3d 594; In re Howard, 269 Kan. 414, 2 P.3d 766.
“While not identical I would more closely identify the Respondent’s misconduct with that in the following cases where censure was appropriate. In re Boaten, 22 P.3d 1034; In re Trickey, 268 Kan. 835, 999 P.2d 964.
“I reiterate, I join in the recommendations out of a desire to see that before the Respondent again, if ever, practices law, he is mentally capable of doing so. This, by his own admission, is a sick young man, who is not capable of representing others (nor himself, as was obvious during his hearing). His failure to follow the rules pertaining to registration and continuing legal education led him into suspension. Judge Anderson’s comments in an obvious attempt to sway the Hearing Panel to leniency leads me, in part, to this concurrence with reluctance.”
DISCUSSION
Respondent failed to file exceptions to the hearing panel’s report. Accordingly, pursuant to Supreme Court Rule 212(d) (2001 Kan. Ct. R. Annot. 263), the panel’s findings of fact are deemed admitted. These findings abundantly support the panel’s conclusions of law, which we adopt. Clearly, respondent was negligent in handling the Zamora domestic case as determined by the panel. It is obvious that respondent lacked the skills and experience necessaiy to represent Rodriguez in a jury trial, especially involving such a major crime as aggravated kidnapping.
We agree with the concurring opinion that these violations, although serious, would not normally be deemed to warrant a suspension from the practice of law. However, respondent testified at the hearing before the panel that he was suffering from severe depression and attention deficit disorder, was under medication, and was seeing a psychiatrist. Respondent did not indicate that his efforts at treatment were improving his condition. In fact, he testified his medications had been increased. The hearing was held on February 26, 2002. As respondent did not see fit to appear before us, we have no information as to any changes in his condition since the panel hearing date. Respondent’s mental incompetence to practice law mandates that the discipline imposed on respondent be suspension from the practice of law. We are aware that respondent has been suspended from the practice of law since September 10, 2001, pursuant-to Supreme Court Rule 208 (2001 Kan. Ct. R. Annot. 254) and Supreme Court Rule 806 (2001 Kan. Ct. R. Annot. 561).
However, reinstatement from this type of suspension is routine upon payment of fees, penalties, and proof of compliance with Continuing Legal Education requirements. In respondent’s situation, protection of the public requires that respondent’s mental competence to practice law and other basic qualifications be established before reinstatement. The appropriate method to insure respondent’s fitness to practice law is to require that respondent successfully complete the requirements of Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285) before reinstatement.
We accept the panel’s recommended discipline and suspend respondent from the practice of law in the State of Kansas for a period of 6 months commencing on the date of this opinion.
It Is Therefore Ordered that respondent David L. Matson be suspended from the practice of law in the State of Kansas for a period of 6 months commencing on the date of this opinion.
It Is Further Ordered that any reinstatement shall be subject to Supreme Court Rule 219.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Davis, J.:
The court appointed a receiver for J.E. Alters Co., Inc. (J.E. Akers), a dissolved Kansas corporation. The receiver sought and the court granted authority under K.S.A. 17-6907 to sell corporate realty with improvements clear of encumbrances, including two judgment hens owned by the appellants, Advertising Unlimited, Inc. (Advertising Unlimited) and McCleery-Cummings Company, Inc. (McCleery-Cummings). K.S.A. 17-6907 permits such sale where, among other statutory requirements, “the validity, extent or legality of any such hen is disputed or brought in question.” The appellants opposed the sale, contending that other than the allegations of the receiver, the record contains no evidence con cerning the “validity, extent or legality” of the liens. We agree and, therefore, reverse.
Nancy Akers, as the trustee of the Nancy J. Akers Revocable Living Trust, filed a petition to appoint Chris Engeman as receiver for J. E. Akers. The trust is the sole shareholder in the corporation. The district court ordered the appointment on the same day. The record on appeal lists over 30 unsecured creditors and 2 secured creditors. The appellants are the two secured creditors by reason of their judgment Hens.
Following his appointment, the receiver filed a motion under K.S.A. 17-6907 seeking authority to sell corporate real estate with improvements free and clear of all encumbrances, including the judgment liens of Advertising Unlimited and McCleery-Cummings. The appellants objected, noting that the receiver s motion to sell contained no facts challenging the validity of the judgment liens.
Approximately 1 year before the appointment of the receiver, Advertising Unlimited and McCleeiy-Cummings obtained default judgments against J.E. Akers in the amounts of $37,920.54 and $54,636.10, respectively. In accordance with K.S.A. 2001 Supp. 60-2202(a), those judgments became liens on J.E. Akers’ real estate within the county in which the judgments were rendered.
In his motion to sell free and clear of the judgment hens, the receiver alleged that “[t]he judgments obtained by the plaintiffs . . . were obtained by default and the underlying validity thereof is disputed by the Receiver.” (Emphasis added.) The receiver renewed his motion to sell clear of judgment liens without addressing the appellants’ objection that the motion contained no facts challenging the validity of the judgment hens. A hearing was held, and other than statements of counsel, no evidence was presented. The district court, under the provisions of K.S.A. 17-6907, ordered the sale of the real property with improvements free and clear of the appellants’ judgment hens without addressing the validity of the judgment hens. Advertising Unlimited and McCleeiyCummings appealed pursuant to K.S.A. 60-2102(a)(3). This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
K.S.A. 17-6907 authorizes a receiver or trustee to sell property of a corporation under the following circumstances:
“Whenever the property of a corporation is at the time of the appointment of a receiver or trustee encumbered with liens of any character, and the validity, extent or legality of any such lien is disputed or brought in question, and the property of the corporation is of a character which will deteriorate in value pending the litigation respecting the lien, the district court may order the receiver or trustee to sell the property of the corporation, clear of all encumbrances, at public or private sale, for the best price that can be obtained therefor. The net proceeds arising from the sale thereof, after deducting the costs of the sale, shall be paid into the court, there to remain subject to the order of the court, and to be disposed of as the court shall direct.”
The sole issue in this case involves the interpretation of the statutory language which allows the sale of property free and clear of judgment liens if the “validity, extent or legality of any such hen is disputed or brought in question.” K.S.A. 17-6907. The parties agree that the “property of the corporation is of a character which will deteriorate in value pending the litigation respecting the lien.” While the receiver contends that the application of K.S.A. 17-6907 to the facts of this case calls for an abuse of discretion standard of review, we conclude that the issue raised involves the interpretation of K.S.A. 17-6907. The interpretation of a statute is a question of law, and the standard of review is unlimited. Robinett v. The Haskell Co., 270 Kan. 95, 100, 12 P.3d 411 (2000).
Upon appointment, a receiver is vested with title to all the corporate property subject to existing liens. K.S.A. 17-6902; Cates v. Musgrove Petroleum Corporation, 190 Kan. 609,611,376 P.2d 819 (1962). There is no dispute that Advertising Unlimited and Mc-Cleery-Cummings automatically secured judgment hens on J.E. Akers’ real property located within the county by reason of their default judgments. See K.S.A. 2001 Supp. 60-2202(a). This case turns on determining whether the appellants’ judgment hens have been disputed or brought in question within the meaning of K.S.A. 17-6907.
The receiver apparently relies in part on the default nature of the judgments entered in favor of the plaintiffs as well as documents presented at the hearing on the receiver’s motion. According to the receiver, the above is sufficient to warrant application of K.S.A. 17-6907. Ultimately, the receiver relies on the last sentence of paragraph three of his motion to sell real property free of encumbrances which provided that “[t]he judgments obtained by the plaintiffs in the lawsuit as aforesaid were obtained by default and the underlying validity thereof is disputed by the Receiver.” According to the receiver s argument in his brief, the above allegation is “the only allegation and showing that is required by the first prong of K.S.A. 17-6907 for selling receivership property free of liens and other encumbrances.”
We note that the documents referenced by the receiver were not admitted into evidence and are not contained in the record on appeal. Thus, other than the default nature of the judgments, the record contains no evidence disputing or bringing into question the validity, extent, or legality of plaintiffs’ judgment liens. Moreover, while the law favors determinations of disputed claims on the merits of the claims, the law also recognizes the necessity of achieving finality in litigation. Tyler v., Cowen Construction, Inc., 216 Kan. 401, 406, 532 P.2d 1276 (1975). There is nothing in the record to suggest that improper procedures were utilized in obtaining the default judgments, nor does the record contain evidence of any attempt by J.E. Akers to set aside the default judgments under K.S.A. 60-260(b). Based upon the record before us, we conclude that the default judgments are valid and subsisting and contain no procedural defects. Thus, the default nature of the judgments provides no basis for disputing or questioning the validity, extent, or legality of the liens resulting from these judgments.
We are left with the receiver’s allegation that the underlying validity of the judgments is disputed. If the judgments are invalid, the resulting liens would also be invalid. Is a mere allegation by the receiver that the judgment liens or the underlying judgments are invalid sufficient under K.S.A. 17-6907 to authorize a sale clear of the encumbrances? We think not. The express provisions of K.S.A. 17-6907 suggest otherwise.
There are two requirements under K.S.A. 17-6907 that must be met before a sale clear of encumbrances may be authorized. First, the validity, extent, or legality of the lien must be disputed or called into question, and, second, the property of the corporation must be of a character which will deteriorate in value pending the litigation respecting the lien. Considering the second of the two requirements, the complete phrase ends with “pending the litigation respecting the hen.” These words assume a nonfrivolous issue that could potentially consume time with litigation- — -in other words, an issue that cannot be solved quickly while avoiding the deterioration of the asset in the meantime. See Wilkinson, Gaddis & Co. v. Shannon Lodge Sanitorium, 132 N.J. Eq. 591, 595, 29 A.2d 631 (1943). (“The probable duration of the litigation is a significant factor, because it is in view of it that the court must determine whether the property is of a character materially to deteriorate by reason of the anticipated delay.”) Without evidence respecting the legality of the judgments and resulting liens, the court has no way to determine whether there is any question concerning the validity, extent, or legality of the liens.
The record in this case contains no evidence to suggest that either the default judgments or the resulting liens therefrom are anything but valid. In the face of valid and legally sufficient hens, a determination to allow a sale free of such liens based upon mere allegations that such hens are disputed undermines the law authorizing the granting of default judgments, K.S.A. 60-255, as well as the law creating judgment liens, K.S.A. 2001 Supp. 60-2202(a). Finally, as noted above, the language of the statute itself, K.S.A. 17-6907, contemplates circumstances wherein there exists questions concerning the validity, extent, or legality of the Hens and such property will deteriorate in value “pending the litigation respecting the lien.” (Emphasis added.) This language suggests that diere are questions of a serious nature which may have to be resolved by litigation. Thus, we conclude allegations alone are insufficient to satisfy the provisions of the statute.
Other states have enacted similar statutes. A review of decisions interpreting statutes in other jurisdictions would serve litde purpose since those decisions are controlled by the particular state statute. However, even in those states where the statutory language is dissimilar, there is a requirement that a receiver establish before the court the reasonableness of the sale. For example, New Jersey law provides:
“When property of a corporation for which a receiver has been appointed is, at the time of such appointment, subject to one or more encumbrances, the Superior Court, upon the application of the receiver, may authorize the receiver to sell such property at public or at private sale, clear of encumbrances, for such price and upon such terms as the court may approve. No such sale shall be authorized or made except upon prior notice to the holders of the encumbrances affecting such property, and unless the receiver demonstrates to the satisfaction of the court that the sale of such property may be reasonably expected to benefit general creditors of the corporation without adversely affecting the interests of the holders of the encumbrances. The proceeds of such sale shall be paid into court, there to remain until the further order of the court, subject to the same encumbrances which affected the property at the time of the sale.” (Emphasis added.) N.J. Stat. Ann. § 14AT4-7 (West 1969).
Unlike Kansas, there is no explicit requirement in the New Jersey statute that the validity, extent, or legality of a lien be disputed or brought in question. Moreover, New Jersey subjects the proceeds to the hen that was attached to the property. Nevertheless, the sale is not authorized “unless the receiver demonstrates to the satisfaction of the court that the sale of such property may be reasonably expected to benefit general creditors without adversely affecting the interests of the encumbrances.” Thus, the section demands a “reasonable” showing that the sale will benefit the general creditors without harming the holders of the encumbrances.
Interpreting an earlier version of the above statute, which is similar to the present Kansas statute, the New Jersey Supreme Court in Sullivan v. James Leo Co., 124 N.J. Eq. 317, 326, 1 A.2d 400 (1938), stated:
“This power is also regarded and treated as being inherent in the court of chanceiy where it has been and is now often exercised. [Citation omitted.] And where tire property to be sold is ‘encumbered with mortgages or any other lien, the legality of which is questioned, and the property is of a character materially to deteriorate in value pending litigation’ the court of chancery may order the receiver to sell same, pay the money into court, and direct the disbursement thereof subject to Hens which existed against the property before sale.’ Rev. Stat. 14:4-20. But the exercise of this inherent and statutory power must be justifiable, in equity and good conscience, by the facts and circumstances of the particular case. [Citation omitted.]” (Emphasis added.) 124 N.J. Eq. at 326.
The order of the district court in this case notes that its decision was made after “considering the evidence presented.” The receiver in his brief and in oral argument makes reference to documents presented at the hearing on his motion to sell. However, the documents were not admitted into evidence, and the court makes no reference to any specific evidence considered before authorizing the sale. In the absence of any evidence disputing or calling into question the validity, extent, or legality of the liens, and in the face of valid default judgments resulting in legally valid statutory judgment hens, the district court order authorizing the sale under K.S.A. 17-6907, clear of all encumbrances, is invalid.
Reversed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Alroy V. Martens, from his convictions following a bench trial for three felony counts of sale of marijuana, and one count each of felony manufacture of methamphetamine, felony possession of marijuana with intent to sell, felony cultivation of marijuana, felony possession of drug paraphernalia, felony possession of a stimulant, felony possession of marijuana without a tax stamp affixed, and misdemeanor possession of marijuana.
In our original opinion filed March 15, 2002, State v. Martens, 273 Kan. 179, 42 P.3d 142 (2002), we reversed in part and remanded with directions. On March 21, 2002, Martens filed a motion for clarification under Supreme Court Rule 7.06 (2001 Kan. Ct. R. Annot. 51). No response was filed. We grant the motion and modify our original opinion.
Martens contends on appeal that the district court committed error by: (1) denying his motion to arrest judgment; (2) convicting him of manufacture of methamphetamine when the evidence was only sufficient to show attempt to manufacture; and (3) allowing the late endorsement of two crucial witnesses for the State whose testimony substantiated his sale of marijuana.
During June and July of 1998, a confidential informant purchased marijuana from Martens in a series of controlled buys. Following the controlled buys, a search warrant was issued for Martens’ residence. During the subsequent search, officers discovered numerous items associated with the cultivation of marijuana and what appeared to be a methamphetamine lab.
Martens waived his right to a jury trial, and a bench trial was conducted. The district court found Martens guilty of the charges set forth in the preceding paragraphs.
Martens filed a motion for judgment of acquittal on the charge of manufacturing methamphetamine. The stated basis for the motion was that “the state presented no evidence whatsoever that the defendant manufactured methamphetamine.” In addition, counsel for Martens filed a motion to arrest judgment of conviction, arguing that the information was jurisdictionally defective in that it failed to sufficiently charge the crime of attempted manufacture of methamphetamine.
In denying the motion for judgment of acquittal, the district judge stated: “I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either .... land of conduct [attempt to manufacture or manufacture of a controlled substance].”
Martens was sentenced to a controlling term of 49 months’ confinement in connection with the primary offense of “manufacture or attempt to manufacture methamphetamine” under K.S.A. 1997 Supp. 65-4159. Martens was also sentenced to a term of 15 months each for the three convictions for sale of marijuana, to run consecutive to each other but concurrent to the base sentence and, in addition, was sentenced to 36 months of postrelease supervision. In other words, the district court fashioned the sentence so that if Count 5 were reversed and not retried, Martens would still serve a controlling sentence of 45 months.
The Court of Appeals affirmed the district court’s decision. In doing so it held that because K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing a controlled substance, the complaint was fatally defective in failing to incorporate the elements of attempt. The Court of Appeals found, however, that because the amended complaint charged Martens with both manufacturing or attempting to manufacture a controlled substance and alleged the elements of unlawful manufacture of methamphetamine, it “fully informed Martens of the crime with which he was charged.” 29 Kan. App. 2d at 366. Without further comment, the Court of Appeals concluded that the amended complaint was not jurisdiction-ally defective.
In addition, the Court of Appeals found the evidence sufficient to support Martens’ conviction for manufacturing methamphetamine. Further, that court held diat the late endorsement of two witnesses for the State did not result in surprise or prejudice to Martens.
Martens timely petitioned for review. This court granted his petition for review.
MOTION TO ARREST JUDGMENT
According to Martens, Count 5 of the amended complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine in that it failed to include the essential elements of attempt. Martens argues that the Court of Appeals found attempt to manufacture a controlled substance was a separate and distinct crime from the offense of manufacture of a controlled substance, and that the complaint did not include the elements of attempt and was therefore fatally defective as to that crime. Martens asserts that the district court improperly convicted him of attempt to manufacture methamphetamine after he was charged with the manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159, and, therefore, he believes his conviction is void for lack of subject matter jurisdiction.
Martens followed the proper procedure and filed a motion for arrest of judgment. Therefore, we must determine whether the amended complaint clearly informed Martens of the precise offense charged against him. This court’s review of an allegedly defective complaint or information is unlimited. State v. Crane, 260 Kan. 208, 221, 918 P.2d 1256 (1996).
On appeal, the State admitted that the amended complaint failed to allege the elements of attempt, but contended it was not required to list them because K.S.A. 1997 Supp. 65-4159 encompassed by definition the attempt to manufacture a controlled substance.
In his petition for review, Martens asserts that the Court of Appeals held there were two criminal charges in Count 5 of the complaint: (1) attempt to manufacture methamphetamine and (2) the actual manufacture of methamphetamine. Martens argues that the Court of Appeals found the attempt charge jurisdictionally defective and the manufacture charge proper, but erred in upholding his conviction because the district court convicted him of attempted manufacture of methamphetamine.
A. Manufacture versus attempted manufacture of methamphetamine.
Our analysis of this issue involves the interpretation of K.S.A. 1997 Supp. 65-4159. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Here, the district court stated that it found Martens “guilty of manufacturing or attempting to manufacture as the statute states.” In addition, the district judge stated: “I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either . . . land of conduct.” These statements establish the fact that the district court believed that K.S.A. 1997 Supp. 65-4159 included both the actual manufacture of methamphetamine as well as the attempted manufacture of methamphetamine.
In its review of this case, our Court of Appeals distinguished the crime of attempt to manufacture methamphetamine from the crime of manufacture of methamphetamine, stating:
“K.S.A. 1997 Supp. 65-4159 is titled, in part, as ‘Unlawful manufacturing or attempting such of any controlled substance.’ The tide of the statute, however, is not dispositive to die issue of whetiier the statute creates a single offense because ‘[t]he tide or caption prefacing the text of a statute is prepared by die revisor of statutes (K.S.A. 77-133[b]) and “forms no part of the statute itself.” [Citation omitted.]’ State v. Larson, 12 Kan. App. 2d 198, 201, 737 P.2d 880 (1987).
“Section (a) of K.S.A. 1997 Supp. 65-4159 states as follows: ‘Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.’ (Emphasis added.) We interpret this subsection as providing die elements of die offense. The only means of violating die statute is manufacturing a controlled substance or a controlled substance analog. Because the statute does not specify attempted manufacture of a controlled substance as a means of violating the statute, attempted manufacture of a controlled substance is a separate offense created under K.S.A. 21-3301(a). This interpretation is supported by PIK Crim. 3d 67.21-A (1999 Supp.), which lists manufacture of a controlled substance, not attempted manufacture, as the means of violating K.S.A. 1997 Supp. 65-4159.” 29 Kan. App. 2d at 364-65.
The legislature enacted 65-4159 in 1990, and subsequently amended it in 1993 and 1994. The 1990 and 1993 statutes included language prohibiting “the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance.” K.S.A. 65-4159; K.S.A. 1993 Supp. 65-4159. In 1994, however, the legislature extensively revised 65-4159, dividing it into four subsections and changing the language of the first subsection to read: “(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” The 1994 amendment omitted the words “or attempting to unlawfully manufacture” from the statutory prohibition subsection.
Although subsections (b) and (c) of 65-4159 still mention “attempting to unlawfully manufacture,” those subsections only mandate the imposition of the same penalty for attempting to unlawfully manufacture as for the actual manufacture of a controlled substance. Subsections (b) and (c) do not criminalize any specific conduct.
Within subsection (a) of 65-4159, the legislature in 1994 deleted the phrase “or attempting to unlawfully manufacture” previously seen in the statute. “When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]” Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1980), cert. denied 528 U.S. 812 (1999).
We conclude that following its amendment in 1994, 65-4159 no longer includes the crime of attempting to manufacture a controlled substance. In addition, we find that the attempted manufacture of a controlled substance is a separate offense controlled by K.S.A. 21-3301(a).
In reviewing this case, the Court of Appeals stated that “[t]he only means of violating [K.S.A. 1997 Supp. 65-4159] is manufacturing a controlled substance” (29 Kan. App. 2d at 365), which seems to imply that the term “manufacture,” as used in K.S.A. 1997 Supp. 65-4159, may be defined to mean only the completed process of producing methamphetamine. Upon review of the statutory definitions provided in K.S.A. 1997 Supp. 65-4101(e) and (n), however, we cannot fully agree with that interpretation of K.S.A. 1997 Supp. 65-4159.
In K.S.A. 1997 Supp. 65-4101(n), “manufacture” was defined as the “production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis . . . .” Likewise, in K.S.A. 1997 Supp. 65-4101(e), a “controlled substance” meant “any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sections.” (Emphasis added.)
The statutory definitions of the terms “manufacture” and “controlled substance” in the Uniform Controlled Substances Act include but do not mandate the consummation of a final product. See People v. Lancellotti, 19 Cal. App. 4th 809, 814, 23 Cal. Rptr. 2d 640 (1993) (quoting People v. Jackson, 218 Cal. App. 3d 1493, 1504, 267 Cal. Rptr. 841 [1990]) (“ ‘The ongoing and progressive malting, assembly or creation of [a controlled substance] from its component chemicals may, but does not necessarily by definition, include the culmination of the manufacturing process, the finished . . . product.’ [Citation omitted.]”). In other words, to prove the crime of manufacture of methamphetamine, the State must show that the defendant (1) intentionally (2) completed the manufacture of methamphetamine or (3) could have successfully manufactured methamphetamine.
Under K.S.A. 21-3301(a), the anticipatory crime of attempt is defined as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” To establish attempt, the State must show that the defendant: (1) performed an overt act toward the commission of a certain crime; (2) did so with the intent to commit the crime; and (3) failed to perpetrate the crime or was prevented or intercepted in the execution of the crime. See Crane, 260 Kan. at 222; State v. Sullivan & Sullivan, 224 Kan. 110, 122, 578 P.2d 1108 (1978); PIK Crim. 3d 55.01 (1999 Supp.).
“It is the intent to commit the crime, not the possibility of success, which determines whether the defendant’s act or omission constitutes the crime of attempt.” 21 Am. Jur. 2d, Criminal Law § 174, p. 251. By contrast, the focus of the crime described in 65-4159 is the successful manufacture or potentially successful manufacture of a controlled substance. Thus, while the crimes of attempt to manufacture methamphetamine and actual manufacture of methamphetamine may overlap somewhat, the distinction between the two crimes may be said to depend upon the degree of likelihood that a defendant’s efforts will succeed in producing methamphetamine.
B. Offenses charged in the amended complaint.
In order to determine whether the complaint against Martens was jurisdictionally defective, we next examine- the offenses charged against Martens in the criminal complaint. The handwritten amendments to Count 5, made on August 30, 1999, read:
“That in Saline County, Kansas, on or about or between March 1 through the 9th day of July, 1998, one, ALROY VERN MARTENS did then and there unlawfully, willfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.
“K.S.A. 65-4159 (1997 Supp.) (Manufacture of Methamphetamine)
“Level 2D Nonperson Felony (Sentence range .46-83 months)”
While Count 5 does allege that Martens “willfully ... attempted] to manufacture . . . methamphetamine,” K.S.A. 21-3301 was not cited.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), this court previously stated:
“The Bill of Rights in the Kansas Constitution requires that the accused be allowed to demand the nature and cause of the accusation. Kan. Const. Bill of Rights, § 10. A defendant cannot be charged in the information with one offense and be convicted of another and different offense which is not a lesser included offense of the crime charged when instructed upon pursuant to statute. [Citation omitted.] The § 10 language is similar to the language of the Sixth Amendment to the United States Constitution, which extends to an accused the right ‘to be informed of the nature and cause of the accusation.’ [Citation omitted.]
“The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. [Citation omitted.]” 246 Kan. at 753-54.
“The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. [Citations omitted.]” State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 (1999).
The record reveals the following discourse between the Honorable Dan Boyer and counsel for Martens on September 3,1999, regarding the court’s findings on the charges of manufacturing or attempting to manufacture methamphetamine:
“[THE COURT]: Let’s go back to Count 5.1 gave that particular consideration. R’s in the Court’s view that you’re charged under a statute which in its clear terms makes it unlawful to either manufacture, attempt to manufacture a controlled substance. The Court must necessarily though because of the inherent nature of that statute look at the law of attempt.
“. . . Specifically, as I considered Count 5, Mr. Martens, I had to consider had you just simply gone through acts of preparation or had you made significant steps toward the commission of the crime of manufacturing. Your intent is not in dispute. In the Court’s opinion, it’s very clear, you admitted at the police station when you were interviewed, on July the 8th I think it was, that you had attempted to manufacture methamphetamine but had failed to do so. . . . Sol come down to the issue, had you gone far enough to be guilty of the crime of attempt to manufacture. Now, I’m not so sure I agree with Mr. Stanton that buying the flask and the chemicals are enough, that’s a separate crime as I recall, precursors is a separate crime. I’m not sure that’s enough. . . . But it seems to the Court when you start mixing and baking you’ve gone beyond that step. The lab man who came in who is supposed to be one of the State’s experts, Dwain Worley, a KBI specialist on clandestine labs, called from the evidence he inferred this was a failed attempt to manufacture methamphetamine. He lent great credit to the coffee filters which contained ephedrine. . . . [A]ll in all, I must conclude, based — I find that intent, there’s no question about it. Now your statement was that you attempted to cook within two months prior to your arrest, statute of limitations two years. Mr. Stanton did amend the Complaint regarding Count 5 to include the language on or between March 1 and the 9th day of July, 1998. All things considered, sir, I find you guilty of Count 5 — •
“[Counsel for Martens]: Your Honor.
“THE COURT: —manufacture, attempt to manufacture of methamphetamine.
“[Counsel for Martens]: Your Honor, is the Court then finding the defendant guilty of manufacturing?
“THE COURT: No, I’m finding him guilty of manufacturing or attempting to manufacture as the statute states.
“[Counsel for Martens]: Your Honor, I don’t know how the Court can do that when they’re separate offenses, Your Honor.
“THE COURT: Well, I conclude that they aren’t; that’s my premise.”
The district court’s discourse reveals that the judge found Martens guilty of conduct meeting the elements of attempt to manufacture methamphetamine. The sentencing sheet, however, lists the primary offense of conviction as the manufacture or attempted manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159. The box next to the word “attempt” on the sentencing sheet is not marked, however. After carefully reading the judge’s comments as well as other documentation in the record, it appears that the district court intended to convict Martens of both attempt and actual manufacture because the court believed both were encompassed within 65-4159.
Here, Martens contends that his conviction should be overturned because the district court clearly convicted him of attempt to manufacture, a crime not charged against him in the amended complaint. Martens challenges the subject matter jurisdiction of the district court, arguing that the court had no authority to find him guilty of attempt to manufacture methamphetamine because the complaint was fatally defective, failing to set forth the elements of attempt.
“Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A. 22-2301. The complaint shall be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22-3201(b). Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).
“The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which the defendant is charged and which the defendant must defend against at time of trial. K.S.A. 21-3107(1) states which crimes may be alleged in a complaint or information by the State and how the offenses must be alleged in the charging instrument.” State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
K.S.A. 21-3107 states:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. • -
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.”
The statute does not mandate that each crime be alleged separately, but simply says each may be alleged as a separate count. We have previously stated that even when a statute within the Uniform Controlled Substances Act provides various means of violation, “the better practice is to charge the alternative charges in separate counts." State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988).
Here, the State failed to mention the statute that covers attempt, K.S.A. 21-3301(a), in the charging document. Attempt was not an offense under the statute cited by the State (K.S.A. 1997 'Supp. 65-4159), although that statute does deal with the sentence for an attempt to manufacture the prohibited substances. Nevertheless, attempt to manufacture a controlled substance is a lesser included crime of the manufacture of a controlled substance. See State v. Peterson, 273 Kan. 217, 223, 42 P.3d 137 (2002). Therefore, Martens could be charged in the complaint with violating 65-4159 and subsequently be convicted of the lesser included crime of attempt to manufacture methamphetamine. K.S.A. 21-3107(2).
The problem here, however, is that the district court seemingly convicted Martens of both attempted manufacture and actual manufacture of methamphetamine contrary to K.S.A. 21-3107(2). We therefore reverse Martens’ conviction and remand the matter for a new trial on the issue of whether he was guilty of manufacturing or attempting to manufacture methamphetamine.
By reason of our decision on this issue, die issue of whether sufficient evidence supported the conviction of manufacture of methamphetamine is moot.
The third issue on appeal is whether the district court erred in allowing the late endorsement of Bradley Crowe and Kamala Hinnergardt as witnesses at trial for the State. This court has reexamined Martens’ third contention of error concerning the late endorsement of witnesses and finds it to be without merit.
At trial, the State called Crowe, a forensic scientist with the Kansas Bureau of Investigation (KBI). Crowe was sworn in and stated his name and occupation, but counsel for Martens objected on the grounds that the witness had not been endorsed. The State moved to endorse the witness. The court, noting that the complaint listed KBI chemists and that counsel for Martens had been provided with the forensic reports, found there was no surprise or prejudice to Martens. The court overruled the objection and permitted the endorsement of Crowe.
Following the State’s direct examination, counsel for Martens declined to cross-examine Crowe, stating that he was unprepared to cross-examine the witness. The court stated:
“This witness has testified as to three well-known tests that are commonly known in our courts, the testing of marijuana. [Counsel for Martens], you have the forensic report, his testimony is limited, straightforward on that issue. Now, you have the opportunity to examine if you wish, that’s your choice. Do you care to cross-examine?”
Once again, defense counsel refused.
At the close of the State’s direct examination of Hinnergardt, also a forensic scientist with the KBI, counsel for Martens again declined to cross-examine the witness for the same reason. The focus of the testimony of Crowe and Hinnergardt was to identify evidence found by police at Martens’ residence as marijuana.
The district court’s statutory authority in regard to the endorsement of witnesses is found in K.S.A. 2001 Supp. 22-3201(g) which states, in pertinent part:
“(g) Except as otherwise provided, the prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. Except as otherwise provided, the prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.”
This court previously construed the language found in the first two sentences of K.S.A. 2001 Supp. 22-3201(g) as conferring “broad discretionary power on the trial court in allowing a late endorsement.” State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 (1993).
Here, counsel for Martens had the forensic reports of Crowe and Hinnergardt prior to trial concerning the testing of marijuana and knew or should have known the substance of their testimony before trial. Therefore, the trial court’s allowance of the late endorsement of Crowe and Hinnergardt did not result in either surprise or material prejudice to Martens. We hold that the district court did not abuse its discretion by endorsing those two witnesses.
On remand, tire district court must determine whether Martens was guilty of manufacturing or attempting to manufacture methamphetamine in accordance with this opinion. Because we find Martens’ third assertion of error on appeal to be without merit, we affirm his other convictions and remand for retrial only as to Count 5 of the complaint.
Davis, J., not participating.
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The opinion of the couxt was delivered by
Nuss, J.:
The district court dismissed for lack of jurisdiction Michael Anthony’s motion to modify a sentence imposed for his third offense of driving under the influence (DUI). The Court of Appeals reversed and remanded for a determination on the merits of his motion in State v. Anthony, 30 Kan. App. 2d 427, 42 P.3d 207 (2002). We granted the State’s petition for review under K.S.A. 20-3018(b), since an earlier panel of the Court of Appeals appears to have reached dissimilar results with a similar issue. See State v. Smith, 26 Kan. App. 2d 272, 981 P.2d 1182, rev. denied 268 Kan. 854 (1999).
The sole issue on appeal is whether the district court has jurisdiction to modify a sentence once it has been legally imposed under the felony provisions of the DUI statute, K.S.A. 8-1567(f). We reverse.
FACTS
Anthony pled guilty to his third DUI offense, a nonperson felony, on October 27, 2000, and the district court imposed the maximum sentence of 12 months in the county jail. After Anthony served the mandatory minimum of 90 days, he filed a motion to modify and requested probation. The district court held it lacked jurisdiction to modify the sentence after imposition and denied the motion, apparently relying upon the rationale of Smith. Upon Anthony’s appeal, a Court of Appeals panel different from Smith’s reversed, albeit without expressly rejecting Smith.
DISCUSSION
The determination of whether the district court has jurisdiction to modify a sentence once it has been imposed under the DUI statute, K.S.A. 8-1567(f), requires not only our interpretation of that statute but also of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Statutory interpretation is a question of law, and this court’s scope of review is unlimited. State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).
The sentencing of a criminal defendant is strictly controlled by statute in Kansas. State v. Saft, 244 Kan. 517, 518, 769 P.2d 675 (1989). Kansas statutes have long vested district courts with considerable discretion in the sentencing of all criminal defendants, including DUI defendants. See, e.g., G.S. 1949, 66-2239 (1957 Supp.) (“Whenever any person has been guilty of a crime or offense upon verdict or plea .... [t]he court may modify a sentence within sixty [60] days after it is imposed.”) (Emphasis added.). Since 1965, this considerable discretion has included the authority to modify a sentence within 120 days of imposition, also known as the 120-day callback. See K.S.A. 21-4603(d)(l). With the passage of the KSGA, however, much of this prior discretion was removed. In particular, the 120-day callback was eliminated for crimes committed after July 1, 1993. The replacement statute, K.S.A. 2001 Supp. 21-4603d, “makes no mention of and does not provide for sentence modification.” Miller, 260 Kan. at 896.
In Miller, we held that the legislature’s “elimination of the court’s authority to modify was intentional.” 260 Kan. at 897. Accordingly, in Miller we held that “[w]hen a lawful sentence has been imposed under KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct ‘arithmetic or clerical errors’ pursuant to K.S.A. 21-4721(i).” 260 Kan. at 900.
The Court of Appeals relied upon the Miller decision in Smith to hold the district court had no jurisdiction to modify a sentence after it had been imposed under K.S.A. 21-3705(b)(criminal deprivation of property, a nonperson felony). The court relied not only upon Millers determination of a lack of jurisdiction to modify under the KSGA, but also the absence of modification authority in K.S.A. 21-3705:
“Further, the plain language of K.S.A. 21-3705 does not authorize the district court to modify a sentence but merely stated a defendant must serve the mandatory jail time before he or she is eligible for probation, suspension or reduction of his sentence, or parole.” 26 Kan. App. 2d at 273-74.
The Court of Appeals in the case at bar took a somewhat different analytical path. It observed that until 1999 both K.S.A. 21-3705(b) and K.S.A. 8-1567(f)(the felony DUI provision) were exempted from the sentencing guidelines grid for nondrug felonies under the KSGA. The court specifically noted the provisions of K.S.A. 21-4704(i) in effect at die time of the crime for which Smith was convicted:
“ ‘The sentence for the violation of the felony provision of K.S.A. 8-1567 [DUI] and subsection (b) of K.S.A. 21-3705 [criminal deprivation of property], and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-4707 and amendments thereto. Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of die felony provision of K.S.A. 8-1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall not be served in a state facility in the custody of the secretary of corrections.’ ” 30 Kan. App. 2d 429-30.
The Court of Appeals conceded that K.S.A. 21-4704(i) specifically refers to only two sections that contain exemptions from the KSGA, K.S.A. 21-4704 (sentencing guidelines grid for nondrug crimes) and K.S.A. 21-4707 (sentencing crime severity scale for nondrug crimes). It concluded, however, that “applying only a portion of the KSGA provisions to nongrid felonies distorts the overall purpose and scheme of the KSGA.” 30 Kan. App. 2d at 430. As a result of the court’s interpretation, it held that the district court retains jurisdiction to modify a nongrid felony DUI sentence.
We depart from the analytical path of the Court of Appeals below and return to the path of the Smith court to ask the more basic question: Does statutory authority exist for the modification of legal sentences after imposition?
As mentioned, the sentencing of a defendant is strictly controlled by statute in Kansas; accordingly, the authority to modify a sentence is strictly statutory. State v. Saft, 244 Kan. at 518 (“The court’s authority to modify a sentence is found at K.S.A. 21-4603[3].”). As aresult, in Saft we refused to add a judicially created sentence modification exception to those statutory exceptions created by the legislature:
“The legislature, by specifying those instances in which a defendant may move for sentence modification outside the original 120 days, has indicated these to be limited exceptions. Had the legislature intended for other exceptions, it could easily have granted the court authority to modify ‘within 120 days after a sentence is imposed or modified.’ ” 244 Kan. at 520-21.
Similarly, in Miller we held that upon the legislature’s intentional elimination of the statutory authority to modify after sentencing, no such authority existed. The defendant’s contention “has no statutory support and is inconsistent with the elimination of the court’s statutory power of sentence modification.” (Emphasis added.) 260 Kan. at 900. See also State v. Bost, 21 Kan. App. 2d 560, 565, 903 P.2d 160 (1995) (The legislature has revoked tíre statutory ability to have one’s sentence modified after sentencing.).
One might argue that the legislature’s elimination of the general statutory authority to modify after sentence imposition (K.S.A. 21-4603[3]) is of no import because the DUI statute is specifically excluded from the KSGA under K.S.A. 21-4704(i). Under this argument, the alleged authority to modify DUI sentences imposed under K.S.A. 8-1567(f) must derive from that statute’s own language: “[T]he person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment.”
In Smith, the Court of Appeals examined virtually identical language in the other statute then exempted under K.S.A. 21-4704(i). That language in 21-3705(b) provided: “The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the minimum mandatoiy sentence as provided herein.”
The Smith court expressly held, however, “[t]he plain language of K.S.A. 21-3705 does not authorize the district court to modify a sentence.” 26 Kan. App. 2d at 273. Rather, the language there “merely stated a defendant must serve the mandatoiy jail time before he or she is eligible for probation, suspension or reduction of his sentence, or parole.” 26 Kan. App. 2d at 273. We agree with the Smith court’s reading; Nothing in the DUI statute authorizes the district court to modify a sentence. Without the authority granted by statute, the court has no ability to modify. In short, neither the present DUI statute nor the criminal deprivation of property statute at issue in Smith expressly states the district court’s authority to modify sentences as did the former 21-4603(d). “ When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.’ ” Miller, 260 Kan. at 895 (quoting Martindale v. Tenney, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 [1992]).
Moreover, there is nothing in the legislative history and amendments to the KSGA in general or 21-4704(i) in particular which suggests the nongrid crimes of felony DUI and criminal deprivation of a motor vehicle were to be excluded from the KSGA for any issue other than length of sentence. This conclusion is consistent with the plain language of K.S.A. 1999 Supp. 21-4704(i):
“The sentence for the violation of the felony provision of K.S.A. 8-1567 . . . and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section [21-4704, sentencing guidelines grid for nondrug crimes] or K.S.A. 21-4707 and amendments thereto [crime severity scale for nondrug crimes].” (Emphasis added.)
To hold otherwise is to usurp the authority, and disregard the intentional direction, of the legislature. We reverse the Court of Appeals and affirm the judgment of the district court dismissing Anthony’s motion for lack of jurisdiction. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
The central issue in this case is whether diere was temporary insurance coverage on the life of William Thomas Gaines at the time of his death. Gaines died within the temporary coverage period set by the conditional premium receipt. When National Inspection and Repair, Inc., (NIR) demanded payment of $500,000 in life insurance on Gaines, Valley Forge Life Insurance Company and Continental Assurance Company (collectively known as CNA) denied coverage.
NIR sued CNA and Eugene Straub. Against CNA, NIR alleged breach of contract and, in the alternative, negligence. Against Straub, it alleged negligence or misrepresentation and acting without authority in failing to procure the insurance. CNA filed a cross-claim against Straub for improperly accepting the application and initial premium for Gaines. On cross-motions, the district court granted summary judgment in favor of NIR and against CNA. The district court dismissed CNA’s cross-claim against Straub. CNA appeals. The district court’s entry of summary judgment in favor of Straub was not appealed.
CNA filed separate notices of appeal from the entry of summary judgment and the dismissal of its cross-claim. Those appeals, 87,279 and 87,981, are consolidated for purposes of argument and decision under case No. 87,279. This court transferred the appeal from the Court of Appeals. K.S.A. 20-3018(c).
On appeal, CNA argues that the trial court erred in granting summary judgment in favor of NIR and in dismissing CNA’s cross-claim against Straub.
The district court made findings of fact. On appeal, CNA contends, among other things, that summary judgment is precluded by a genuine issue of material fact whether NIR had notice before Gaines died that his life was not insured by CNA. CNA argues that summary judgment is not precluded because any notice NIR may have had of the lack of coverage on Gaines’ life is, as a matter of law, insufficient to terminate temporary coverage. The district court made findings of fact, set out in numbered paragraphs, as follows:
1. The Defendant, Valley Forge Life Insurance Company, is an insurance company licensed to conduct business in the State of Kansas.
2. The Defendant, Continental Assurance Company, is an insurance company licensed to conduct business in the State of Kansas. The two companies are referred to collectively as CNA.
3. On or about September 18,1998, William T. Gaines and Kenneth Burkhead both filled out applications for key man insurance. The plaintiff, NIR, was the intended beneficiary. Both William T. Gaines and Kenneth Burkhead filled out applications, which were accepted by defendant Straub.
4. On September 18, 1998, NIR issued check number 2409 to CNA in the amount of $653.36 with $211.72 being the amount due for Burkhead and $441.84 due for Gaines for life insurance coverage of $500,000 each, and delivered the check to defendant Straub.
5. Straub accepted the check, which was the premium payment for the first three (3) months for each policy and in return provided two “Conditional Premium Receipts” to NIR.
6. On September 19,1998, Straub forwarded the applications to Financial Brokerage, Inc., which processed applications on behalf of CNA. Straub then went to China for 1 month.
7. Straub took premium money for the Gaines application although technically he should not have done so because Gaines had answered a question in section 20 of his application in the affirmative.
8. On September 24, 1998, Financial Brokerage, Inc., on behalf of CNA wrote to Straub and acknowledged receipt of the two applications.
9. The premium check from NIR was cashed by CNA on or about October 2, 1998.
10. On October 9, 1998, Financial Brokerage, Inc., wrote to Straub as a “STATUS UPDATE AS OF 10/08/98” and advised: “We may consider $234,500 as maximum for key man insurance. Please verily if the applicant was diagnosed with schizophrenia in August of 98? Thank you for your business.”
11. On October 29, 1998, Financial Brokerage, Inc., again corresponded with Straub as a “STATUS UPDATE AS OF 10/28/98” and advised: “I have given the underwriter the medical information regarding schizophrenia and we will continue to underwrite this case. I will contact you as soon as I have a decision. Thank you.”
12. NIR’s payment was for the first 3 months’ premium for each policy. CNA does not dispute this fact, but it denies the payment was for any temporary, conditional or unconditional life insurance contract.
13. Straub did not disclose that this insurance was contingent in any way and in fact stated that upon the acceptance of the check the company would be covered and if the individuals died the next day that the insurance would be in effect. Defendant CNA does not dispute that the statement may have been made but denies it was valid or that Straub had authority to make it or that it would give rise to a temporary insurance contract.
14. Gaines died unexpectedly on November 15, 1998.
15. Straub wrote in a letter to the Kansas Insurance Commissioner on April 22, 1999: “I called Financial Brokerage, Inc., promptly upon notification by phone from Mr. Kenneth Burkhead, Jr. that Mr. Gaines had died during the night.” This fact is not disputed by CNA, but it denies that prompt notification has any effect to create temporaiy, conditional or unconditional coverage.
16. On November 23, 1998, 8 days after Gaines’ death, CNA, through its agent Financial Brokerage, Inc., notified Straub by letter that a policy of insurance was being issued for Burkhead with an annual premium payment of $622.50.
17. After Gaines died, NIR contacted CNA on December 30, 1998, and on January 21, 1999, attempting to collect on the insurance policy. NIR, through its counsel, notified CNA of its demand to collect the life insurance proceeds for the policy which insured Gaines in the amount of $500,000 at the time of his death on November 15, 1998.
18. In a letter dated January 8, 1999, CNA attempted to refund the original premium amount by issuing a refund check in the amount of $653.36. The letter states that “any coverage that may have been provided under our Conditional Premium Receipt no longer applies.” This letter was date stamped by the post office, January 11,1999. CNA denies that the letter expressly or impliedly creates temporary, conditional or unconditional insurance coverage.
19. NIR refused to cash the refund check.
20. In a letter to the Kansas Insurance Department, CNA on May 7, 1999, admitted: “Although the money was refunded under the partner file, no notification was sent to Mr. Gaines that coverage did not exist.”
21. CNA has refused to pay NIR the $500,000 coverage upon the death of Gaines, and NIR contends that the money is now due and owing under the application and conditional receipt.
22. To help in its business operations, NIR hired Straub as an advisor on business related matters.
23. David Price, President of NIR, also declared Straub to be NIR’s insurance representative.
24. In his capacity as an advisor for NIR, Straub suggested to Price that NIR should purchase key man insurance on a couple of its employees.
25. Straub contacted Financial Brokerage, Inc., to solicit key man insurance on behalf of NIR. Financial Brokerage, Inc., responded by sending Straub information on three companies.
26. Price, on behalf of NIR, selected CNA.
27. After CNA was selected, Straub sought solicitor or producer status with CNA in order to receive the commission from the sale of key man insurance to NIR.
28. On or about September 29, 1998, Financial Brokerage, Inc., contacted Bammes, who had been designated by Straub to act for him while he was in China, to inform him that premium money could not be accepted with Gaines’ application and to discuss potential remedies. NIR contends that this fact is inadmissible hearsay and should not be considered.
29. Financial Brokerage, Inc., also informed Bammes that, if Gaines were to be covered, he could only be covered for $234,500 due to his salary range. Bammes conveyed this information to Straub, but not to NIR.
30. Bammes told Financial Brokerage, Inc., to apply all the premium to Burkhead’s application and to reapply $441.84 to Gaines’ file if a policy was issued on his life. NIR contends that this fact is inadmissible hearsay and should not be considered. The district court found that there was not sufficient competent evidence to support a finding that NIR was informed before Gaines’ death of the communications between Bammes and Financial Brokerage, Inc.
31. Until receiving CNA’s letter of January 8,1999, NIR had no direct knowledge from CNA of its intent not to insure Gaines.
32. CNA retained the premium and was in possession of it at the time of Gaines’ death.
33. Gaines died within the 90-day period for which any coverage was in effect through the conditional premium receipt.
We first consider whether the trial court erred in granting summary judgment in favor of NIR.
The issue, as seen by the district court, is whether a person is insured if that person dies after an application for life insurance has been submitted and an initial premium payment has been exchanged for a receipt, but before tire period provided for temporary coverage has expired and before a policy of life insurance has been issued or refused. According to the district court, the general rule governing this circumstance was stated in Service v. Pyramid Life Ins. Co., 201 Kan. 196, Syl. ¶ 7, 440 P.2d 944 (1968):
“The provisions of a binding receipt issued for payment of the first premium upon application for life insurance, in accordance with the facts and conditions more particularly stated in the opinion, are construed as providing temporary insurance protection until such time as the insurer has considered the application and announced its determination to accept or reject the risk, and the insurer cannot terminate the risk so assumed unless the insured is notified in his lifetime that his application was rejected.”
In Service, the regional manager for the insurance company met with Zelma and Gerald Service and took an application and a premium check for life insurance on Gerald. The manager told Zelma that Gerald was covered upon payment. In reliance, the Services allowed two other term life insurance polices to expire. Before the insurance company had notified the Services whether it would insure Gerald, he died in an automobile accident. The insurer denied coverage; Zelma Service successfully sued for the full amount of insurance applied for.
With regard to receipts for first premium payments, temporary coverage, and the practices of life insurance companies, the court in Service expressed the following view:
“It is the practice of many life insurance companies to state in their applications that the contract of insurance shall not take effect until the application has been approved by the company, the first premium paid by the applicant, and the policy delivered. Where this is the situation a period intervenes between the signing of the application by the applicant and the delivery of the policy. During this period no money has been advanced to the insurance company, and no insurance is in effect. This interval, of a few days to several weeks, depending upon the time consumed in investigation and physical examination of the applicant, in passing upon his application at the home office, and in the traveling of the application and policy to and from the home office, is undesirable from the point of view of the insurer as well as the applicant. The disadvantage to the applicant consists in the fact he is not covered by insurance during this period, while the disadvantage to the insurer consists in the fact that during this period the applicant possesses the power to revoke the offer made in his application. This disadvantage is a real one as far as the insurer is concerned, because the applicant may decide to exercise his power, either because he chooses not to carry any insurance at all, or because he chooses to purchase it from a rival company. In that event the company suffers to lose what it has expended for the investigation and medical examination of the applicant, aside from the loss of business itself.
“To alleviate this situation insurance companies have seized upon the idea of issuing binding receipts to the applicant upon the payment of the first premium. These binding receipts, or conditional receipts, as they are sometimes called, usually contain a provision to the effect that the insurance shall be considered as in force from the date of the receipt, or the date of the medical examination, provided the application is approved and accepted at the home office of the insurer.
“The issuance of these binding receipts effectively does away with the disadvantage threatening the insurer. The applicant to whom the binding receipt is issued feels contractually obligated to perform, and it serves to give the insurer the use of premium money at the earliest date possible. It further offers a selling point of which no agent fails to make the utmost in his talks with prospective customers.” 210 Kan. at 209-10.
With regard to courts’ handling of the binding receipts, the court observed:
“There is a great confusion of authority as to the effect to be given such receipts. Because of the similarity of wording usually found in them, attempts have been made to generalize their operation. If these apparently conflicting authorities are examined, however, it becomes clear that these receipts are not capable of general treatment, but must be individually interpreted to give them the effect which the parties intended them to have in each case. The fundamental question is: What was their intention?” 201 Kan. at 211.
Thus, the issue was whether the receipt given to Zelina Service in exchange for her initial premium payment indicated “an intention to create temporaiy insurance coverage for the time during which the approval of the application was pending?” 201 Kan. at 212.
The receipt given to Zelma Service stated:
“ ‘It is understood and agreed that the payment referred to on the reverse side of this receipt is made and accepted subject to the following conditions:
T. That if the Company at its Home Office after investigation shall be satisfied that on the date hereof, or on the date of the medical examination for such insurance, whichever is later, each person proposed for insurance was insurable and entitled under the Company’s rules and standards to insurance on the plan and for the amount applied for at the Company’s published rates corresponding to the age of each person proposed for insurance, the insurance protection applied for shall by reason of such payment [except as otherwise provided in item (16) of tire application] take effect from the date hereof or from the date of such medical examination, whichever is later. In any event, the amount of insurance becoming effective under the terms of this receipt is limited to the extent that in the event of the death of the Proposed Insured, the total liability of the Company shall not exceed $250,000 inclusive of life insurance and accidental death benefit in force with the Company on the date of the application. If less than the full first premium has been paid, such insurance protection shall nevertheless become effective on said date but shall be deemed temporary only and to expire- at the end of the period for which the amount tendered hereunder would provide such insurance on a pro rata basis.
‘2. That if any check, draft or money order given in payment of the premium is not paid on presentation, this receipt shall be void.
‘3. That if said application is not approved and accepted by the Company within sixty (60) days from the date hereof, tiren insurance applied for shall not become effective, and the amount tendered shall be returned. Any delay in the return of the amount tendered shall not be construed as approval of the application.’ (Emphasis added.)” 201 Kan. at 211.
The court concluded that the insurance company “accepted the liability for insurance created by the preliminary agreement in the form of a binding receipt of which it had not been divested by rejection of the application.” 201 Kan. at 216. Stating that it was giving effect to the intention of the parties, the court held that temporary insurance was in force on the life of Gerald Service at the time of his accidental death. 201 Kan. at 215-16.
Despite it being apparent that Service was dre basis for the district court’s decision in the present case, CNA does not mention Service in its opening brief and contends that the district court applied Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, 499 P. 2d 1155 (1972). CNA attacks the district court’s ruling on the ground that Tripp was expressly overturned in Thomas v. Thomas, 250 Kan. 235, 824 P.2d 971 (1992). CNA’s argument borders on the disingenuous and is without merit.
In Tripp, as in Service, the application for insurance included a provision for a certain number of days in which the company could issue or decline to issue a policy. In Tripp, unlike in Service, the stated period was over before the applicant died. In Tripp, the application provided:
“ ‘. . . (2) The Company shall have sixty (60) days from the date of receipt of the application at its Home Office in Webster Groves, Missouri (which is agreed to be a reasonable period) to determine the insurability of Proposed Insured on the basis on which application is made or on another basis. If the policy is not received by the undersigned(s) within that period the application will be deemed to have been declined by the Company. . . .’” 210 Kan. at 34.
The receipt given for the initial premium stated:
“ ‘. . . The insurance under the policy for which application is made shall be effective on date of this receipt or the date of completion of the medical examination (if, and when required by the Company), whichever is the later date, if in the opinion of the authorized Officers of the Company at its Home Office in Webster Groves, Missouri, the Proposed Insured is insurable and acceptable for insurance under the rules and practices on the plan of insurance. . . .
‘Company shall have 60 days from date of application to consider and act upon the application. Failure of the Company to offer a policy within such 60 days shall be deemed a declination/ ” 210 Kan. at 34.
Refusing to distinguish Service on the ground that Service died within 60 days of application but Tripp died 45 days after the 60 days had passed, the court stated that the “reasoning in Service, supporting the theory of temporary insurance, is consistent with an extension of the doctrine of temporary insurance until the company acts upon the application.” 210 Kan. at 38. The court held:
“The only reason for failure to return the premium at the end of the sixty days would be that the company was still contemplating issuing the policy. We cannot support a rule which would permit an insurance company to malee a decision on an application after the insured’s death. We conclude under the facts disclosed in this record that when an application for life insurance is made and the company receives the initial premium and issues a receipt therefor, a policy of temporary insurance is created and said policy of temporary insurance continues in effect until the insurance company declines the application, notifies the insured, and returns the premium, notwithstanding the provisions of the application and the receipt to the contrary.” 210 Kan. at 38.
In Thomas, as in Tripp, an applicant for life insurance died after the consideration period had expired. The Thomas court, 250 Kan. at 244, expressly overruled Tripp and announced this new rule:
“When a conditional receipt for life insurance states clearly and unequivocally that if no insurance policy is issued to the applicant within a specified period the application shall be deemed to have been denied by the company and there is no insurance beyond the specified period, the contract expires by its own terms.” 250 Kan. 235, Syl. ¶ 1.
The receipt given to Richard Thomas when he applied for life insurance and paid the initial monthly premium stated that if within 45 days from issuance of the receipt a policy has not been issued to the applicant, the application would be deemed to have been declined by the insurance company. 250 Kan. at 236-37. When Thomas died nearly 6 months after applying, the insurance company had not issued a policy. Applying the new rule, the court determined that Thomas was not insured at the time of his death.
The court distinguished Tripp from Service:
“In Service, the insured died during tire conditional receipt period, malting it completely distinguishable from Tripp. From our consideration of all the cases, we conclude Tripp should be overruled. The conditional receipts in Tripp and in this case state clearly and unequivocally that if no insurance policy is delivered to the applicant within a specified period, there is no insurance. Thus, the contract expired by its own terms. Such does not represent a new principle of law. Most contracts have termination dates. We are mindful of tire rule that contracts drafted by one of the parties should be strictly construed against the party who drafted it. [The insurance company] drafted this contract, but because it is clear and unambiguous it requires no construction by this court. Fast v. Kahan, 206 Kan. 682, Syl. ¶ 2, 481 P.2d 958 (1971). Thus, the strict construction rule is inapplicable.
“It is a cardinal rule of construction that courts will not rewrite a contract by construction if it is clear and unambiguous. See Havens v. Safeway Stores, 235 Kan. 226, 231, 678 P.2d 625 (1984). This contract falls into that category. Richard applied for a policy of life insurance. He was issued 45 days of coverage by the conditional receipt. His premium paid for the coverage. If [the insurance company] desired to terminate the temporary coverage before the 45 days expired, it was required to notify him and return his premium. If, however, it did not so notify him, he received 45 days of insurance, but no more, with his premium used for that coverage. In this case the insured died after the coverage under the conditional receipt expired and, therefore, [the insurance company] is not liable. We hereby overrule Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, 499 P.2d 1155 (1972).” 250 Kan. at 244.
The district court found in the present case that Gaines died within the 90-day period for which any coverage was in effect through the conditional premium receipt. In that narrow respect, the present case falls within the factual pattern of Service rather than Thomas. On the whole, the principles announced and applied in both Service and Thomas guide the court’s consideration of the question of temporary insurance coverage in the present case.
CNA asserts that, unlike the Services who expected temporary and permanent coverage on Gerald’s life and relied on the assurances of an authorized agent that he was and would be insured, NIR had no expectation that Gaines would be insurable and did not rely on his being insured. With this argument, CNA attempts to transform a contract action into an equitable matter. Although there is discussion in Service of the equitable concerns for expectations and reliance, at bottom it is a contract case and the language of the application form and the receipt, read according to applicable rules of construction and in the context of the insurance industry’s practice of taking an initial premium with the application, govern. The district court read Service too broadly in concluding that the rule of that case alleviates the need for a contractual analysis of the application and receipt.
Not mentioned in the parties’ submissions on the motions for summary judgment or in the district court’s memorandum decision and order is K.S.A. 40-451. The Thomas opinion was filed on Jan uaiy 17, 1992. During the 1992 legislative session, an act relating to life insurance and declination of it was passed, and it appears in the statute book as K.S.A. 40-451. The statute provides:
“(a) When an application for an individual life insurance policy and an initial premium therefor has been received by an insurance company or agent acting on behalf of such company, the coverage for which application is made shall, subject to the limitations in subsection (b), be deemed to be temporarily in effect until the insurance company or agent has, in the event of an adverse underwriting decision, as defined in K.S.A. 40-2,111 and amendments thereto, notified in writing the applicant of such adverse underwriting decision and returned any unearned premium in accordance with K.S.A. 40-2,112 and amendments thereto.
“(b) When an application for an individual life insurance policy and an initial premium therefor has been received, the receipt for the premium shall be in writing and may:
(1) Exclude coverage if the proposed insured commits suicide;
(2) void coverage if the application contains material misrepresentation or is fraudulently completed;
(3) limit the coverage otherwise provided by subsection (a) by specifying for each proposed insured the amount and type of temporary coverage granted; and
(4) void coverage if a check or draft received in payment of the premium is not honored for payment when presented.
“(c) When an application for an individual life insurance policy and an initial premium therefor has been received, the receipt for the premium shall be in writing and provide for a refund of any unearned premium pursuant to K.S.A. 40-2,112 and amendments thereto.”
CNA argues that K.S.A. 40-451, which on its face covers applications for individual life insurance, does not apply to the key man insurance policies that NIR attempted to purchase on the lives of two of its employees. CNA’s contention seems to be that the beneficiary of a life insurance policy must be an individual rather than a corporation in order for the policy to be for “individual life insurance” within the meaning of the statute. The insurer cites no authority for its position. Nor does it offer any instances of insurance policies carrying labels that reflect the beneficiary rather than the insured. The legislature used the term “individual life insurance” to distinguish individual policies from group life insurance policies, in which insurance is offered to members of a group, such as the employees of a business, under a master policy between the insurer and the employer. See K.S.A. 40-433.
K.S.A. 40-451 has not yet been considered by a Kansas appellate court. The statute was construed and applied by a federal district court in Stauffer v. Jackson Nat. Life Ins. Co., 75 F. Supp. 2d 1271 (D. Kan. 1999). Darrell Stauffer applied to purchase a $250,000 life insurance policy and delivered a check for the quoted premium by December 6, 1993. On December 27, 1993, the defendant informed Stauffer that it could not issue the policy applied for except at a greater premium than quoted by its agent. On December 30, 1993, Stauffer paid the additional premium and the insurance company delivered a policy to him. The pohcy states that both the policy date and the issue date are December 28,1993. By the terms of the pohcy, if the insured died as a result of suicide “within two years of the issue date, the amount payable by defendant will be equal to the premiums paid” rather than $250,000. 75 F. Supp. 2d at 1273. The insured died by suicide on December 13, 1995. The federal district court stated that the issue before it was “when the suicide and contestability provisions of the pohcy began to run— at the time Darrell Stauffer completed his application (December 6, 1993), or at the ‘issue date’ hsted on the first page of the pohcy (December 28, 1993).” 75 F. Supp. 2d at 1273.
The receipt that Stauffer received in return for his initial premium payment stated in part:
“INTERIM INSURANCE RECEIPT
“Any reference in this Interim Insurance Receipt to a policy or an amount applied for refers to the policy and amount applied for on the application to which this Interim Insurance Receipt was originally attached and bears the same number.
“WHEN COVERAGE BEGINS
“This receipt provides insurance coverage in the amount described in the LIMITS OF COVERAGE section if a check or draft for the first full premium, for the plan and mode applied for, is submitted with the application to which this Interim Insurance Receipt was attached and the check or draft is honored for payment.
“EFFECTIVE DATE
“The EFFECTIVE DATE of the Interim Insurance for each Proposed Insured shall be the date of this receipt.
“LIMITS OF COVERAGE — $25,000
“Interim Insurance based on this receipt, and all other receipts issued by the Company covering the life of any Proposed Insured, shall not exceed $25,000 or the amount applied for, WHICHEVER IS LESS. ... No Interim Insurance shall be payable if a Proposed Insured dies by suicide.
“DUTIES OF THE PROPOSED INSURED(S)
“If the health of any Proposed Insured, or any answers or statements in tire application or in any medical examination, report or application supplement changes prior to the delivery of the policy; THE PROPOSED INSURED MUST SO INFORM THE COMPANY IN WRITING. The Company will then determine whether to issue a policy ....
“WHEN COVERAGE TERMINATES
“Interim insurance shall terminate automatically on the earliest of:
“1. The date the policy, as applied for, goes into force, which is the date die policy is delivered and any additional premium paid; or
“2. When a Proposed Insured refused to accept delivery of a policy which has been issued as applied for.
“THIS RECEIPT IS NOT A BINDER . . . .” 75 F. Supp. 2d at 1272-73.
The federal district court examined three Kansas statutes, K.S.A. 40-451, K.S.A. 40-420, and K.S.A. 40-2,112(d). In addition, the federal district court quoted Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 676 P.2d 113 (1984): “In Kansas, where a policy of insurance is issued to an insured in compliance with the requirement of a statute, the pertinent provisions of the statute must be read into the policy, and no provisions of the policy in contravention of the statute can be given effect.’ ” 75 F. Supp. 2d at 1274-75. Reasoning as follows, the court concluded that the 2-year period expired before the insured’s death by suicide:
“Under the provisions of K.S.A. 40-451 and K.S.A. 40-2112, the coverage applied for was ‘in effect’ with the completion of the application and receipt of the initial premium. The coverage remained in effect, although it was limited, per the interim insurance receipt and K.S.A. 40-45I(b)(1) & (3), pending the underwriting decision. None of the limitations described in K.S.A. 40-451(b) or in the interim receipt in this case, suspend the running of tire two-year period in the policy when payment in case of suicide is restricted. With the counter-offer of coverage for an increased premium, full coverage was in effect under the terms of the policy for which the application was made. K.S.A. 40-2,112(d)(1)(B). When the counteroffer was accepted, the policy’s full terms remained in effect.
“To argue that tire policy was not in effect for purposes of the suicide clause until the counter-offer was accepted and the additional premium was received, is contrary not only to the above-cited provisions, but also to the provisions of K.S.A. 40-420(2) which require that a policy be incontestable after it has been ‘in force during the lifetime of the insured for a period of not more than two years from its date.’ Under the Kansas statutes, the policy was ‘in force,’ if temporarily limited, on December 6, 1993. Extending the period of the suicide clause to the date of issue listed on the policy when it was delivered — or 23 days after the interim insurance receipt date — would in effect abrogate the statutory deadline for con-testability. See American National Insurance Company v. Motta, 404 F.2d 167, 169 (5th Cir. 1968).
“At the very least, the application of the Kansas statutes to the policy andinterim receipt in question creates an ambiguity. Of course, ambiguities must be decided in favor of the insured. See Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 840 P.2d 456, 459 (1992). Kansas statutes require that various provisions of the policy be in effect at the time of application and receipt of the initial premium. This includes the running of the two-year period before which the policy is incontestable. K.S.A. 40-420(2). Contrary to defendant’s contention there is no express provision in the law which creates an exception to this requirement. When the policy makes reference to an ‘issue date’ for the running of the two-year period for contestability or for a limited recovery in the case of suicide, but the Kansas statutes indicate a different effective date for the policy and for the period of contestability, the policy is ambiguous.
“[W]e agree with plaintiff that the case law is fact-specific. We further agree with plaintiff that this case turns on the provisions of the Kansas statutes. In our opinion, these statutes require finding that when the application and initial premium were received, the two years started to run during which the recovery in the event of suicide was limited to premiums paid. The two-year period expired before Darrell Stauffer’s death.” 75 F. Supp. 2d at 1275.
Although the timing and circumstances of the insured’s death in Stauffer are different from those in the present case, the essential issue in both cases is when the policy became effective. Reading the statutory provisions into the policy and resolving resulting ambiguity in favor of the insured, both as required by Kansas law, the federal district court concluded that the effective date for the Stauffer policy was when the application and initial premium was received by the insurer.
In the present case, the conditional premium receipt that was given in return for the initial premium payment for Gaines states in part:
“IMPORTANT: This receipt does NOT automatically create interim insurance coverage. NO INSURANCE IS EVER IN FORCE under this receipt until after ALL of its conditions are met.
“ NO AGENT OF THE COMPANY AND NO BROKER IS AUTHORIZED TO ALTER OR WAIVE ANY CONDITIONS OF THIS RECEIPT.
“I. CONDITIONS REQUIRED FOR INSURANCE COVERAGE TO GO INTO EFFECT
“It is understood and agreed that ALL of the following conditions must be COMPLETELY satisfied for insurance coverage to take effect:
‘A. The amount paid in exchange for this Receipt must equal at least the Minimum Premium for the Quarterly Mode (for Universal Life only) or V12 of the annual premium (for all other plans of insurance) for the policy applied for in the application.
‘B. The application and all medical underwriting requirements specified by the company rules and standards must be completed.
‘C. On the Underwriting Date, as defined in Section II below, both Proposed Insureds 1 and 2 must be a standard risk according to the Company’s underwriting rules and standards for the plan and amount of insurance applied for in the application.
"II. EFFECTIVE DATE OF CONDITIONAL COVERAGE
“If all the Conditions in Section I are COMPLETELY satisfied, then insurance coverage will begin on the LATER of the following dates:
‘A. The Underwriting Date, or
‘B. The Policy Date, if any, requested in the application.
“IV. LIABILITY NOT ASSUMED
“If the Company determines that on the Underwriting Date, as defined in Section II, that either Proposed Insured 1 or 2 is not a standard risk according to tire Company’s underwriting rules and standards for the plan and amount of insurance applied for in the application and if either Proposed Insured 1 or 2 dies before the Underwriting Date, then the Company assumes NO liability under this receipt and application for life insurance.
“V. TERMINATION OF COVERAGE
“Any coverage which takes effect through this Receipt will terminate on the EARLIEST of the following dates:
‘A. Ninety (90) days after the date of this Receipt.
‘B. The expiration of the period for which Minimum Premium has been paid (for Universal Life only) or tire fraction of one year that the payment made bears to the annual premium for tire policy applied for (for all other plans of insurance).
‘C. The date idle policy goes into effect.
‘D. The date that the Company determines that either Proposed Insured 1 or 2 are not entitled under the Company’s underwriting rules and standards for insurance on the plan and amount of insurance applied for. In that case no insurance becomes effective and the amount paid will be returned to the Owner.
ANY DELAY IN RETURNING THE AMOUNT PAID WILL NOT BE CONSTRUED AS APPROVAL OF THE APPLICATION.
“If coverage under the receipt terminates as provided in Section V above, any policy issued by the Company will not take effect until, during the lifetime of Proposed Insured 1 and 2, both the policy is delivered to the Owner and the first premium is paid, and then only if there has been no change in the health of either the Proposed Insured 1 and 2 since the date of this receipt.”
The general rule of K.S.A. 40-451(a) is that, when an insurance company receives an application and an initial premium, coverage is deemed to be temporarily in effect. None of the exceptions and limitations of subsection (b) seem to apply in this case. Hence, the general statutory provision is to be read into the conditional premium receipt for Gaines’ premium. The terms of the receipt, in particular the bold disclaimer — “This receipt does NOT automatically create interim insurance coverage. NO INSURANCE IS EVER IN FORCE under this receipt until after ALL of its conditions are met.” — conflict with the statutory provision. As the federal district court observed, at the veiy least, the application of the statutory provisions to the interim receipt creates an ambiguity. 75 F. Supp. 2d at 1275. Where there is an ambiguity, the construction most favorable to the insured must prevail. Brumley v. Lee, 265 Kan. 810, 812, 963 P.2d 1224 (1998).
Also conflicting with the statute is the receipt provision that would delay the effective date of conditional coverage beyond the statutory provision for coverage upon the insurer’s receipt of the application and initial premium. The statutory provision prevails here, too.
With regard to the insurer’s receipt of an initial premium, CNA taires a stab at arguing that it never received an initial premium for Gaines because the premium eventually was applied to Burkhead’s application. In this regard, the district court found that on September 18, 1998, the agent took the applications of Burkhead and Gaines along with a check for the amount of the combined Burk-head/Gaines initial premiums. The statute provides that coverage for Gaines is deemed to be temporarily in effect upon that transaction. K.S.A. 40-451(a). There is no merit to the argument that it should be deemed never to have received an initial premium for Gaines.
That the initial premium for Gaines eventually was applied to Burkhead requires further consideration. The district court found, while noting the objection of NIR, that on or about September 29, 1998, Financial Brokerage, Inc., contacted Bammes, who had been designated by Straub to act for him while he was in China, to inform him that premium money could not be accepted with Gaines’ application and to discuss potential remedies. Financial Brokerage, Inc., also informed Bammes that if Gaines were to be covered, he could only be covered for $234,500 due to his salary range. Bammes told Financial Brokerage, Inc., to apply all the premium to Burkhead’s application and to reapply $441.84 to Gaines’ file if a policy was issued on his life. CNA retained the premium and was in possession of it at the time of Gaines’ death. Bammes passed the communication along to Straub, but not to NIR. It was not until January 8, 1999, that CNA wrote to NIR that it did not intend to insure Gaines. CNA sent a refund check in the amount of $653.36 along with the January 8, 1999, letter to NIR.
Kansas statutes provide that the coverage will be deemed to remain in effect until the applicant has been notified of an adverse underwriting decision in writing accompanied by the return of the unearned premium. K.S.A. 40-451(a); K.S.A. 40-2,112(d)(1). In this case, Gaines never was notified in writing of an adverse underwriting decision and NIR was not notified in writing until after Gaines’ death. Thus, coverage is deemed to have remained in effect until after Gaines’ death.
Financial Brokerage, Inc.’s notice to Bammes on September 29, 1998, that premium money could not be accepted with Gaines’ application apparently was on account of Gaines’ affirmative answer to section 20 of the application. It asks the applicant to check “yes” or “no” to each of two questions. Gaines answered “yes” to the following question in section 20: “In the past 90 days, has any person proposed for insurance been admitted to a hospital or other medical facility, been advised to be admitted, contemplated surgery, or had surgery performed or recommended?” He added this explanation: “Motorcycle accident June 12 Stormont Vail Hosp., Topeka, KS right leg: fachiotomy (fasciotomy?) to reheve swelling — broken right ankled [sic] — all healed.” Beneath the questions in section 20 is this statement: “If either question in this section is answered ‘Yes’ or left blank, a premium payment cannot be accepted with this application and any conditional receipt is void.”
CNA contends that Gaines’ affirmative answer in section 20 renders the conditional premium receipt void and that the entry of summary judgment must be reversed because it was made on the basis that the receipt was merely voidable. According to CNA, the significance of the void receipt is that it, unlike a voidable writing, cannot be acquiesced in or validated or ratified by any subsequent conduct of the parties. We note that based on Gaines’ explanation of his answer to section 20, more than 90 days had passed since his accident. Thus, on its face, yes was an incorrect answer. Nonetheless, K.S.A. 40-451 controls once an application and initial premium have been received for an individual life insurance policy. In this case, despite Gaines’ affirmative answer, his application and premium were accepted.
Coverage was deemed to be temporarily in effect for Gaines under K.S.A. 40-451(a), and none of the exceptional circumstances identified in 40-451(b) seems to apply. Subsection (b)(1) excludes coverage in the event of suicide, (b)(2) voids coverage if the applicant makes a material misrepresentation, and (b)(4) voids coverage if a check or draft for the premium payment is not honored. There is no question that none of these applies. Subsection (b)(3) provides that the receipt may limit coverage “by specifying for each proposed insured the amount and type of temporary coverage granted.” With the number of purported conditions and limitations contained in the conditional premium receipt, exception (b)(3) requires some thought. Scrutiny of the receipt, however, reveals only one instance where CNA limits the coverage by specifying the amount and type of temporary coverage granted, as contemplated in K.S.A. 40-451(b)(3). Section III states: Section III has no application to the circumstances of this case.
“The liability of the Company under this Receipt and application for life insurance and accidental death benefits will not exceed $1,000,000 reduced by (1) any insurance issued by the Company on the life of either Proposed Insured 1 or 2 within 90 days preceding the date of this receipt and (2) by any death benefit payable under all other Receipts and applications currently pending with the Company.”
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).
CNA argues that the district court’s entry of summary judgment in NIR’s favor was improper because genuine issues of material fact existed. In particular, CNA contends that there is a dispute about whether it notified the applicant and returned the initial premium for Gaines. CNA refers to evidence that Financial Brokerage, Inc., notified Bammes that Gaines was uninsurable and Bammes directed it to apply the Gaines portion of the premium check to Burkhead. That evidence raises a legal issue rather than a material fact issue. Nevertheless, the argument is made without reference to K.S.A. 40-451, which requires written notice. CNA does not contend that either NIR or Gaines received written notice of an adverse underwriting decision before Gaines’ death. Hence, if the statute’s requirement of written notice is given strict effect, unwritten notice is irrelevant for summary judgment purposes.
Finally, at oral argument, counsel for the appellant argued that the maximum amount of coverage under the premium receipt was $234,500. The basis for that argument was the notice given to Bammes that due to Gaines’ salary, the maximum coverage may be only $234,500. The fallacy in appellant’s argument is its failure to comply with K.S.A. 40-451. It gave no written notice to NIR limiting the amount of coverage under the premium receipt, nor did it return the unearned premium resulting from the reduction in coverage. Accordingly, at the time of Gaines death, the amount of coverage provided in the premium receipt was $500,000.
The district court did not err in granting summary judgment to NIR.
We next consider if the trial court erred in dismissing CNA’s cross-claim against Straub.
Initially we note that the district court’s procedure was somewhat irregular in “dismissing” CNA’s cross-claim against Straub.
In January 2001, CNA filed a motion for leave to file a cross-claim against Straub, and he filed suggestions opposing the motion. CNA filed its cross-claim, and Straub filed his answer to it in February 2001.
On April 26,2001, when the district court filed its memorandum decision and order granting summary judgment in favor of NIR and against CNA, the trial judge was unaware that CNA’s cross-claim had been filed and answered. Included in the memorandum decision and order was a denial of CNA’s motion for leave to file the cross-claim.
On May 25, 2001, CNA filed a notice of appeal from the entry of summary judgment and the district court’s denial of its motion to file a cross-claim against Straub.
Later, the district court prepared a letter decision, which states that at the time of its memorandum decision and order the district court was unaware that the cross-claim had been filed and answered. CNA’s motion for leave to file the cross-claim was granted in January, but the district court was not aware of it because “the order allowing the cross-claim was not journalized as required in the January 30th minutes.” The district court further stated that, upon reviewing the cross-claim, it found “on the undisputed facts submitted,” that the cross-claim should be dismissed because, as a matter of law, Straub was not the proximate cause of CNA’s loss. The legal principle upon which the district court based its decision is that on theories of contract, negligence, and indemnification a principal is not entitled to indemnification unless the agent’s error is the proximate cause of the principal’s loss. The trial court cited no authority.
Although the letter decision was not file-stamped until June 14, 2001, it appears that it may have been mailed to parties on the typed date and received by them on May 30, 2001. A timetable in CNA’s brief gives May 30, 2001, as the date for the letter decision. In any event, CNA filed another notice of appeal on July 10, 2001, appealing from the letter decision, which dismissed CNA’s cross-claim against Straub.
The parties do not complain on appeal of any irregularity with regard to the trial court’s or the appellate court’s jurisdiction.
CNA complains that it was not given an opportunity by the district court to brief or argue the question whether the cross-claim should be dismissed. It appears from the district court’s letter decision, however, that the disposition was made after the matter had been discussed with counsel. The trial judge stated that on May 25, 2001, he “instituted a telephone conference among all parties” to discuss the matter of the cross-claim. The trial court further stated that upon reviewing the cross-claim and undisputed facts, which we can only presume were those submitted by the parties with their motions for summary judgment, it had determined that the cross-claim should be dismissed as a matter of law. Thus, disposition of the cross-claim was based on materials prepared and presented to the trial court by the parties.
As CNA notes, because matters outside the pleadings were presented to and considered by the court, the disposition will be treated as an entry of summary judgment. The trial court was required to resolve all facts and inferences that reasonably may be drawn from the evidence in favor of CNA. On appeal, we apply the same rule. Summary judgment is appropriate where there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law.
Relative to this issue, the district court made its chronological findings of fact stated earlier in this opinion.
CNA’s theory of liability against Straub was that he was not authorized to take Gaines’ application or the initial premium for his coverage, and, in fact, Straub was expressly unauthorized to do so. Straub violated the terms of his producer contract with CNA by doing so, he negligently performed his duties as a CNA agent by doing so, and he had a duty to reimburse CNA for any loss it suffered as a result of his improper conduct. Straub asserted the affirmative defense of ratification, and, as we have seen, the district court made a number of findings of fact that are relative to the question of CNA’s ratification of Straub’s conduct. Although the district court phrased its ruling in terms of the lack of proximate causation rather than ratification, that approach seems to have been a way of saying that ratification cut off causation. On appeal, CNA argues that it did not ratify Straub’s action.
Also on appeal, CNA states that the district court relied on Hays v. Farm Bureau Mut. Ins. Co., 225 Kan. 205, 589 P.2d 579 (1979), and Foley Co. v. Scottsdale Ins. Co., 28 Kan. App. 2d 219, 15 P.3d 353 (2000). CNA would factually distinguish Hays and Foley Co. Straub contends that the pertinent facts of this case and Foley Co. are parallel and that the principles of agency law that controlled the court’s decision in Foley Co. control in the present case as well. The Court of Appeals in Foley Co. found Hays factually dissimilar in that the insurance company in that case had not ratified the agent’s actions. 28 Kan. App. 2d at 227-28.
Foley Co. arose from a construction accident in which John Bryant was killed. Judgment was entered against Foley, the general contractor, in an action by Biyant’s survivors. Foley and its insurance carrier sued a subcontractor and its insurance carrier, Scottsdale, and an insurance broker, CLC, for partial indemnification of amounts paid in the Biyant litigation. In Foley’s suit for indemnification, the trial court entered judgment against Scottsdale. On Scottsdale’s cross-claim against CLC and several other third-party defendants alleging that they were not authorized to add Foley as an additional insured on the subcontractor’s policy, the trial court entered summary judgment against Scottsdale on account of its ratification of CLC’s allegedly unauthorized acts.
On appeal, Scottsdale quarreled with the district court’s finding that it ratified the third-party defendants’ actions. In the alternative, Scottsdale argued that its failure to repudiate the third-party defendants’ actions did not relieve the third-party defendants from their breach of contract.
With regard to the question whether Scottsdale ratified the third-party defendants’ actions, the Court of Appeals stated:
“Under agency law, once a principal knows of an agent’s unauthorized actions, it cannot sit back and see if it will benefit or suffer from the agent’s actions. Instead, a principal who receives notice of an unauthorized act of an agent must promptly repudiate the agent’s actions or it is presumed that the principal ratified the act. Ratification is the adoption or confirmation by a principal of an unauthorized act performed on its behalf by an agent. Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 304-05, 510 P.2d 1212 (1973).
“... Here, Scottsdale withheld disapproval of the third-party defendants’ actions until it became likely that Scottsdale would suffer a loss as a result of those parties’ actions. By failing to promptly repudiate tire allegedly unauthorized actions, Scottsdale was able to sit back and quietly accept any benefits resulting from the addition of Foley to All Temp’s policy, without paying Foley for the losses sustained under the policy. As a result, we find that the trial court did not err in determining that Scottsdale ratified tire third-party defendants’ allegedly unauthorized acts.“ 28 Kan. App. 2d at 223-24.
The Court of Appeals also affirmatively answered the question whether Scottsdale’s failure to repudiate blocked its breach of contract claim. It stated: 0
“The general rule is that an ‘agent may be subject to liability to his principal because he has made an unauthorized contract for which Iris principal is liable.’ Restatement (Second) of Agency § 383, comment e (1957). However, ‘[t]he ratification or other affirmance by a principal of an unauthorized act done by an agent in excess of his or her power to bind the principal releases the agent from liability for damages to the principal for having violated a duty to the principal.’ Restatement (Second) of Agency § 416 (1957).” 28 Kan. App. 2d at 225.
Discussing application of the Restatement principle, the Court of Appeals stated:
“Although this is apparently an issue of first impression in Kansas, other jurisdictions have addressed whether an agent could be held hable where the principal ratified the agent’s arguably unauthorized actions. For example, Barta v. Kindschuh, 246 Neb. 208, 518 N.W.2d 98 (1994), addressed whether the sellers of a home were entitled to indemnification from their real estate agent for damages suffered by the sellers for an alleged misrepresentation regarding the condition of the home. The Nebraska Supreme Court affirmed the trial court’s grant of summary judgment in favor of the real estate agent. The Barta court held that even if the real estate agent exceeded his authority by fading to note the correct information as to the condition of the home on a form provided to the buyers, the sellers acquiesced in and ratified the agent’s acts when the sellers read and signed tire form that included misrepresentations regarding the condition of the home. 246 Neb. at 214-15.
“Other cases have held similarly. See, e.g., Brooks v. January, 116 Mich. App. 15, 321 N.W.2d 823 (1982) (holding that because a dissident faction of a church congregation ratified their pastor’s unauthorized sale of property, the pastor was relieved from liability to the church); Southwest Title Ins. Co. v. Northland Bldg., 542 S.W.2d 436 (Tex. App.1976), rev’d in fart on other grounds 552 S.W.2d 425 (Tex. 1977) (holding that because the title insurance company ratified its agent’s arguably unauthorized actions, the agent could not be held liable to the title insurance company); Rakestraw v. Rodrigues, 8 Cal.3d 67, 104 Cal. Rptr. 57, 500 P.2d 1401 (1972) (holding that because a wife ratified forgery of her name on a deed of trust, the agent was relieved of liability to the principal).” 28 Kan. App. 2d at 225-26.
CNA would distinguish Foley Co. from the present case on the ground that the insurer in Foley Co. allowed the questionable situation to persist by renewing the policy while CNA acted promptly. In the present case, however, it is the extent of the action more than the timing that is wanting. In the present case, as in Foley Co., the agent’s unauthorized act was known to the principal (or in this case, the principal’s delegate) but the principal failed to repudiate it. In this case, the principal failed to return Gaines’ premium and continued to process his application while holding out the possibility of insuring him for a lesser amount than that sought. Moreover, there was a complete failure to comply with the statutory requirement for notifying the applicant in writing of the refusal to insure him for the amount requested. In these circumstances, Straub’s unauthorized acceptance of Gaines’ application and initial premium was ratified rather than repudiated by the principal. A district court’s decision which reaches the right result will be upheld even though it relied upon the wrong ground or reason. Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999).
Finally, CNA argues that disputed issues of material fact preclude summary judgment. CNA contends that it is disputed whether Straub acted in accordance with his duties as an agent and whether Straub informed NIR of the insurance application status. These facts are not relevant to the principal’s ratification of Straub’s acts, which is the basis for disposition of the cross-claim.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Lana Beard appeals the district court’s ruling that K.S.A. 1999 Supp. 21-4603d(e) is unconstitutional as a violation of separation of powers. The Department of Corrections (DOC) intervened on appeal.
In January 2000, Beard was charged with unlawful manufacture of methamphetamine, possession of drug paraphernalia, possession of marijuana, and three counts of child endangerment. The possession of marijuana count was later dismissed. In March 2000, Beard was again charged with unlawful manufacture of methamphetamine. The State’s motion to consolidate the cases was denied.
The State later amended the information in each case to include one count of sale of methamphetamine, a level 3 drug offense, alleged to have occurred between July 1, 1999, and January 1, 2000. See K.S.A. 2001 Supp. 65-4161(a). Beard pled guilty to both counts of sale of methamphetamine, and the State dismissed all other charges pursuant to a plea agreement. The State and Beard agreed to recommend the maximum sentence on each count, 23 months in prison, and that the sentences run consecutively. Beard’s criminal history score was “G.”
K.S.A. 1999 Supp. 21-4603d(a) provides in part:
“Prior to . . . sentencing a defendant to incarceration whose offense is classified in . . . grid block[] . . . 3-G, ... of the sentencing guidelines grid for drug crimes, the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections ... or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
On May 31, 2000, Beard was sentenced according to the plea agreement. Beard received consecutive sentences of 23 months on each of the two counts of sale of methamphetamine and was remanded into DOC custody. In sentencing Beard to imprisonment, the sentencing judge failed to comply with the statutory mandate to state on the record why Beard should not be placed in a conservation camp or community intermediate sanction center. See K.S.A. 1999 Supp. 21-4603d(a).
Subsequently, Beard was placed in Labette Correctional Conservation Camp (Labette) by the DOC pursuant to K.S.A. 1999 Supp. 21-4603d(e), which provides:
“The secretary of corrections is authorized to make direct placement to the Labette correctional conservation camp or a conservation camp established by the secretary ... of an inmate sentenced to the secretary’s custody if the inmate: (1) Has been sentenced to the secretary for a probation revocation, as a departure from the presumptive nonimprisonment grid block of either sentencing grid, or for an offense which is classified in grid block[] . . . 3-G ... of the sentencing guidelines grid for drug crimes; and (2) otherwise meets admission criteria of the camp. If the inmate successfully completes the six-month conservation camp program, the secretary of corrections shall report such completion to the sentencing court and the county or district attorney. The inmate shall then be assigned by the court to six months of follow-up supervision conducted by the appropriate community corrections services program. The court may also order that supervision continue thereafter for the length of time authorized by K.S.A. 21-4611 and amendments thereto.” (Emphasis added.)
In August 2000, the State filed a motion in the district court to refile the charges that had previously been dismissed against Beard. The State believed Beard violated her plea agreement by applying for placement in Labette. The State also filed a motion to have the portion of K.S.A. 1999 Supp. 21-4603d(e) that requires the sentencing court to place an inmate in community corrections upon completion of a conservation camp program found unconstitutional as a violation of separation of powers.
At the September 22, 2000, hearing on these motions, the State dismissed its motion to recharge Beard on the dismissed counts after testimony indicated that an inmate, such as Beard, would be subject to the loss of good time credit if the DOC considered the inmate qualified for Labette and the inmate refused placement. The court took the unconstitutionality issue under advisement.
The DOC notified the sentencing court on February 13, 2001, that Beard was scheduled to complete Labette on March 30,2001, and included a proposed journal entry of reassignment to expedite Beard’s transfer to community corrections. On February 20, 2001, the district judge vacated Beard’s sentence, ordering that Beard be resentenced because Labette had not been considered by the court at her original sentencing. At the resentencing hearing, Beard was once again sentenced to 23 months on each of the two counts of sale of methamphetamine. As required by K.S.A. 1999 Supp. 21-4603d(a), the district judge then considered placement in Labette. The judge concluded that because the plea agreement had been followed in sentencing Beard, Beard should not be placed in Labette. The judge reasoned that allowing placement in Labette and subsequent release to community corrections would be injurious to the goals of this particular case and to future defendants wishing to engage in plea negotiations.
On April 19, 2001, the district court considered the constitutionality of the statute and held that K.S.A. 1999 Supp. 21-4603d(e) violated the doctrine of separation of powers and was unconstitutional. In its decision, the district court noted that Beard was scheduled to successfully complete Labette on April 20, 2001. The district court ordered that Beard remain incarcerated with the DOC to serve the length of her sentence. A timely notice of appeal was filed in both cases. The district court granted Beard’s motion to consolidate the cases on appeal. We have jurisdiction pursuant to K.S.A. 22-3601(b)(2).
This court has been presented with the issue of the constitutionality of K.S.A. 1999 Supp. 21-4603d(e) on three prior occasions. See State v. Moody, 272 Kan. 1199, 38 P.3d 659 (2002); State v. Agosto, 271 Kan. 888, 27 P.3d 423 (2001); State v. Martin, 270 Kan. 603, 17 P.3d 344 (2001). The issue was not addressed in those cases, however, because the 1999 amendment to K.S.A. 21-4603d(e), which was alleged to be unconstitutional, did not apply to those individuals. Thus, for the first time, the constitutionality of K.S.A. 1999 Supp. 21-4603d(e) is before this court for review.
Both Beard and the DOC assert that K.S.A. 1999 Supp. 21-4603d(e) does not violate the doctrine of separation of powers and that the district court erred in finding the statute unconstitutional. To the contrary, the State contends the district court did not err in finding the statute unconstitutional.
The constitutionality of a statute is a question of law over which this court has unlimited review. Lemuz v. Fieser, 261 Kan. 936, 943, 933 P.2d 134 (1997); State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). The court has a duty to construe a statute as constitutional if doing so corresponds with the legislature’s apparent intent in enacting the statute. State v. Martinez, 268 Kan. 21, 23, 988 P.2d 735 (1999).
In support of his ruling that K.S.A. 1999 Supp. 21-4603d(e) was unconstitutional, the district judge compared the provisions of K.S.A. 1999 Supp. 21-4603d(a) with K.S.A. 1999 Supp. 21-4603d(e). The judge reasoned that K.S.A. 1999 Supp. 21-4603d(e) vested the Secretary of Corrections with the power to overrule the judgment of a court under K.S.A. 1999 Supp. 21-4603d(a) and that this violated the doctrine of separation of powers.
The doctrine of separation of powers is not expressly set forth in either the United States or Kansas Constitutions. However, it has long been recognized that the very structure of our three-branch system gives rise to the doctrine. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 59, 687 P.2d 622 (1984). The Kansas Constitution creates three distinct and separate departments of government: the legislative, the executive, and the judicial. Kan. Const, art 1, 2, and 3. Only the legislative branch has the authority to define crimes and prescribe punishments, while only the judicial branch is empowered to determine whether an offense has been committed and to assess punishment. Ponce, 258 at 711. The executive branch is vested with the power to enforce the laws. State ex rel. Stephan, 236 Kan. at 59.
“The doctrine of separation of powers is an outstanding feature of the American constitutional system. The governments, both state and federal, are divided into three branches, i.e., legislative, executive and judicial, each of which is given the powers and functions appropriate to it. Thus a dangerous concentration of power is avoided through the checks and balances each branch of government has against the others. For an excellent discussion of the historical development of the doctrine, see Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973).” State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980).
Early Kansas decisions attempted to apply the doctrine strictly and allow no overlapping of powers. However, recent decisions have modified the doctrine and taken a more pragmatic, flexible, and practical approach, recognizing that there may be a certain degree of “blending or admixture” of the three powers of government and that absolute separation of powers is impossible. It is now a well-recognized fact that the powers of one branch may overlap with another branch’s powers. Greenlee, 228 Kan. at 715-16.
In determining whether a statute is constitutional, the following general principles have consistently been applied by Kansas courts in addressing a separation of powers issue:
“ ‘(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. 784.
“ ‘(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis, 217 Kan. at 785; State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957).
“ ‘(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel, v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
‘“(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel, v. Bennett, 219 Kan. 285. ” State v. Reed, 248 Kan. 792, 797-98, 811 P.2d 1163 (1991) (quoting Greenlee, 228 Kan. at 715-16).
See Clark v. Ivy, 240 Kan. 195, 201, 727 P.2d 493 (1986); State ex rel. Stephan, 236 Kan. at 59-60; State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 629-30, 18 P.3d 970 (2001).
Nature of Power Being Exercised
Beard characterizes the essential nature of the power being exercised in this case as the power to grant probation. Beard cites State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985) and Att’y Gen. Op. No. 91-161, as support for her proposition that the function of probation is not an exclusive function of the judiciary and that the legislature may transfer authority from the judiciary to the ex- ecutivé branch. In Dubish, this court stated: “Probation is an act of grace and the power to grant probation is provided by the legislature to the court. Probation is separate and distinct from sentence.” 236 Kan. at 851. Beard asserts that because probation is distinct from the sentence itself, the finality of the sentence is not affected by the DOC’s placement of inmates in Labette. See Dubish, 236 Kan. at 851 (“The final judgment in a criminal case is the sentence and, by placing the defendant on probation, the trial court does not affect the finality of the judgment.”).
The DOC makes a slightly different analysis of the power being exercised. The DOC does not refer to the power as the power to grant probation, but instead refers to it as the DOC having the power to bring an inmate before the court, when the inmate has successfully completed the conservation camp program and is believed to fall within the scope of K.S.A. 1999 Supp. 21-4603d(e), for an adjudication on whether the inmate is within the eligibility requirements for transfer to community corrections supervision. The DOC acknowledges that K.S.A. 1999 Supp. 21-4603d(e) requires mandatory disposition if an inmate has completed the conservation camp program; however, it likens this to any other mandatory sentencing law that is enacted through legislative process. To support its mandatory sentencing rationale, the DOC cites to State v. Freeman, 223 Kan. 362, 369, 574 P.2d 950 (1978), in which this court stated that the fixing and prescribing of penalties for violating criminal statutes is a legislative function.
The State asserts that this particular mandatory placement in community corrections supervision requires the court to place the inmate in community corrections and does not allow the court to exercise its discretion by taking into account certain factors it had previously considered in imposing sentence. Although it did not happen in this case because the sentencing court failed to consider placement in Labette at Beard’s original sentencing, under K.S.A. 21-4603d(e), it is possible for the DOC to place an inmate in a conservation camp after the sentencing court has denied such placement. The State takes issue with the DOC’s ability to mandate that the court place such an offender in community corrections.
The State contends that the jurisdiction to grant and supervise probation lies solely with the district court, citing Dubish, 236 Kan. at 851. It must be noted that in making this statement, however, the Dubish court relied upon the statutes and case law at the time and explicitly recognized that the power to grant probation is dependant upon statutory provisions. See 236 Kan. at 851. The State also disputes Beard’s claim that probation is separate from the sentence. In doing so, the State relies upon this court’s statement in State v. Martin, 270 Kan. at 610, that K.S.A. 21-4603d(e) is a substantive prescription of punishment and not a procedural statute.
Although both the State and Beard refer to the court’s placement under K.S.A. 1999 Supp. 21-4603d(e) as probation, placement in community corrections after being transferred into the custody of the DOC is not probation. Our statutes refer to placement in community corrections as being distinct from parole or probation. See, e.g., K.S.A. 21-4608(b) (“Any person who is convicted and sentenced for a crime committed while on probation, assignment to a community correctional services program, parole or conditional release . . .”); see also Att’y Gen. Op. No. 91-161 (probation, community corrections, and parole are referred to as separate functions).
K.S.A. 2001 Supp. 21-4602 defines these terms as follows:
“(c) ‘Probation means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections. In felony cases, the court may include confinement in a county jail not to exceed 60 days ... as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the probation sentence ....
“(d) ‘Parole’ means the release of a prisoner to the community by the Kansas parole board prior to the expiration of such prisoner’s term, subject to conditions imposed by the board and to the secretary of correction’s supervision. Parole also means the release by a court of competent jurisdiction of a person confined in the county jail or other local place of detention after conviction and prior to expiration of such person’s term, subject to conditions imposed by the court and its supervision. . . .
“(f) ‘Community correctional services program’ means a program which operates under the community corrections act and to which a defendant is assigned for supervision, confinement, detention, care or treatment, subject to conditions imposed by the court. A defendant assigned to a community correctional services program shall be subject to the continuingjurisdiction of the court and in no event shall be considered to be in the custody of or under the supervision of the secretary of corrections.” (Emphasis added.)
Assignment to community corrections in this case cannot be termed probation because Beard was placed in DOC custody and was not released by the court before imprisonment or after assignment to the county jail as the statute permits. See K.S.A. 2001 Supp. 21-4602(c). The placement would also not fall within the statutory definition of parole because the Kansas parole board will not be granting the release nor is Beard in a local place of detention as the definition provides. See K.S.A. 2001 Supp. 21-4602(d). Although none of the parties address the issue, this distinction is relevant in determining the type of power being exercised in this case.
Degree of Control
The State contends K.S.A. 1999 Supp. 21-4603d(e) allows the DOC to determine the most important aspect of the imposition of punishment and forces the court to unwillingly place an offender in a community corrections program under the court’s supervision. Both Beard and the DOC contend the DOC exercises no control over the judiciary because the statute is narrowly prescribed and does not usurp the powers of the judiciary.
Beard cites State v. Reed, 248 Kan. 792, as support. In Reed, this court reviewed the constitutionality of a statute that required a court to modify a defendant’s sentence when recommended by the State Reception and Diagnostic Center (SRDC), unless the court made specific findings on the record. The district court found the statute to be unconstitutional as a violation of separation of powers. The Reed court held the statute was constitutional, noting that the statute did not give the SRDC unfettered discretion and authority and that the ultimate authority remained in the judicial branch. The court found that the legislature had properly defined the scope of the agency and that the statute placed no more limitation on the court’s discretion than did mandatory presumptive sentencing provisions. 248 Kan. at 801-02. The State contends Reed is distinguishable because under K.S.A. 1999 Supp. 21-4603d(e), the district court does not have the power to refuse to place inmates in community corrections once the inmates have successfully completed conservation camp programs.
First, it must be noted that K.S.A. 1999 Supp. 21-4603d(e) allows the district court some discretion in the disposition of an inmate after completion of a conservation camp program. The district court is allowed discretion in choosing the appropriate community corrections program in which to place the offender and to some extent the length of the placement. See K.S.A. 1999 Supp. 21-4603d(e). Secondly, although Reed is worthy of consideration because the facts are similar to this case, Reed is also distinguishable for a reason not set forth by any of the parties. In Reed, the statute mandated modification of a sentence. In this case, Beard’s sentence remains the same; it is the manner of serving the sentence that is altered. If Beard does not fully satisfy the requirements of the community corrections program, she is required to serve the remainder of her prison sentence.
In order to determine the degree of control the executive branch is exercising over the judiciary in this case, the nature of community corrections must be considered. A community corrections program is a program that operates under the Community Corrections Act, K.S.A. 75-5290 et seq. The Act is to be administered by the Secretary of Corrections or by officers and employees of the DOC. K.S.A. 75-5294(b). The Secretary of Corrections is authorized to adopt rules and regulations necessary for implementation and administration of the Act. K.S.A. 75-5294(a). Pursuant to the Act, the Secretary of Corrections is authorized to make grants to counties for the development and operation of community correctional services. K.S.A. 2001 Supp. 75-5291(a)(l). In order to receive grants, each county or group of counties that are cooperating must have a comprehensive plan for correctional services approved by the Secretary of Corrections. K.S.A. 75-5296(a). Comprehensive plans for correctional services are formulated by corrections advisory boards. K.S.A. 75-5299. The corrections advisory board has a judicial representative pursuant to K.S.A. 75-5297; however, the board is not a part of the judicial branch of government. State v. Garrett, 235 Kan. 768, 774-75, 684 P.2d 413 (1984). (“It is clear from a reading of the various sections of [the Act] that the community corrections program is a part of the overall state correctional program.”); see also Atty Gen. Op. No. 96-54 (community corrections programs are funded almost exclusively by grants from the DOC); Atty Gen. Op. No. 91-161 (Secretary of Corrections authorized to perform a number of duties under the Act).
“The community corrections act is modeled after a Minnesota law, the stated purpose of which is to promote efficiency and economy in the use of correctional dollars and to develop and maintain community programs and resources while effectively protecting society. Report of Kansas Legislative Interim Studies to the 1978 Legislature - Proposal No. 14 (Feb. 1978). Based on the assumption that the local community can provide better service to most offenders, the act transfers major responsibility for providing client services for all but serious offenders to local units of government. Proposal No. 14.” Atty Gen. Op. No. 96-54.
In arriving at this decision, we note the following: (1) After being placed in DOC custody, the inmate may be placed in a conservation camp only upon meeting the specific statutory criteria for placement set forth by the legislature; (2) only upon successful completion of the conservation camp can the DOC request that the court place the inmate in community corrections; (3) although the legislature has mandated that the court place such inmate in community corrections, the court has some discretion as to the type and length of that placement; (4) the DOC is responsible for funding and administering community corrections programs; and (5) although the inmate will no longer be under DOC custody after transfer to community corrections and will be under the jurisdiction of the court, see K.S.A. 2001 Supp. 21-4602(f), the court is only minimally involved in the community corrections program.
Legislature’s Objective
Beard contends K.S.A. 1999 Supp. 21-4603d(e) carries with it the same legislative intent as the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., because it was created to work in conjunction with the KSGA. Some of the principles Beard asserts the legislature considered in implementing this provision include: reserving prison space for serious and violent offenders; basing the degree of the sanction on the harm inflicted; and, reserving incarceration for serious violent offenders who present a threat to public safety. The DOC asserts that K.S.A. 1999 Supp. 21-4603d(e) is the legislature’s reasoned allocation of resources within the criminal justice system. The State asserts a similar basis for the statute, contending that the statute was most likely promulgated to reduce prison overcrowding.
It is evident from the controlling statutes in this case that the tension between the judicial and executive branches is the direct result of the legislature’s objective of reducing prison overcrowding. K.S.A. 1999 Supp. 21-4603d(a) mandates that a sentencing court consider placement of defendants into conservation camps. Qualifying defendants must be placed in a camp unless no space is available or reasons for not placing them in a camp are stated on the record. In a further attempt to ensure the objective is met, the legislature also provided the DOC with the ability to reduce overcrowding by placing qualifying inmates in DOC custody into these same camps. K.S.A. 1999 Supp. 21-4603a(e); see also K.S.A. 75-52,107 (“The secretary of corrections may contract for any correctional services described in K.S.A. 75-5291 and amendments thereto from any county or group of cooperating counties which are receiving grants under this act . . . .”).
The State argues the legislature’s objective should have been obtained by requiring inmates who successfully complete Labette to be placed under the supervision of the Secretary of Corrections. In making this claim, the State once again focuses upon the burden and interference that placement in community corrections imposes on the courts. There is no basis for such a claim. Because the DOC funds community corrections programs, the DOC is more involved in community corrections than the courts. This is true despite the fact that those assigned to community corrections are not in DOC custody or under DOC supervision. See K.S.A. 2001 Supp. 21-4602(f).
Blending of Powers
In considering the blending of powers, the court looks to the practical result of the blending as shown by actual experience over time. Beard contends that the judiciary has not been harmed in any way by the blending of powers in this case. Beard notes that in reality few inmates participate in Labette pursuant to K.S.A. 21-4603d(e); however, she offers no support for this assertion. Beard also cites to the fact recidivism for those who participate in Labette is less than those who do not participate, citing a report by the DOC to the 2001 legislature.
The State asserts the practical result of the statute is that the court is required to supervise individuals it determined should have been placed in DOC custody and renders dispositions illusory. The State contends that the statute allows for a system “ripe for abuse,” citing to the fact the DOC disregarded the plea agreement in this case and altered Beard’s disposition. In support of this claim of abuse, the State contends Beard was not even eligible for placement in Labette because she was not within 32 months of her projected release date or within the preferred age range for placement. These issues are not before the court on appeal, however. The State also claims the statute nullifies the adversarial process at sentencing, pressures inmates to violate plea agreements, circumvents victims’ rights, and breeds public distrust in the judicial process.
Although K.S.A. 1999 Supp. 21-4603d(e) may lead to the result that a defendant who was affirmatively denied placement in a conservation camp by the district court might later be enrolled in one by the DOC to reheve the prison population, this is what the legislature intended in enacting the statutes. Although there is some blending of powers, the executive branch is not usurping the powers of the judicial branch. Thus, there is no violation of separation of powers that renders the statute unconstitutional.
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The opinion of the court was delivered by
Lockett, J.:
Appellant James Pipe appeals the district court’s grant of summary judgment in favor of appellee Dr. James J. Hamilton. The district court held that Pipe failed to establish a prima facie case of loss of chance of survival due to medical malpractice because a 5 to 10 percent chance of survival is not substantial as a matter of law. We reverse and remand.
Edwina Pipe was admitted to the hospital on May 24,1998. Dr. Hamilton was brought in as a consultant in her case. On May 29, 1998, Dr. Hamilton operated on Edwina for small bowel obstruction. A second operation was performed on June 3, 1998, at which time Dr. Hamilton discovered gangrenous tissue. Based on the findings of the second operation, Dr. Hamilton believed Edwina’s bowel to be dead. Dr. Hamilton informed James Pipe, Edwina’s husband, that Edwina was only expected to live 6 to 12 hours. Based upon Dr. Hamilton’s prognosis, James, acting pursuant to Edwina’s living will and durable power of attorney for health care decisions, asked that life support be withdrawn. Edwina died shortly thereafter.
James Pipe filed this action against Dr. Hamilton in Shawnee County District Court on May 12, 2000. Dr. Hamilton filed a motion for summary judgment on the grounds Pipe failed to establish a prima facie case of medical malpractice or loss of chance of survival.
Pipe’s expert witness, Dr. John White, testified in his deposition that it was his professional opinion that Dr. Hamilton had breached a duty of care by not performing more tests to determine if Edwina’s condition was treatable. Dr. White also stated that even if Dr. Hamilton had met the standard of care required, “the likelihood that [Edwina] would have left the hospital was very small,” which likelihood in terms of percentage was “[fjrom five to ten percent at best.” Dr. White believed that despite what Dr. Hamilton did regarding her care, Edwina’s mortality rate was between 90 and 95 percent.
The district court granted summary judgment in favor of Dr. Hamilton, finding that Pipe had failed to set forth a prima facie case for loss of chance of survival. Pipe filed a motion for new trial and reconsideration of the decision. The motion was denied. A timely notice of appeal was filed. We have jurisdiction pursuant to K.S.A. 20-3018(c) (transfer on our own motion).
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 2001 Supp. 60-256(c). The trial court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom summaiy judgment is sought. Irvin v. Smith, 272 Kan. 112, Syl. ¶ 1, 31 P.3d 934 (2001). The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case. Dominguez v. Davidson, 266 Kan. 926, 930,974 P.2d 112 (1999). In order to preclude summaiy judgment, tire facts subject to the dispute must be material to the conclusive issues in the case. Friesen-Hall v. Colle, 270 Kan. 611, 613, 17 P.3d 349 (2001). Summary judgment should never be granted merely because the court believes the movant would prevail at a trial on the merits. Moran v. State, 267 Kan. 583, 590, 985 P.2d 127 (1999). On appeal, this court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Neither party contends there is a material issue of fact in dispute. Instead, die parties take opposite positions as to whether a 5 to 10 percent chance of survival is sufficient to maintain a cause of action and survive a motion for summaiy judgment in Kansas. Because in this case the court is required to resolve all facts and inferences in favor of James Pipe, the party against whom summary judgment is sought, the court only determines whether the loss of a 10 percent chance of survival is sufficient to withstand summary judgment. See Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, Syl. ¶ 1, 24 P.3d 113 (2001).
Kansas first recognized the loss of chance of survival cause of action in Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984), modified by Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994). In Roberson, the defendant chiropractor was alleged to have been professionally negligent in failing to recognize his patient was experiencing symptoms consistent with those of acute heart disease and in failing to refer the patient for appropriate medical treatment. The negligence was alleged to have substantially reduced the patient’s chance of surviving the heart attack that ultimately took his life. One expert witness testified that the failure to receive medical treatment resulted in the loss of 6 percent chance for survival, while another testified that without medical treatment his chance for survival decreased from a 40 percent chance for survival with proper medical treatment to a zero percent chance for survival. The district court granted the chiropractor’s motion for summaiy judgment, finding that the plaintiff had failed to meet the burden of proof and show that it was more likely than not that the chiropractor’s conduct was a substantial factor in the causation of the injury.
On appeal, the Roberson court addressed the issue of whether the evidence of causation was insufficient to constitute a submissible jury question. The court cited the case of Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), quoting as follows:
“ “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not He in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require tire plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. [Citation omitted.]’ 368 F.2d at 632.’’ 235 Kan. at 1015.
After considering Hicks and cases from other jurisdictions, the Roberson court reversed the district court and held as follows:
“The question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by tire finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making this determination, the finder of fact should take into account both the patient’s chances of survival if properly treated and the extent to which the patient’s chances of survival have been reduced by the claimed neghgence.
“There are sound reasons of public policy involved in reaching this result. The reasoning of the district court herein ... , in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often would be at the mercy of those professionals on whom it must rely for life-saving health care.” (Emphasis added.) 235 Kan. at 1020-21.
A decade later, this court further expounded upon the loss of chance cause of action in terms of loss of chance for better recovery in Delaney, 255 Kan. 199. In Delaney, the United States Court of Appeals for the Tenth Circuit certified the following questions to this court: (1) Does Kansas recognize a cause of action for loss of chance of recovery? (2) If so, what are the standards of proof for such claim? This court responded by stating that Kansas does recognize a cause of action for loss of chance for better recovery, relying upon the decision in Roberson and the policy behind that decision. Delaney, 255 Kan. at 210-13. The court further stated that in order to put forth sufficient evidence to establish the cause of action for loss of chance a party must demonstrate that the loss of chance was substantial. 255 Kan. at 215.
In determining the burden of proof to maintain a loss of chance action in Kansas, the Delaney court identified the following three general approaches utilized by other jurisdictions faced with this theory: (1) the all or nothing approach; (2) the relaxed standard of proof approach; and (3) the any loss of chance approach. The all or nothing approach is used in jurisdictions that refuse to recognize lost chance as a compensable injury. In an all or nothing jurisdiction, if a party is unable to demonstrate that a defendant’s negligence was the proximate cause of the injury or death (better than even), no recovery is available. Jurisdictions that have adopted the relaxed standard of proof approach require a plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost. The Delaney court noted that the relaxed standard of proof approach was utilized in Roberson. In any loss of chance jurisdictions, a plaintiff is required to show only that there was any chance of survival or better recovery in order to establish a prima facie case, and avoid summary judgment. 255 Kan. at 212- 15; see King, “Reduction of Likelihood” Refoimulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 491, 505-09 (Winter 1998).
The Delaney court held:
“Considering the various approaches adopted by the courts, we are of die opinion that the middle ground or so-called relaxed standard of proof approach is the better rule. In an action to recover for the loss of a chance to survive or for the loss of a chance for a better recoveiy, the plaintiff must first prove the traditional elements of a medical malpractice action by a preponderance of die evidence. The plaintiff must prove that the defendant was negligent in treating the patient, tiiat the negligence caused harm to die plaintiff, and that as a result the plaintiff suffered damages. In proving that the plaintiff suffered harm, the plaintiff must prove that the lost chance of survival or the lost chance for a better recovery when the plaintiff does suinive was a substantial loss of the chance. We do not adopt the any loss of a chance approach nor do we attempt to draw a bright line mle on the percentage of lost chance that would be sufficient for the case to be submitted to the jury. As we recognized in Roberson, the question of causation is generally a matter to be determined by the finder of fact. Our only deviation from the Roberson standard is that the evidence must show tiiat die patient had a ‘substantial’ chance of survival or of a better recovery ratiier tiian an appreciable one.” (Emphasis added.) 255 Kan. 215-16.
The Delaney court, in deciding to follow the relaxed standard of proof approach, noted:
“The relaxed standard of proof approach, commonly referred to as the ‘substantial chance’ approach, requires plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost. If plaintiff meets this initial threshold, the causation issue is submitted to the jmy, using the traditional proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance of the evidence that die alleged negligence was the proximate cause of the lost chance, but die lost chance itself need only be a substantial or significant chance, for a better result, absent any malpractice, rather than a greater than 50 percent chance of a better result.” (Emphasis added.) 255 Kan. at 212.
The Delaney court went further and adopted the proportional damage approach to calculating damages. The proportional damage approach ensures that a plaintiff recovers only the loss attributable to the loss of chance and not for an arbitraiy amount awarded by the juiy or for the total damages sustained.
“Under the proportional damage approach, the amount recoverable equals the total sum of damages ordinarily recovered by die underlying injury or death multiplied by the percent of lost chance. Because this method requires expert medical testimony in ascertaining the appropriate (percent) amount of damages recoverable, courts employing this method eliminate the risks of compensating the plaintiff for anything other than the value of the lost chance. . . .
‘This method is preferable because it apportions damages in direct relation to the harm caused; it neither overcompensates plaintiffs or unfairly burdens defendant with unattributable fault. Second, the percentage method gives juries and judges concrete guidelines on how to measure damages, alleviating the “pulling out of the hat” problem identified with the first method. If the decision maker believes plaintiffs expert(s) on causation, the percentage of chance lost, then it makes the usual finding on the value of a life ($X) and multiplies $X by the percentage of chance lost to arrive at the compensation for the lost chance to survive.’ [Boody v. U.S., 706 F. Supp. 1458, 1465-66 (1989).]” Delaney, 255 Kan. at 218.
The reasoning of Delaney and Roberson applies to this case. Thus, we are now faced with determining whether the loss of a 10 percent chance of survival is substantial as a matter of law.
The Delaney court provided some direction as to what is not substantial by stating:
“To recover damages for loss of a chance for a better recovery, the lessened degree of recovery resulting from the medical malpractice must be a substantial one, and a plaintiff cannot recover for a loss of chance that is nothing more than a token or de minimis one.” 255 Kan. 199, Syl. ¶ 7.
Black’s Law Dictionary 1428 (6th ed. 1990) defines “substantial” as follows: “Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. . . . Something worthwhile as distinguished from something without value or merely nominal. . . . Synonymous with material.” See also PIK Civ. 3d 123.21; PIK Civ. 3d 123.22 (“substantial chance” defined as “one which is capable of being estimated, weighed, judged, or recognized by a reasonable mind”).
No cases were cited to this court or discovered through our own research in which a bright line rule has been adopted for determining what is substantial in terms of loss of chance. As this court did in Delaney, courts in other jurisdictions that have adopted the substantial chance approach have declined to adopt an exact percentage as being substantial for purposes of establishing a prima facie case. For example, in Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991), the Nevada Supreme Court recognized for the first time that a plaintiff could recover for loss of chance in medical malpractice actions in which the plaintiff suffered death or debilitating injury and adopted the substantial chance approach. The court held as follows:
“Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be ‘substantial.’ We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.” (Emphasis added.) 107 Nev. at 6-7.
The Perez court went on to find that the testimony that the decedent in that case had a “reasonable chance of survival given proper medical attention,” viewed in the light most favorable to the plaintiff under the summary judgment standard, established that the decedent would have had a substantial chance of survival. Thus, the court found that the plaintiff had raised a genuine issue of material fact on the issue of causation pursuant to the loss of chance doctrine and that the motion for summary judgment should have been denied. 107 Nev. at 7; see McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 474-75 (Okla. 1987) (Oklahoma Supreme Court first recognized loss of chance doctrine, adopting substantial chance approach; court noted it is unnecessary to require precise percentage increment of chance of recovery or survival to create jury question on causation).
Additional cases in which courts have specifically determined whether loss of chance was substantial or appreciable provide fur ther direction on this issue. See Borgren v. United States, 716 F. Supp. 1378, 1383 (D. Kan. 1989) (loss-of 30% to 57% chance of 10-year disease-free survival was appreciable loss of chance); Falcon v. Memorial Hosp, 436 Mich. 443, 470, 462 N.W.2d 44 (1990) (superceded by statute, Mich. Comp. Laws § 600.2912a[2] [2000]) (loss of 37.5% chance of survival constitutes loss of substantial opportunity; declined to determine what lesser percentage would fail to constitute substantial opportunity); Stewart v. New York City Health and Hospitals Corp., 207 App. Div. 2d 703, 704, 616 N.Y.S.2d 499 (1994) (in reviewing and reinstating jury award for plaintiff where experts opined that plaintiff would have had less than 50% chance or only 5% to 10% chance of conceiving a child naturally, court noted, arguably in dicta, that if jury found that plaintiff lost even a 5% to 10% chance and that this chance was substantial the verdict would be justified); Kallenberg v. Beth Israel Hosp., 45 App. Div. 2d 177, 180, 357 N.Y.S.2d 508 (1974) (affirmed jury verdict for plaintiff in malpractice action where expert opined there was loss of 20% to 40% chance of survival).
The Roberson court recognized the loss of a 40 percent chance of survival as being sufficient to withstand a motion for summary judgment. 235 Kan. 1006. Pipe contends a 10 percent chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10 percent loss of chance cannot be said to be token or de minimis.
Reversed and remanded.
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The opinion of the court was delivered by
Lockett, J.:
Medical practitioner Dr. Timothy Bolz filed a breach of contract action, based on an insured’s assignment of her right to receive payment for medical services rendered under an automobile insurance policy. The insurer had claimed its contract prohibited its insured from assigning the claim. The district court granted summary judgment to the insurer. Dr. Bolz appealed, claiming that Kansas statutes and Kansas public policy require that the right to receive payment for necessary medical treatment be assignable and that the language of the insurance policy was ambiguous.
The parties stipulated that Georgia Emerson was involved in an automobile collision on July 1,1997. Emerson was insured by State Farm Mutual Automobile Insurance Company (State Farm) on the date of the collision. The insurance policy provided Emerson with personal injury protection (PIP) benefits as required by K.S.A. 40-3107. It is important to note that State Farm does not repair automobiles or provide medical services, and its policy did not require the insured to use specified individuals or companies to perform these services.
Emerson sought treatment from Dr. Bolz, a chiropractor, for injuries she sustained in the collision. On July 26, 1997, Emerson signed an “Irrevocable Assignment, Lien and Authorization” form which assigned to Dr. Bolz her right to receive the PIP benefits under the policy. On August 6,1997, Dr. Bolz forwarded the document of assignment to State Farm and demanded payment in the amount of $3,359, the cost of the medical expenses incurred by Emerson.
The insurance policy, under the section entitled “Conditions,” contained the following standard language regarding policy changes: “b. Change of Interest. No change of interest in this policy is effective unless we consent in writing.”
Emerson did not obtain written consent from State Farm to assign to Dr. Bolz her claim for reimbursement for medical services. When State Farm refused to pay Dr. Bolz for the medical services rendered to its insured, Dr. Bolz brought this action based on the assignment.
The district court determined that the change in interest clause was unambiguous and enforceable against Dr. Bolz. In his memorandum decision and order, the district judge stated:
“While tire policy clearly prohibits assignments without consent, the Court must determine if non-assignability clauses are valid when used in an insurance contract. In St. Francis Regional Medical Center v. Blue Cross Blue Shield of Kansas, 810 F. Supp. 1209 (D. Kan. 1986), the Kansas Federal District Court held that a non-assignability clause in an insurance policy in general was valid and enforceable and not against public policy. The St. Francis Court held that ‘Kansas courts have repeatedly recognized that the freedom to contract is an important public policy.’
“In a case directly on point, the Colorado Supreme court rejected the ‘argument that a non-assignability clause in an insurance policy is unenforceable as a matter of law against post-loss assignment of policy benefits.’ Parrish Chiropractic Centers, P.C. v. Progressive Casualty Insurance Company, 874 P.2d 1049, 1054 (Colorado 1994). In the Parrish Chiropractic case, the insurance policy contained a clause which stated, ‘Interest in this policy may not be assigned without our written consent.’ The insurance company did not provide its written consent to its insured to assign the proceeds of tire coverage to the chiropractic clinic. The Court held that the provision was enforceable and because written consent was not provided the assignment was invalid.
“There is a clear prohibition in the State Farm policy of Georgia Emerson precluding assignments without written consent of Defendant. No consent was provided, therefore the assignment to Bolz Chiropractic Clinic, P.A., is void and unenforceable.”
Dr. Bolz appealed. The case was transferred from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).
Since this appeal arises from summary judgment on stipulated facts, this court’s review is de novo. Veatch v. Beck, 252 Kan. 1081, 1082, 850 P.2d 923 (1993); Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan 754, 762, 863 P.2d 355 (1992). Summary judgment is appropriate when all of the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 767, 958 P.2d 656 (1998); Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
Before we discuss the arguments of each party, it is necessary to define a chose in action. A chose in action is the right to bring an action to recover a debt, money, or thing. Black’s Law Dictionary 234 (7th ed. 1999). It has long been recognized in Kansas that all choses in action, except torts, are assignable. See Alldritt v. Kansas Centennial Global Exposition, 189 Kan. 649, 657, 371 P.2d 181 (1962); National Bond & Investment Co. v. Midwest Finance Co., 156 Kan. 531, 535, 134 P.2d 639 (1943); McCrum v. Corby, 11 Kan. 464, 470 (1873); cf. Augusta Medical Complex, Inc. v. Blue Cross, 230 Kan. 361, 363-64, 634 P.2d 1123 (1981) (where defendant nonprofit hospital service corporation’s nonassignment clause was upheld as valid and enforceable despite court’s recognition of the general rule that choses in action are fully assignable). Emerson’s assignment of her right to be paid for the medical services rendered is a chose in action.
Dr. Bolz contends that State Farm’s insurance policy’s change of interest clause is ambiguous and, as now interpreted by State Farm, violates the public policy that choses in action are assignable. Additionally, Dr. Bolz asserts that the Kansas Legislature has codified the right of Kansas policyholders to assign both the benefits and claims arising from accident and health insurance contracts, citing K.S.A. 40-439 and K.S.A. 40-440.
State Farm argues the public policy favoring free alienation of choses in action must be balanced against another public policy, the freedom of contract, and that the public policy of freedom of contract is superior to the free assignability of choses in action. To support this argument, State Farm relies upon St. Francis Reg. Med. Ctr. v. Blue Cross, 810 F. Supp. 1209 (D. Kan. 1992), affd 49 F.3d 1460 (10th Cir. 1995), and Parrish Chiropractic v. Progressive Cas., 874 P.2d 1049 (Colo. 1994). Additionally, State Farm asserts that K.S.A. 40-439 and K.S.A. 40-440 do not apply to automobile insurance policies because those statutes pertain to life insurance policies and accident and health insurance policies. To support this assertion, State Farm notes that no restriction on nonassignability appears in the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., and concludes that if the legislature intended such a restriction it would have specifically provided for such in the KAIRA.
Public Policy
Public policy consists of the “principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society.” Black’s Law Dictionary 1245 (7th ed. 1999). The declaration of public policy is primarily a legislative function. Noel v. Menniger Foundation, 175 Kan. 751, Syl. ¶ 4, 267 P.2d 934 (1954). Where the legislature declares the public policy and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for the legislature and not for the courts. State ex rel, v. Kansas Turnpike Authority, 176 Kan. 683, 695, 273 P.2d 198 (1954); see Coleman v. Safeway Stores, Inc., 242 Kan. 804, 808, 752 P.2d 645 (1988).
In McCrum, this court recognized that under the common law no chose in action was negotiable or even assignable. In equity, every chose in action, except a tort, was assignable, but it was assignable subject to all equities that might be set up against it. The McCrum court stated: “Under our statutes every chose in action is assignable, except a tort, the same as it was in equity; (Civil Code, § 26).” 11 Kan. at 470.
This concept of assignability of choses in actions remains ingrained in the public policy of this state. See Augusta Medical, 230 Kan. at 364; Alldritt, 189 Kan. at 657. In addition to the public policy favoring assignability of choses in action, we note that restraints on the alienation of property are strictly construed against the party urging the restriction. See Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 669, 876 P.2d 1362 (1994); Wood v. Hatcher, 199 Kan. 238, 243, 428 P.2d 799 (1967).
Dr. Bolz points out that the assignment was post-loss. When Emerson assigned her claim arising under the policy to Dr. Bolz, the risk to State Farm was fixed because the loss had already occurred. To support his argument, Dr. Bolz cites to the Restatement (Second) of Contracts, § 322 (1979), which provides:
“(1) Unless the circumstances indicate the contrary, a contract term prohibiting assignment of ‘the contract’ bars only the delegation to an assignee of the performance by the assignor of a duty or condition.
“(2) A contract term prohibiting assignment of rights under the contact, unless a different intention is manifested,
(a) does not forbid assignment of a right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation.”
State Farm asserts that Section 322 does not restrict the freedom of contract by referring to the comment to that section, which states: “In the absence of statute or other contrary public policy, the parties to a contract have power to limit the rights created by their agreement. The policy against restraints on the alienation of property has limited application to contractual rights.” This language, however, is consistent with Dr. Bolz’ argument that Kansas public policy and statutory provisions prohibit nonassignability and prevail over freedom of contract.
For further support, Dr. Bolz also cites to 3 Couch on Insurance 3d § 35:7 (1995), which states:
“Although there is some authority to the contrary, the great majority of courts adhere to the rule that general stipulations in policies prohibiting assignments thereof except with the consent of the insurer apply only to assignments before loss, and do not prevent an assignment after loss, for the obvious reason that the clause by its own terms ordinarily prohibits merely the assignment of the policy, as distinguished from a claim arising thereunder, and the assignment before loss involves a transfer of a contractual relationship while the assignment after loss is the transfer of a right to a money claim. The purpose of a no assignment clause is to protect the insurer from increased liability, and after events giving rise to the insurer’s liability have occurred, the insurer’s risk cannot be increased by a change in the insured’s identity.”
In Augusta, this court discussed general rules of assignment, noting:
“As a general rule, a contract is not assignable where the nature or terms of the contract make it nonassignable. 6A C.J.S., Assignments § 30, p. 630. But, logically, if the parties are to be held to have agreed to make the contract or particular rights thereunder nonassignable, then it should have been a negotiated contract. This distinction is perhaps one of the major reasons that assignments of insurance benefits after loss are generally enforced despite contractual provisions precluding assignment. See 43 Am. Jur. 2d, Insurance §§ 689-690, pp. 686-688; 46 C.J.S., Insurance § 1152, p. 35, § 1190, p. 106; Annot., 122 A.L.R. 144 (1939).
“Free assignment of chooses in action is considered to be a matter of public policy. However, other considerations of public policy may in particular instances compete with and override the desirability of free alienation of chooses in action. By illustration, the potential for hardship to the working person and his or her dependents has given rise to K.S.A. 16a-3-305, which generally renders assignments of wages unenforceable. See also, K.S.A. 44-514, which precludes assignment of workmen’s compensation claims or awards.” 230 Kan. at 364.
In Augusta, this court upheld the nonassignment of benefits clause policies issued by Blue Cross. At that time, Blue Cross was a nonprofit hospital service corporation, which along with Blue Shield, a nonprofit medical service corporation, was created by statute to provide health insurance to Kansas residents at the lowest financially sound rates. The court reasoned that the containment of health care cost was a matter of vital public interest and policy, noting that Blue Cross had a legislative mandate to control costs and that if Blue Cross were compelled to honor assignments to nonmember hospitals there would be no incentive for a hospital to become a participating member. 230 Kan. at 365.
The public policy in favor of the assignability of choses in action did not prevail in Augusta because the legislature had enacted laws favoring health care cost control and insurance contracts that required the insureds to use the services of specified member health care providers and member hospitals. It is important to note that neither of these factors is present in this case.
The enforceability of a nonassignment clause regarding PIP benefits in an automobile insurance policy is an issue of first impression. For support, the parties cite to case law from other jurisdictions.
Not cited by either party, however, is the case of Santiago v. Safeway Insurance Co., 196 Ga. App. 480, 396 S.E.2d 506 (1990). In Santiago, the Georgia court held that a health care provider could maintain an action for benefits when assigned no-fault benefits due under the insurance policy despite a nonassignment clause. Dr. Santiago provided medical care to three patients in jured in automobile accidents. All three executed assignments of their rights to insurance proceeds to the doctor. Safeway insured all three.
Safeway’s policy provided that the insureds’ “ Tights and duties under this policy may not be assigned without our written consent.’ ” 196 Ga. App. at 480. Safeway did not consent to the assignment of benefits to Dr. Santiago. Safeway received notification of the assignments but, nevertheless, paid benefits directly to the insureds. Dr. Santiago was not paid. The Santiago court stated:
“ ‘After [a] loss, the claim of the insured, like any other chose in action, could be assigned without in any way affecting the insurer’s liability. It has been held, rightly we think, that a condition in a policy of . . . insurance prohibiting an assignment or transfer of the same after loss, without the consent of the insurer, is null and void, as inconsistent with the covenant of indemnity and contrary to public policy . . . . No right of the insurer being affected by the assignments of the policies, it would be a mere act of caprice or bad faith for it to take advantage of the stipulation that the transfers were subject to its consent, by withholding such consent in order to defeat the claim of the assignee. The assignments being perfectly valid without the consent of the insurer, and its rights being in no way affected thereby, the condition in question was superfluous, and the law will not tolerate its enforcement against the assignee.’ (Citations omitted.) Georgia Co-Op. Fire Assn. v. Borchardt & Co., 123 Ga. 181, 183-184 (51 S.E. 429) (1905). Interest in the proceeds of a policy of insurance after a loss to the insured has occurred may be assigned just as any other chose in action. Canal Ins. Co. v. Savannah Bank, & c., Co., 181 Ga. App. 520 (4) (352 S.E. 2d 835) (1987); Pacific Ins. Co. v. R.L. Kimsey Cotton Co., 114 Ga. App. 411 (3) (151 S.E.2d 541) (1966).
“The law of other jurisdictions appears to recognize the right of an assignee of insurance benefits to bring an action to recover payment. ‘An assignment of the policy after loss, or in other words an assignment of the claim for the loss, is valid, and transfers to tire assignee the right to the proceeds of the insurance. . . . Such an assignment is valid, even though the policy provides that it shall be void if assigned, eitiher before or after the loss, without the consent of insurer, for such an assignment relates to the cause of action and not to the policy. ... If insurer has notice of the assignment . . . and, if insurer thereafter pays the proceeds to insured or his creditors, it does not discharge itself from liability to the assignee.’ 46 CJS Insurance, § 1152 (1946).” 196 Ga. App. at 481.
The Santiago court held that because Safeway had notice of the assignment, Safeway was liable to the assignee, Dr. Santiago, and did not escape liability by paying benefits directly to its insureds. 196 Ga. App. at 482. See Marvin, D.C. v. State Farm Mutual Automobile Insurance Co., 894 S.W.2d 712, 713 (Mo. App. 1995) (where policy provided insurer could pay benefits to either insured or to person authorized by law, payment to insured after notice of assignment did not extinguish insurer’s liability; assignment passes all assignor’s title as interest to assignee and divests assignor of all right of control over subject matter); see also Antal’s Restaurant v. Lumbermen’s Mut, 680 A.2d 1386, 1388-89, (D.C. App. 1996) (fire insurance policy clause restricting assignment did not limit right of assignment after loss had occurred).
State Farm relies on St. Francis, 810 F. Supp. 1209, to support its contention that the public policy in favor of freedom of contract is superior to the public policy in favor of free assignment of choses of action. In St. Francis, St. Francis Hospital requested that the federal district court, among other things, find that nonassignment clauses in policies issued by Blue Cross violated Kansas public policy in favor of free assignment of choses in action. As a nonprofit, Blue Cross was statutorily required to adopt procedures to control rising health care costs. One of the tools used by Blue Cross in accomplishing this goal was provider agreements coupled with clauses prohibiting assignment of benefits. Under this scheme, if a health care provider did not enter a provider agreement with Blue Cross and accept payment as payment in full, an insured had to first pay the provider and then seek reimbursement from Blue Cross. The St. Francis court noted that this system was upheld in Augusta because the public policy favoring free assignability of choses in action was insufficient to overcome the legislative mandate to control medical costs that served as the purpose for the restraint. 810 F. Supp. at 1211-12.
St. Francis argued that the reasoning in Augusta no longer applied when Blue Cross changed its nonprofit status. The federal district court disagreed and found that nonassignment clauses continued to be a vital tool for containment of health care costs. We note that here State Farm stated that it is not attempting to control medical cost through its policy and that it does not require its insured to use the services of specified health care providers. The St. Francis court found the public policy supporting free assignability of choses in action to be outweighed by the public policy supporting freedom of contract and the public policy in favor of attempting to restrain the growth of health care cost. 810 F. Supp. at 1219.
The St. Francis court stated:
“Kansas courts have repeatedly recognized that the freedom to contract is an important public policy. State public policy encourages the freedom to contract, which should not be interfered with lightly.’ Miller v. Foulston, Siefkin, 246 Kan. 450, 790 P.2d 404, 413 (1990). Absent a specific finding of unconscionability, a party is bound by an agreement fairly and voluntarily entered into, notwithstanding it was unwise or disadvantageous to him. Corral v. Rollings Protective Services, 240 Kan. 678, 732 P.2d 1260 (1987).” 810 F. Supp. at 1218.
State Farm also relies on Parrish, 874 P.2d 1049. The issue in Parrish is remarkably similar to the question before us. Parrish Chiropractic Centers provided health care services to Progressive Casualty Insurance Company insureds following injuries in automobile accidents. As in our case, Parrish required patients to sign an agreement assigning to Parrish their rights to receive PIP benefits. Progressive’s policies contained a provision stating: “ ‘Interest in this policy may not be assigned without our written consent.’ ” 874 P.2d at 1051.
Although Progressive had honored the assignments in the past and directly paid Parrish for services provided to its insureds, Progressive changed its policy and began paying PIP benefits directly to its insureds. Progressive claimed the change occurred because treatment from Parrish took longer and was more expensive on average than with other chiropractors, the assignments diminished Progressive’s ability to control the frequency and costs of treatments, and the assignments increased its administrative costs by requiring it to deal with both the provider and its insured.
The Supreme Court of Colorado acknowledged the general rules regarding assignment of an insurance policy, specifically acknowledging the distinction made between assignments of a policy before loss and the assignment of benefits after loss. The Parrish court recognized that assignments of post-loss benefits have been found to be valid regardless of any nonassignment clause in the policy. However, the court noted that in recent years, courts have concluded that nonassignment clauses in group health care contracts are enforceable against post-loss assignments to health care providers. The Parrish court acknowledged what it called tire “ ‘participation inducement’ ” rationale, i.e., the only way to induce hospitals to participate in group plans is to not allow an insured to assign his or her rights under the policy, to support enforcement of nonassignment clauses in health insurance policies. It noted that the cases upholding nonassignment clauses had concluded that the general policy favoring free alienability of choses in action is overridden by the strong public policy in favor of freedom of contract and tire fact nonassignment clauses are valuable tools in controlling health care costs. 874 P.2d at 1053-54.
According to the Colorado Supreme Court, enforcement of non-assignment clauses as against attempted post-loss assignments in cases from other jurisdictions was grounded on the “broader principle — that the public policy in favor of the freedom of contract, and the corollary right of the insurer to deal only with the party with whom it contracted, outweigh the general policy favoring the free alienability of choses in action.” 874 P.2d at 1054. In reaching this decision, the Parrish court rationalized that “[t]o hold otherwise would be to force Progressive to deal with parties with whom it has not contracted, regardless of the fact that its policy contains an express contractual provision requiring its prior consent to any assignment of interests in the policy." 874 P.2d at 1055. We note that effective January 1, 1994, the Colorado Legislature clearly stated its public policy by passing an amendment to the Colorado Auto Accident Reparations Act, Colo. Rev. Stat. § 10-4-701 (2001) et seq., requiring insurers to allow an insured to assign payments due under the policy to a licensed hospital or other licensed health care provider for services provided to the insured that are covered under the policy. See Colo. Rev. Stat. § 10-4-708.4 (2001); 874 P.2d 1055 n.9.
Although Parrish is factually similar, State Farm’s reliance upon it is misplaced for numerous reasons. First, the determination of whether the free assignment of choses in action is tire public policy of Kansas is an issue to which case law from other jurisdictions will not afford answers. Only by looking to Kansas statutes and Kansas case law can the public policy of this state be determined. Second, without considering any statutory authority, the Colorado Supreme Court focused upon both its public policy favoring freedom of contract and of controlling health care costs in determining the validity of the nonassignment clause. See Parrish, 874 P.2d at 1053-54. State Farm does not argue that this is a health care cost control issue. Finally, Parrish conflicts with this court’s recent decision in Brenner v. Oppenheimer & Co., 273 Kan. 525, Syl. ¶ 6, 44 P.3d 364 (2002), in which a unanimous court recognized that contracts that contravene the settled public policy of the state will not be enforced. See also Levier v. Koppenheffer, 19 Kan. App. 2d 971, Syl. ¶¶ 2, 3, 879 P.2d 40, rev. denied 255 Kan. 1002 (1994) (insurance is matter of contract and will be enforced as long as terms are certain and do not conflict with statutes or public policy).
Beyond freedom of contract, State Farm fails to state any overriding public policy exception to the general rule that post-loss assignments are valid even in the face of nonassignment clauses. Thus, the case is distinguishable from Augusta Medical and St. Francis. We find, therefore, under the circumstances, that the policy provision restricting the assignment of Emerson’s right to collect a post-loss benefit is against the public policy of Kansas and will not be enforced.
Statutes
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of tire legislature as expressed, rather than determine what the law should or should not be. In re Adoption of B.M.W., 268 Kan. 871, 883, 2 P.3d 159 (2000); In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
In construing statutes, legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. It is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted. State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
The Kansas Legislature stated the public policy against prohibiting assignment when it enacted K.S.A. 40-439 and K.S.A. 40-440.
K.S.A. 40-439 states:
“No provision in K.S.A. 40-434 and 40-435 or any other law shall be construed as prohibiting a person whose life is insured under a policy of group life or accident and health insurance or the policyowner of an individual life or accident and health policy from making an assignment of all or any part of his rights and privileges under such policy.” (Emphasis added.)
K.S.A. 40-440 states:
“This act acknowledges, declares and codifies the existing right of assignment of interests under individual and group life and accident and health insurance policies.”
K.S.A. 40-439 and 40-440 codify the right of policyholders to assign both the benefits and claims arising under individual and group life and accident and health insurance policies.
State Farm argues that these provisions do not apply to its insurance policies which are governed exclusively by the KAIRA and that if the legislature had intended other provisions applicable to medical coverage to apply to the KAIRA it would have clearly stated that requirement. We note that K.S.A. 40-439, K.S.A. 40-440, and the KAIRA are found within the Insurance Code of Kansas, K.S.A. 40-101 et seq.
When enacting the KAIRA, the Kansas Legislature stated:
“The purpose of this act [KAIRA] is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.” K.S.A. 40-3102.
“ ‘Medical benefits’ means and includes allowances for all reasonable expenses ... for necessary health care rendered by practitioners licensed by the state board of healing arts to practice any branch of the healing arts.. . .” K.S.A. 40-3103(k).
Neither party recognizes that Article 22 of the Insurance Code of Kansas, which governs all insurance, states the uniform provisions required for all policies that include medical coverage. State Farm’s policy, as required by the legislature, includes medical coverage. The stated purpose of the uniform provisions governing insurance is to
“provide reasonable standardization and simplification of terms and coverages of individual accident and sickness insurance policies ... to facilitate public understanding and comparison, to eliminate provisions contained in individual accident and sickness insurance policies . . . which may be misleading or unreasonably confusing in connection either with the purchase of such coverages or with the settlement of claims, and to provide for full disclosure in the sale of accident and sickness coverages.” K.S.A. 40-2216.
K.S.A. 40-2201 provides:
“The term ‘policy of accident and sickness insurance’ as used herein includes any policy or contract insuring against loss resulting from sickness or bodily injury or death by accident, or both, issued by a stock, or mutual company or association or any other insurer.”
Every policy that provides accident and sickness insurance must contain certain provisions pursuant to K.S.A. 40-2203(A). In addition, K.S.A. 40-2203(B) provides that, although not required, if specific provisions are included within an accident and sickness insurance policy, the provisions must comply with the statute. Other policy provisions within an accident and sickness insurance policy are also controlled by statute.
“Other policy provisions: No policy provision which is not subject to K.S.A. 40-2203 shall malee a policy, or any portion thereof, less favorable in any respect to tire insured or the beneficiaiy than die provisions thereof which are subject to diis act.” K.S.A. 40-2204(A).
State Farm’s policy is within the statutory definition of a policy of accident and sickness insurance. See K.S.A. 40-2201(a). Provisions regarding assignment of rights under the contract are not subject to K.S.A. 40-2203. State Farm asserts that its policy contains a provision precluding assignment of rights to receive payment post-loss under the contract. Such a provision, however, is less favorable to the insured than the provisions that are covered by K.S.A. 40-2203. See Durrett v. Bryan, 14 Kan. App. 2d 723, 729, 799 P.2d 110 (1990), rev. denied 248 Kan. 995 (1991) (regulation prohibiting subrogation clause in insurance policy was statutorily authorized; subrogation provision is not subject to K.S.A. 40-2203 and is less favorable to the insured than other provisions covered in K.S.A. 40-2203).
“Policy conflicting with this act. A policy delivered or issued for delivery to any person in this state in violation of diis act shall be held valid but shall be construed as provided in this act. When any provision in a policy subject to this act is in conflict with any provision of diis act, the rights, duties and obligations of the insurer, die insured and die beneficiaiy shall be governed by the provisions of diis act.” K.S.A. 40-2204(B).
The uniform provisions governing insurance were enacted in 1951. L. 1951, ch. 296. K.S.A. 40-439 and K.S.A. 40-440 were enacted in 1969. L. 1969, ch. 239, secs. 1,2. The KAIRA went into effect in 1974. L. 1974, ch. 193. The purpose of the KAIRA is to provide a means of promptly compensating individuals for accidental bodily injury. K.S.A. 40-3102. At the time the KAIRA was implemented, the legislature had previously codified the right of each individual to assign his or her right to be reimbursed for medical services under accident and health insurance policies. See K.S.A. 40-439; K.S.A. 40-440. In mandating PIP benefits in the KAIRA, the legislature inserted medical coverage within automobile insurance policies, required that the expense of medical services rendered under automobile insurance policies be assignable to the healthcare provider, and limited die cost of medical services to reasonable and customary amounts. See K.S.A. 40-3107(f); K.S.A. 40-3111(a).
The free assignment of post-loss PIP benefits was provided for by the legislature in regulating accident and health insurance policies and was also required under the uniform policy provisions. In doing this, the Kansas Legislature specifically mandated Kansas public policy. Therefore, we find that a provision within an automobile insurance policy which restricts the assignment of an insured’s right to collect post-loss PIP benefits violates Kansas statutes and will not be enforced. The assignment of the insured’s right to receive a post-loss PIP benefit to the medical practitioner that provided the medical services is enforceable as a matter of Kansas public policy and under the statutes of this state.
Dr. Bolz also contends the language in State Farm’s policy was ambiguous. Because we find the change of interest clause unenforceable in this case, we need not reach this issue. The decision of the district court is reversed, and the case is remanded for further proceedings.
Reversed and remanded.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Bala Subrahmanyan Krowidi’s appeals his sentence and conviction for vehicular homicide. Following a bench trial, the trial court found that Krowidi had run a red light causing the accident which resulted in the death of Daniel Hawthorne. The trial court concluded that the running of the red light, with no indication of other recklessness or impairment, satisfied the necessary element of a “material deviation” from the standard of care required for a conviction of vehicular homicide under K.S.A. 21- 3405. For the reasons set forth in this opinion, we reverse and remand with instructions to vacate the sentence.
On March 11, 2000, Daniel Hawthorne left his brother s house in Overland Park, driving a blue 1982 Pontiac station wagon. At 3:49 p.m., Officer Steve Lopez of the Overland Park Police Department responded to an accident scene at 103rd and Lowell streets. As southbound vehicles on Lowell approach the T-intersection at 103rd Street, they must either turn east or west, but cannot continue south. Officer Lopez testified that a Jeep Grand Cherokee driven by defendant Krowidi traveling west on 103rd had collided with Hawthorne’s southbound station wagon that was attempting to turn left.
The impact of the collision caused extensive damage to the left side of Hawthorne’s station wagon and moved the body of the vehicle completely off its frame. Hawthorne had sustained severe head injuries and was exhibiting shallow breathing. The left side of his vehicle was crushed, the doors were locked, and officers could not gain entry. Lopez used his flashlight to break out the right rear window in order to gain access to the vehicle so other officers could render aid to Hawthorne.
While at the scene, Lopez received notification that Hawthorne died as a result of the collision. Lopez then asked Krowidi to provide blood and urine samples; Krowidi complied. The Kansas Bureau of Investigation lab tests showed there was no alcohol in Krovvidi’s blood or any illegal drugs in his urine.
The State filed a complaint charging Krowidi with one count of class A misdemeanor vehicular homicide, one count of failure to obey an official traffic control signal, and one count of failure to yield the right of way.
Two eyewitnesses provided statements to the police and testified at trial. Chris Bartlett, who lived in Overland Park near Lowell Street testified that on the day of the accident he was driving south on Lowell toward 103rd at approximately 20 to 22 m.p.h. behind a blue station wagon. As he drove down the slope of a hill toward the intersection, Bartlett observed the traffic light go from green to yellow. The blue station wagon operated by Hawthorne was approximately 1 second ahead of Bartlett’s vehicle. As Hawthorne’s vehicle approached the white line at the intersection, the light was yellow and had been yellow for some time. Bartlett testified that Hawthorne did not speed up or slow down; however, his statement to the police indicated that the driver of the blue station wagon “decided to charge the light,” meaning that he tried to beat the yellow light.
When Bartlett got to the intersection, the light had changed to red, and he stopped. He stated that Hawthorne’s vehicle was “a fourth of the way through the intersection” still traveling at a slow rate of speed when the light turned red. According to Bartlett, 2 or 3 seconds after the light turned red, Krowidi’s vehicle struck the driver’s side of Hawthorne’s vehicle. Bartlett did not see Krovvidi’s vehicle coming but he was certain that Krowidi did not stop before entering the intersection. Bartlett stated that he had his music very loud and did not hear any skidding or braking that might have occurred.
Lilia Khalifah, a long-time Overland Park resident, testified that on March 11 she drove her vehicle west on 103rd Street and stopped at the traffic light at Lowell. She stated that traffic was not heavy and that her vehicle was in the right lane of two westbound lanes on 103rd. Khalifah testified that she thought the Jeep might have already been stopped at the intersection of Lowell and 103rd when she pulled up at the stoplight. She stated that in her peripheral vision she noticed a vehicle pull ahead in the other westbound lane of 103rd Street. According to Khalifah, she heard the crash and then looked at the traffic light, which turned from red to green while she looked at it. She did not hear skidding or sudden braking.
Officer Lopez testified that based on his training and experience and the damage to the Hawthorne vehicle, he did not think Krovvidi’s. vehicle actually stopped prior to entering the intersection. Lopez testified that Krowidi stated at the scene that his light was green.
Robert “Buck” Taylor, a Traffic Signal Specialist II with the Overland Park Public Works Department, testified about the traffic light time sequences at the intersection of Lowell and 103rd Street. According to Taylor, the traffic light for the southbound street traffic stays green for a minimum of 16 seconds, turns yellow for 3.4 seconds, and then changes to red. Taylor testified that the “all-red clearance” for the traffic light was 2 seconds, meaning that all traffic lights at tire intersection remain red for 2 seconds before the light on 103rd turns green.
Dale Bain, an Overland Park senior engineering technician, testified for the State that the distance across the two westbound lanes from the stop line was 31 or 32 feet. Bain stated that by using a generally accepted formula and assuming a speed of 20 m.p.h., the Hawthorne vehicle would have traveled 29.4 feet into the intersection in 1 second. In 2 seconds, his vehicle could have traveled 58.8 feet, clearing the westbound lanes of 103rd Street.
At the close of the State’s evidence, counsel for Krowidi moved the court for a judgment of acquittal on the vehicular homicide count and tíre failure to yield count. Counsel stated that one basis for Krovvidi’s motion was that the State had failed to put on evidence of careless or reckless driving, and without such evidence the State could not establish tire element of a material deviation from the standard of care necessary to support vehicular homicide.
In considering Krovvidi’s motion for judgment of acquittal, the district court reviewed the vehicular homicide statute:
“THE COURT: Where they created land of an extra tier, haven’t they, in this statute? I mean, traditionally, always in civil, you’ve had the tiers of simple negligence and then willful and wanton disregard for the safety of others. But here it looks like the legislature has created, if they meant ‘simple negligence,’ they could have said ‘simple negligence.’ It looks like they’ve created land of an additional tier that’s somewhere in between, as counsel has indicated.”
After hearing the arguments of counsel, the district court took the matter under advisement because the court believed the matter involved a legal issue, in part. After the court’s ruling, the defense presented its witnesses.
James Loumiet, an accident reconstructionist, testified concerning tire speed of the two vehicles involved in the collision. Loumiet testified that the minimum speed of Krovvidi’s vehicle at the time of impact was 27 m.p.h. and the maximum speed was 32 m.p.h. Loumiet stated that Hawthorne’s vehicle had traveled at a minimum speed of 16 m.p.h. and a maximum of 25 m.p.h. Loumiet also stated that it was his belief as an accident reconstructionist that the impact occurred in the southernmost westbound lane of 103rd Street, 26 feet from the point where vehicles would stop for a red light.
Mukesh Chaudhari, a front-seat passenger in Krowidi’s vehicle, told the court that he was looking out the side window at the time of the collision. Chaudhari did not see the traffic signal before the collision but testified that there were no distractions in Krowidi’s vehicle.
Gouri Sridevi, a coworker of Krowidi’s testified that she was sitting in the back of Krowidi’s vehicle on the passenger side prior to the accident. Sridevi stated that she was trying to open an instant camera and was not engaged in any conversation with Krowidi. Sridevi could not remember whether Krowidi stopped at the intersection. She did not see the traffic signal before the collision. According to Sridevi, Krowidi was not talking on a cell phone, was not weaving in and out of traffic lanes, and did not appear upset with any other drivers on the road. There was nothing about his driving tlrat made her uncomfortable.
Krowidi testified that on the afternoon of the collision, he drove his vehicle west on 103rd Street to go to Oak Park Mall accompanied by three friends, Chaudhari, Sridevi, and Paral Isharani. Krowidi testified that before the collision, he had just turned left onto 103rd Street from the parking lot of his apartment building, 168 yards from the accident intersection. The speed limit on 103rd was 35 m.p.h. Krowidi stated that he drove at a speed of 30 to 35 m.p.h. but did not exceed 35 m.p.h. Krowidi denied consuming any alcohol, but testified that he took some Ny-Quil the night before and in the morning because he had a bad cold. Early that morning, Krowidi stated that he took a nondrowsy Tylenol product. However, Krowidi denied having any drowsiness or impairment in his driving ability that afternoon.
Krowidi further testified that he did not change lanes once he pulled onto 103rd Street, he did not use his cell phone, and he was not angry or upset at any other drivers. As he approached the intersection of 103rd and Lowell streets, there were no cars directly in front of him. In response to his counsel’s questions, Krowidi testified on direct examination:
“Q. Now, wliat color was the light as you — to your recollection what color was the light as you entered into the intersection?
“A. The best of my recollection, I’ve heard so many people testify, but to the best of my representation, it was green. And that is where I rolled past.
“Q. Now, as you approached that intersection, do you recall whether or not you substantially slowed your vehicle for any reason?
“A. No.
“Q. As you are approaching an intersection when you believe you have a green light, is it your standard practice for you to be substantially slowing your speed?
“A. I don’t usually slow down. I don’t think anybody does.
“Q. Did you observe anything that day at the intersection — other traffic or cars, people — that caused you to believe, as you proceeded into the intersection, that there was a need for you to slow your vehicle or stop your vehicle?
“A. I did not get any indication from the traffic because there was nobody around.
“Q. Now, as you entered the intersection of 103rd and Lowell, and before you got all the way through that intersection, there was a collision; was diere not?
“A. That is correct.
“Q. Can you describe to the judge basically what you observed as you approached the intersection, and in diose few moments between the time you approached the intersection and up to die collision, tell the judge what you saw?
“A. I just turned left onto the 103rd Street and was heading west. Essentially I was rolling past at the speed of 30 to 35 miles an hour, that was the road speed at the tíme. And from — I was just looking ahead and from die middle of me where I saw a blue vehicle come in front of me and I could not brake. Essentially, the moment I observed the vehicle I tried to brake and turn left, to the best of my recollection, trying to avoid the collision, but I could not.
“Q. Had you seen the vehicle that you collided with, had you seen that vehicle at all along Lowell or any point in die intersection before — -just die moment before the impact?
“A. Me? No, I did not. I would have stopped.”
At the close of evidence, counsel for Krowidi filed a written motion for judgment of acquittal and a brief in support. In addition, counsel for Krowidi submitted proposed findings of fact and conclusions of law. The court delayed consideration of the legal issues raised by Krowidi but announced its findings of fact:
“The Court finds with respect to the accident tiiat occurred the following facts, that at the time that the motor vehicle driven by Daniel Lee Hawthorne entered the intersection of Lowell Avenue and 103rd Street that the light controlling traffic from his direction was yellow, had been yellow for some time prior to that, such that it was possible for him to have brought his vehicle to a stop, that he proceeded into the intersection under a yellow light. The Court further finds that at the time the vehicle driven by the defendant Mr. Krowidi entered the intersection at 103rd and Lowell Avenue from the east headed in a westbound direction that the traffic light controlling his direction of travel was red and that he entered the intersection at a time when he was prohibited — his entry was prohibited by the red light. The court further finds at the time of the impact of the two vehicles, which occurred in roughly I think the center of the intersection but I think the southernmost westbound lane at 103rd Street, that the traffic light controlling the entry of vehicles into the intersection on 103rd Street in a westbound direction was red. The Court further finds that had the vehicle driven by Mr. Krowidi not entered the intersection at the time that the vehicle did enter the intersection under a red light, that at the speed the vehicle driven by Mr. Hawthorne was proceeding, that vehicle would have cleared the . . . southernmost westbound lane of 103rd Street such that the accident would not have occurred.”
The trial court then concluded that the act of inattentive driving merged with the conduct of running the red light, that the act of running a red light inherently involved a failure to yield the right-of-way and, therefore, that the failure to yield merged into the overall offense of running the red light. The trial court concluded:
“Now, that leaves us, Counsel, with, as I’ve indicated, the question of whether or not this traffic infraction, which I find was not compounded in any way, shape or form by other activities or events that were going on, there’s no indication there was any consumption of alcohol that impaired Mr. Krowidi’s driving, there was no indication there was any consumption of any drugs that would have impaired his driving, no activities in the car that would have impaired his ability to operate the motor vehicle. It was running a red light that resulted in a terrible, horrible traffic accident that resulted in a tragic loss of life. Does that, as a matter of law, rise to the level of negligence that is required to trigger the operation of the criminal offense under K.S.A. 21-3405? That threshold or burden of proof is greater than simple negligence but less than willful or wanton disregard and reckless conduct. I leave it to counsel to respond to that for the next hearing . . . .”
A posttrial hearing was held on July 27,2001, with the trial court ultimately deciding that the State had sustained its burden of proof to demonstrate, beyond a reasonable doubt, that each of the elements of the crime of vehicular homicide had been met and found Krowidi guilty of one count of misdemeanor vehicular homicide. On October 18, 2001, the trial court sentenced Krowidi to 300 days’ confinement in the county jail and 12 months’ probation. He filed a timely appeal of his conviction and sentence.
Our jurisdiction is based upon our transfer pursuant to K.S.A. 20-3018(c).
Discussion and Analysis
Krowidi assigns four errors. All assigned errors center upon one of the essential elements of vehicular homicide — that a defendant’s operation of his automobile “constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” K.S.A. 21-3405. In his first assigned error, Krowidi contends that the evidence is not sufficient to support this element. Krowidi also claims that the trial court abused its discretion in broadly interpreting K.S.A. 21-3405 to incorporate the running of a red light without more as a violation of K.S.A. 21-3405. Krowidi claims that K.S.A. 21-3405, as applied to the facts of this case, is rendered unconstitutionally vague and indefinite, violating his due process rights under the state and federal constitutions. Finally, Krowidi contends the trial court ignored the contributory negligence of Hawthorne, rendering the final verdict unsupported by all evidence admitted at trial.
The questions raised by Krowidi present questions of law. Interpretation of a statute is a question of law, and the appellate court’s review is unlimited. We are not bound by the district court’s interpretation. State v Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001). The first question has to do with the interpretation of K.S.A. 21-3405 and the meaning of the phrase “material deviation” as used in the statute. The second requires this court to determine whether, under the totality of circumstances, Krowidi’s operation of his vehicle constituted “a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
KS.A. 21-3405
K.S.A. 1993 Supp. 21-3405 provides in pertinent part:
“Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
Kansas formerly had a negligent homicide statute which criminalized “the driving of any vehicle in negligent disregard of the safety of others” resulting in the death of any person. G.S. 1949, 8-529. “Cases under that statute interpreted it to apply to ordinary negligence on the part of the driver of the vehicle which proximately resulted in the death of another. [Citations omitted.]” State v. Makin, 223 Kan. 743, 744, 576 P.2d 666 (1978). The legislature repealed the negligent homicide statute in 1969, however, and replaced it with K.S.A. 21-3405, the vehicular homicide statute. Vehicular homicide requires something more than simple or ordinary negligence. K.S.A. 21-3405 calls for proof of a “material deviation” in the operation of a vehicle as an element for conviction.
In State v. Gordon, 219 Kan. 643, 653-54, 549 P.2d 886 (1976), the State claimed it only had to prove simple negligence to convict a defendant of vehicular homicide. Noting the legislative history of the Kansas vehicular homicide statute, the Gordon court disagreed:
“We think die Legislature meant something more than simple negligence when it defined the standard of conduct condemned under the vehicular homicide statute.
“The vehicular homicide statute (K.S.A. 21-3405) was enacted in 1969 with the wording ‘substantial deviation.’ Whether its drafters intended this wording to mean something more than simple negligence need not be decided, because legislative action in 1972 provides a clearer indication of legislative intent. In 1972, legislation was introduced which would have amended the statute by changing ‘creates an unreasonable risk of injury’ to ‘creates a risk of injury,’ and by changing ‘a substantial deviation’ to ‘a deviation.’ As enacted, the legislation made only one change in the statute; ‘substantial’ was changed to ‘material.’ (L. 1972, Ch. 113, § 1.)
‘We view the change made to the statute in 1972 to be, in essence, no change at all. ‘Substantial’ and ‘material’ have been construed as synonymous terms. Lewandoski v. Finkel, 129 Conn. 526, 29 A.2d 762. The Legislature was presented with language that would have clearly indicated only simple negligence was intended. The Legislature chose not to adopt such language. We conclude that the degree of negligence contemplated by the Legislature in K.S.A. 21-3405 is something more than simple negligence.” 219 Kan. at 654.
In State v. Randol, 226 Kan. 347, 349-50, 597 P.2d 672 (1979), this court reviewed Gordon and the predecessor statute, K.S.A. 8-529:
“A conviction under the present statute requires a finding that the defendant was guilty of conduct ‘which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the stan dard, of care which a reasonable person would observe under the same circumstances.’
“. . .While the statute in its present form no longer refers to negligence as the basis for the offense, the overwhelming majority of vehicular homicide statutes from other jurisdictions contain some express reference to ‘negligent conduct.’ Some require only ‘simple’ negligence while others require ‘criminal’ and ‘gross’ negligence. [Citation omitted.] Cases under our old negligent homicide statute interpreted it to apply to ordinary negligence on the part of the driver of the vehicle which proximately resulted in the death of another. [Citations omitted.]
“Even though ‘negligence’ is not expressly mentioned in 21-3405, we have held that it is still the gravamen of the offense. State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978); State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978). In Makin the defendant was convicted of voluntary manslaughter and appealed to this court asserting that the vehicular homicide statute, being a specific statute, superseded the general manslaughter statute. We held that it did except in cases of wanton conduct which was equated with gross negligence. This determination was amplified upon in Choens. It is now established that the ‘material deviation’ required for a conviction under 21-3405 requires something more than ordinary or simple negligence yet something less than gross and wanton negligence.” Randol, 226 Kan. at 350-51.
The Randol opinion continued with a discussion of the difficulty of distinguishing degrees of the deviation from the standard of care demonstrated in the defendant’s conduct. The degree of deviation from the standard of care is the key to determining whether the defendant bears no criminal responsibility or may be convicted of vehicular homicide or involuntary manslaughter.
“In Makin, we recognized the difficulty in distinguishing ‘wanton conduct’ (gross negligence) from ‘simple negligence.’
‘In determining whether particular conduct is wanton, each case must stand on its own footing as applied to the facts involved. [Citation omitted.] Precise statements of what constitutes wanton or gross negligence are impossible. If the absence of negligence is white and gross negligence is black, then innumerable shadings of grey he between. Using this analogy the legislature obviously seeks to exclude the pale grey areas from criminal responsibility. . . .
‘The totality of the circumstances must be considered. Identical conduct under different circumstances may result in no criminal responsibility, vehicular homicide, or involuntary manslaughter. For example, let us assume that a person is operating his vehicle at 60 miles per hour on dry pavements on a sunny day with little traffic at 4:00 on a Tuesday afternoon and he strikes and kills a pedestrian crossing the road. This same set of facts could be (a) no responsibility if it occurred in a remote, sparsely populated area; (b) vehicular homicide if it occurred in a residential area; and (c) involuntary manslaughter in a posted school zone. Even within these classes additional facts would have to be supplied before a definitive statement could be made.’ ” (Emphasis added.) Randol, 226 Kan. at 353.
In State v. Hickey, 12 Kan. App. 2d 781, 783, 757 P.2d 735, rev. denied 243 Kan. 781 (1988), the Court of Appeals distinguished vehicular homicide from aggravated vehicular homicide on the basis of the manner of driving that resulted in the unintentional homicide. The Hickey case concerned the issues of the propriety of the jury instructions and admissibility of blood alcohol testing. We note, however, that Hickey and Randol instruct that the manner in which a defendant operates his or her vehicle under the totality of the circumstances presented is the proper focus of an inquiry concerning the element of a “material deviation” required for conviction under K.S.A. 21-3405. While considering the defendant’s operation of his or her vehicle under the totality of the circumstances, a court must decide if the defendant’s conduct materially deviated from ordinary due care.
“As we have indicated previously, a material deviation is such a departure from the ordinaiy standards of due care to amount to more than simple or ordinary negligence yet less than gross and wanton negligence. [Citations omitted.]” Randol, 226 Kan. at 353.
Randol provides perhaps the best definition of the phrase “material deviation.” It is determined on a case-by-case basis. The conduct proscribed by the legislature is not capable of exact definition, nor may the phrase “material deviation” be defined by a bright line rule applicable to all circumstances. Consistent with the intent of the legislature, the meaning of the phrase “material deviation” depends upon the facts of each given case. A “material deviation” as used in K.S.A. 21-3405 is conduct amounting to more than simple or ordinary negligence and yet it is conduct not amounting to gross and wanton negligence. Randol, 226 Kan. at 353. The conduct of a defendant charged under K.S.A. 21-3405 is to be judged under the totality of the circumstances.
Whether Under the Totality of Circumstances Defendant’s Operation of His Vehicle Constituted “a material deviation from the standard of care which a reasonable person would observe under the same circumstances. ”
Krowidi asserts that the “mere violation of a traffic statute or ordinance through inattention, unless compounded by other operational misconduct, alcohol or drug impairment or other aggravating conditions or circumstances, will not support a conviction of vehicular homicide.” Relying on the precedent of State v. Trcka, 20 Kan. App. 2d 84, 884 P.2d 434 (1994), Randol, and Gordon, Krowidi contends that the facts found by the court establish only his failure to comply with a traffic signal due to inattention, conduct he labels as ordinary neglect. Krowidi argues that the district court did not find any aggravating or compounding factors or circumstances showing that his operation of the vehicle materially deviated from the standard of care, a necessary element. Krowidi claims that the facts found by the district court do not support its legal conclusion of guilt. Further, Krowidi asserts that the district court found “that the proof of unreasonable risk and material deviation were one and the same, . . . [thereby relieving] the State of its obligation to prove a necessary element of the offense.”
The State contends that viewing the evidence in the light most favorable to the prosecution, a rational factfinder could find beyond a reasonable doubt that Krowidi’s conduct constituted a material deviation from the standard of care a reasonable person would observe. According to the State, Krowidi drove into an intersection under normal road conditions where the light had been red for some time when another car in plain view was in the intersection. The State points to the absence of braking, skidding, or swerving on Krowidi’s part as additional evidence of material deviation. The State cites several cases in support of its position, including State v. Burrell, 237 Kan. 303, 699 P.2d 499 (1985); Trcka, 20 Kan. App. 2d at 86; State v. Boydston, 4 Kan. App. 2d 540, 609 P.2d 224 (1980); State v. Pelawa, 590 N.W.2d 142 (Minn. App. 1999); and State v. Gillon, 15 S.W.3d 492 (Tenn. Crim. App. 1997).
Citing Krowidi’s inattentive driving as a factor in the collision, the trial court found that Krowidi’s inattentiveness and conduct in running the red light constituted a material deviation from the standard of care. The trial court did not find, however, that the absence of evidence of braking, skidding, or swerving by Krowidi evidence a material deviation from the standard of care.
In Burrell, the defendant ran a stop sign and struck a car at an intersection. A female passenger in the car was 8 months pregnant and died as a result of the collision, and the defendant was charged with two counts of involuntary manslaughter. A passenger in the defendant’s pickup truck testified at the prehminary hearing that the stop sign was plainly visible as they approached the intersection, but the defendant began to accelerate as they advanced toward the sign. The passenger warned the defendant about the stop sign, but the defendant either did not hear her or ignored her and continued accelerating. She also testified that the defendant had consumed three or four beers that evening and was drinking beer while he drove. She stated that although the defendant claimed the reason he failed to stop was that the accelerator stuck, she did not remember the defendant ever trying to apply his brakes.
The district court in Burrell dismissed the case, finding that the defendant’s conduct failed to demonstrate gross or wanton negligence, a required element of involuntary manslaughter. The district court believed that under the facts presented, the case would be more appropriately charged as vehicular homicide under K.S.A. 21-3405. On appeal, this court reversed and stated:
“In the present case, we have studied the record and find ample evidence from which a jury could conclude the defendant’s illegal act of speeding through the stop sign was committed wantonly. He was warned by a passenger in his vehicle of the stop sign they were approaching. The defendant knew, or should have known, that Rock Road was heavily traveled. (He lived nearby and we can assume he was a frequent user of the road on trips from Mulvane to Derby.) The defendant could easily have seen the stop sign from the crest of the hill on 103d Street. Because visibility at the intersection was limited, the defendant should have stopped so as to make sure no traffic was coming. Instead, the defendant actually increased his speed through the stop sign and made no attempt to stop.” 237 Kan. at 307-08.
Unlike the case we consider, the defendant in Burrell ignored his passenger’s warning of the stop sign and accelerated as he approached the stop sign, giving rise to the inference that the de fendant, knowing of the stop sign, intended to run it. In addition, the defendant driver was drinking beer while he drove.
In Trcka, two employees of an asphalt company were in a half-ton pickup truck on the pavement while removing constructions signs. A large orange sign reading “Pilot Car Follow Me” was affixed to the pickup, and an amber flashing light was mounted on top of tire sign. A witness testified that both the amber light and the pickup’s hazard lights were on at the time of the accident. A semitrailer truck driven by Trcka struck the pickup, sending both vehicles over an embankment where they caught fire. The employee in the pickup, who was not driving, rode on the back of the pickup to retrieve signs and was able to jump clear prior to the collision. He testified that Trcka did not decelerate as he approached the pickup, apply the brakes, or attempt to swerve. Trcka told a Kansas Highway Patrol Trooper he thought his rate of speed was 50-55 m.p.h. Trcka was charged with vehicular homicide. Trcka, 20 Kan. App. 2d at 84-86.
The Court of Appeals determined that sufficient evidence supported the district court’s finding that the defendant’s conduct constituted a material deviation from a reasonable standard of care:
“The evidence supports the conclusion that Trcka was travelling 50 to 55 miles per hour in a 45 miles per hour zone and that he did not see the clearly marked pickup until the impact, although the pickup was in full view from a distance of 1,320 feet, or one quarter of a mile.
“We agree with the State that for a professional driver to be oblivious to his surroundings while propelling a semitrailer truck down a highway at 50 to 55 miles per hour is closer to reckless and wanton conduct than to simple negligence. Viewing all of the evidence in the light most favorable to the prosecution, we hold that a rational factfinder could have found that Trcka’s conduct constituted a ‘material deviation’ from the standard of care which a reasonable person would observe under the same circumstances.” 20 Kan. App. 2d at 88.
As in Burrell, the facts in Trcka are dissimilar and more extreme than those presented here. In both cases, additional facts contributed to the conclusion that the conduct of each defendant constituted a material deviation. The inattentiveness of the semi driver in Trcka was prolonged for more than lA mile and the orange sign and flashing light failed to alert the semi driver to the presence of the pickup truck. In addition, the defendant in Trcka was clearly speeding as he drove through a construction zone.
In Boydston, 4 Kan. App. 2d 540, a car driven by Boydston ran a stop sign and collided with another vehicle, killing the other driver. The Court of Appeals wrote:
“Furthermore, the main cause of the tragic accident in the instant case was the failure of the appellant to stop at a stop sign, and not specifically the amount of speed with which he passed the same. There was evidence from which the jury could have determined that defendant was traveling at a high rate of speed. Such other evidence consisted of the testimony of Officer Van Houten, the first officer to arrive at the scene, who testified that he observed the right side of the vehicle driven by the victim, and the degree of its indentation. He made the further observation that appellant’s vehicle had sustained damage to the front-end ‘A-frame’ which extended beyond the bumper and radiator area. Officer William James testified that the victim’s vehicle had a ‘U’d’ appearance which indicated to him that the vehicle had been struck with a great amount of force. Dr. Bruce Barrick testified that based upon his autopsy, the decedent had died from injuries ‘consistent with high speed injury,’ and while he also testified on cross-examination that such injuries would be consistent with low-speed injuries, the pictures gave more credence to his ‘high speed’ statement. In addition, the pictures of the vehicles indicate high speed because of the extensive damage done to the vehicles. As was noted by the court in Foreman v. Heinz, 185 Kan. 715, 719, 347 P.2d 451 (1959), in discussing photographs admitted in that case, such photographs were ‘silent but conclusive proof of the fact that at the time of impact at least one of the cars was traveling at a high rate of speed.’ Another witness, Warren Hicks, observed that appellant ran a stop sign and this lends considerable support to the jury’s finding that there was a material deviation by the appellant from the standard of care of a reasonable person.” 4 Kan. App. 2d at 542-43.
The State suggests that because the main cause of the accident in Boydston was said to be the defendant’s failure to stop at a stop sign, and because the Court of Appeals upheld the defendant’s conviction for vehicular homicide, this court should consider Krovvidi’s conduct in running the stoplight a material deviation from the standard of due care exceeding ordinary negligence.
We reject the State’s argument for two reasons. First, the Boydston court was not asked on appeal to test the sufficiency of the evidence supporting the defendant’s conviction for vehicular homicide. Instead, Boydston considered issues of statutory vagueness, propriety of jury instructions, admission of expert testimony, and endorsement of witnesses. Thus, Boydston does not truly provide stare decisis authority on the issue of sufficiency of the evidence as to conduct establishing a material deviation from the standard of care which a reasonable person would observe under the same circumstances. Second, the Boydston court repeatedly highlights the speed of the defendant’s vehicle. Had the court examined the sufficiency of the evidence, we believe it likely that the defendant’s high rate of speed would have constituted a necessary additional factor supporting the conclusion that defendant’s conduct was a material deviation.
In a similar manner, the foreign cases cited by the State are factually dissimilar and fail to provide support for its position in this case. In Gillon, 15 S.W.3d 492, the defendant was convicted of criminally negligent homicide after driving at a high rate of speed across a four-lane highway. The criminally negligent homicide statute required a finding that the defendant acted intentionally, knowingly, or recklessly. The Gillon court found that the defendant exhibited recklessness conduct in that:
“the defendant, a resident of that general area of the county, was aware of the four-lane highway, the stop sign, and the distance from his point of entry through the median to the point of impact. Yet, despite having two clear opportunities, the defendant never slowed his truck as he drove over three lanes of traffic and a median strip. This, in our view, warranted the jury’s conclusion that the defendant was aware of and consciously disregarded the risk that a collision would occur.” 15 S.W.3d at 497.
In Pelawa, 590 N.W.2d 142, the Minnesota Court of Appeals noted that Pelawa was northbound when his car crossed the center line into the southbound lane, went onto the shoulder of the southbound lane, and back into the southbound lane where it collided with another car, killing two people. Blood tests at the hospital revealed that Pelawa had a blood alcohol concentration of .08. The court examined whether the evidence presented sufficiently supported the defendant’s conviction for criminal vehicular homicide which required the State to prove gross negligence. The court observed that under Minnesota case law, “a sufficient degree of inattention to the road could constitute a lack of 'slight care,’ that is gross negligence.” 590 N.W.2d at 145. Pelawa presents both factual and legal dissimilarities from the case before us and is not helpful to our determination in this case.
Under the facts presented here, Krowidi’s actions of running a red light without more does not as a matter of law meet the “material deviation” element required for a conviction of vehicular homicide under K.S.A. 21-3405. His inattentiveness does not rise to the level of a material deviation from the standard of care seen in Trcka, Burrell, or Boydston. As indicated in those cases, our conclusion in this case should not be misinterpreted, for in the cases cited, important factors were running a stop sign and inattentiveness, but with additional aggravating factors. We are unable to set forth a bright line rule as to what conduct amounts to a material deviation as set forth in K.S.A 21-3405. As indicated above, Hickey and Randol instruct us that the manner in which a defendant operates his or her vehicle under the totality of the circumstances presented is the proper focus of an inquiry concerning the element of a “material deviation” required for conviction under K.S.A. 21-3405.
In this case, there are no aggravating factors present. Krowidi had not been drinking and was not under the influence of any drug, both factors which may provide tire additional evidence to establish a material deviation. None of the passengers in his vehicle warned him as he was about to enter the intersection; none were concerned that his driving appeared reckless or that he was accelerating or speeding as he approached the intersection. Krowidi was not speeding and proceeded through the intersection thinking his light was green. Absent additional aggravating factors, we conclude that his conduct does not amount to the material deviation required under the provisions K.S.A 21-3405.
Our answer to the two questions posed above provides an answer to the remaining errors assigned by the defendant. In any event, the remaining assigned errors are rendered moot by our opinion.
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The opinion of the court was delivered by
Six, J.:
Defendant William C. Moore appeals his convictions of one count of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of kidnapping, K.S.A. 21-3420(b).
The issues before us are whether the district court erred in: (1) responding to the jury’s question, (2) admitting evidence of prior crimes, and (3) imposing an unconstitutional sentence. Moore also claims that prosecutorial misconduct, insufficient evidence, and cumulative error require reversal of his convictions.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from Court of Appeals on our own motion).
We find no error in the trial proceedings and affirm Moore’s convictions. We also hold that the district court’s decision to double defendant’s sentence under K.S.A. 1997 Supp. 21-4704(j) does not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). However, sua sponte, we raise the issue of the legality of Moore’s sentence and die district court’s use of a prior conviction to enhance his criminal history score and to qualify him as a persistent sex offender under 21-4704(j). Moore’s sentence is vacated, and the case is remanded for resentencing.
FACTS
On August 20,1997, a 15-year-old boy, S.C., reported that a few days before, he saw Moore walk from Moore’s house to the backyard of the house next door where 6-year-old L.V. lived. S.C. next saw Moore take L.V. by the hand and walk her back to Moore’s house. S.C. “got suspicious,” so he knocked on Moore’s front door. Receiving no answer, he walked around the house and peered into the back bedroom window. S.C. saw Moore on the bed, leaning over L.V. with his penis exposed on her chest. L.V. wore a floweiy swimsuit, and her legs were spread around Moore’s waist. L.V. was holding a red teddy bear, and Moore’s hands were on L.C.’s waist. S.C. left the window. About 15 or 20 minutes later, he saw Moore and L.V. come out of the house. Moore hugged L.V. before she returned to her backyard.
Initially, S.C. did not report the incident to the police because he did not want to become involved with the police. He had re cently been released from juvenile detention for violating curfew. Three or four days after the incident, S.C. informed L.V’s mother and reported the incident to police. Later, he admitted that he had been untruthful in some of his statements to the police because he was afraid of being arrested for burglarizing Moore’s house on the day before the incident. Details of S.C.’s version of events changed over time. At trial, S.C. explained that some of the inconsistencies between his initial report to the police and his testimony at the preliminary hearing and trial occurred because he did not want to admit that he had burglarized Moore’s home.
According to S.C.’s trial testimony, he and J.H. had broken into Moore’s house one evening in August 1997. At trial, S.C. testified against Moore in exchange for the State’s agreeing not to prosecute him for the burglary of Moore’s house.
Officer Hester testified that L.V. said Moore took her into his house and showed her a knife, a toy, and his “private part.” When another officer asked her if Moore had shown her his private parts, she said, “No.” L.V.’s mother testified that L.V. said Moore had led her out of her backyard and into his house where he pushed her onto the bed. L.V. also told her mother that Moore showed her a knife and a toy. According to L.V.’s mother, about a week later after talking to the officer, L.V. told her that Moore had showed her his “private part" but that she had closed her eyes.
L.V. testified at trial that she had been in Moore’s house one time that summer. L.V. and a friend were swimming in her backyard. Moore was on his porch and let her come inside his house. L.V. claimed that her friend was with her. She said Moore took her into his bedroom. L.V. also said Moore did “something bad,” which was to show her a toy and a knife. She testified that she had never seen a grown-up’s “private place.”
The district court admitted into evidence a videotape that was recovered from the items S.C. had stolen from Moore’s home. The tape contained two segments showing L.V. and neighborhood children playing in L.V.’s backyard. According to Moore, he had repaired a video camera during the spring or summer of 1997. He said he tested the camera by placing it in a window and then making adjustments.
Geraldine Blair, a program manager at a mental health clinic and a licensed specialist clinical social worker, was a witness for the State. Blair specialized in the treatment of sex offenders. She testified that sometimes child molesters videotape children so they can later masturbate or fantasize about that person. After viewing the videotape showing children at play over different periods of time, she expressed concern about an offender making such tapes. In her opinion, it suggested the offender might be relapsing.
The State also presented evidence of Moore’s prior misconduct. In 1988, Moore pled nolo contendere to charges of sexual exploitation of a child and indecent liberties with a child. Moore served a prison term for these crimes and was paroled in 1995.
An investigating officer testified that the 1988 case was based upon a videotape in which Moore filmed a young girl. The tape had been destroyed by the time of the current trial. The officer testified to what he had seen on the tape. The tape depicted the girl lying fully clothed on a couch. After some whispering, she gyrated her hips. After a distortion in the tape, the girl’s pants and panties were around her knees, and Moore reached over and fondled her vaginal area; then the camera zoomed in on her vaginal area.
Moore served a prison term for these crimes and was paroled in 1995.
Moore testified in his defense. He denied taking L.V. into his house, showing her a toy, or exposing his genitalia to her. He claimed that he was being set up by S.C. According to Moore, he returned from work one evening around midnight and caught S.C. and his friend J.H. “fooling” with Moore’s car. When confronted, they allegedly swung a baseball bat at Moore. Moore later learned that they had loosened lug nuts on his car. Moore claimed that he asked a friend to report the incident to police, but there was no reference on the police department’s computer logs concerning such a report. Moore’s parole officer testified that Moore never informed him of the alleged incident. At trial, both S.C. and J.H. denied any incident involving Moore’s car or a baseball bat.
Moore also testified that S.C. tried to extort money from him. Once, S.C. came to Moore’s house and said, “[Y]ou give me $500 dollars or you will go back to prison. I’m going to tell the police something that will put you back in prison.” A friend of Moore’s testified that he had heard a conversation where S.C. talked to Moore about $500. However, Moore did not report the “back in prison” incident to police.
Moore was convicted of both crimes. The district court imposed two concurrent terms of 380 months’ imprisonment. Moore was 67 years old at the time he was sentenced in 1998.
DISCUSSION
The Jury Question
Moore argues that the district court erred in its response to a question submitted by the jury. We disagree.
K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Our standard of review is abuse of discretion. See State v. Manning, 257 Kan. 128, 130-31, 891 P.2d 365 (1995). Judicial discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Lopez, 271 Kan. 119, 125, 22 P.3d 1040 (2001).
Before jury deliberations, the district court gave the following instruction:
“The defendant is charged with the crime of aggravated indecent liberties with a child. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant fondled or touched the person of [L.V.] in a lewd manner, with the intent to arouse or satisfy the sexual desires of either the child, himself or both;
“2. That [L.V.] was a child under 14 years of age; and
“3. That this act occurred between 1 and 20 August, 1997, in Geary County, Kansas.
“Lewd fondling or touching may be defined as a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral sense of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both. Lewd fondling or touching does not require contact with the sex organ of one or the other.”
During deliberations, the jury asked, “Would the taking of videotapes qualify for the charge of aggravated indecent liberties with a child?”
Outside the presence of the jury, the judge expressed to Moore and counsel that in answering the question, he would simply reread the jury instruction on indecent liberties or direct the jury to that instruction. Defense counsel thought the judge should tell the jury that the answer to the question was “no.” After calling the jury into the courtroom, the judge told the jury to “carefully reread Instruction Number 6, which sets out the elements the State has to prove to establish the charge of aggravated indecent liberties with a child.”
Moore asserts that the jury “was clearly confused and the trial court provided no guidance.” He relies on State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976).
Bandt was convicted of three counts of theft and one count of illegal removal of a motor vehicle identification number. After retiring for deliberations, the Bandt jury asked whether the knowledge that the goods were stolen had to exist when the goods were received or could simply exist at some later point. The district court refused to elaborate on PIK Crim. 59.01, the instruction given on the question of law. However, the judge permitted counsel for the parties to present to the jury a brief colloquy of their conflicting statements of the law. 219 Kan. at 821-22.
On appeal, we noted that normally the jury instruction as given would have been sufficient but the unusual circumstances in Bandt created a positive duty for the district court to clarify its former instructions. Unlike most cases, the district court effectively required a confused jury to determine the question of Bandt’s guilt or innocence without having the key question of law determined by the court. We concluded that in view of the jury’s confusion under the circumstances, the district court’s failure to clarify the former instructions was prejudicial and denied the defendant a fair trial. 219 Kan. at 823.
The facts here differ from the facts in Bandt. The question and resolution here are similar to the question and resolution in State v. Peck, 237 Kan. 756, 703 P.2d 781 (1985). In Peck, during the course of deliberations, the jury sent a question to the district judge concerning one of the instructions. Without the intervention of the parties, the judge responded to the jury’s question: “ ‘The Court declines to elaborate upon the written instructions already provided. Please re-read the instructions and apply those instructions collectively to the facts as proved to your satisfaction beyond a reasonable doubt.’ ” 237 Kan. at 765. On appeal, we found no abuse of discretion in the response and said: “When the question has already adequately been covered by the original instructions, the trial court may decline to answer and may direct the jury to reread the instructions already given.” 237 Kan. 756, Syl. ¶ 6.
Aggravated indecent liberties requires a touching. See K.S.A. 21-3504(a)(3)(A). Clearly, the videotaping of a child does not constitute a touching. Unlike the situation in Bandt, where counsel was permitted to advance conflicting statements of the law, the jury’s question was already adequately covered by the court’s instruction.
Prosecutorial Misconduct
Moore contends that prosecutorial misconduct during closing argument warrants a reversal. His contention lacks merit.
We have discussed in previous cases the standard of review for allegations of prosecutorial misconduct raised for the first time on appeal. See State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999).
In State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000), we described the approach to prosecutorial misconduct in the case of closing argument:
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner of presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. [Citation omitted.]”
Moore argues the prosecutor’s comments improperly vouched for the credibility of a State’s witness and impermissibly painted Moore as a liar.
During closing arguments, the prosecutor included the following remarks:
“Something about Charlie Moore [defendant] scared that ldd [L.V.] to death, and when the defense gets done talking about [S.C.] this, and [S.C.] that, and Paula [V.] that, and Paula [V.] this and that, just remember who the victim in this case is. It’s not [S.C.], it’s [L.V.], and nothing that you’ve been told here in the last two days should indicate to you that she’s a liar.
“Where the defense blew it in this case was what they were going to admit and what they were willing not to admit. You see, you don’t have to agree as far as [S.C.] to convict in this case. What did the defendant say? ‘The girl was never in my house. Never. Not with me.’ Well, even the first time she talked to her mother, before she ever mentioned private parts or him being exposed or places where men go potty and stuff like that, she was already saying, ‘I was in the house with him,’ before anyone had a chance to coerce her or drum a story into her or pressure her, or be repeatedly interviewed until she got the story right. She was already saying, T was in that house.’ Well, she already paints him as a liar just by that alone.
“Now, if the defense had come in and said, “Well, yeah, she was in the house but nothing happened,’ tiren it might have worked, they might have gotten away with it, but you can’t reconcile the girl’s testimony alone with what he’s saying. Forget [S.C.] for a second. You could convict based on [L.V.] right now. [S.C.] is a bonus to me, take him for what you want, but this case is won with [L.V.], that videotape of her interview, and that videotape that he took in his house of her.” (Emphasis added.)
Moore asserts that the prosecutor’s two comments on the believability of Moore’s testimony was akin to the prosecutor’s egregious conduct in Pabst. We disagree. Here, the prosecutor was explaining to the jury why, in light of the evidence presented, Moore’s stoiy was not feasible.
The prosecutor’s comments were not outside of the “considerable latitude” the prosecutor is allowed in discussing the evidence. Here, it appears the prosecutor was attempting to show that Moore’s version of events was not feasible based on the testimony of L.V. at trial. Under die facts of this case, the prosecutor’s com ments were not so gross and flagrant as to prejudice the jury against the defendant and to deny him a fair trial, nor do the comments reflect any ill will on the prosecutor s part. See State v. Finley, 273 Kan. 237, 242-43, 42 P.3d 723 (2002).
K.S.A. 60-455
Next, Moore argues the district court erred in admitting evidence under K.S.A. 60-455 of his prior 1988 convictions.
In 1988, Moore pled no contest to sexual exploitation of a child, K.S.A. 21-3516 (Ensley 1988), and indecent liberties with a child, K.S.A. 21-3503(b) (Ensley 1988). The convictions stemmed from a videotape that Moore made of a young girl playing in the aisles of his store. He later recorded himself fondling the little girl’s genitals. The State sought to admit the prior convictions to show preparation, plan, and identity. Over Moore’s objection, the district court permitted the State to introduce the prior crimes evidence because of the similarities as to identity, motive, preparation, and plan, and because the prior crimes’ probative value outweighed the prejudice.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Three requirements must be satisfied for the admission of evidence under K.S.A. 60-455. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these requirements are met, the scope of appellate review is limited to whether the district court abused its discretion. State v. Simkins, 269 Kan. 84, 92, 3 P.3d 1274 (2000).
Under K.S.A. 60-455, prior offenses need not be identical in nature to the offense for which the defendant is on trial. Similarity is sufficient. State v. Lane, 262 Kan. 373, 390, 940 P.2d 422 (1997).
The two crimes at issue here are similar to Moore’s 1988 convictions. Both crimes involved young girls of comparable age. Moore prefaced his criminal conduct with a videotape recording of his victims at play before any fondling of the victims’ genital areas or exposing his penis to the victims. In addition, both crimes occurred privately where Moore had control of the environment, either in his store or his home. Moore also contends that even if we find his prior convictions relevant, it is nevertheless immaterial to the facts in dispute. We disagree. See State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). Moore’s defense that the alleged conduct never took place squarely contradicts the issues of identity, motive, preparation, and plan and places them in issue.
Finally, we note that in addressing the K.S.A. 60-455 question, the district court instructed the juiy as follows: “Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s identity, motive, preparation, and plan in the current case.”
We conclude that the district court did not abuse its discretion in admitting evidence under K.S.A. 60-455 regarding Moore’s 1988 convictions.
Sufficiency of the Evidence
Moore also contends there was insufficient evidence to support his convictions. A number of pages in his brief are devoted to illustrating inconsistences in the testimony of the State’s witnesses to undermine their credibility and to suggest that his conviction was secured by circumstantial evidence at best. Our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).
We acknowledge that certain evidence supporting the conclusion that Moore committed the crimes was circumstantial. But a conviction of even the gravest offense may be sustained by circum stantial evidence. State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989).
Although inconsistent at times, the evidence supporting the conviction included the testimony of S.C., the victim, and the victim’s mother. Issues of credibility are within the province of the jury. “On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State.” State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993), cert. denied 511 U.S. 1144 (1994). When all the evidence is viewed in the light most favorable to the prosecution, we are convinced that a rational fact-finder could have found Moore guilty beyond a reasonable doubt.
Cumulative Error
In his reply brief, Moore advances a cumulative error argument. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelmingly against the defendant. State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000). Our review of the record reveals no prejudicial trial errors. Moore’s argument that he was denied a fair trial fails.
Moore’s Sentence - K.S.A. 21-4710(11)
We first consider a problem with Moore’s sentence which was not raised in the briefs. See K.S.A. 22-3504 (the court may correct an illegal sentence at any time).
Moore had a criminal history score of B, which included sexual exploitation of a child, a person felony; indecent liberties with a child, a person felony; and theft, a nonperson misdemeanor. Aggravated indecent liberties with a child is a severity level 3 felony; kidnapping is also a severity level 3 felony. Moore’s criminal history score, combined with the severity level of his crimes, called for a presumptive prison sentence of 172-180-190 months for each crime. See K.S.A. 1997 Supp. 21-4704(a).
The district court applied K.S.A. 1997 Supp. 21-4704(j), which says:
“The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term. Except as otherwise provided in this subsection, as used in this subsection, ‘persistent sex offender’ means a person who: (1) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (2) at the time of the conviction under subsection (1) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government. The provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.”
“Sexually violent crime” is defined in pertinent part in K.S.A. 1997 Supp. 22-3717(d)(2)(B), (C), and (H) to include the crimes of indecent liberties with a child, aggravated indecent liberties with a child, and sexual exploitation of a child. K.S.A. 1997 Supp. 22-3717(d)(2)(L) also includes in the definition of a sexually violent crime
“any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this sub-paragraph, ‘sexually motivated’ means that one of the puiposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.”
The district court apparently noted that Moore had been convicted of a sexually violent crime — the district court did not specify which one — and that his current conviction of aggravated indecent liberties was statutorily defined as sexually violent. The district court then doubled the maximum sentence for a 3-B crime and imposed a 380-month prison term for the aggravated indecent liberties conviction.
The district court next found that Moore’s conviction of kidnapping was sexually motivated, thus fitting the definition of a sexually violent crime under K.S.A. 1997 Supp. 22-3717(d)(2)(L). The district court again doubled the maximum sentence for a 3-B crime and imposed a 380-month prison term for the kidnapping conviction. The district court ordered the sentences to run concurrently.
At sentencing, Moore argued that the district court could not use a prior conviction to enhance his criminal history score and use the same prior conviction to qualify him as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j). The district court rejected Moore’s argument.
K.S.A. 21-4710(d)(ll) says:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.”
State v. Taylor, 27 Kan. App. 2d 62, Syl. ¶ 3, 998 P.2d 123, rev. denied 269 Kan. 940 (2000), held: “A prior conviction upon which a defendant has been classified as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j) may not be used in determining that defendant’s criminal history category.” We specifically approved the Taylor holding in Zabrinas, 271 Kan. at 443-44.
Here, the district court erred in fading to remove from Moore’s criminal history the sexually violent crime it used to qualify Moore as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j). With one person felony removed from his criminal history score, Moore’s criminal history category is D. See K.S.A. 1997 Supp. 21-4704(a). The presumptive sentence for a 3-D crime is 74-78-83 months’ imprisonment. K.S.A. 1997 Supp. 21-4704(a). Moore’s sentence for aggravated indecent liberties and his sentence for kidnapping must be vacated and remanded for resentencing.
The Apprendi issue
Moore next asserts that, following Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the fact that he is a “persistent sex offender” under 21-4704(j) must be proven to a jury beyond a reasonable doubt before it can be used to double the duration of his prison term. He contends that because such a jury finding was absent in this case, his Sixth and Fourteenth Amendment rights have been violated. We recognize that Moore’s sentence must be vacated and remanded for the reasons set forth above, but we address the Apprendi issue here for the benefit of the district court on remand.
Moore’s constitutional challenge is a question of law over which we have unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
K.S.A. 1997 Supp. 21-4704(j) provides that the sentence for any persistent sex offender is presumed imprisonment in all cases and shall be double the duration of the maximum presumptive sentence.
Apprendi held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
Moore’s argument assumes that doubling the duration of his prison sentence under 21-4704(j) increases the penalty for his crime beyond the prescribed statutory maximum, triggering Apprendi. The State counters that the plain language of 21-4704(j) defines the statutory maximum sentence as imprisonment for double the maximum term in the appropriate grid box. Thus, the State argues, Moore has received a sentence within the statutory range and Apprendi does not apply.
Attempting to define the statutory maximum sentence in this situation is a complicated task and one which ultimately is unnecessary to the disposition of this case. Instead, we begin the analysis by observing that the finding that Moore is a persistent sex offender requires two things: (1) the existence of a prior conviction for a statutorily defined sexually violent crime; and (2) that the current crime of conviction is a statutorily defined sexually violent crime. We have recently held that neither of these facts must be proved to a jury beyond a reasonable doubt in order to use them to increase a defendant’s sentence.
In State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), we analyzed the prior conviction exception to the Apprendi rule. We held that Apprendi did not require a jury finding of the fact of a prior conviction beyond a reasonable doubt in order for the prior conviction to be included in Ivory’s criminal history score under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. We also rejected the argument that Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), the source of the prior conviction exception, had been called into doubt by Apprendi. Ivory, 273 Kan. at 46-47.
We took Ivory one step further in State v. Graham, 273 Kan. 844, 46 P.3d 1177 (2002), where Graham raised an Apprendi objection to the use of his prior drug convictions to increase the severity level of his drug crimes and his sentence under K.S.A. 2001 Supp. 65-4160(c). We compared the use of a prior conviction to increase the criminal histoiy score to the use of a prior conviction to increase the severity level of the crime, both of which increased the overall sentence. We concluded that the net effect was the same, and the use of Graham’s prior drug convictions to increase his sentence did not implicate Apprendi. 273 Kan. at 854.
Also relevant is State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002). Anthony was convicted of aggravated indecent liberties with a child and received án extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). He argued that the extended postrelease supervision period was an unconstitutional upward durational departure sentence under Apprendi. 273 Kan. at 729.
We agreed that the extended postrelease supervision period— imposed in Anthony’s case because he committed a sexually violent crime — was an upward durational departure sentence. 273 Kan. at 729. However, we concluded:
“The question becomes whether the increased postrelease period runs afoul of the protections outlined in Apprendi and Gould. We conclude that it does not. Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i). In doing so, the court was not required to make an additional finding of fact beyond that made by the juiy. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.” 273 Kan. at 729.
Here, Moore was convicted of aggravated indecent liberties with a child, by definition a sexually violent crime. See K.S.A. 1997 Supp. 22-3717(d)(2)(C). Further, Moore was previously convicted of sexual exploitation of a child and indecent liberties with a child, also defined by statute as sexually violent crimes. See K.S.A. 1997 Supp. 22-3717(d)(2)(B) and (H). The district court was not required to make factual findings beyond the existence of these convictions because all the crimes were defined by the legislature as sexually violent crimes. Ivory, Graham, and Anthony combine to support our conclusion that the district court’s decision to double Moore’s sentence under K.S.A. 1997 Supp. 21-4704(j) does not violate Apprendi. We note that the Court of Appeals recently reached a similar conclusion in State v. Spinden, 30 Kan. App. 2d 1014, 54 P.3d 514 (2002).
We affirm Moore’s convictions. We vacate Moore’s sentences based on K.S.A. 21-4710(11), Taylor, and Zabrinas, and remand for resentencing.
Larson, S.J.,assigned. | [
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On May 31, 2002, respondent E. Collins Hunter II was disciplined by suspension for 90 days and ordered to pay the costs and furnish proof of compliance with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276). In re Hunter, 273 Kan. 1015, 46 P.3d 1199 (2002).
On November 1, 2002, the respondent filed a motion verifying that he has fully complied with the conditions entered by this court on May 31, 2002, and moves the court for an order reinstating him to the practice of law.
The court finds that the motion should be granted and that respondent should be reinstated to the practice of law and discharged from any further obligation in this matter.
It Is Therefore Ordered that E. Collins Hunter II be and he is hereby reinstated to the practice of law in the State of Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports.
Dated this 27th day of November, 2002. | [
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In a letter dated July 23, 2002, to the Clerk of the Appellate Courts, respondent, Steven Shanholtzer, of Springfield, Missouri, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2001 Kan. Ct. R. Annot. 272).
At the time the respondent surrendered his license, a complaint had been filed and was being investigated by the Disciplinary Administrator s office which alleged theft of client funds.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Steven Shanholtzer be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Steven Shanholtzer from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276).
Dated this 10th day of September, 2002. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a dissatisfied minority stockholder to wind up the affairs of a solvent business corporation and for appointment of a receiver as means to that end. The petition prayed for immediate appointment of a receiver, and a hearing was had on application for appointment of a receiver before issues had been joined. The court sustained a demurrer to the evidence offered by plaintiff in support of the application. Plaintiff appeals.
Conceding, but not deciding, that the demurrer should have been overruled and that the order sustaining the demurrer is an appealable order, the only ruling this court could make would be that the court erred and the cause should be remanded with direction to overrule the demurrer. The case would then be back in the district court with all the power which a court of equity has to exercise discretion and, after a full hearing, to do what ought to be done.
While the journal entry recites flat denial of the application for appointment of a receiver, the record of the proceedings discloses the comí; had no purpose to end the case and deny equitable relief. On the other hand, the court urged upon the parties a speedy final hearing, and indicated the course the court desired to pursue. This course included remedy for past mismanagement, correction of policy and of abuses of power in management, and supervision by the court over management, to the end the interests of all stockholders might be protected and promoted without extinguishing corporate life.
As indicated, all this court could do would be to reverse the order sustaining the demurrer. This court cannot direct the district court to appoint a receiver on plaintiff’s evidence only, and this court cannot direct the district court not to resort, in its sound judicial discretion, to less drastic remedies in an effort to save the corporation. Since, therefore, this court lacks authority to make an efficacious order respecting the merits, the appeal is dismissed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to determine whether the city of Plainville or Rooks county should suffer a considerable loss of public funds resulting from the failure of the First National Bank of • Plainville.
The circumstances giving rise to this controversy were mainly these:
The Plainville bank, was a county depository under an $1,800 bond. Pursuant to a common but unauthorized practice of county treasurers, and for the convenience of taxpayers, duplicate tax lists were sent to the bank at tax-paying time so that taxpayers residing in the vicinity could pay their taxes without the necessity of going to the county seat. At such times the resultant sums of county funds in the Plainville bank would mount to figures far in excess of the sum protected by the bank’s bond as a county depository. It had been a practice of the bank to give an additional temporary bond to protect the surplus county funds accumulating in the bank at tax-paying time. At the tax-paying season of December, 1927, the Plainville bank promised to give the accustomed additional bond, but failed to do so. By January 9, 1928, county funds amounting to $11,238.83 had accumulated in the bank. On that day the county treasurer telephoned the cashier of the bank and delivered a peremptory oral order of the board of county commissioners, then in session, “to bring or send that money over or we [they] would be .after it that afternoon.”
As it happened, but unknown to the county board, the bank was in serious financial difficulties. The assistant cashier of the bank, a Miss E. M. Fesler, was the treasurer of the city of Plainville; and the bank cashier, after talking with her, suggested to the county treasurer that he send over the city funds as a method of satisfy ing the _ county board’s demands for the immediate surrender of the excess county funds in the bank.
Accordingly, on the same day, January 9, 1928, the county treasurer drew a check on the First National Bank of Plainville, county depository, countersigned in form by the county clerk and payable to the order of E. M. Fesler, treasurer of the city of Plainville, for $11,166.99, on account of Plainville city. Accompanying this check was a letter of transmittal, which read:
Miss Fesler received this check and letter the following day, but she did not present it for payment. Owing to her position as assistant cashier, she knew the fact to be that so great a sum of money would not only completely exhaust the bank’s ready cash, but that the check would also require the bank to draw on its reserve deposits in Kansas City — if, indeed, the bank could have been kept open for the transaction of business while these resources could have been made available to pay the county treasurer’s check in full. (This point may require consideration later in this opinión.)
Nothing further in the business relations between the county treasurer and the county board on the one hand and the bank as a county depository on the other occurred after the transaction just stated; and Miss Fesler, as city treasurer, gave no hint to the county treasurer that she was withholding the check from presentation. Matters rested in that status until January 23,1928, when the bank failed to open on account of insolvency. Following that incident the city treasurer returned the unpresented check to the county treasurer, with a pencil notation on his letter of transmittal, as follows:
“I had not succeeded in figuring this out satisfactorily and failed to get it in before the close — so am returning check to you.
“E. M. Fesler, City Treas.”
Thereafter the city made demand on the county for the sum :in-' volved in the foregoing transaction, $11,166.99, and on its rejection this lawsuit followed.
On the issues formulated, a trial was had without a jury. Findings of fact were made in consonance with our summarized statement above. Some of these read:
“6. Neither the defendant board, nor the treasurer, nor anyone representing' it, had any knowledge of the failing condition of said First National Bank of Plainville prior to the day it ceased to open its doors on January 23, 1928. Said city treasurer did know of the condition of said bank at all times, January '9 to January 23, 1928, both dates inclusive. Said city treasurer never communicated with the county treasurer of said defendant board, or anyone for defendant, subsequent to the time she received the letter referred to, dated January 9, 1928, until the 24th day of January, 1928, when she returned the letter and check, on which was the pencil notation shown in plaintiff’s exhibit 5.
“7. The defendant board and the county treasurer believed said check was cashed and the payment of said funds due the city of Plainville had been fully paid, and had no other knowledge nor reason for changing their belief on that subject until the bank failed to open its doors on January 23, 1928.
“9. The said The First National Bank of Plainville was solvent at the time the treasurer of plaintiff received said check, and remained solvent to and including January 21, 1928. On January 9, 1928, and at the time of the receipt of said check by said city treasurer of said city of Plainville, the defendant had on deposit in said bank more than an amount necessary to pay said check.
“10. If said check had been indorsed and deposited to the credit of said city of Plainville by the city treasurer at the time she received it, and if an attempt had been made to withdraw the full amount of said check from the bank on that day, there would not have been sufficient funds to have paid said check in full, but said bank had on deposit in banks in Kansas City, Missouri, subject to' its check or demand, ample funds to have paid said check in full and to have continued business. . . .
“11. The city treasurer of Plainville did not neglect to cash said check and transfer the account represented by said check from Rooks county to the city of Plainville because of the lack of cash in said bank, nor because she did not understand what funds of Plainville city should be credited with the proceeds of said check, but failed to cash said check as a protection to said bank, believing, as she testified, that her allegiance was first to said bank.
“12. The request for funds of the city of Plainville to be remitted, as referred to above, was made by said bank and said city treasurer to prevent the board of county commissioners from going to Plainville on January 9, 1928, and drawing all moneys then on deposit belonging to defendant except the sum of 81,800.
“14. It had been the custom of the treasurer of defendant, in remitting to the city of Plainville the amount due it, to remit to said city treasurer by issuing the check of its treasurer, duly countersigned by the county clerk of said defendant, to said city treasurer, and said' city had never refused to accept such remittance on the ground that such remittance was not in cash, nor on any other ground.”
On these findings the trial court made certain conclusions of law, some of which read:
“1. The transmission of the check for 811,166.99 was, under the facts in this case, a payment by the defendant to the plaintiff of the amount represented-by said check, for taxes due from and held by the defendant for said city.
“2. The payment of the funds of defendant, as they were made, were made in the manner requested by the plaintiff city, and such payment was made in the usual manner of such payments theretofore made.
“3. E. M. Fesler was the duly appointed and acting treasurer of Plainville city, and her acts in receiving said fund, as she did receive it, were binding upon the city of Plainville, Kansas.
“4. The plaintiff is estopped to say that said payment, under the facts in this case, was not made in accordance with the law.
“5. The check for 811,166.99 was duly signed by the county treasurer of Rooks county, Kansas, and was duly countersigned by R. E. Southard, county clerk. Such check and remittance, as the evidence shows in this case, was a payment of the amount represented by said check to plaintiff city.”
The usual motions were filed and overruled, judgment was entered for defendant, and plaintiff appeals.
The first point advanced by appellant is that the failure of the city treasurer to present the county treasurer’s check did not cause any loss in the county. Let us see about that. If it had been presented with reasonable promptness it could have been honored and paid. The negotiable instruments act (R. S. 52-1703), and good business practice as well, required that the check be presented within a reasonable time. Since the city treasurer was assistant cashier of the bank and necessarily knew how close to the line of insolvency the bank was, she should have been zealous to protect the funds of the innocent taxpayers of Plainville who had repeatedly honored her with their suffrages. She knew how great was the hazard of .any delay in presenting the county treasurer’s check for payment. Why does a city have a treasurer except to protect its finances? Surely it requires no homily on business ethics to show that this city treasurer had a fundamentally erroneous notion of where her primary loyalty belonged. But for her passive assent to the suggestion that the city funds be sent to the Plainville bank, the county board and the county treasurer could promptly have taken other effective means to withdraw the excess county funds from the bank and to reduce the county deposit to some figure adequately protected by the bank’s $1,800 bond. It is idle to suggest that no loss has been sustained by the county. This lawsuit is to decide whether the county or the city shall suffer that loss.
It is contended, however, that the negotiable instruments act does not apply to financial transactions in which the public is interested. The pertinent provision of that act is that where a check is not presented for payment within a reasonable time the drawer will be discharged from liability to the extent of any loss caused by’the delay. (R. S. 52-1703.) There is statutory authority for depositing county funds in banks (R. S. 19-530), and statutory direction as to how public funds thus deposited may be paid out — on -the county treasurer’s check countersigned by the county clerk. (R. S. 19-534.) No sound reason can be suggested why the usual rule governing the reasonably prompt presentation of checks should not apply to the county treasurer’s checks. Let us assume for the moment that the ordinary rule should not govern. Then it would necessarily follow that the county treasurer would have to follow every check issued by him on a county depository with an inquiry whether it had been 'presented and paid, otherwise he would never know what balances he had in the banks. Nothing in the pertinent statutes would justify such a crude and unbusinesslike method of transacting the fiscal affairs of the county. In School District v. Ottawa County Comm’rs, 133 Kan. 528, 1 P. 2d 88, it was held that the statutory rule of diligence prescribed by the negotiable instruments act governed the presentation of a county treasurer’s check drawn in favor of a school district treasurer. To the same effect was City of Brunswick v. Peoples Savings Bank, 194 Mo. App. 360, 362, and in National City Co. v. Mayor, &c., of Athens, 38 Ga. App. 491, although in the latter case the city’s delay in presenting the check was excused because of the circumstances.
Another point urged in favor of the city is that it was not bound •by the misfeasance or nonfeasance of its city treasurer. Quite so. ■It is to be hoped that the city is adequately protected by her official bond. But where one of two public bodies, the city or the county, must sustain a loss of public funds, the one whose delinquent official caused the loss must suffer rather than the other whose official was not at fault. The act of the county treasurer in transmitting the sum of taxes collected to the city treasurer by check drawn upon the county depository in Plainville, countersigned by the county clerk, was in strict conformity with statutory requirements and in accord with previous sound business practice between the county treasurer and the city treasurer.
The next point urged on our attention is that the county treasurer’s letter of transmittal did not itemize the various separate amounts of city-tax moneys included in his remittance of January 9. The city treasurer sought to excuse her delay in presenting the check for payment because she “had not succeeded in figuring this out satisfactorily and failed to get it in before the close.” But the trial court was not bound to believe that excuse. It never was more than an apologetic talking point. And the evidence which the trial court chose to believe justified the finding, quoted above, that she did not refrain for thirteen days from cashing the check because she did not understand what city funds should be credited with the county treasurer’s remittance, “but failed to cash said check as a protection to said bank, believing, as she testified, that her allegiance was first to said bank.”
Error is also urged against the trial court’s findings. In one of ■these the court found that the Plainville bank held $11,238.33 of the county’s funds on January 9, 1928. Appellant contends that the uncontradicted testimony was that the amount of county deposits ■in the bank bn that date was $14,346.99. We do not see that the inaccuracy of this finding, if any, affects the result. It is also contended that certain findings were based on evidence which the trial court struck out on defendant’s motion. We do not so read the record. Appellant argues that the seventh finding, set out above, was not. based on any evidence and was contrary to the evidence. We think the evidenbe inherent in the circumstances justified this .finding. We have also considered, but do not sustain, defendant’s objections to findings 11,12,13 and 14.
A more serious question is raised on the trial court’s finding No. -10 and the legal consequences to these litigants derivable therefrom. There was not enough actual cash in the Plainville bank to have paid the county treasurer’s check for $11,166.99'. On January 9, 1928, the day the check was drawn, the cash, including cash items, in the bank was $6,080.94, and on the day the city treasurer received the check the cash on hand was $6,094.59. At those times, however, the Plainville bank had reserves in Kansas City banks as follows:
January 9, in First National Bank.................... $7,485.56
January 10, in First National Bank.................... 8,523.53
January 9, in Federal Reserve Bank.................. 6,488.79
January 10, in Federal Reserve Bank.................. 19,535.92
The vital question in this connection is whether the bank’s Kansas City reserves can be considered in determining whether the Plain-ville bank had sufficient funds available to pay the county treasurer’s check if it had been presented on January 10. Since the city treasurer was assistant cashier, and actually kept her official accounts as treasurer in the bank, including the county treasurer’s check itself, a reasonable time would have been forthwith, or, in any event, as soon as the requisite funds to meet it could have been brought in from Kansas City. The trial court took judicial notice that this could have been accomplished within three days. We take judicial notice that it could have been effected by telegraphic request and railway express in less than one full day. No case is cited which holds that a bank with adequate reserves in the hands of its metropolitan correspondents and subject to check or sight, draft commits an act of insolvency because it cannot actually hand over the cash at the moment on presentation of a check for an unusual amount when it has adequate reserve cash to pay it as quickly as modern facilities of communication and transportation can be-made effective. The banking act and good banking practice contemplate that only a modest percentage of deposits need be kept on hand, and sight exchange reserves in the metropolitan business centers of the country are regarded as cash if they are available-without question to satisfy the demands on the bank in due course-of business. In view of the cash on hand and the available reserves in Kansas City, the trial court did not err in holding that if the-county treasurer’s check had been timely presented it could have-been paid in full in due course of business.
The other objections to the judgment have been carefully considered, but they would not justify further discussion. No prejudicial error in the record is made to appear, and the judgment is therefore affirmed.
Btjrch, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for the possession of twenty-five shares of stock in the Kansas Power and Light Company. Judgment was for defendant. Plaintiff appeals.
Plaintiff owned twenty-five shares of stock in the Kansas Power and Light Company. A man giving his name as Conway advised plaintiff that he was the agent of Branch-Middlekauff Company, a reputable bond concern of Wichita. This was false. He did not represent Branch-Middlekauff, and this firm knew nothing of him. Conway made several trips to the home of plaintiff. On February 11 he persuaded plaintiff to indorse his stock in blank and deliver it to him. The deal was that Branch-Middlekauff were to get the plaintiff’s stock and Branch-Middlekauff were to either pay plaintiff the money for the stock or give him General Motors stock for it within three days. On February 12 a man by the name of Dobbins offered plaintiff’s stock to Mr. Potts at the defendant bank. At this time Mr. Potts refused to buy the stock unless it bore a notary seal. Within a short time it was presented with a notary seal on it. Potts paid Dobbins $2,000 for the stock. This was about what it was worth. On the same day the stock was sold to LovelandReynolds, a brokerage firm. When plaintiff called on BranchMiddlekauff for his General Motors stock he learned for the first time that Conway had no connection whatever with that firm and it knew nothing of him or the deal with plaintiff. Immediately steps were taken to stop the transfer of the stock on the books of the company. As soon as this was done Loveland-Reynolds returned the stock to the bank. The bank then paid Loveland-Reynolds and still holds the stock. Plaintiff demanded the stock of the bank and was refused. This suit followed.
The evidence of plaintiff was about as given here. Defendant demurred to the evidence. The demurrer was sustained. This appeal is from that order.
The theory of plaintiff is that the transaction between plaintiff and Conway is the same as though Conway had stolen the stock from plaintiff; that he, on that account, acquired no title whatever to the stock and hence no subsequent purchaser could obtain any title whatever from him. Able counsel cite authorities in their brief to sustain this rule. These cases relate, however, to tangible personal property and not to certificates of stock. The leading case on this subject is National Safe Deposit Co. v. Hibbs, 229 U. S. 391. In that case a trusted bank official took stock certificates which had been intrusted to him, indorsed them in blank and sold them for his own benefit. In an action the bank was held liable. The basis for the doctrine fixing liability is that where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. It is well known that while stock certificates are not negotiable paper, they circulate in the trade and commerce of the country about as freely as though they were negotiable. They are framed with that idea in mind. Possession alone of a stock certificate would not be sufficient indicia of title to enable one who procured the certificate by fraud to pass title to an innocent purchaser, but possession, coupled with the fact that the certificate was indorsed in blank, is sufficient. In the Hibbs case, the negligence of the bank in trusting the employee with the indorsed certificates was the thing that caused the two innocent persons to suffer. In the case under consideration the negligence of plaintiff in delivering the certificate to a stranger and indorsing it in blank was the thing that caused the loss to plaintiff and the bank. In such a case, following the rule laid down in the Hibbs case and in Nolan v. Robertson, 131 Kan. 333, 291 Pac. 750, the loss should fall on the person whose negligence caused the loss. That person is plaintiff. Counsel attempt to distinguish this case from the cases just cited by pointing out that Conway told plaintiff he was agent for Branch-Middlekauff and plaintiff thought all the time that he was dealing with Branch-Middlekauff. We cannot see how this changes the situation. It is just a variation in the scheme by which plaintiff was swindled. It does not have any effect on the relation between plaintiff and innocent purchasers of the certificate. Counsel cite the case of Hutson v. Imperial Royalties Co., 334 Kan. 378, 5 P. 2d 825. That case was to recover for the value of stock which was fraudulently taken away from an old man who, the record showed, was laboring under a physical and mental handicap. The opinion treats the transaction as a species of theft, but the mental handicap was held by the court to be so great that he was not capable of performing any act which would bind him. There is no evidence of a mental handicap in this case.
The plaintiff argues further that his evidence proved by circumstances that Potts, the agent of the bank, had notice before he purchased the stock that the certificate had been obtained in a fraudulent manner. He points out that Potts compelled Dobbins to cause a notary seal to be placed on the certificate and that he caused Dobbins to put his name on it. Another circumstance pointed out is the fact that the same day the certificate was sold to LovelandReynolds and indorsed upon it “Indorsement guaranteed, Union National Bank, Wilbut Harrison, cashier,” and that as soon as the transaction was questioned, the stock was taken back by the bank.
Plaintiff urges that the inference to be drawn from these circumstances is that all parties had guilty knowledge. The act of Potts in requiring the notary seal and the signature of Dobbins was only the natural act of a cautious dealer in stocks and bonds. The selling of the stock the same day was a regular transaction. The stock was sold for a profit. The idea of this type of business is quick sales and small profits. The act of the bank in taking back the stock was only the act of a reputable bank maintaining its standing with its customers. These circumstances, taken together, cannot be said to justify the inference that either Potts or the bank had notice of the fact that the sto'ck had been obtained by fraud.
The judgment of the trial court is affirmed. | [
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Per Curiam:
This is an uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Jeffrey P. Johnson, an attorney admitted to practice law in the State of Kansas. Respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Kansas City, Missouri.
The complaint filed against respondent arises out of a final adjudication in Missouri that respondent was guilty of violating the Missouri Rules of Professional Conduct (Disciplinary Case File No. 99-0737-IV). The complaint herein is filed pursuant to Rule 202 (2001 Kan. Ct. R. Annot. 221), which provides, inter alia-. “A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinaiy proceeding in this state.”
The Missouri proceeding involved two separate counts. The first count involved professional misconduct by the respondent in representing a client in an action for fraudulent sale of a wrecked automobile. The second count was based upon respondent’s failure to respond to the complaint set out in count I.
By order dated April 2, 2001, the Missouri Supreme Court disbarred the respondent. The disbarment was based primarily on the respondent’s failure to timely file an answer or request for hearing within the time required.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held March 26, 2002. Disciplinaiy Administrator Stanton A. Hazlett appeared for the Disciplinary Administrator’s office, and the respondent appeared in person and proceeded pro se.
The hearing panel concluded that the respondent’s conduct violated KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence and promptness), 1.4 (2001 Kan. Ct. R. Annot. 334) (communication), 3.2 (2001 Kan. Ct. R. Annot. 398) (expediting litigation), 8.1(b) (2001 Kan. Ct. R. Annot. 433) (misrepresentation), and 8.4(a), and (d) (2001 Kan. Ct. R. Annot. 437) (misconduct). The panel also found respondent violated Kansas Supreme Court Rule 211(b) (2001 Kan. Ct. R. Annot. 259). The panel recommended that the respondent be indefinitely suspended.
The court, having considered the record and the panel’s final hearing report, concurs in and adopts the panel’s conclusions and recommendations.
It Is Therefore Ordered that Jeffrey P. Johnson be and he is hereby indefinitely suspended from the practice of law in the State of Kansas, effective the date of this opinion.
It Is Further Ordered that Jeffrey P. Johnson shall forthwith comply with the provisions of Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Per Curiam:
Dana Flynn appeals her juiy convictions of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury. Flynn raises the following, issues: (1) The trial court erred in refusing to sever the conspiracy to commit perjury charge from the murder charges, (2) the State presented insufficient evidence to sustain its burden of proof, (3) prosecutorial misconduct denied her right to a fair trial, (4) the trial court admitted irrelevant inflammatory evidence, (5) the trial court improperly admitted hearsay evidence in violation of her rights under the Confrontation Clause of the United States Constitution, (6) cumulative trial error denied her right to a fair trial, and (7) the district court erred in refusing to grant her a new trial based upon newly discovered evidence. We consider and reject each of Flynn’s claims, and affirm the jury convictions.
This appeal follows the jury convictions in a joint trial of Dana Flynn and Mikel Dreiling for the December 22, 1992, death of Randy Sheridan. The jury convicted Mikel of first-degree murder, conspiracy to commit murder, terroristic threat, and conspiracy to commit perjury. We do not , recite the facts in this case; for a detailed statement of facts see the companion case of State v. Dreiling, 274 Kan. 518, 520-39, 54 P.3d 475 (2002).
Analysis
1. Failure to file a timely notice of appeal
Before reaching the merits of this appeal, we briefly pause to consider whether this case is properly before us because of an untimely filed notice of appeal.
“The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution [citation omitted] or the Kansas Constitution [citation omitted]. It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. [Citations omitted.]” State v. Ji, 255 Kan. 101,102-03, 872 P.2d 748 (1994).
Because this crime was committed prior to July 1, 1993, Dana was required to file a notice of appeal within 130 days after the oral pronouncement of the sentence from the bench in open court. K.S.A. 22-3608(a); K.S.A. 2001 Supp. 21-4603. See State v. Ji, 255 Kan. at 102-04; State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). If the trial court receives a motion for modification within 120 days of the sentencing hearing, it has jurisdiction beyond the 120 days to decide the motion. Ji, 255 Kan. at 105; State ex rel. Owens v. Hodge, 230 Kan. 804, 814, 641 P.2d 399 (1982). In the event a motion to modify is filed, the triggering event is not the district court’s ruling from the bench, but rather the filing of the journal entry. Ji, 255 Kan. at 112; State v. Myers, 10 Kan. App. 2d 266, 270, 697 P.2d 879 (1985).
Dana failed to file a timely notice of appeal. She was sentenced on January 27, 1997. The trial court orally denied Dana’s motion for modification of sentence on November 5, 1998, and memorialized its decision in its order filed November 10,1998, which was further memorialized in its journal entry filed March 16, 1999. Dana’s attorney filed the notice of appeal on January 11, 1999— almost 2 years after the oral sentencing and 2 months after the filing of the order denying the motion to modify.
This court in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), held there are exceptions to the rule requiring a dismissal following an untimely filed notice of appeal: “where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or wras furnished an attorney for that purpose who failed to perfect and complete an appeal.” There is authority for remanding this case for a hearing to determine whether the Ortiz exceptions apply. See State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994). However, this court has also held that the exceptions in Ortiz apply based on an affidavit alone, rather than a specific factual finding by the lower court. See State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994).
This court issued an order to show cause why the case should not be remanded to tire district court for an Ortiz hearing. Dana responded and in her affidavit asserted that she wanted to appeal, that she instructed her attorney she wanted to appeal, and that she believed her attorney would file a timely notice of appeal. Under these circumstances, we find an Ortiz exception applies, and we will, therefore, consider Dana’s appeal.
2. Failure to sever conspiracy to commit perjury charge from murder charges
Dana argues the trial court erred in joining the perjury charge with the murder charges in the same trial. Specifically, Dana argues she was prejudiced by the joinder because (1) the joinder allowed the “cross-admissibility” of evidence, i.e., evidence was admitted as to the perjuiy count that would otherwise have been inadmissible in a separate trial on the murder charges, and (2) the joinder of die perjuiy charge gave the State license to call Dana, Mikel, and members of their family liars.
K.S.A. 22-3202 provides:
“(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The standard of review is abuse of discretion. State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999). See State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 (1994) (holding that the defendant has the burden of showing prejudice requiring reversal); State v. Shively, 26 Kan. App. 2d 302, 312, 987 P.2d 1119 (1999) (noting the “minimal” requirements for meeting the connection element of K.S.A. 22-3202[l]).
Connection between separate charges
In State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), this court considered the appeal of the defendant who had been tried jointly on two separate district court cases — one case involved aggravated robbery and kidnapping, the other corruptly influencing a witness and unlawful deprivation of property. A trial on the first case ended in a mistrial, and the second case was not filed until after the first case had gone to trial. Upon retrial, the two cases were joined. The second case involved Moore’s attempt to secure the false testimony of a witness to aid him in the defense of the first case. He argued that the court erred in consolidating the cases and that the consolidation “unduly prejudiced his defense.” 226 Kan. at 749. The State argued that the joinder of the two cases was proper “because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbery and kidnapping charges.” Thus, the State argued that the cases were “necessarily ‘connected’ and properly joined for trial.” 226 Kan. at 749.
The court held it was not an abuse of discretion to join the cases, since the two cases were sufficiently “connected together” under K.S.A. 22-3202 because the first case “precipitated the conduct” in the second case. 226 Kan. at 750.
In State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), the court considered the defendant’s convictions of aggravated assault of a law enforcement officer, unlawful possession of a firearm, burglary, and attempted murder. The aggravated assault of a law enforcement officer charge and the unlawful possession of a firearm charge arose out of an October 22, 1981, incident in which two undercover police officers tried to purchase drugs from the de fendant. The defendant failed to appear for the trial on these two charges, then later the defendant tried to kill one of the undercover officers. The defendant argued the new charges of attempted murder and burglary and the prior charges were separate incidents and joinder would be prejudicial.
Relying on K.S.A. 22-3202, the court concluded:
“The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullikin to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial.” 234 Kan. at 217.
In State v. Walker, 244 Kan. 275, 768 P.2d 290 (1989), the defendant was convicted of two counts of aggravated criminal sodomy and two counts of endangering a child, based on her abuse of her two stepsons. The defendant was also convicted of one count of making a terroristic threat. The threat charge arose out of her comments to a hospital social worker after she was not allowed to visit one of the victims, who had been admitted to a psychiatric hospital. The defendant argued the trial court erred in consolidating the threat charges with the charges involving her stepsons.
The court acknowledged that the charge of terroristic threat and the charges involving the defendant’s stepsons were not of the “same or similar character or based upon the same acts or transactions”; however, the court noted the State’s argument — based on Moore and Pondexter — that the charges merely need be “connected together.” 244 Kan. at 278. The Walker court noted that the defendant’s case was not as strong as Moore and Pondexter, but that the charges were sufficiently “connected together” because the charges of aggravated criminal sodomy and endangering a child precipitated the threat charges. 244 Kan. at 279. Moreover, the defendant failed to “demonstrate prejudice which would justify reversal.” 244 Kan. at 280.
State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), also rejected an argument that the joinder of the defendant’s charges for premeditated first-degree murder, aggravated robbery, sale of cocaine within 1,000 feet of a school, and unlawful possession of a firearm was improper. On the murder and robbery charges, the defendant was jointly tried with two other defendants. The drug charge was based on evidence gathered during a drug sting operation involving a confidential informant. The night following the murder and robbery of a motel night clerk, the defendant visited the drug sting confidential informant to sell drugs. While there, the defendant made statements linking himself to the robbery and murder of the motel night clerk. On appeal, the defendant argued the trial court erred in refusing to sever the sale of cocaine from the murder and robbery charges.
The court focused on the “connected together” language in K.S.A. 22-3202. Anthony concluded that even though
“the robbery and murder are separate and distinct charges from the sale of cocaine and unlawful possession of a firearm charges, all the charges are connected together. . . . The connection between the selling of cocaine and possession of the weapon on the one hand and the motel murder and robbery on the other hand is real and substantial enough to allow-joinder. At the very least, we believe that reasonable persons could disagree on the ruling of the trial court, and we do not, therefore, find an abuse of discretion in granting joinder.” 257 Kan. at 1016-17.
The connection in this case was substantial. The perjury was designed to conceal beliefs that God would take care of the victim, that the victim was evil, and that it was not God’s will that the victim have custody of A.S. These beliefs established a motive for killing the victim, thus the connection under K.S.A. 22-3202(1) provided a sound basis for joinder.
Admission and 'prejudice — inadmissible evidence
This court in State v. Cromwell, 253 Kan. 495, 511-12, 856 P.2d 1299 (1993), resolved an attack to the joinder of multiple crimes in one trial by noting that where evidence objected to would have been admissible under K.S.A. 60-455, no error occurs in forming separate charges. Dana relies on United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986), and Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), for the proposition that when charges are joined for trial and evidence on one charge is not admissible on the other charge, there is a high likelihood of undue prejudice.
The defendant in Lewis argued the trial court abused its discretion in refusing to sever a receipt of firearm count from the charges of larceny and murder because his prior felony conviction would not have been admissible in separate trials. The test, according to Lewis, was whether the prejudice was “of such a magnitude that the defendant’s right to a fair trial was abridged.” 787 F.2d at 1321. The court reversed the murder conviction, noting that “[tjhere is ‘a high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.’ ” 787 F.2d at 1321 (quoting United States v. Daniels, 770 F.2d 111, 1116 [D.C. Cir. 1985]). The Lewis court explained that the reason for this was that “[i]t is much more difficult for jurors to compartmentalize damaging information about one defendant derived from joined counts [citation omitted] than it is to compartmentalize evidence against separate defendants joined for trial.” 787 F.2d at 1322.
In Bean, the defendant was convicted by a California state court of two counts each of first-degree murder, robbery, and burglary as to two separate victims, Schatz and Fox, and Bean was sentenced to death. The California Supreme Court affirmed the conviction, and Bean filed a federal habeas corpus action. The Bean court concluded that the “joinder of the Schatz and Fox indictments deprived Bean of a fundamentally fair trial on the Fox charges.” 163 F.3d at 1083. The Fox case was relatively weak compared with the evidence from the Schatz case and the Bean court held that joinder of the weak case with the strong case permitted the jury to “infer criminal propensity.” 163 F.3d at 1083.
Unlike Lewis, the evidence of perjury in this case was admissible both under K.S.A. 60-455 and independent of K.S.A. 60-455. It related to the victim, the attitude of Dana’s church towards the victim, and the support Dana gained from her pastor and church members for preventing the victim’s visitation of A.S. at any cost. Independent of 60-455, the evidence related direcdy to the motive for eliminating the victim from the life of A.S.
Unlike Bean, the case we now consider raises no concerns for an inference of criminal propensity. The perjuiy charge was oc curring just prior to the murder charge. Both were inextricably connected, with the latter growing out of the perjury charge. Given such a connection, and the unquestioned admissibility of the perjury evidence, we conclude that the court did not abuse its discretion in joining the separate charges for trial. Finally, we note drat the court instructed the jury to consider the charges separately “uninfluenced by [its] decision as to any other charge.”
3. Sufficiency of Evidence
Premeditated murder and conspiracy to commit murder
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000). Moreover, “[a] guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial.” State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert, denied 534 U.S. 1047 (2001).
Dana contends that the State’s theory that she and Mikel were influenced by Pastor Rollins’ prophesies would not be accepted by any rational jury. Dana argues that tire testimony of Lucille Johnson regarding the carwash should be discounted both because the testimony was incredible and because Johnson had a motive to lie. She attacks the probative value of Mikel’s failed attempts to establish alibis for himself and his sister because there was no evidence presented to show that she knew about the alibis. She also argues the State presented no evidence linking her to Mikel’s telephone call. According to Dana, the State presented insufficient evidence showing she had perjured herself for the purpose of covering up Randy’s murder. Dana argues the jury verdict should be rejected according to State v. Doyle, 201 Kan. 469, 487, 441 P.2d 846 (1968), which held that motive alone is insufficient to sustain a conviction. In any event, she asserts that many others had a motive to kill Randy. Finally, Dana argues the tiny bits of irrelevant evi dence do not collectively amount to relevant evidence with which the juiy could have reasonably convicted her.
The facts leading to Randy’s death demonstrate a number of motives why Dana wanted Randy out of her life. However, the court instructed the juiy that motive alone was insufficient: “A finding of guilty for the crime of murder may not be based solely upon evidence of motive. Rather each element of the crime must be proved beyond reasonable doubt.” The court also instructed the juiy that inferences alone were not sufficient to establish any elements of any of the crimes: “You may not find an element of a crime from an inference that is based solely upon an inference. However, you may draw reasonable inferences from facts established in the evidence.”
The evidence established that Dana needed a way out of the custody litigation with Randy for a number of reasons. First, Randy, with the critical help of Pottroff, had maneuvered Dana into a comer. She had lied about not spending any significant time with Pastor Rollins. Randy and Pottroff knew this to be a lie; therefore, Pottroff crafted a court order to restrain A.S. from associating with Pastor Rollins, thereby putting Dana in the difficult position between choosing between her daughter and the man she wanted to marry. Second, the litigation against Randy was not going Dana’s way. Kansas Department of Social and Rehabilitation Services (SRS) social workers were concerned about the past allegations of sexual abuse. Finally, the evidence demonstrated that SRS was concerned Dana had coached A.S. to make untruthful allegations. SRS considered this coaching to be emotionally harmful to A.S., and it could have been grounds for Dana to lose custody of A.S.
In addition to motive evidence, the circumstantial evidence inevitably led to Dana and Mikel.
The December 7, 1992, threat to Steve Flynn was significant. Steve and Randy were similarly situated in that they both had a child with Dana, they both were fighting Dana over custody and supervision, and they both had a young child who believed their respective father was evil based on Dana’s statements. When Steve pushed Dana too far with regard to J.F., Dana arrived at Steve’s place of work with Mikel and a heated confrontation followed. Mi kel threatened Steve with the “I’m going to take you down” language, and Dana responded by telling Mikel that it was not the appropriate time to take Steve down. Mikel attempted to explain that as a former wrestler, he had used the “take down” language to refer to a seemingly innocuous wrestling maneuver. However, the inference that Mikel intended his statement to be a life-threatening statement was equally supported and, with other evidence, became the likely intent.
The December 12,1992, telephone call, viewed in the light most favorable to the State, was significant. First, the jury could reasonably conclude the telephone call was a death threat from Mikel to Randy. Judith testified she heard the words “die” or “dead.” Judith also heard Randy refer to the caller as “Mikey,” a derogative term Randy used for Mikel. The jury could have reasonably concluded the telephone call was a forecast, i.e., “drop the custody fight or you are dead.” The evidence showed that Randy was proceeding with the custody battle, which was causing Dana concerns regarding her desire for sole custody of A.S. and her relationship with Pastor Rollins. Dana stated she would “do anything” to keep Randy from getting custody of A.S.
The testimony of Randy’s attorney provided evidence that despite court orders for extended visitation, Dana did not intend on letting Randy have custody of A.S.
The State presented evidence of Dana’s opportunity to commit this crime. She left work shortly after noon on December 22,1992, after having a telephone conversation with her lawyer, the bearer of bad news in terms of the custody battle. The evidence showed it was likely Dana knew through her attorney that Randy was home that day. Her own statements following the murder established that she had purchased fuel for her car and telephoned her mother from a payphone to arrange for someone to pick up the children. Mikel’s statements established that he was with his sister that afternoon, which likewise establishes his opportunity to commit this crime.
Admittedly, there was nothing at the scene of the crime to link the murder to either Dana or Mikel. However, the evidence of Dana’s actions after the murder further strengthen the conclusion that the jury acted reasonably in convicting her. After Randy’s murder, the evidence showed Dana had driven her car through an automatic carwash twice. This evidence was sufficient to allow the jury to arrive at a logical conclusion that Dana’s car was soiled with either Randy’s blood or dirt from die road. Further, the evidence showed that after the murder Dana stated Randy was an evil, wicked man who deserved to die.
In considering the sufficiency of evidence to sustain a conviction, this court reviews all the evidence, viewed in the light most favorable to the prosecution. Jamison, 269 Kan. at 571. In light of this standard, we are convinced a rational factfinder could have found, beyond a reasonable doubt, that Dana was guilty of the murder of Randy Sheridan.
Conspiracy to commit perjury
Dana briefly argues the evidence was also insufficient to sustain the conspiracy to commit perjury conviction. She contends that the State failed to establish that the overt act (the perjury) involved a material fact.
The court defined perjury for the jury as the “willful, knowing, and false testifying or swearing to a material fact upon oath legally administered by a person authorized to give oaths.” The court defined “material fact” as “a fact which has a natural tendency to influence, or was capable of influencing, the decision making body to which it was addressed. It need not bear directly on the ultimate issue to be determined in the cause or hearing.”
Current members of Dana’s church testified that praying in tongues did not occur at the church. However, past members of the Fountain of Life Church testified that the practices of speaking in tongues and prophesy were practiced at the church. The jury could reasonably infer from the evidence that the repetitive and consistent nature of the lying, over facially insignificant facts, showed that an agreement had been struck between Dana, Pastor Rollins, and present church members.
Any statement relevant to the matter under investigation is sufficiently material to form the basis of a charge of perjury. The test of materiality is whether a false statement can influence the tri bunal — not whether it does. State v. Rollins, 264 Kan. 466, 471, 957 P.2d 438 (1998). The concealed statements had the potential of implicating Dana in Randy s murder; thus, the statements were relevant. Moreover, the concealment was capable of influencing the outcome of the inquisition. Thus, the statements underlying the perjury conspiracy were material as a matter of law.
There is sufficient credible evidence that Dana, with others, agreed to and did, present false testimony before the inquisition.
4. Prosecutorial misconduct and denial of fair trial
Dana argues that prosecutorial misconduct during the trial denied her a fair trial. She argues: (1) The prosecutor improperly commented on her credibility and that of her family, (2) the prosecutor compelled Mikel to comment on the credibility of the State’s witnesses, (3) the prosecutor improperly commented on her defense theory, (4) the prosecutor elicited improper testimony from Randy’s wife, Judith, (5) the prosecutor improperly elicited evidence of Jennifer and Shirley’s prearrest silence, and (6) the cumulative misconduct along with the weak evidence of her guilt should result in a new trial.
State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000), sets forth our standard of review for consideration of prosecutorial misconduct during closing arguments:
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. [Citation omitted.]”
The factors for appellate court consideration to determine whether a new trial should be granted because of prosecutorial misconduct are: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on the prosecutor’s part, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. 268 Kan. at 508. Normally, there can be no reversible error based on prosecutorial misconduct absent a contemporaneous objection. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999). However, “[i]f the prosecutor s statements . . . rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.” 267 Kan. at 278.
Calling witnesses at inquisition and grand jury liars
In closing arguments, the State made the following argument:
“Question comes to mind, ladies and gentlemen, what are they lying about? You’ve got a fundamental religious practice, which is your right, ‘Yeah, we pray in tongues. It’s our belief. We believe in that.’ They’re lying about it. They’re lying about it, ladies and gentlemen, for a very good reason.”
“Well, you’ve heard the testimony about that from other people who attended the church. Was it regular practice? Common Pentecostal practice. Everyone knows what we’re talking about.
“They’re lying about it. ‘The congregation did not engage in that practice.’ ‘I’m not sure.’ ‘I don’t quite understand.’ ‘What do you mean by that?’ And, ‘I can’t speak for everyone else, but the answer to Pastor Jerry Rollins is no, tire times that I have been.’
“Norman Dreiling. Here’s a good one. Norman’s part of the conspiracy to lie, but Norman was asked, apparently, a little bit different land of question. We asked Dad, who’s sitting next to Mom at church on a regular basis, Dad didn’t quite understand what he was supposed to lie about, apparently.
“ ‘Do you know where your wife attends church?’
“ ‘No.’
“ ‘Do you know whether your wife is actively involved in church?’
“ ‘No.’
“Dad didn’t get the message, apparently, he was supposed to be lying about praying in tongues, and he went so far as to lie about the fact the woman he sat next to in church every Sunday, he didn’t know where she went to church, he didn’t know he was actively involved with her or not in the church. So, some tilings don’t always work as planned, and the same is true of conspiracy.” (Emphasis added.)
The State then discussed the inconsistent inquisition or grand jury testimony of Charles and Lee Anna Rollins; the wiretapped conversation between Pastor Rollins and his daughter, Kathlyn; and the inconsistent statements of Mikel and his wife, Jennifer. The prosecutor stated: “It’s obvious at this point, ladies and gentlemen, these inconsistent statements, they’re lying.” The prosecutor pointed out how Jennifer’s grand jury testimony was evasive and had denied that the members of the Fountain of Life Church spoke in tongues. The prosecutor discussed Mikel’s testimony during the trial regarding the church members’ practices and how that testimony was inconsistent with what his wife had said during the grand jury proceeding. The prosecutor, after discussing all these inconsistencies, argued to the jury the relevance of all this:
“I guess if you don’t pray in tongues and you don’t prophesy, you don’t have all these statements about Randy Sheridan and you don’t have all these prophecies about his being evil.
“There was no reason under the sun to he about that. It’s a religious belief. There’s no reason in the world for them to come in and lie about something like that. They’re protecting, ladies and gentlemen. It’s the bottom line.
“And then, when you get people in cowered under subpoena, look at the answers they give, the members of the church, and look at the specific answers they’re lying about. Now, why are they doing that? What are they hiding?” (Emphasis added.)
The prosecutor discussed the attempts to secure false alibis:
“Then we have the false alibis. ’I’m not going to tell you what really happened, because I’m concerned about the fact that we got this room for 25 bucks. I’m going to go to the trouble to go out and try to buy someone to come in here and testify about where I really wasn’t. I’m not going to tell you where I really was, but I’m going to go buy somebody to come in here and tell you where I really wasn’t.’ That’s what Mike Dreiling did.
“ ‘Don’t talk to the KBI.’
“And all these people are lying. It’s all veiy consistent, ladies and gentlemen, with what occurred in this particular case.”
Dana also complains of the following argument by the prosecutor regarding the threatening telephone call to Randy:
“Now, they’ve raised the question, why isn’t Charles called about this phone call? Charles, the buddy in the conspiracy, Charles, the guy that’s lied under oath, along with other members of the church and family at the inquisition, sure, we’re going to call Charles and let him tell you whether he did or didn’t malee the phone call.”
There were no contemporaneous objections to any of the above arguments.
In Pabst, the court held the prosecutor committed reversible error when he argued to the jury that the defendant lied. 268 Kan. at 506. Unlike Pabst, one of die charges in this case was conspiracy to commit perjury, which required the prosecutor to present evidence that witnesses had presented false testimony. The argument related to the evidence presented that witnesses at the inquisition had presented false testimony, and the prosecutor s argument was a comment on that evidence. Under these particular circumstances, we conclude that Dana was not denied her right to a fair trial or her Fourteenth Amendment rights to due process.
Compelling Mikel to testify regarding the credibility of law enforcement officers’ testimony
Dana complains of the following cross-examination of Mikel by the prosecutor:
“Q. ’’Did you have muscle spasms in your chest?
“A. No, not that I remember.
“Q. So, they would be incorrect about that?
“A. Yeah, they would.
“Q. Were you gasping for air at any time during that interview?
“A. No.
“Q. So, they would be incorrect about that?
“A. Yeah.” (Emphasis added.)
Dana also complains of the following:
“Q. [Prosecutor:] Well, what you told them on that occasion is you went by Dana’s, to see if she was home, didn’t you?
“A. [Mikel:] No.
“Q. So, the investigators would be incorrect about that?
“A. I said I went by my sister’s house. That would have been Brenda. That’s where Jennifer was staying, we were moving things from.
“Q. So, they indicated you went by Dana’s house, that would be incorrect?
“A. They might have assumed that.
"Q. They would be incorrect?
“A. Yeah.
“Q. Did you tell the officers that you waited at Dana’s house for her?
“A. No.
“Q. So, they’re incorrect about that?
“A. Yeah, they’re incorrect.
“Q. But, you also told the officers that you saw [Dana] at her house, I believe?
“A. No.
“Q. So, they would be incorrect about that?
“A. Yeah, they would.
“Q. And you also told them that you were with her, referring to Dana, sometime between 12 noon and 3:45 in the afternoon, correct?
“A. I don’t know if I told them that. I probably told them 3:45. That’s when I got dropped off at Mom’s house.
“Q. So, they would be incorrect—
“A. Yeah.
“Q. —about the statement that you told—
“A. Yeah.
“Q. —the agents that you were with Dana sometime between 12:00 and 3:45?
“A. Well, I told them the afternoon, and I gave them approximate time, I thought, 3:45, 3:50, something like that.” (Emphasis added.)
There were no objections to any of this questioning. However, it was improper to ask the witness whether other witnesses had lied or were mistaken. See State v. Diggs, 272 Kan. 349, 361-62, 34 P.3d 63 (2001). While the court in Diggs held that the prosecutor committed misconduct by asking the defendant whether other witnesses had lied or were mistaken was error, the court did not reverse the conviction, finding that the questions did not prejudice the jury against the defendant and did not deny her a fair trial. In this case, while the prosecutor improperly asked Mikel whether other witnesses were incorrect, we find that the prosecutor’s questions were not so gross and flagrant as to deny Dana a fair trial.
Calling the defense theorq unreasonable and absurd
Dana argues the following argument by the prosecutor improperly denied the importance of her defense theory in two areas. First, the prosecutor said: “The defense in this case, ladies and gentlemen, is an absurd representation and excuse as to what happened. The State could not have set in motion all these strange, bizarre, complicated facts if we had tried.” (Emphasis added.) Second, and much later, the prosecutor said:
“The defense position in this case, ladies and gentlemen, and what they have given to you as a jury is totally unreasonable and it is absurd, and if you believe, ladies and gentlemen, that Mike Dreiling was telling the truth, then, yeah, you’ve got to acquit him, but you have the ability to weigh and judge the credibility of the witnesses.” (Emphasis added.)
There was no objection to this argument.
Dana cites State v. Hart, 94 Ohio App. 3d 665, 641 N.E.2d 755 (1994). Hart involved Earl Hart’s conviction for aggravated murder and aggravated burglary. The court on appeal reversed Hart’s conviction based on numerous incidents of prosecutorial misconduct, thereby denying Hart’s due process rights to a fair trial. 94 Ohio App. 3d at 676. During the prosecutor’s rebuttal closing argument, the prosecutor expressed his outrage that the defense would deny the purpose of the burglary was to rape the victim, despite the fact that the victim’s legs were found spread and her clothing was found disheveled, with her pajama top open and her pants pulled down to just above her knees: “They have the nerve to suggest that you cannot infer that there was a purpose to rape this lady.” 94 Ohio App. 3d 669, 673-74. The prosecutor also argued: “ ‘And when you think about that you gain valuable insight into their whole method of operation. Crank up the fog machine. Let’s try to conjure up a reasonable doubt.’ ” 94 Ohio App. 3d at 674.
In Hart, while affirming that a prosecutor can “argue ardently that the evidence does not support the conclusion postulated by defense counsel,” the court stated that a prosecutor is not permitted to “denigrate the role of defense counsel by injecting his personal frustration with defense tactics.” 94 Ohio App. 3d at 673-74.
Unlike Hart, the prosecutor in this case pointed out how unbelievable Milcel’s and Dana’s explanations were. The inference that the explanations were a fabrication was for the jury to decide. The prosecutor in Hart made this inference an assertion with the “crank up the fog machine” language, but the prosecutor in this present case was only commenting on the unbelievable nature of the defendants’ stories. We conclude the above arguments, to which Dana failed to object, were not in error.
Violation of rule in State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998)
Dana argues the prosecutor committed misconduct when he asked Judith Sheridan about her relationship with the victim:
“Q. Ma’am, I have just another — another question for you. Concerning the nature of your relationship with Randy Sheridan in December of 1992, what was your relationship with him like?
“A. It was very good. As far as our relationship goes, it was — I mean, probably the last few years since he’d moved home had been very good-.
“Q. And did you have an opinion about the kind of father that Randy was?
“A. He was very concerned, very involved, certainly more than — more than your average, and he took pride in that. It was — he was — he was an unusual father, and I’m sure that was probably the reason why he was killed. He wasn’t one of these fathers that never paid, you know, never cared about their child, didn’t want any involvement in it, their lives.
“Q. And did you agree with his attempts to keep [A.S.] as part of your life?
“A. Wholeheartedly, yes.”
There was no objection to this testimony.
In State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), the defendant appealed his jury convictions of premeditated murder, aggravated robbery, criminal damage to property, two counts of felony theft, and criminal possession of a firearm. The murder conviction was based on the death of a police officer shot while pursuing Donesay. The court considered whether the trial court erred in admitting testimony of the victim’s widow. She testified about her husband’s career, about how happy he was, and about how everyone who met him liked him. Donesay argued the evidence was “irrelevant and served only to inflame the passions of the jurors.” 265 Kan. at 82. This court agreed, holding it was error to admit the evidence and that the error was not harmless. This court found that the evidence was collateral to the charges against Donesay because the only issue at trial was whether the murder was premeditated. 265 Kan. at 85-89.
The evidence in this case is readily distinguishable. The prosecutor did not commit misconduct with the above questions. Unlike the evidence in Donesay, where the evidence was “obviously collateral to the charges against the defendant,” the evidence in the present case was relevant to dispel the notion that Randy was a child molester. The State presented evidence that Dana had made allegations that Randy was molesting A.S.; therefore, the evidence of Randy’s relationship with A.S. was relevant to show the falsity of these allegations.
Moreover, the evidence explains why Randy would want to be involved in A.S.’s life. The evidence shows Randy had attempted through the legal system to spend more time with A.S. Judith’s testimony explained to the jury why Randy was trying so hard to get custody of his daughter. As it was the State’s theory at trial that Randy’s desire to be around his daughter eventually pushed Dana and Milcel to murder him, the evidence of his relationship with his daughter was relevant.
Eliciting alleged coconspirators’ prearrest silence
Dana argues the prosecutor committed prosecutorial misconduct when he elicited evidence that Mikel’s wife, Jennifer, and Milcel and Dana’s mother, Shirley, refused to speak with Agent Brandau. Agent Brandau testified as follows:
“Q. Did you attempt to talk to Jennifer Dreiling?
“A. Yes, sir.
“Q. At that time what was her name?
“A. Jennifer Brock.
“Q. And were attempts made to you knowledge to talk to Shirley Dreiling?
“A. Yes, sir.
“Q. And was die KBI able to obtain any information from them?
“A. No.
“Q. And why was that?
“A. They refused to speak to us.”
There was no contemporaneous objection made. However, we perceive no prejudice to the defendant flowing from testimony concerning the witnesses’ refusal to speak to Agent Brandau. Dana alleges that an inference they were hiding material evidence prejudiced her right to a fair trial. Yet, many inferences were possible including sorrow or anger. The reasons for refusal were not known or explained at trial. The refusal of a witness to discuss a case with the investigating officers standing alone is not prejudicial. The cases relied on by Dana all deal with comments on a defendant’s silence or failure to respond. Thus, they provide no authority for concluding that prosecutorial misconduct occurred in this case. We are left with Dana’s allegations of misconduct, which allegations fail to establish reversible error.
Cumulative prosecutorial misconduct
Dana argues that the cumulative prosecutorial misconduct, considering the circumstantial evidence used in this case, makes the errors reversible. The second step in the analytical framework discussed in Pabst involved an analysis of “whether the prosecutor’s improper comments denied [the defendant] a fair trial by unfairly prejudicing the jury against him.” 268 Kan. at 507. Relevant factors include: (1) whether the misconduct was so gross and flagrant to deny the defendant a fair trial, (2) whether the misconduct showed ill will on the part of the prosecutor, and (3) whether the other evidence was sufficiently strong that the misconduct would have had little effect on the jury. 268 Kan. at 508.
First, as shown above, many of the alleged instances of misconduct were not misconduct at all, but rather permissible argument or admissible evidence based on the unique facts of this case. Second, there was no evidence the alleged misconduct showed ill will on the part of this prosecutor. This case was tried over 3 months, resulting in thousands of pages of transcription. The isolated instances shown above do not reveal a concerted effort on the part of this prosecutor to deny Dana a fair trial. Finally, we conclude that the errors which did occur would not have changed the verdict. We further conclude beyond a reasonable doubt that such errors had little, if any, effect on the verdict rendered.
5. Erroneous admission of evidence
Dana argues the trial court improperly admitted irrelevant and inflammatory evidence. Specifically, Dana argues the trial court erred in admitting evidence of (1) prophesies regarding Lucille Johnson, (2) J.F.’s statements involving the devil, (3) Dana’s cold and manipulative nature, (4) the fears of the State’s witnesses, (5) A.S.’s brainwashing, (6) Pastor Rollins’ sex toys, (7) SRS’s conclusion regarding Dana’s credibility, (8) Mikel’s confrontation with Steve Flynn, (9) Steve Flynn’s custody dispute with Dana, (10) the conclusions of the State’s witnesses on the ultimate question, and (11) lies about the prophesies and speaking in tongues.
“It is well settled that a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal.” State v. Barksdale, 266 Kan. 498, 511, 973 P.2d 165 (1999); K.S.A. 60-404. Further, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact. State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 (1994). Where the probative value of evidence is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. State v. Lee, 266 Kan. 804, 813, 977 P.2d 263 (1999).
The standard of review for the admission of evidence is well known:
“The admission of evidence lies in the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. [Citations omitted.]” State v. Whitesell, 270 Kan. 259, 276-77, 13 P.3d 887 (2000).
The Lucille Johnson prophesies
Dana complains the evidence of four of Pastor Rollins’ prophecies was improperly admitted: (1) Lucille Johnson’s husband would not recover unless Johnson gave Pastor Rollins money, (2) Johnson should buy a house and a church for Pastor Rollins in Salina, (3) Johnson was not giving enough money to the church, and (4) Johnson was evil.
Johnson testified that Pastor Rollins traveled from Texas to Kansas to pray for her ill husband. According to Johnson, Pastor Rollins prophesied that if her husband “didn’t give him money, he wouldn’t be healed.” After Pastor Rollins moved to Salina, Johnson purchased a church for Pastor Rollins. She explained the reason: “A prophecy was given that I was to buy that church.” The church cost $125,000. Johnson also purchased a house for Pastor in Salina because, according to him, it was God’s will:
"Q. And what were you told, ma’am?
“A. That I was to purchase his home. That was what God had told him to tell me, that I was to purchase this home.”
The home cost Johnson $89,000. The State also presented evidence of these prophecies through Lee Anna, Pastor Rollins’ former wife. According to Lee Anna, Pastor Rollins would dictate the prophecy and Lee Anna would write it. Lee Anna testified that after these prophecies, Johnson purchased a house and a church for Pastor Rollins.
Lee Anna also testified regarding a prophecy from June 1987. Again, Pastor Rollins dictated the prophecy to Lee Anna:
“Verily I say to thee, my daughter, Lucille, my servant has left my church with many souls, houses and land and children for thy sake to Be with thee and just to strengthen thee, and thou has left nothing for me. Ye have not even fulfilled thy promise to give unto the Lord thy God even the half of thy goods which ye did promise me. How saith that thou lovest me? Behold, I said and did demand that the rich, young ruler give all and follow me. And even so I demand die same of thee. Yea, thou art like him. Yet ye are not rich. Ye are like him and are not willing. Therefore, I shall take my servant and send him from thee. I will send him away from thee to another people and my voice shall not be heard unto thee hereafter, saith the Lord, except ye quickly, this day, prove thyself unto me. I am the Lord of hosts forever and ever. Who shall escape me? Choose ye this day whom ye will serve, thyself or me. Behold, thou art selfish indeed. What wilt ye do when ye come before me in judgment, or what shall ye do if I judge thee now and take thy life from thee? Where wilt tiiou spend eternity?”
The fourth prophecy complained of by Dana on appeal was the last straw for Johnson and was described by Lee Anna for the jury as a “very, very hard prophecy” delivered to Johnson during a church service:
“I remember he prophesied to her from God that God was very angry with her, very displeased. I don’t recall what she had supposedly disobeyed God about, because she had already purchased the church, but they — well, I’m going into more than the answer.”
Pastor Rollins also described Johnson as evil. Following this incident, according to Lee Anna, the members of the church began to shun Johnson. Members would not talk to her at church and would not sit by her at church. These members included Dana; her sisters, Brenda, Sheryl, and Sue; and Pastor Rollins’ sons, David and Charles.
The State argues the evidence of the prophecies regarding Johnson were relevant examples demonstrating for the jury the type of thought control exhibited within the Fountain of Life Church. The relevance of these events is evident. They demonstrate by prior example the link between Pastor Rollins’ prophecies and actual action taken by the church members.
The trial court did not abuse its discretion in admitting evidence of Pastor Rollins’ prophecies which involved Johnson. The State established a pattern with the prophecies; each prophecy was followed by action by the church members, of which group Dana and Mikel counted themselves. In Johnson’s case, the prophecies at first encouraged her to give money and then later led other members to shun her. Likewise, the prophecies provided relevant evidence as to why Dana and Mikel would kill Randy. Pastor Rollins had called Randy evil and announced that it was not in God’s will for Randy to see his daughter.
J.F.’s references to the devil
Dana asserts it was error for the State to present evidence of J.F.’s statements that his father was evil and that his father was the devil. As the factual summary above demonstrates, the State presented Steve’s testimony describing J.F.’s statements that Steve and various other people either serve or indeed are the devil.
The statements were relevant because they were part of the custody battle, which, according to the State’s theory in this case, was the motive for the crime. J.F.’s statements helped the jury understand why Randy and Steve would have joined forces and why Randy and attorney Pottroff would have worked to get a restraining order preventing Pastor Rollins from having contact with Randy’s daughter, A.S.
Descriptions of Dana as cold and manipulative
Dana argues the State presented improper character evidence through the testimony of her coworker, Maiy Kirk. On direct examination, Kirk responded to the prosecutor s question of whether Dana received special arrangements at work:
“A. In — during the catalog season, we would always need extra help in the evening, somebody would have to come in from 5:00 to 9:00, and we would hire someone to do that.
“Well, the year after, would have been in ‘93, she came and asked if she could do that, if she could work the part-time, the evening shift for the catalog. And I said, well, no, that we couldn’t do that, because with her working with us, she would be getting overtime, and we only paid five dollars an hour for the person to come in and do that, normally, and with her getting paid overtime, it would cost the company more money.
“And so, then she went to the vice president of manufacturing and talked to him, and he got it okayed, so then that year she was working in her regular job from 8:00 to 5:00, and then she would come down and from 5:00 to 9:00 and she would answer the telephone for the catalog.
“Q. And were there other employees that were allowed that opportunity?
“A. No, not that I know of.”
Dana’s objection was overruled. The State then tried to show how Dana’s privilege related to the way Dana related to men. Kirk testified:
“She was veiy cold — not cold, she was — she would — she didn’t hardly talk to the women, at all, but she’d always have — you know, be real jovial to tire — not— to the men and say good morning and visit with them, but as far as women, she was just kind of — ”
At this point, the prosecutor cut off the witness. The defense counsel objected, and the trial court said that it understood the objection. Dana’s attorney moved for a mistrial, which was denied by the trial court.
While tire testimony is not relevant to the issues to be decided in the trial, we find the statement to be harmless in light of the trial as a whole. K.S.A. 60-261 provides as follows:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
See State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999). We conclude that this trial, which consumed over 8 weeks and involved the testimony of over 80 witnesses, was not tainted by Kirk’s testimony.
Evidence of the fears others had of Dana and Mikel
Dana contends that the court erroneously admitted evidence that others were afraid of her and her family.
Attorney Pottroff explained why the weekend before the murder he met with the witnesses who were going to testify in the custody case as a group: “One was the witness, who had told me that they had fear, that they were afraid of repercussions, afraid for their own safety.” At this point, Mikel’s contemporaneous objection was sustained. Pottroff testified that after learning of Randy’s death, he called the Geary County sheriff s department “to express to them some of the fears that my witnesses had expressed to me on the weekend.” Again, Mikel’s objection was sustained and the jury was ordered to “[disregard the fears that some others may have.” The admonition to the jury in this case cured any prejudice from an improper admission of evidence. State v. Navarro, 272 Kan. 573, Syl. ¶ 6, 35 P.3d 802 (2001).
Pottroff also described the fears expressed by Lee Anna, Pastor Rollins’ ex-wife. Pottroff testified he wanted to preserve some testimony, and the prosecutor asked him to describe what he meant by that statement:
“A. If you’re not sure if somebody’s going to be available as a witness, or for whatever reason you have evidence that you want to make sure you get documented by a court reporter, you can preserve that testimony under oath and—
“Q. Who else’s testimony did you take on the 21st?
“A. Lee Ann Rollins.
“Q. Who is she?
“A. The — she may have been the ex-wife at the time of — that was Jerry Rollins’ wife or recently divorced ex-wife.
“Q. And why did you perpetuate her testimony on the 21st?
“A. For a couple of reasons.
“Q. And what were those?
“A. One, her fear—
“[Mikel’s attorney:] Again, Your Honor, were talking about—
“[Prosecutor:] Your Honor, she’s going to testify. She’ll be here to testify herself. This explains his actions in this case.
“[THE COURT:] If she’s going to be here and is available for cross-examination, I’ll let him testify.
“A. She feared for her safety.
“Q. And what did that have to do with deposing her testimony?
“A. I told her that if I got her testimony and preserved it and she really had a legitimate fear that she was going to be killed that that would taire away a lot of tire reason for her to be taken out, because I would have her testimony, and if it was the testimony that somebody was trying to prevent, I would have that, regardless of whether or not she survived. She felt hire that was a safety factor.”
Dana failed to lodge a specific contemporaneous objection citing the grounds now raised on appeal. A generic objection is insufficient to preserve the issue of the erroneous admission of evidence for appeal. See State v. Leitner, 272 Kan. 398, 423, 34 P.3d 42 (2001).
Dana argues on appeal that the trial court overruled an objection to Lee Anna’s having testified about her fears. However, the record does not support the contention that the objection was to Lee Anna’s testimony of her fears.
Dana also objects to the testimony of Sergeant Redmond, who testified about visiting Larry and Ann Kohman’s house prior to the December 22, 1992, interview of Pastor Rollins. Larry and Ann Kohman are neighbors of Pastor Rollins. Sergeant Redmond testified she went to the Kohman’s house because “Mrs. Kohman requested a standby, while she got some of her belongings and left the residence.” Mikel’s objection was immediately sustained. Sergeant Redmond’s testimony gave the jury the impression that Ann Kohman was afraid Pastor Rollins would hurt her.
Setting aside the testimony that was introduced without a contemporaneous specific objection and also the testimony that was introduced but stricken and the jury admonished to ignore, we conclude the evidence that witnesses were frightened was harmless in light of the trial as a whole.
Evidence of brainwashing
Dana argues the trial court erred in admitting Judith Sheridan’s testimony that A.S. was being brainwashed. The prosecutor asked Judith to explain why Randy hired attorney Pottroff:
“One of the biggest concerns that — that Randy had was the fact that his child— he felt like his child was being brainwashed, and he wanted to have a custody evaluation, where [A.S.] was — had—would go to counseling to determine just exactly what was going on. Obviously, he was extremely concerned about what was going on.”
There was no contemporaneous objection to this testimony, and the issue is not properly raised on appeal. Absent a timely and specific objection, this issue is not one before us. See State v. Yardley, 267 Kan. 37, 38, 978 P.2d 886 (1999). While we need not consider matters raised for the first time on appeal, the evidence now objected to was relevant, admissible evidence.
Evidence of adult sex toys
Dana contends the court erred in admitting evidence of the Adam and Eve invoice, including evidence of how Randy obtained a copy, had “Praise the Lord” written on it, and sent multiple copies to her family. Dana argues this evidence had no relevance but was highly prejudicial.
The evidence was relevant to demonstrate to the jury the relationship between Dana and Pastor Rollins. By showing the relationship between Dana and Pastor Rollins, the State impressed upon the jury how the restraining order preventing A.S. from associating with Pastor Rollins put Dana in a difficult position. Further, the evidence of Randy’s sending the invoice to Dana’s family showed the difficulty Randy was creating for Dana in her attempts to live as Pastor Rollins’ wife. The evidence of Randy’s intent to expose Pastor Rollins to Dana’s family was relevant to Dana’s motive to kill Randy.
SRS’s conclusion regarding Dana’s credibility
Dana argues the trial court committed error when it admitted evidence that the sexual abuse allegations in 1989 and 1992 were unfounded. Further, Dana complains the evidence that SRS be lieved she coached A.S. to allege Randy had been molesting A.S. unfairly reflected upon her credibility.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Such evidence fit the State’s theory that Dana killed Randy in order to have custody of A.S. The evidence was relevant, as it demonstrated how complicated Dana’s position was becoming. The evidence was also relevant to demonstrate that Dana had used the legal system by making allegations of abuse. When this failed, Dana was left with few alternatives. Under these circumstances, we conclude that there was no abuse of discretion and that the probative value of the evidence was not outweighed by any unfair prejudice.
Mikel’s threat to Steve Flynn
Dana argues the trial court erred in admitting evidence of the December 7, 1992, incident at Steve’s place of work when Mikel threatened Steve. The trial court properly admitted this evidence on the grounds that it was admissible both under K.S.A. 60-455 and as relevant evidence independent of K.S.A. 60-455. In admitting the evidence, the trial court gave the following cautionary instruction:
“Evidence may now be admitted concerning a crime or a civil wrong other than the present crimes charged. This evidence may be considered by you solely for the purpose of proving the defendant’s intent or motive.”
Dana argues the evidence of the confrontation was not admissible as evidence of motive. Dana mistakenly argues the confrontation “provided no motive for the murder of Randy Sheridan.” The statute does not require that the evidence amount to a motive, but rather that the evidence is “relevant to prove some other material fact including motive.” K.S.A. 60-455. Here, the evidence was relevant by analogy. The morning of December 7,1992, Steve informed Dana that he planned on interfering with Dana’s custody of J.F. Hours later, Dana and Mikel arrived at Steve’s place of work. A confrontation erupted, with Mikel having made the following threat: “Fm going to see you go down. I’m going to make you go down.” Then Dana grabbed her brother’s arm and added: “Now is not the time.” While Dana contends her involvement in the incident was an innocent attempt to calm the situation, the evidence also demonstrates how she and her brother Mikel worked together to solve her problems.
Citing State v. McCorgary, 224 Kan. 677, 685, 585 P.2d 1024 (1978), Dana argues the evidence was not relevant to prove intent. The State argues the evidence of tire confrontation was relevant to show the relationship between the parties. Further, the State argues the evidence of the confrontation was relevant based on the similarities of Steve’s custody battle and Randy’s custody battle.
Dana argues that the unfair, prejudicial effect of the evidence outweighed its probative value. She contends that it was wrong to hold her responsible for Mikel’s unlawful act. However, this contention ignores the probative value of her own comment, “Now is not the time.” Dana argues the evidence was unfairly prejudicial to the extent the evidence showed a “propensity” to rely on Mikel as her “heavy.” Last, Dana argues the evidence of the confrontation distracted the jury from the weakness in the State’s case.
The evidence was relevant. It demonstrated what Dana might do when frustrated in her attempts to gain custody of A.S. in a court proceeding. It also tended to show that Dana might resort to violence when legal efforts failed. The probative value of this evidence was not outweighed by its prejudicial effect. The trial court properly admitted this highly relevant evidence.
Evidence of Steve’s allegations against Dana
Dana argues the trial court erred when it admitted evidence of the allegations Steve made against Dana in his December 7,1992, pro se motion, which precipitated the confrontation discussed above. The allegations included physical abuse, Dana’s relationship with Pastor Rollins, Dana’s allegations that Steve was a homosexual and the devil, Pastor Rollins’ control over J.F., and Dana’s failure to get counseling. Dana’s objection to the evidence regarding the allegations was overruled at trial.
We conclude the evidence regarding Steve’s allegations was relevant. It demonstrated that Steve and Randy had similar difficulties with Dana and, in Steve’s case, the difficulties culminated in a threat of violence. The reasonable inference for the jury was that Randy likewise faced a threat of violence.
Judith Sheridans opinion of Danas and Mikel’s guilt
Dana argues the trial court erred in admitting witness statements on the question of the defendants’ guilt. As discussed above in the context of prosecutorial misconduct, Judith testified she believed Randy’s being a good father was the reason he was killed: “It was— he was — he was an unusual father, and I’m sure that was probably the reason why he was killed.” Neither Mikel nor Dana objected to this testimony, which precludes this court from considering the issue. See Jamison, 269 Kan. at 569-70. Then on Judith’s recross-examination, the following colloquy occurred between Judith and Mikel’s attorney:
“Q. You didn’t want to protect Dana Flynn, because as you sit here today — look at me — you personally think Dana Flynn is a bitch, don’t .you?
“A. No, I think she’s a murderer, too.
“Q. Okay. Couldn’t wait to say that, could you? And you base that thought on all the facts that you’ve told us about — ”
Judith’s statement was in response to a question requiring her to say whether she believed Dana was a “bitch.” The above question and answer were only a taste of the confrontational, acerbic tone Mikel’s trial attorney chose in approaching carefully selected witnesses, of which Judith was one. Mikel’s attorney failed to ask the court to admonish the jury to ignore the answer, but instead took the answer as a challenge and continued to badger Judith with questions culminating with the following: “And if it’s the last thing you do, you’re going to do your very, very best to fulfill Randy Sheridan’s announced wish he’s going to take the bitch down?”
Dana also complains on appeal of the statements of Randy’s parents presented by Agent Brandau when the prosecutor asked him to describe for the jury his December 22, 1992, interview of Dana:
“Q. Did you ask her any questions about whether or not she had been involved with Jerry Rollins in any way?
“A. Yes.
“Q. What did you ask her?
“A. If she was sexually involved with him.
“Q. And why did you ask that question?
“A. Because that was one of the allegations that was brought up to me by the Sheridans that — what they suspected to have been the cause of the death of their son.”
Mikel’s contemporaneous objection was then sustained.
With respect to Judith’s statement, the State points out that Mikel’s attorney also elicited such statements. During recross-examination by Mikel’s attorney the previous day, the following occurred:
"Q. The fact of the matter is, ma’am, of your own knowledge you do not know who killed Randy Sheridan, do you?
“A. I know who did.
“Q. You do not know, do you?
“A. I know.
“Q. Who do you know? And I want to know how you know.
“A. Sometimes you just know things.
“Q. Okay. Thank you. You’ve answered all I need to hear from you. Sometimes you just know, that correct — is that correct? Sometimes a girl just knows?”
The State points out in its brief on appeal how the cross-examination reveals the defense strategy of showing how everyone involved in the case, whether family of the victim or law enforcement officers, jumped to conclusions by pinning the murder on Dana and Mikel. Thus, it was a defense strategy to elicit testimony from the State’s witnesses on the matter of the ultimate question.
Perjury evidence
Dana contends the trial court erred in admitting evidence that members of her and Mikel’s family had testified at the inquisition and grand jury proceedings that the Fountain of Life Church doctrine did not include speaking in tongues or prophecy. Dana argues this evidence was irrelevant and prejudicial with respect to the murder charges, and to this extent, Dana’s argument is a repetition of her argument that the perjury charge and murder charges should not have been joined for trial. Our conclusion that the court did not abuse its discretion in joining the perjury and murder charges renders the admission of evidence on the perjury charge appropriate.
6. Violation of rights under Confrontation Clause
Dana argues the trial court violated her right to confrontation and committed reversible error by admitting hearsay evidence. The Sixth Amendment to the United States Constitution provides the criminal defendant with the right to be “confronted with the witnesses against him,” and the Kansas Constitution gives the criminal defendant the right “to meet the witness face to face.” Kan. Const. Bill of Rights, § 10. Although certain hearsay statements may be admissible as an exception to the hearsay rale, the Confrontation Clause may bar admission of such evidence. Idaho v. Wright, 497 U.S. 805, 814, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990). The Court in Idaho described the hearsay analysis under the Confrontation Clause:
“In Ohio v. Roberts, we set forth ‘a general approach’ for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. [Citation omitted.] We noted that the Confrontation Clause ‘operates in two separate ways to restrict the range of admissible hearsay.’ [Citation omitted.] ‘First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . ., the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ [Citations omitted.] Second, once a witness is shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’ [Citations omitted.]” 497 U.S. at 814-15.
An appellate court reviews the trial court’s decision to admit or exclude hearsay evidence under the abuse of discretion standard of review. State v. Smith, 271 Kan. 666, 670, 24 P.3d 727 (2001).
Telephone conversation between Pastor Rollins and Kathlyn Garza
Dana argues the trial court erred in admitting Pastor Rollins’ statements during the January 1994 conversation with his daughter. The State called Kathlyn Garza, Pastor Rollins’ daughter, who testified that she had a telephone conversation with her father in January 1994. Garza told her father Agent Brandau had come to talk to her, asking about speaking in tongues. The State asked Garza to describe Pastor Rollins’ reaction to this information:
“Q. And when you told him what you had told Jeff Brandau about praying in tongues, did you father have a response to that?
“A. Yes. He said I really didn’t know the answers to those questions, that it was more serious than I knew.”
The State also asked Garza to testily whether Pastor Rollins was afraid of the implications of her testimony:
“Q. Did he mention any specific concerns to you about what would occur if you did testify?
“A. Yes. He said that I would be helping put him in prison.”
Dana and Mikel objected to the admission of Pastor Rollins’ statements to his daughter both before and contemporaneous with the admission of the evidence. Dana and Mikel were granted running objections. Later in the trial, the State played a tape of the January 31, 1994, conversation for the jury and provided the jury with a transcript of the conversation. Dana and Mikel objected.
The trial court reasoned Pastor Rollins’ statements were admissible under K.S.A. 2001 Supp. 60-460(i)(2), which excepts from the general rule against those hearsay statements made against a party when “the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before it complete execution or other termination.”
This court in State v. Bird, 238 Kan. 160, 175-76, 708 P.2d 947 (1985), held there are five prerequisites for application of 60-460(i)(2):
“This exception to the rule against admitting hearsay establishes five prerequisites to its application: (1) the person testifying must be a third party; .(2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter.”
Dana argues that K.S.A. 2001 Supp. 60-460(i)(2) applies only to statements made by coconspirators while the conspiracy is in.progress but does not apply once the conspiracy is complete. She argues that the conspiracy was complete when Flynn testified at the inquisition proceeding.
Dana cites State v. Palmer, 248 Kan. 681, 810 P.2d 734 (1991), and State v. Cox, 258 Kan. 557, 908 P.2d 603 (1995), for the propositions that a conspiracy is not an ongoing offense and that a conspiracy is complete when the object of the conspiracy is complete. Palmer discussed conspiracy in the context of determining whether concealment of a theft would toll the running of the statute of limitations and concluded the running would be tolled if the accused had concealed the fact of the crime.
“To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations, there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the thefts by those owning or having possession of the property before the theft. Mere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106.” 248 Kan. at 690.
Cox, citing Palmer, held conspiracy to commit robbeiy “was completed at the time the robbery occurred.” 258 Kan. at 580. In State v. Johnson-Howell, 255 Kan. 928, 937, 881 P.2d 1288 (1994), we rejected the application of 60-460(i)(2) because the particular statements were made after the crime had been committed. On the other hand, this court in State v. Campbell, 210 Kan. 265, 277-78, 500 P.2d 21 (1972), discussed the application of 60-460(i)(2) in the case of a conspiracy. Campbell held in its analysis of State v. Borserine, 184 Kan. 405, 337 P.2d 697 (1959):
“K.S.A. 60-460(i) codifies in substance the exception to the hearsay rule as stated in Borserine. In Borserine this court accepted the view that a conspiracy is not terminated when an attempt to conceal the offense is made. The acts and declarations of one conspirator in the prosecution of tire crime or its concealment in the foregoing respects are considered the acts and declarations of all, and are evidence against all. (Syl. 5.)” 210 Kan. at 277.
Pastor Rollins attempted to conceal the conspiracy. Circumstantial evidence is sufficient to establish the fact that the conspiracy was ongoing at tire time of the declarant’s statement. See Bird, 238 Kan. at 176-77.
There was ample circumstantial evidence in this case to establish that the purpose of Pastor Rollins’ conversation with his daughter was to conceal the conspiracy. See Bird, 238 Kan. at 176-77. Thus, we conclude that the trial court did not abuse its discretion in admitting the evidence pursuant to K.S.A. 2001 Supp. 60-460(i)(2).
J.F.’s references to evil and the devil
Dana argues the admission of J.F.’s statements violates both the hearsay evidence rules and the Confrontation Clause. Dana cites no authority in this analysis. The State argues that the evidence was not offered for the truth of the matter but rather demonstrated how Dana was poisoning J.F.’s mind, thereby providing, in part, grounds for the underlying custody dispute.
The general prohibition against hearsay excludes “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 2001 Supp. 60-460. Dana concedes in her brief on appeal that tire statements of J.F. referring to the devil were not admitted to show Steve was the devil, but rather were admitted to prove that Dana or Pastor Rollins told J.F. that Steve was the devil. As Dana acknowledges in her brief on appeal, the State offered the statements to explain how Dana and Mikel could have been motivated to kill Randy. The prosecutor argued the following to the trial court on this matter:
“At the same time there were teachings to these children in the church by Jerry that Steve Flynn was evil. There will be testimony that the source of this — faggot, that he was a faggot, that — there were prophecies by Dana that Randy was evil, that there were prophecies by Jerry that Randy was evil. That is why he was lulled. And what this three-year-old child does is he confirms that these tilings were taking place.
“And there’s nothing about the text of what he says that is offered for the truth of the matter asserted, and hearsay is a technical objection. These things are offered to prove that the statements were made. We’re not offering them to prove that Randy is evil, we’re not offering them to prove that he’s the devil, we’re not offering them to prove that Steve is a faggot, and those are what the statements are. These statements are offered to prove that they were made. They are not hearsay.”
This court has held on other occasions that statements not admissible for the truth of the matter stated do not run afoul of the prohibition against hearsay. See State v. Smith, 271 Kan. at 673; State v. Vontress, 266 Kan. 248, 253, 970 P.2d 42 (1998); State v. Ninci, 262 Kan. 21, 52, 936 P.2d 1364 (1997); State v. Getz, 250 Kan. 560, 567, 830 P.2d 5 (1992). Thus, unless the State could have gained probative value from branding Steve Flynn as a devil, there cannot be a hearsay problem with J.F.’s statements. Dana was given ample opportunity to cross-examine Steve regarding whether he actually heard the statements. Further, Dana had the opportunity to present evidence tending to show J.F. had learned to believe his father was a devil from a source other than herself or Pastor Rollins.
Some of the statements, however, were presented for the truth of the matter:
“Q. [Prosecutor:] And on the 6th of June, did [J.F.] make a statement to you that you made note of?
“A. [Steve Flynn:] Yes, he did.
“Q. What did he say concerning you?
“A. Said, ‘We went to Pastor Rollins’ house and didn’t come back.’
“Q. And did he make any statements that you made note of on the 13th or that caused you concern?
“A. He said he had a new daddy and that that daddy was Jerry Rollins.” (Emphasis added.)
While there were no contemporaneous objections to hearsay, the trial court granted both Dana and Mikel standing objections to the admission of J.F.’s statements.
During therapist Fechter’s testimony regarding her time with J.F., she testified as follows:
“Q. [Prosecutor:] And when you asked him about the church, did he make denials about going to church?
“A. He just said that there was no such place, you know, diere was no such a building, there was no church.
“He also — -I—I—I don’t know if I said this, but one other thing he did say to me was, when I did ask him, you know, how he knew tiiat his dad was the devil, and he said to me that his mother had told him. that.” (Emphasis added.)
Again, there was no contemporaneous objection; however, both Dana and Milcel were granted a running hearsay objection to J.F.’s statements earlier during Fechter’s examination.
The emphasized language in the quotations above represents J.F.’s statements which must have been offered for the truth of the matter: whether Dana indeed said those things. The difference between the above two quotations and the “devil statements” is that the above quotations stated matters tending to support claims that the State wished the jury to take as the truth. State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996), likewise rejected the State’s assertion that the general hearsay rule did not apply. Harris, while serving time in a correctional facility, was convicted of first-degree murder and aggravated battery of a law enforcement officer following an incident in the correctional facility recreational area. During trial, the State offered evidence that a member of Harris’ gang, the Vice Lords, stated that the gang harbored ill will toward the correctional facility guards and intended to seek revenge. The State argued for the admissibility of the statements by saying they were not for the truth of the matter stated. On appeal, the court rejected this argument, finding the statements were presented as evidence of premeditation. Importantly, the court found that the truth of the matter stated was actually crucial to the State’s desire to admit the statements: “However, the only way in which the evidence can be used to infer premeditation on the part of the defendant is if the statements asserted were true, i.e., if the guards were actually cracking down on the Vice Lords and the Vice Lords felt that they should get even.” 259 Kan. at 698-99.
However, the Harris analysis did not end there but rather continued by considering whether the error was harmless. The court held that the admission or exclusion of evidence is subject to the harmless error rule. Harris held the error harmless because the statement merely bolstered the State’s “ample” evidence that the gang was angry with the correctional facility guards. 259 Kan. at 700.
The admission of J.F.’s hearsay statements was likewise harmless. There was ample evidence in this case that Dana was spending nights at Pastor Rollins’ house. For example, Ann Kohman, Pastor Rollins’ next door neighbor, testified she first saw Dana in the spring of 1992 and that she believed Dana was living at Pastor Rollins’ house. While it was error to admit J.F.’s statements which were presented for the truth of the matter stated, we conclude those admissions were harmless beyond a reasonable doubt; they did not affect the substantial rights of the parties. See 259 Kan. at 700.
7. Cumulative error
Dana argues cumulative trial error amounts to reversible error in this case. We have concluded that most of the alleged errors were not errors. None found to exist required reversal. Thus, we conclude that the defendant’s claim of cumulative error fails.
8. Motion for new trial
Dana argues the trial court erred in failing to grant her motion for a new trial based on newly discovered evidence. The standard of review of a district court’s denial of a motion for new trial based on newly discovered evidence is abuse of discretion. State v. Henry, 263 Kan. 118, 132, 947 P.2d 1020 (1997). If a reasonable person could agree with the trial court’s decision, it will be upheld on appeal. 263 Kan. at 132.
Henry described the applicable rule for deciding whether to grant a new trial based on newly discovered evidence:
“In deciding whether a new trial is warranted, the defendant bears the burden of proving that the evidence is in fact ‘new’ and could not have been produced at trial with reasonable diligence, and this evidence must be of such materiality that a reasonable probability exists that it would result in a different outcome at trial. [Citations omitted.]” 263 Kan. at 132-33.
Dana and Mikel called four witnesses during the hearing. One of the witnesses to testify was Mikel’s trial counsel, D. Lee McMaster. McMaster testified his secretary told him the day of the verdict in this case, November 26, 1996, that Jackie Perry from Salina had called his office claiming to have information regarding Randy’s murder. McMaster called Perry and agreed to meet him at a truck stop in Salina. McMaster described Perry’s story to the court.
Jackie “Jack” Perry testified at the hearing on the motion for new trial. Perry called McMaster’s office after he had read about Dana’s and Mikel’s convictions. McMaster, who was conducting the direct examination of Perry, peremptorily asked Perry to describe his one prior felony for terroristic threat, and multiple misdemeanors, including disorderly conduct, battery, theft, and driving while under the influence.
Perry testified he knew John Judd. Judd worked for Perry at Perry’s place of business, Blackjack Motors. Perry testified he and Judd were at a bar in Salina drinking. Perry estimated the date of the incident was 1 and Vz years prior to the November 27, 1996, hearing. Perry described the conversation:
“And, you know, out of the blue he goes, you know, ‘Did you hear about that murder over in Junction City?’ And, you know, I stopped for a minute, and I go, “Which murder are you talking about?’ I didn’t know at the time what he was referring to. Then he goes — he goes, ‘That murder that they call the jogger murder.’ And I said, “Well, yeah, I heard about that.’ I think I told him I’d read something about it in the newspaper, so I had seen something about it.
“And he goes, ‘Yeah,’ he says, ‘me and my brother are the ones that took the contract out on that.’ And I land of stopped, and I asked him, I said, “What do you mean you’re the one that took the contract?’ And he said, “Well,’ he says, ‘me and my brother was hired to kill that guy.’ And I said, ‘You mean the guy in Junction City?’ And he said, ‘Yeah,’ and then he proceeded to tell me how he did it.”
According to Perry, Judd seemed “pretty serious” and “dead serious” about the matter. Periy became nervous because of what Judd had said and offered to give Judd a ride home. On the way to Judd’s place, Judd became upset when Perry indicated he did not want to hear anything about the matter. Perry described what happened next:
“And that’s when, you know, he kind of got a little bit quieter, and he looked at me and he said, you know, ‘The same thing can happen to you,’ and about that point in time, I said, ‘You get the hell out of my car or there is going to be a problem right here right now.’ And, finally, he did get out of my car, and I left.”
Ultimately, Perry parted ways with Judd, citing Judd’s violence and use of drugs.
Mikel and Dana also presented the testimony of Laura Lee Sonneberger and Gregory J. Sonneberger. Laura testified she knew John Judd from working at the Red Lobster and had an affair with him while she was married to her husband, Gregory. When asked to tell the court what John Judd had said to her, Laura said,
“He asked me if he thought that — that—if I thought that he was capable of committing murder, and I asked him what did he mean by that, and his answer was that he indeed had committed a murder in Junction City, if I had remembered a jogger, and I said, yes, I remember, and he said that him and his brother, Sheldon, had done that.”
Toward the end of the relationship, Judd and Laura had a falling out, which culminated in assault and battery charges against Judd. Gregory testified and confirmed that his wife told him that Judd claimed to have murdered someone and that “it would be easy for him to do it to [the Sonnebergers].”
Laura testified John Judd received favoritism from the Salina police department. Jack Perry testified regarding a telephone conversation he overheard between Judd and someone at the Salina police department. According to Perry, Judd was accused of battery by a former girlfriend. Judd called someone at the police department, explained his story, hung up, and then said to Perry, “Well, that’s taken care of. They’ll take care of that for me.”
The State called Larry Thomas, a special agent with the KBI, at the hearing. Agent Thomas had interviewed Jack Perry. Agent Thomas described one of Perry’s statements: “During the course of going through [Perry’s] statement, [Perry] indicated that [Judd] brags a lot, malee up things.” Agent Thomas testified he arranged for Perry to make contact with John Judd while wearing a wire. While the agents were listening and taping the conversation, Perry did not broach the subject of Randy’s murder. Agent Thomas testified Perry explained he did not ask Judd about Randy’s murder because he was nervous about making Judd suspicious. Agent Thomas investigated Saline County records and discovered Judd was in jail on December 22, 1992.
Brian Shea, a captain with the Saline County sheriffs department, testified and confirmed John Judd was locked in the Saline County jail from March 6, 1992, until January 6, 1993. Shea testified inmates in the jail are not allowed to leave.
Agent Thomas testified about his interview of John Judd. Judd said he may have “bragged about, quote, ‘lacking someone’s ass,’ unquote, but that was it.” Agent Thomas testified on cross-examination that his investigation revealed Sheldon Judd, John’s brother, was in a welding class on December 22, 1992, until 1 or 1:30 p.m.
Sheldon Judd testified he was currently in prison, having been convicted of murder, robbery, burglary, and a conspiracy charge. Sheldon Judd denied having killed Randy and denied the existence of a professional contract for Randy’s murder. John Judd testified he was in jail during December 1992. While John Judd admitted he considered himself to be a braggart, he denied having made any statements about having killed Randy. On cross-examination, John Judd testified he believed his brother was a violent person and was capable of murder.
The trial court heard the motion for new trial. The court observed the witnesses and weighed the credibility of the evidence presented. Nothing was offered of such materiality, reliability, or credibility that there was a reasonable probability that a different ■ outcome would result from a new trial with the addition of the proffered evidence. Dana failed to establish that the trial court abused its discretion in denying her a new trial.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Lockett, J:
Gentry Bolton appeals his conviction of premeditated first-degree murder and aggravated robbery. He was sentenced to a term of life (hard 25) on the murder charge and 89 months for the aggravated robbery charge. The aggravated robbery sentence was ordered to run consecutive to the life sentence. Bolton claims the trial court (1) violated his right to confrontation by allowing the jury to view a surveillance videotape in the jury room during deliberations; (2) erred in failing to instruct the jury on lesser included offenses; and (3) erred in finding the State articulated race-neutral reasons for using peremptory strikes to remove African-Americans from the juiy pool.
On December 28, 1997, Shane Brees was working as a clerk at a convenience store in Kansas City, Kansas. Also working that afternoon was the shift supervisor, Robin Thebo. Thebo was doing electronic ordering, which caused to her to go back and forth from the store area to die manager s office. Brees was working the cash register.
At the time of the robbeiy, three customers were in the store or using telephones outside the store. Tanya Yearout entered the store, greeted Brees, and then went to the pop and candy aisles. Jim Freeman was using one of the pay telephones on the outside of the building to the right of the front doors, so he had parked near that telephone. Norma Carson was using one of the pay telephones on the outside of the building to the left of the front doors.
While using the telephone, Freeman noted a car, gray in color and driven by a young man, back up onto the curb next to him. Freeman could not see any tags on the car. Freeman assumed the car was stolen. The young man exited the gray car, left the car running, and went into the store.
Thebo exited the managers office to relieve Brees. As she walked down an aisle toward the register island, she heard someone say, “[G]ive me all your money.” Thebo knew the voice was not Brees’. She stopped and peered through the plexiglass sides of a display case to observe. Thebo saw a man on the other side of the counter pull a gun and point it at Brees. She observed the right side of the gunman’s face. The gunman was a black man wearing a dark knit stocking cap and a dark-colored shirt and pants. He was clean-shaven with short hair. Thebo turned to go back to her office to call for help. As she went though her office door, she heard a shot. Thebo locked the door and called 911. After a short time, she left the office, went to the front of the store, and found Brees dying on the floor near the register. Brees was gasping for air, and his eyes were closed. The cash register was open.
Yearout also observed the confrontation between Brees and the man. As Yearout was walking toward the Sunday newspapers, she heard a customer say, “[0]h, shit.” Yearout made eye contact with the man, but because she thought he was angry or very cold, she did not think there was any danger. As she reached for a Sunday newspaper, she heard the man say, “[G]ive me all your God damn money.” Yearout looked up and observed the cash register drawer open and Brees’ hand in the drawer. She observed Brees back up and heard the sound of money being transferred. Yearout then heard a shot and threw herself onto the floor.
Carson, who was talking on the outside telephone, heard the shot and turned to look into the store. She observed Brees fall to the floor. She watched a man walk casually out of the store, mumbling something about being right back. The man walked to the gray car backed up to the front of the store.
Freeman heard a popping sound. He then observed the man who had been driving the gray car leave the store and return to his car carrying a wad of money and a pistol.
Brees was transported to the hospital where he died as a result of a gunshot wound to the chest. The bullet had entered Brees’ chest; penetrated his heart, aorta, and the boney portion of his spine; and exited the back.
Officers at the scene found a single spent .380 caliber casing in an area behind Brees. Officers were unable to locate the bullet. The bullet, which was located on January 7,2000, by a convenience store employee, was a .380 caliber bullet. The police did not attempt to recover fingerprints because witnesses reported that the robber wore gloves into the store. There was a video camera mounted in the store. The camera had recorded the robbery. The manager gave the tape to the police, and the police reviewed the tape.
Officer Phillip Burger was dispatched later in the evening after the robbery occurred to check out a vehicle in the Sedonia Points Apartments which matched the description of the vehicle the gun man had used in the robbery of the convenience store. When Burger arrived, the headlights were in the “on” position and the battery was dead. Burger looked in the vehicle and found a black anide holster, a right-handed black glove, and a red scarf. The car was processed for fingerprints. None of the prints found matched Bolton’s. The car had been reported stolen on December 26, 1997.
During the investigation, Thebo, Yearout, and Carson were separately shown a photo line-up. Each identified Bolton as being the gunman in the robbery. Each of them also later identified Bolton at trial. Based on the line-up identifications, Kansas City, Kansas, police searched for Bolton. They enlisted the aid of the Federal Fugitive Apprehension Task Force. When police learned Bolton was calling a girl in Kansas City, a subpoena was obtained to secure telephone records from a telephone tap. On January 5, 1998, the federal task force went to a Kansas City address, found Bolton, and arrested Bolton without incident.
Bolton was tried to a jury on a second amended information charging Bolton with premeditated first-degree murder, felony murder in the alternative, and aggravated robbery. The jury found Bolton guilty of premeditated first-degree murder and aggravated robbery. Bolton appeals. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1).
VIEWING OF SURVEILLANCE VIDEOTAPE
The surveillance videotape of the robbery was admitted at trial without objection. The tape was played to the jury in open court with the defendant present. After the jury began deliberations, it requested to once again view the surveillance tape. Outside Bolton’s presence, but in the presence of his counsel and counsel for the State, the trial court requested that a VCR and television be placed in the jury deliberation room so that the jury could view the tape. Bolton’s counsel did not object.
A criminal defendant has the constitutional and statutory right to be present at all critical stages of his or her trial. See K.S.A. 2001 Supp. 22-3405(1); Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970). Bolton contends that the trial court committed reversible error because it did not inquire of him personally whether he waived his right to be present during the replaying of the videotape. He asserts he had a constitutional and statutory right to be present during the viewing and was prejudiced by not being present because the videotape was emotionally charged critical evidence.
Bolton’s argument that the highly prejudicial nature of the videotape (a recording in real time of a murder) made the jury’s repeated viewing of it unfair is not persuasive. The emotional impact of the videotape was unavoidable and undoubtedly felt by the jury at the initial viewing of the tape in open court where the defendant was present to mitigate the emotional impact in whatever manner possible. It cannot be assumed that the jury’s viewing of the tape again in the jury room compounded the emotional impact, resulting in undue prejudice.
K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the. prosecuting attorney.”
Because the videotape was “evidence arising in the case,” Bolton also contends he had a right under K.S.A. 22-3420(3) to be present when the tape was played back to the jury.
The application of K.S.A. 22-3420(3) typically arises where, after retiring for deliberations, the jury submits questions to the court regarding clarification on a point of law, see, e.g., State v. Coyote, 268 Kan. 726, 731-34, 1 P.3d 836 (2000); where the jury requests a readback of testimony, see, e.g., State v. Miller, 268 Kan. 517, 527, 997 P.2d 90 (2000); and where there have been ex parte communications between the judge and members of the jury, see, e.g., State v. Rayton, 268 Kan. 711, 717, 1 P.3d 854 (2000). This court has consistently held that K.S.A. 22-3420(3) explicitly requires that any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence unless the defendant is voluntarily absent. Coyote, 268 Kan. 726, Syl. ¶ 2. The defendant’s right to be present extends to any communication between the trial court and the jury. State v. Bell, 266 Kan. 896, 920, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
Here, the videotape was an exhibit which had been admitted into evidence during the course of the trial and had been played in open court before the jury and the defendant. A videotape is distinguishable from readback testimony in that the evidence on a videotape is static and is not susceptible to inflection or interpretation by a reader; regardless of the number of times a videotape is replayed or who plays the videotape, the message conveyed on the tape is the same.
In State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980), Fenton contended that the trial court erred in allowing the jury to view exhibits a second time prior to its deliberations with only the bailiff supervising the viewing. We found that once a case is submitted to the jury, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire. The Fenton court noted that the manner in which exhibits are handled at trial is within the trial court’s discretion, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse. Fenton demonstrated no prejudice as a result of a second viewing. 228 Kan. at 667; see also State v. Poulos & Perez, 230 Kan. 512, 514, 639 P.2d 477 (1982) (no abuse of discretion in permitting jury to listen, in the jury room, to an audiotape recording that was an admitted exhibit).
Therefore, we find a jury’s second viewing of exhibits admitted into evidence is not subject to the requirements of K.S.A. 22-3420(3). Bolton was not denied his right to confrontation.
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
The trial court instructed the jury to consider intentional second-degree murder as a lesser included offense of premeditated first-degree murder. Bolton had also requested the trial court instruct the jury to consider reckless second-degree murder and involuntary manslaughter as lesser included offenses of premeditated first-degree murder. The trial court refused to do so. Bolton contends that the trial court’s refusal to instruct on reckless second-degree murder and involuntary manslaughter is reversible error.
The standard of review for a claim of failing to instruct on lesser included crimes is whether the evidence, when viewed in the light most favorable to the defendant, supports an instruction on the lesser included crime. See State v. Jones, 267 Kan. 627, 633, 984 P.2d 132 (1999). The instruction need not be given, however, if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
Although Bolton’s defense was misidentification, he argues that the jury could have rejected that defense and believed he was guilty of the convenience store robbery and the killing of Brees but could have found that the killing of Brees was unintentional and reckless. The evidence Bolton points to in support of a reckless theory is the surveillance videotape of the crime. He asserts that the videotape depicts an individual who approaches the sales counter, leaps onto the counter, and grabs cash from the cash register. He contends that the videotape shows that as the individual leaps and grabs, the gun goes off and hits Brees in the chest. He argues that the combination of leaping onto the counter and grabbing the money from the register, while holding a loaded weapon pointed at the clerk, makes it possible that the gun accidently fired. He contends that if the jury believed that he was the robber, it could have concluded that his behavior was reckless rather than intentional.
The State relies on State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998), to demonstrate that an argument similar to Bolton’s has previously been rejected by this court. In Bailey, the defendant argued that even though he pointed the gun at the victim and pulled the trigger, he did not intend to kill the victim. In other words, he argued that an intentional act done without regard to consequences is reckless. This case is distinguishable, however, as Bolton does not argue that he pointed the gun and squeezed the trigger and unintentionally killed Brees. Instead, he argues that from the videotape evidence, the jury could have believed that the gun accidently discharged when he jumped upon the counter and grabbed the money from Brees.
Recldess second-degree murder and involuntary manslaughter are unintentional killings that require reckless behavior. They differ only in the degree of recklessness required to prove culpability. State v. Davidson, 267 Kan. 667, Syl. ¶ 2, 987 P.2d 335 (1999).
We have reviewed the videotape and find, as the district judge found, that if the jury believed Bolton was the robber depicted on the tape, the tape does not support a reasonable inference that the shooting was accidental. Trial court testimony supports our interpretation of the events on the tape. A customer in the convenience store at the time of the robbery and shooting testified that she saw and heard money change hands and saw Brees back away from the register. It was not until after the customer saw Brees back away that she heard a gunshot and threw herself on the floor. The trial judge was correct in finding that there was no evidence presented at trial to support a finding that Bolton recklessly shot Brees during the robbery.
BATSON CHALLENGE
During jury selection, defense counsel informed the court that he wanted to assert a Batson challenge, stating:
“[DEFENSE COUNSEL]: Okay. I noted that the State, I believe, struck six African Americans half of their challenges for cause.
“THE COURT: What are tire numbers of the jurors?
“[DEFENSE COUNSEL]: Number 16 was State’s strike, number two —
“THE COURT: Just give me the number of the jurors.
[Counsel gives juror numbers.]
“THE COURT: Okay, Let me review those and see if there’s a pattern.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: I have reviewed the jurors that you mentioned and frankly have seen from my own notes obvious reasons for them to be removed from this panel. Based upon that and the other strikes from both sides, I can’t see a pattern of discrimination displayed by the State in this case. I have reviewed each of your objections to diese particular jurors witíi my own notes and I can find no pattern of discrimination whatsoever. And, therefore, I’m going to deny your Batson objections at this point.
“[DEFENSE COUNSEL]: Okay.”
Bolton asserted that he presented a prima facie case regarding the State’s use of peremptory challenges to strike African-American jurors. He contended that the trial judge erred when the judge did not require the prosecutor to state race-neutral reasons for its peremptory strikes of African-Americans. The State argued that a fair reading of the voir dire questions showed that the entire panel was treated equally and that none of the State’s questions or actions were gauged to exclude African-Americans. The State asserted that we should rely on the trial court’s experience in presiding over many trials and voir dires, and trust the trial judge’s independent review of the peremptory strikes.
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), held that a State’s privilege to strike jurors though peremptory challenges is subject to the 14th Amendment Equal Protection Clause of the United States Constitution. 476 U.S. at 89. We conduct a three-step test in assessing whether a peremptory challenge violates the Equal Protection Clause under Batson. State v. Walston, 256 Kan. 372, 377, 886 P.2d 349 (1994). First, the defendant must make a prima facie showing that the prosecution has used peremptory challenges on the basis of race. Second, once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. Third, the trial court then decides whether the defendant has carried the burden of establishing purposeful discrimination. Batson, 476 U.S. at 96-98; State v. Edwards, 264 Kan. 177, 192, 955 P.2d 1276 (1998). Whether a prima facie showing has been made that the challenges were racially based is a question of legal sufficiency subject to plenary review. State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114, cert. denied 506 U.S. 849 (1992).
The Batson analysis was elaborated on in Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995), and that analysis was adopted by our court in State v. Vargas, 260 Kan. 791, 795, 926 P.2d 223 (1996). Under these cases, unless discriminatory intent is inherent in the prosecutor’s explanation, the reason given will be deemed race neutral. The second step does not require an explanation that is persuasive, only one that is facially valid, because that is not where the validity of the strike is considered. It is at the third step where the burden of persuasion regarding the improper motivation for the strike rests with the opponent of the strike. The judge should determine if the opponent of the strike has shown and proved purposeful discrimination. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Purkett, 514 U.S. at 767-68, Vargas, 260 Kan. at 795.
In this case, because the trial judge failed to make the required findings, the matter was remanded to the district court for a proper Batson hearing or a new trial. See State v. Bolton, 271 Kan. 538, Syl. ¶ 4, 23 P.3d 824 (2001). A Batson hearing was conducted on October 25, 2001, over 2Vz years after Bolton’s trial. The district court held the first step of the Batson analysis had been met when Bolton identified six African-Americans who were removed by the State through exercise of peremptoiy challenges. After hearing the prosecutor’s reasons for exercising the strikes and after hearing argument from both sides, the district court found Bolton had not met his burden in proving that the challenges were racially motivated. A reviewing court gives great deference to findings of the district judge in actions of this nature because the findings turn upon evaluation of the credibility of the prosecutor. State v. Alexander, 268 Kan. 610, 619, 1 P.3d 875 (2000); Walston, 256 Kan. at 378.
Juror 16 - L. Richmond
At the Batson hearing, the prosecutor contended that Richmond was struck because she had returned late, from a break. The trial transcript indicates that Richmond returned late from the lunch break during voir dire, claiming that she was unable to find a parking spot. The prosecutor asserted that Richmond was also struck because she was a church janitor and because she had family members involved in a shooting 2 years before voir dire (her brother had shot her mother). The prosecutor claimed to be especially concerned with how Richmond would react, under the circumstances, to seeing the surveillance videotape of the shooting in this case.
The State also noted in its brief that Richmond, when asked during voir dire if she had any ill will against the criminal justice system, replied, “Well, land of sort of.” When asked to clarify her response, however, Richmond indicated that she did not harbor any ill will against the agencies and the system.
Bolton asserted to the district court that his notes indicated that Richmond’s brother had been in a mental institution 2 years prior to voir dire. Bolton also noted that Juror 34, P. Reed, who had not been struck from the panel, also had a family member who had had contact with law enforcement. Reed’s husband had transported drugs prior to their marriage and had done time in prison.
Juror 31 - M. Berry
The prosecutor asserted to the district court that Beriy was struck because she knew another juror on the panel, Juror 15, M. Smith. The prosecutor contended that he disapproved of having people on a jury who know each other. Berry was also allegedly struck because the prosecutor had, a few years before, lived very close to her. The prosecutor was concerned that although he did not recognize Berry, she might at some point during the 5-day trial be influenced as a result of his having lived in the same neighborhood, through conversations with neighbors.
Bolton rebutted the prosecutor’s explanation in part by claiming that another juror, Juror 28, A. Valdez, who was not struck, also knew another juror on the panel, Juror 14, M. Oropeza.
The State, in its brief, refutes Bolton’s contention that jurors were treated differently, by alluding to the fact that the reason the State did not strike Valdez is because Oropeza had already been struck. It cannot be determined from the record which party struck Oropeza from the panel. The State contends the reason for removing a juror for knowing another juror on the panel is negated when either juror is struck. This reasoning is consistent with the prosecutor’s assertion at the hearing that he did not like to have people on a jury who know each other.
It must be noted that Smith, unlike Valdez, did not serve on the final juiy and was also struck by the State. The State notes, however, that at the time Berry was struck, Smith was still a member of the panel. The situation with Berry and Smith differed because Berry was struck for knowing Smith and then Smith was struck for a different reason. Although this may have been an orchestrated move by the prosecution, there is no indication that jurors in the same situation were treated differently. Additionally, there were other reasons why Berry was struck.
The State also points out in its brief that Berry made comments at voir dire that raised suspicion as to her ability to keep emotions and other outside influences from entering her decision. When asked whether any juror did not feel he or she would be able to be fair and impartial with observers in the courtroom, Berry indicated she was feeling “sympathy.” Berry stated:
“At this time, I really feel that I could [sic] be impartial — I mean, I just don’t think I could. I just feel, therefore, a lot of emotion now and it’s — I feel sick.
“Sick, I don’t — I feel that I don’t want to do it. I don’t want to make — ”
Later, when asked whether Berry could wait to hear all the evidence before deciding the case, Berry responded, “I — I’m not sure. I think I could, but I wouldn’t want to.” Berry also stated, however, that if she took an oath she would try to do her best to hear all the evidence before making her decision.
Juror 12 - E. Lasley
The prosecutor asserted that Lasley was struck because Lasley indicated he had gone to school with an Ed Bolton and Lasley was unaware of whether Ed was a relative of Gentry Bolton. Bolton did not refute the State’s basis for striking Lasley at the hearing.
In his brief, Bolton cites to the fact that Lasley was struck from the panel even though the prosecutor did not know if Ed Bolton and Gentry Bolton were related. The State asserts, however, that it is in the State’s best interest to strike any person who might be good friends with a relative of a defendant.
Juror 15 - M. Smith
The prosecutor asserted that Smith was removed because he had indicated he had a back problem. The trial was scheduled to last 5 days. The prosecutor claimed he thought it would be better to have people who were comfortable throughout the trial rather than take the chance of the need for additional recesses or a possible mistrial because of the back problems of this particular juror.
Bolton’s counsel admitted that he did not have an independent recollection of whether the State or the trial court had sufficiently questioned Smith about how burdensome it would be for him to serve as a juror or whether the court had offered any alternative arrangements. Bolton contended, however, that the issue was not sufficiently explored to justify the State’s using Smith’s back problem as the reason for striking him.
During voir dire, Smith indicated he had back surgery about a year ago, was on social security disability as a result of his back injury, and that the bench on which he was sitting was hurting his back. Upon moving to the padded chairs he would be seated in if a member of the jury, Smith indicated that he would not have a problem sitting during the trial.
The State asserts that attention and patience are important aspects for a juror and that the State should not be required to learn in the middle of trial that a juror is having back problems and may or may not have heard all the evidence.
furor 32 - M. Bryant
The prosecutor asserted that Bryant was struck from the panel because of a recent situation in which her granddaughter’s father had been charged or had had certain experiences with drugs. He also contended Bryant was struck because she was retired from the Social Security Administration and because she was doing maintenance work at the Johnson County Juvenile Detention Center. The prosecutor stated that her position at the detention center put her in contact with criminally charged juveniles and made it impossible for the State to determine her position on individuals who might be similarly situated to the young defendant in this case. Bolton was over 18 years of age at the time.
Bolton contended the prosecutor had been referring to the situation in which Bryant’s granddaughter’s father was charged with a drug offense and for which Bryant had had some contact with the father’s attorney. Bolton cited to the fact that the husband of Juror 34, P. R.eed, had been also been arrested on a drug offense and served time prior to their marriage, but that Reed had not been struck by the State. It must be noted that the record does not indicate Reed’s race.
The State accurately points out in its brief that seven persons on the jury other than Bryant had either been, or knew someone close to them who had been, charged with a crime. Two of these individuals, in addition to Reed, knew someone who had been charged with a drug-related offense. Of all these individuals, all but Reed and one other, C. Boland, were struck by the State. The defense struck Boland. The State asserts that Reed differs from the others because her husband was charged, convicted, and served time for his offense prior to Reed knowing him. The other jurors were all related or friends at the time the charge was made.
Bolton points out in his brief that Bryant was not employed by the Johnson County Juvenile Detention Center, but instead that it was Juror R. Hicks’ husband who was so employed. The State concedes this point in its brief, asserting that during voir dire the note was incorrectly made beneath Bryant’s name. The State claims Bryant and Hicks were seated next to each other in the courtroom and were listed next to each other on the prosecution’s worksheet. The veracity of these statements is unknown, however, as no seating chart or copy of the prosecution’s worksheet was included in the record on appeal.
Juror 4 - L. Green
The prosecutor noted to the court that Green was a “fairly young black male” and asserted that Green was removed because he wore hair braids. At the time the crime was committed in this case, tire defendant had also worn hair braids. The prosecutor claimed that he was concerned that because no other members of the panel wore hair braids, Green would bond with the defendant, or Green might develop a concern about possible negative connotations that might be drawn about individuals with hair braids. The prosecutor rationalized that he was down to his eleventh strike at this point, stating that he had to start looking at “stereotypes” and that hair braids “stuck out.”
Bolton argued that the presence of hair braids was not a race-neutral reason'for striking Green. He claimed that this bordered on being a racial argument because Green had this particular type of hair because he is African-American and because the defendant and Green shared this same racial characteristic.
In its brief, the State asserts this was not a racial characteristic, but a characteristic that both the defendant and Green happened to share. The State likens it to a tattoo, ear piercing, or certain style of clothing in attempting to show that the race of the juror was not determinative. The State contends that the sole issue at trial was identity, and that because Green was the only member of the jury with hair braids, he or other jurors might have been affected if testimony came in that the defendant wore hair braids.
District Court’s Decision
The district judge in rendering his decision did not individually address each juror who was struck with the exception of Green. Instead, the district judge held that after considering all the relevant factors, Bolton had not met his burden of proving purposeful discrimination. The district judge noted that of the 50 potential jurors, less than half, 20, were African-American. He also noted that of the 12 jurors who served on the final panel, 7 were African-American, 1 was Hispanic, and the other 4 were Caucasian. The district judge noted that the State’s explanation for the strike of each juror only had to be facially valid, not persuasive or plausible, and held that the State’s explanations met this requirement. The district court noted that similar circumstances evidence should be considered, but held that it is not conclusive. The district judge also considered the fact the prosecutor had six additional strikes he could have used to remove more African-Americans from the panel but did not do so.
As for the prosecutor’s explanation for striking Green, the district judge considered the presence of hair braids to be a “borderline” reason for striking a juror because the vast majority of those with that particular hairstyle are African-American. The court rationalized, however, that when you coupled this reason with the others and with all the factors, especially the credibility of the pros ecutor in this case and the number of African-American jurors who served in the case compared to the number that were available to serve, the strikes were not racially motivated.
Analysis
On appeal, Bolton contends the Equal Protection Clause of Section 1 of the Kansas Constitution Bill of Rights provides greater protection than that afforded by tire United States Constitution. Specifically, Bolton contends that this court should find that under the Kansas Constitution a prosecutor’s reasons for exercising a peremptory challenge must be more than just facially valid. He contends that the reasons must also have some relationship to the case at hand. Thus, Bolton contends that reasons such as the juror was late returning from a break, was a church janitor, etc., would not meet this standard because they are unrelated to the case.
Bolton cites to Parker v. State, 219 Ga. App. 361, 364-65, 464 S.E.2d 910 (1995), in support of this argument, as well as to Kansas jurisprudence history. In Parker, the Georgia Court of Appeals applied a higher standard than that mandated by the United States Supreme Court in Purkett. The Parker court required that in addition to the reasons being racially neutral, they must also relate to the case at hand. 219 Ga. App. at 364. In a concurring opinion, Judge Pope noted that Georgia courts have consistently required the State’s racially-neutral reasons to be related to the case, explaining that the Georgia Constitution’s Equal Protection Clause provides for the additional protection. 219 Ga. App. at 365.
Bolton contends that Kansas courts have recognized that the Kansas Constitution’s Equal Protection Clause provides greater personal rights than the United States Constitution, citing Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), in support. In Farley, this court noted that “the Kansas Constitution affords separate, adequate, and greater rights than the federal Constitution,” in deciding a case under Sections 1 and 18 of the Kansas Constitution Bill of Rights. 241 Kan. at 671.
Section 1 of the Kansas Constitution Bill of Rights is the Equal Protection Clause. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 778, 830 P.2d 41 (1992).
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Kan. Const. Bill of Rights, § 1.
This court has also held on other occasions that Section 1 of the Kansas Constitution Bill of Rights is given much the same effect as the Equal Protection Clause of the Fourteenth Amendment. State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 584, 701 P.2d 1314 (1985); State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981); see also State ex rel. Stephan v. Parrish, 257 Kan. 294, Syl. ¶ 5, 891 P.2d 445 (1995) (“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution finds its counterpart in §§ 1 and 2 of the Bill of Rights of the Kansas Constitution.”).
It appears that Bolton’s contention that Section 1 of the Kansas Constitution Bill of Rights requires the reason for the strike to have a relationship with the case is an issue of first impression. Under our prior case law, this court has continuously required only a facially valid reason for a strike and has never imposed the additional requirement of relationship to the case. See, e.g., Alexander, 268 Kan. at 620; State v. Sanders, 263 Kan. 317, 324, 949 P.2d 1084 (1997). This court addressed the contention that the Purkett decision allowed attorneys too much leeway in formulating race-neutral reasons in State v. Adams, 269 Kan. 681, 687-88, 8 P.3d 724 (2000), by responding that it is during the third step of the analysis that the district judge has the ability to reject any pretextual race-neutral justifications.
Bolton presents no argument that would warrant this court to find the Kansas Constitution provides greater protection under this particular circumstance. Thus, the prosecutor is only required to to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis.
Bolton also contends the reasons given by the State for exercising the six peremptory challenges against African-Americans were not facially valid. Specifically, Bolton points to the fact that the prosecutor claimed to have removed Smith because of his back problems, even though Smith assured the court that he was capable of sitting during the trial. Bolton also points out that Bryant was claimed, to have been removed because she had contact with juveniles through her work in maintenance at the Johnson County Juvenile Detention Center, but that Biyant never worked at the Johnson County Juvenile Detention Center.
As for the prosecutor s erroneous claim that Bryant had contact with juveniles through her work at the Johnson County Juvenile Detention Center, die mistake does not require that Bolton be granted a new trial. The State concedes in its brief that it was a mistake and posits a reasonable explanation.
More importandy, however, Bolton did not point to this error at the hearing. In State v. Poole, 252 Kan. 108, 843 P.2d 689 (1992), the State asserted that it had struck a member of the jury because she did not have children and that those left on the panel had children. The defense contended that another member of the juiy panel, Constance Mason, who was not struck, also did not have children. According to the transcript at voir dire, Mason had stated that she did not have-children. This court noted that the trial court had heard the evidence and the prosecution’s explanation, but that defense counsel and the trial court had not challenged the prosecutor’s statement that all other jurors had children. Under those circumstances, this court held that the trial court’s finding that the reason was racially neutral was not clearly erroneous. 252 Kan. at 111. Thus, after Poole, it appears that if the defendant or the trial court do not correct errors in statements of fact as presented by the prosecutor as reasons for exercising peremptory challenges, these facts will be considered as true for puiposes of determining whether the prosecutor set forth a race-neutral reason for the strike.
Even without considering this erroneous fact, however, the prosecutor set forth two other race-neutral reasons for the removal of Bryant: her granddaughter’s father was arrested on a drug charge and she was retired from the Social Security Administration.
After reviewing the prosecutor’s explanations in their entirety, the basis articulated to the trial court for striking each African-American was facially valid. Thus, this court is left to examine the third step of the Batson analysis.
As the district judge noted, the credibility of the prosecutor and the comparison of the number of African-Americans who served on the jury, 7 of 12, to the number of African-Americans who were on the original panel, 20 of 50, played a large role in his -decision that the there was no purposeful discrimination. As stated previously, this court gives great deference to the trial court’s judgment of credibility in these instances. Alexander, 268 Kan. at 619. This court has also previously recognized that it is appropriate to consider the number of potential jurors of the race allegedly discriminated against as compared to the number of jurors of that race who served on the juiy in determining whether there was purposeful discrimination. See Adams, 269 Kan. at 687 (presence of African-Americans on the jury is one of several factors to consider in deciding whether race-based strikes have occurred; prosecutor had additional strikes she could have used to remove additional African-Americans from tire jury); Vargas, 260 Kan. at 795 (trial judge can objectively compare numbers or other facts and subjectively evaluate credibility of prosecutor in explaining reasons for each challenged strike); Poole, 252 Kan. at 114 (percentage of African-Americans on venire panel and percentage of African-Americans who end up on jury panel, although not determinative, is relevant in determining whether there was purposeful discrimination).
Thus, under these circumstances, the trial court did not err in finding there was no purposeful discrimination in the State’s exercise of peremptory strikes against six African-Americans.
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The opinion of the court was delivered by
Davis, J.:
This appeal involves a dispute between parties to a lease agreement for an electronic message board. The plaintiff, relying upon the modified lease terms entered by a bankruptcy court in a Chapter 11 confirmation order, filed an action for the amount due under the modified lease in Labette County District Court. The lessee defendant raised a statute of limitation defense based upon the original lease provisions. The trial court concluded that the bankruptcy court had no jurisdiction to modify the lease and granted dismissal for failure to bring the action within the statute of limitations. The plaintiff appeals.
Our jurisdiction is based upon this court’s transfer from the Court of Appeals pursuant to K.S.A. 20-3018(c).
After visiting a booth at the Kansas State Fair, James Alen, D.V.M., expressed an interest in having an electronic message board sold by Recomm International Display, Ltd. (Recomm) placed in his veterinary center in Labette County, Kansas. Soon thereafter, a salesman for Recomm called on Alen and presented him with a lease agreement for an electronic message board.
Allen entered into a lease agreement with GIC Leasing, Inc., on January 18, 1995. He agreed to lease the electronic message board from GIC for $298.20 a month for 48 months. GIC handled the transaction and financed the lease agreement on behalf of Re-comm. On February 1,1995, the lease was transferred to Colonial Pacific Leasing Corp. Colonial later changed its name to Waterview Resolution Corp. (Waterview), the plaintiff in this action.
Allen entered into a separate agreement with Recomm wherein Recomm agreed to pay Allen a license fee of $270 a month for the right to advertise on the electronic message board. Recomm failed to make the required payments and Allen, in turn, refused to make payments to Waterview. Waterview sent a letter to Allen on December 19,1995, informing him of his delinquency and demanding $2,214.07. Waterview sent another letter to Allen on January 5, 1996, announcing its intention of accelerating the remaining unpaid balance due and demanding payment of $12,244.86.
On January 31, 1996, Recomm filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division. Allen, as a creditor of Re-comm, received notice of the bankruptcy proceeding with an opportunity to respond. Allen did not enter an appearance in the bankruptcy proceeding. At oral argument, Allen’s attorney admitted his client was put on notice of the bankruptcy court’s assumption of jurisdiction and subsequent reformation of the lease. Allen does not take issue with the bankruptcy court’s assumption of personal jurisdiction on appeal.
On May 13, 1998, the bankruptcy court entered its order confirming Recomm’s reorganization plan which, in part, reformed the original lease agreement between Mien and Waterview. Mien failed to malee the monthly payments to Waterview as required under the modified lease agreement. Waterview filed suit to enforce the provisions of the modified lease agreement. In an amended petition, Waterview made clear that it relied on the breach of the lease modified by the bankruptcy court confirmation order dated May 13, 1998.
In its memorandum decision the trial court noted:
“Recomm filed for bankruptcy protection in the United States Bankruptcy Court in Florida and, according to information provided by plaintiff, since the two contracts were so integral with one another that the bankruptcy court assumed jurisdiction over both contracts, put the defendant [Allen] on notice, and on May 13, 1998, reformed the contractual arrangements of the parties.”
The trial court dismissed Waterview’s action based upon its determination, consistent with the terms of the original lease agreement between the parties, that the applicable 4-year statute of limitation had elapsed. See K.S.A. 84-2a-506(l) (4-year statute of limitation for leases). The trial court relied upon the provisions of K.S.A. 60-520(a), which provide:
“In any case founded on a contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the time period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
The trial court noted that Waterview failed to present any writing signed by Allen concerning any new promise and that Waterview was not entitled to any extension or renewal of the limitation period due to the bankruptcy proceedings. Thus, the court concluded that the appropriate time for starting the limitation period was January 5, 1996, when Waterview notified Allen by letter that it was accelerating the unpaid balance under the terms of the original lease. Waterview had filed its action September 1,2000, almost 9 months beyond the 4-year statute of limitations if calculated from the January 5, 1996, letter. Allen s motion to dismiss based upon the statute of limitations was, therefore, granted.
Waterview’s action was timely filed under the lease as modified by the May 13,1998, confirmation order entered by the bankruptcy court. The basis for the trial court’s decision lies in its determination that the bankruptcy court had no jurisdiction to modify the lease agreement between Allen and Waterview, for if the modified lease was valid, the statute of limitations defense would fail. The trial court noted:
“The Court then turns to the issue of whether a United States bankruptcy court has the jurisdiction to modify the contractual terms of two parties wbo are not parties to the bankruptcy action. While the plaintiff [Waterview] argues .that: (1) the Florida Bankruptcy Court has a right to assume jurisdiction because the two contracts were closely related; and (2) dre bankruptcy court did in fact assume jurisdiction, the plaintiff offers no legal authority in support of its argument that the bankruptcy court has a right to assume jurisdiction. This Court finds, therefore, that the plaintiff has failed to meet its burden of proving that United States Bankruptcy Court for the Middle District of Florida, Tampa Division, had a right to assume jurisdiction over the lease agreement between the parties to this action and reform their contractual rights and obligations.”
During the pendency of this case, Waterview initiated an adversary proceeding against Allen in the bankruptcy court, asking for a specific order to enforce the May 13, 1998, order confirming the bankruptcy plan. On January 25, 2002, the bankruptcy court entered the following order:
“The Confirmation Order contains four provisions material to this adversary proceeding. First, the Confirmation Order modified the lease obligations that defendant James Allen (‘Allen’) owes to Colonial [Waterview], Second, the Confirmation Order released all claims between Colonial and Allen that existed before the Plan’s effective date of June 30, 1998, including all claims arising under the unmodified lease. Third, the Confirmation Order enjoined Colonial and Allen from asserting claims or defenses against the other for conduct occurring before June 30,1998. And fourth, the Court determined that it had jurisdiction to modify the leases, and to release and enjoin the claims arising before June 30, 1998.”
The bankruptcy court found that Allen violated the confirmation order with his statute of limitations defense and ordered Allen to notify the Kansas Court of Appeals of its order. The January 25, 2002, order also confirmed:
“2. The Court declares that the Confirmation Order modified the lease agreement between Allen and Colonial and that any statute of limitations must be measured in accordance with the lease as modified, and not based on events preceding June 30, 1998.
“3. Defendant James Allen is hereby enjoined from asserting any defense in the Kansas state courts that is barred by the Plan or the Confirmation Order entered in Recomm’s bankruptcy proceedings, specifically including any defense that measures the statute of limitations from a date preceding June 30, 1998, as well as any defense based on this Court’s alleged lack of jurisdiction.”
Allen filed a copy of the bankruptcy order with the Court of Appeals, in addition to a motion requesting that court to determine jurisdiction. After transfer, we refused to act on Allen’s motion, as to do so would result in an advisory opinion.
Analysis and Discussion
The district court decided that in modifying the lease between Allen and Waterview, the bankruptcy court had no “right to assume jurisdiction over the lease agreement between the parties to this action and reform their contractual rights and obligations.” As found by the trial court, the bankruptcy court had no jurisdiction, its confirmation order modification of the lease agreement between Allen and Waterview was void, and the terms of the original lease between the parties controlled.
The matter of the bankruptcy court’s jurisdiction is now before this court within the context of a case or controversy. The questions concerning the bankruptcy court’s jurisdiction are central to the resolution of the issues in this appeal. We first must address whether the authority existed to' inquire into the question of jurisdiction. The question unanswered by the trial court was whether the trial court may inquire into the matter of the bankruptcy court’s jurisdiction.
We first consider the issue of notice and opportunity with regard to the bankruptcy proceeding. The record is not entirely clear concerning the notice to Allen of the bankruptcy proceeding filed by Recomm. In his brief and argument before this court, Allen admits that as a creditor he had notice of the Recomm bankruptcy proceedings and an opportunity to raise the question of jurisdiction. This opportunity extended to contesting jurisdiction of the bankruptcy and the confirmation plan modifying the contract between Allen and Waterview. The opportunity also involved the right to appeal to a federal district court any adverse orders entered in the Recomm bankruptcy. Instead of availing himself of these opportunities, Allen seeks to collaterally attack the bankruptcy court’s assumption of jurisdiction over the contract between Allen and Waterview and the confirmation plan modifying his contract.
During oral argument, counsel for Allen responded to questions posed by the court regarding his notice and opportunity to be heard by the bankruptcy court on these critical questions. Counsel agreed that Allen got the mailings from the bankruptcy court but never retained counsel and never made an appearance in the bankruptcy court. He acknowledged that Allen was a party to the bankruptcy proceedings and had notice that the lease in question was modified by the bankruptcy court. Thus, we conclude that Allen was a party to the bankruptcy proceeding and both received notice and had the opportunity to participate.
Waterview, relying upon Celotex Corp. v. Edwards, 514 U. S. 300, 131 L. Ed. 2d 403, 115 S. Ct. 1493 (1995), argued that the trial court’s inquiry into the bankruptcy court’s jurisdiction was foreclosed. In Celotex, a federal court in Texas refused to comply with an injunction issued by a bankruptcy court in Florida, and the Fifth Circuit Court of Appeals affirmed. The United States Supreme Court reversed, stating:
“We have made clear that1 “[i]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decisions are to be respected.” ’ [Citations omitted.] If respondents believe the Section 105 Injunction was improper, they should have challenged it in the Bankruptcy Court, like other similarly situated bonded judgment creditors have done. [Citation omitted.] If dissatisfied with the Bankruptcy Court’s ultimate decision, respondents can appeal ‘to the district court for the judicial district in which the bankruptcy judge is serving,’ [citation omitted] and tiren to the Court of Appeals for the Eleventh Circuit [citation omitted]. Respondents chose not to pursue this course of action, but instead to collaterally attack the Bankruptcy Court’s Section 105 Injunction in the federal courts in Texas. This they cannot be permitted to do without seriously undercutting the orderly process of the law.” 514 U.S. at 313.
Allen did not challenge the bankruptcy court jurisdiction before the trial court, but the trial court’s decision to dismiss Waterview’s case was only possible by reason of tire trial court’s determination that the bankruptcy court had no jurisdiction to modify the lease.
Res Judicata
Waterview argues that once the bankruptcy court determined it had jurisdiction over the parties and the lease, and had the authority to modify tire lease, the question of jurisdiction was resolved. Allen chose not to enter his appearance and did not ques tion the bankruptcy court’s jurisdiction. Waterview contends that the matter of jurisdiction was, therefore, res judicata and may not be collaterally attacked in the district court. Subject to due process guarantees, the question of giving finality to prior judgments is a matter to be resolved by Kansas law. Richards v. Jefferson County, 517 U.S. 793, 797, 135 L. Ed. 2d 76, 116 S. Ct. 1761 (1996).
Kansas law provides that four conditions must be met in order that a prior adjudication becomes res judicata. Kansas law also sets forth three conditions before a party will be estopped from collaterally attacking a prior adjudication:
“An issue is res judicata when four conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and [4] identity in the quality of persons for or against whom claim is made. [Citation omitted.] The requirements of collateral estoppel are: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” Regency Park v. City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 (1999).
The question raised in this appeal is whether the trial court was authorized to inquire into the jurisdiction of the bankruptcy court. Some courts address the question as involving res judicata, while others approach the problem as one involving collateral estoppel. The present case more appropriately involves the question of collateral estoppel or issue preclusion. See Meredith v. Beech Aircraft Corp., 18 F.3d 890, 894 (10th Cir. 1994). While the concept of res judicata is broad enough to encompass both claim preclusion and issue preclusion, the modern trend is to refer to claim preclusion as res judicata and issue preclusion as collateral estoppel. See 46 Am. Jur. 2d, Judgments § 516.
The American Jurisprudence Encyclopedia generally notes that a court’s determination of its jurisdiction is conclusive:
“A prior adjudication on the question of jurisdiction is conclusive as to that issue, whether it is jurisdiction of the subject matter or of the parties. Under this rule, if a court is competent to decide whether the facts in any given proceeding confer jurisdiction and it decides that facts conferring jurisdiction are present, its unreversed and unvacated judgment, entered within the scope of the subject matter over which its authority extends, is supported by a conclusive presumption of jurisdiction. This is true even if the determination of jurisdictional facts is erroneous; relitigation will not be permitted to determine whether the court correctly found the facts on which the jurisdiction depends.” 46 Am. Jur. 2d, Judgments § 42.
See In re Estate of Johnson, 180 Kan. 740, 744-48, 308 P.2d 100 (1957) (declining to consider whether a probate court's finding in a prior proceeding upon which that probate court's subject matter jurisdiction rested was erroneous).
There are limits to the argument that collateral estoppel precludes consideration of a former judgment. A void judgment may be attacked at any time. Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 611, 24 P.3d 113 (2001). A judgment is void if the court that rendered it lacked subject matter jurisdiction, personal jurisdiction, or acted in a manner inconsistent with due process. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976). However, when dealing with a collateral attack upon ajudgment, the one asserting the attack has the burden;
“Collateral attacks upon judicial proceedings are never favored, and when such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid. [Citations omitted.]” Woodring v. Hall, 200 Kan. 597, 605, 438 P.2d 135 (1968).
In dealing with die collateral attack upon the judgment, the district court should have considered whether the subject matter, the issues, and the character of the judgment rendered were of a class within the scope of the powers of the bankruptcy court. See 46 Am. Jur. 2d, Judgments f 571.
In the present case, the bankruptcy court’s subject matter involved the lease of an electronic message board on which the petitioner in bankruptcy, Recomm, had a license to display advertising and was, therefore, of a class within the powers of the bankruptcy court. We conclude that the issues of jurisdiction and power to modify the lease were resolved by a court of competent jurisdiction and those issues are not subject to collateral attack in the district courts of Kansas. The trial court’s determination that the United States Bankruptcy Court for the Middle District of Florida had no jurisdiction to modify the lease agreement was in error and is reversed.
Several cases illustrate the concept that a decided and unappealed determination on the question of jurisdiction is not a proper subject of inquiry by another court. In In re North Alabama Anesthesiology Group, P.C., 154 Bankr. 752 (N. D. Ala. 1993), a creditor, James Zickler, entered into a consulting and noncompete agreement with the debtor, North Alabama Anesthesiology Group (NAAG). NAAG’s obligations were personally guaranteed by James Jeter and Thomas Shultz. NAAG filed a Chapter 11 bankruptcy petition, and the reorganization plan also discharged any debt against Jeter and Shultz.
Before the reorganization plan was confirmed, Zickler brought a civil action against NAAG, Jeter, and Shultz. In their answer filed after the confirmation of the reorganization plan, Jeter and Shultz argued the bankruptcy court’s order released them from any liability. The Alabama trial court granted Jeter and Shultz summary judgment, but the Alabama Supreme Court held “that the bankruptcy court’s confirmation order did not bar Zickler’s state court action against Jeter and Shultz under the doctrine of res judicata and reversed the trial court’s judgment.” 154 Bankr. at 755. See Zickler v. Shultz, 603 So. 2d 916 (Ala. 1992).
Following the state supreme court decision, NAAG, Jeter, and Shultz, filed a complaint in the bankruptcy court to stop the state court action. The bankruptcy court eventually enjoined Zickler from prosecuting the state court action.
On appeal to the federal district court, Zickler made two arguments: (1) Zickler did not have notice from the bankruptcy court of the confirmation hearing, and (2) the bankruptcy court lacked subject matter jurisdiction to release Jeter and Shultz. Jeter and Shultz, like Waterview in this case, argued “that a creditor such as Zickler may not collaterally attack provisions in a confirmed Chapter 11 plan of reorganization because an order confirming a reorganization plan is entitled to res judicata effect.” 154 Bankr. at 756. The federal district court, without definitively answering the question of whether the bankruptcy court originally had subject matter jurisdiction to release Jeter and Shultz, concluded, following a dis cussion of the res judicata elements, that “the bankruptcy court’s order releasing Jeter and Shultz as guarantors was of the type which is entitled to res judicata effect.” 154 Bankr. at 761.
In this case, tire bankruptcy court found it had jurisdiction over the lease agreement between Waterview and Allen. The North Alabama court explained that such decisions are conclusive for res judicata purposes:
“Therefore, a bankruptcy court’s authority arguably extends, for purposes of res judicata consideration, beyond the bankruptcy estate so long as the parties to the bankruptcy proceeding have tire opportunity to raise the question of jurisdiction. Based on the foregoing analysis, this court concludes that tire bankruptcy court, in confirming NAAG’s reorganization plan, determined that it had subject matter jurisdiction. Furthermore, Ziclder had the opportunity to object to the reorganization plan and did not appeal the bankruptcy court’s decision confirming NAAG’s reorganization plan. Consequently, this court concludes that the bankruptcy court’s order confirming NAAG’s reorganization plan constituted a ‘final judgment by a court of competent jurisdiction’ for res judicata purposes.” 154 Banlcr. at 760.
In In Re McGhan, 288 F.3d 1172 (9th Cir. 2002), the Ninth Circuit Court of Appeals reviewed a bankruptcy court’s refusal to reopen a Chapter 7 bankruptcy case for the debtor to file a complaint for violation of the permanent discharge. The debtor originally filed a Chapter 7 petition for bankruptcy following his convictions for sexual molestation. The debtor listed his stepson, who was one of the sexual molestation victims, as the holder of a claim in the form of a potential civil action. The bankruptcy court issued the discharge order that discharged the debtor’s debt to the victim.
After the victim reached adulthood, he brought a civil action in California state court seeking damages from the debtor. In the state court, the debtor argued the victim “was estopped from collaterally attacking the validity of the discharge order and injunction in state court.” However, the victim argued the state court should not honor the bankruptcy discharge “because he had not received the notice required by § 523(c)(1) as a prerequisite to automatic discharge.” The state court agreed and found it had jurisdiction to determine the sufficiency of the notice given to the victim, finally concluding the notice was indeed inadequate. The debtor returned to bankruptcy court seeking to file a complaint for the violation of the permanent discharge injunction. The bankruptcy court refused to reopen the case, and the debtor appealed to the Ninth Circuit.
The Ninth Circuit reversed the bankruptcy court’s refusal to reopen the bankruptcy case, finding the state court had no authority to adjudicate the adequacy of the victim’s notice. Relying on another Ninth Circuit case, In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), the court held:
“Second, Gruntz bars state court intrusions on all ‘bankruptcy court orders’ (or other ‘Core’ bankruptcy proceedings), 202 F3d at 1082, not just the automatic stay. As we stated in Gruntz, ‘state courts should not intrude upon the plenary power of the federal courts in administering bankruptcy cases by attempting to modify or extinguish federal court orders such as the automatic stay. [Citation omitted.]” 288 F.3d at 1179.
The court concluded that it was error for the bankruptcy court to refuse to reopen the bankruptcy proceeding. 288 F.3d at 1181-82. See also Marine Midland Bus. Loans v. Miami Trucolor Offset, 217 Bankr. 341, 345 (S. D. Fla. 1998) (“assuming proper notice has been given, a creditor cannot object to a provision in a reorganization plan that has been confirmed by the bankruptcy court without objection and not directly appealed”); In re Bowen, 174 Bankr. 840, 847 (Bankr. S. D. Ga. 1994) (“Therefore, the contents of a plan of reorganization may not be challenged on the grounds that the plan’s provisions are contrary to applicable law absent an appeal.”).
Confirmation Order
Waterview argued that the bankruptcy court modified the lease agreement between Allen and Waterview, thus creating a renewed contract obligation from which the statute of limitations should be calculated. The interpretation and application of a statute of limitations is a question of law for which an appellate court’s review is unlimited. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
Allen does not dispute Waterview’s interpretation of the reorganization plan as it applies to the lease between them. Rather, Allen argued the issue is whether “such modification extends the limitation period for bringing an action in Kansas.” His argument as set forth in his brief and before this court is as follows:
“Plaintiff [Waterview] tries to make much out of the federal bankruptcy court’s Order as res judicata. First, the issues before the bankruptcy court are not identical to the issues presented to the Kansas District Court. The issue before the bankruptcy court was the modification of the leases to preserve the value of the asset of the bankruptcy debtor. The issue in this litigation is whether the bankruptcy court’s Order extended the limitation’s period for plaintiff to bring a collection lawsuit under Kansas law. These are completely different issues and the bankruptcy court never addressed the present issue before the Court. The bankruptcy court Order is in no way res judicata of any issue before this Court.
“The bankruptcy court may certainly have tire jurisdiction and authority to modify the lease agreement — that is not the issue before this Court. Nevertheless, the use of any such modification of a lease agreement to alter and extend the hmitation period for pursuing a claim under the lease in Kansas must comply with the requirements of Kansas law, as set out in K.S.A. 60-520(a).”
The issue is not, as Allen maintains, “whether the bankruptcy court’s Order extended the limitation’s period for plaintiff to bring a collection lawsuit under Kansas law.” Rather, the issue is whether the bankruptcy court’s determination of its own jurisdiction is subject to collateral attack. See Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1053 (5th Cir. 1987).
In re Wrenn Ins. Agency of Missouri, Inc., 178 Bankr. 792, 796 (Bankr. W. D. Mo. 1995), observed that a confirmed Chapter 11 bankruptcy plan is a contract and that once a plan is confirmed, a creditor may not assert rights inconsistent with its provisions. The Tenth Circuit held in Paul v. Monts, 906 F.2d 1468, 1476 (10th Cir. 1990), that federal preemption does not bar a “claim for breach of contract premised on the plan of reorganization.” In re Nylon Net Co., 225 Bankr. 404, 406 (Bankr. W. D. Tenn. 1998), summarized the Paul holding:
“The Tenth Circuit has expressly held that a state law breach of contract action may be brought for a breach of chapter 11 plan obligations. [Citation omitted.] In Paul o. Monts, a Chapter 11 debtor in possession asserted a cause of action to enforce a provision of the plan of reorganization under a contract theory. The Court considered whether the remedies provided in the Bankruptcy Code for enforcing a Chapter 11 plan of reorganization are exclusive, and it determined that the mere availability of alternative Code remedies does not render the Code remedies exclusive. [Citation omitted.] That Court noted that ‘the underlying creditors’ rights asserted in bankruptcy proceedings are creatures of state law,” [citations omitted], and determined that a state law breach of contract action premised on the debtor’s plan of reorganization was proper. [Citation omitted.]”
Last, “a confirmed plan has res judicata effect.” Wrenn, 178 Bankr. at 796.
The plan of reorganization in this case provided: “(3) Modification to Leases (exclusive of Kiosk Leases): As of the Effective Date, the Leases (exclusive of Kiosk Leases) of Participating Lessees [Allen] that are parties to Advertising Contracts shall be deemed modified and revised as set forth below, which modifications shall be deemed effective as of the Effective Date.” The bankruptcy court also released all existing claims Allen had against Waterview:
“22. As of the Effective Date, all Persons, including but not limited to, all Lessees [Allen] and all individuals or entities that had notice of the Reorganization Cases are permanently enjoinedfrom asserting against the Released Lessor Parties [Waterview] . . . any other or further claims or causes of action based upon any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date. On and after the Effective Date, all Persons who have held, currently hold or may hold a claim or cause of action released pursuant to the terms of the Fourth Amended Plan are permanently enjoined from taking any of the following actions on account of any such released claim or cause of action, (a) commencing or continuing in any manner any action or other proceeding against a . . . Participating Lessor [Waterview] . . .; or (e) commencing or continuing any action in any manner in any place that does not comply with or is inconsistent with the provisions of the Fourth Amended Plan or the Confirmation Order. Any Person violating such injunction maybe in contempt of court and may be liable for actual damages, including costs and attorneys’ fees.” (Emphasis added.)
The plan precludes Allen from asserting that under the relevant statute of limitations defense, the time should be calculated from the original breach of the contract, as it would require an assertion of an act occurring prior to the effective date of the reorganization plan. This court calculates the statute of limitations from the time of the breach of the reorganization plan, which followed the bankruptcy court’s approval of the plan. The bankruptcy court was not extending the limitations period as Allen suggests but, rather, creating a new contract obligation that Waterview seeks to enforce in Kansas.
Allen argues that a bankruptcy court cannot modify a contract unless there was compliance with Kansas law and unless he assented to the modification “in writing” and “signed” the modification. See K.S.A. 60-520. The Federal Bankruptcy Code provides: “[T]he provisions of a confirmed plan bind the debtor, . . . and any creditor, . . . whether or not such creditor . . . has accepted the plan.” 11 U.S.C. § 1141(a) (2000). In addressing this issue, the Tenth Circuit Court of Appeals explained that a reorganization plan has some of the indicia of a contract, but it is also much more than a contract, and by statute, the plan is enforceable even as to persons who did not agree to its terms. In re CF & 1 Fabricators of Utah, Inc., 150 F.3d 1233, 1239 (10th Cir. 1998).
The confirmation order in this case modified the terms of the lease agreement between Allen and Waterview and settled the earlier dispute between Allen and Waterview. The confirmation order established a new and discounted lease obligation. Although Allen did not sign the agreement, by federal statute he was deemed a party to it. See In re Scott, 172 F. 3rd 959, 962 (7th Cir. 1999); In re Salina Speedway, Inc., 210 Bankr. 851, 855 (Bankr. 10th Cir. 1997). Allen’s reliance upon K.S.A. 60-520(a) ignores the bankruptcy court’s power by federal statute to modify the agreement in its confirmation order.
We conclude that the district court erred in dismissing Water-view’s action based upon the statute of limitations.
Reversed and remanded.
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The opinion was delivered by
Six, J.:
This is an uninsured motorist (UM) coverage case arising from a UM claim successfully litigated by Michael Tyler against Employers Mutual Casualty Company (EMC). Tyler, a deputy sheriff, was injured on duty in a collision with an uninsured motorist. EMC denied UM coverage. The district court granted summary judgment to Tyler. EMC appeals. Farmers Casualty Insurance Company (Farmers), also a defendant below, adopts many of the arguments advanced by Tyler on appeal.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The issues are: (1) Did EMC’s policy issued to Jefferson County (County) provide UM coverage for Tyler s collision? (2) If the policy provided UM coverage, how should Tyler’s worker’s compensation settlement impact the judgment against EMC? and (3) Was the form of the judgment and the award of interest and attorney fees proper?
We hold that under the facts here, Tyler is entitled to UM coverage and an award of attorney fees and prejudgment interest. However, we reverse on the date prejudgment interest is to commence.
FACTS
Deputy Sheriff Michael Tyler was injured while operating a Jefferson County Sheriffs department 1994 Crown Victoria patrol car on July 12, 1996. Tyler, in pursuit, collided with an uninsured car driven by Mark Hosier, an uninsured driver. Because of the collision, Tyler suffered bodily injury. Tyler’s personal auto insurance was with Farmers. Jefferson County was insured by EMC under a Business Auto Coverage form policy.
Tyler sued Hosier for personal injuries in Shawnee County. EMC moved to intervene in September 1996. Farmers elected not to intervene. EMC, in its motion to intervene, acknowledged that it issued a liability insurance policy covering the patrol car and that the “policy contains an underinsured motorist provision which, under certain conditions, provides insurance coverage for the insureds identified in the policy.”
After Tyler submitted his case to the jury, EMC moved for a directed verdict, which was denied. EMC then presented its case and again moved for a directed verdict, which was again denied. The jury found Tyler 10% at fault and Hosier 90% at fault. Tyler was awarded damages totaling $500,000 (reduced for comparative fault to $450,000). All other claims were dismissed without prejudice in anticipation that a separate suit would resolve the insurance-related questions.
Tyler filed a workers compensation claim against Jefferson County. EMC was also the compensation carrier. Tyler was awarded $16,098.25 in disability compensation, $21,847.02 in authorized medical expenses, and $500 in unauthorized medical expenses. In June 2000, the compensation award was amended to show no amount for future medical benefits. In its motion to intervene in the tort action against Hosier, EMC asserted its sub rogation lien under K.S.A. 40-284(e)(4) against any payments received from Hosier.
Tyler made demand upon EMC for UM benefits. EMC denied coverage. In its December 22,1999, letter of denial EMC said: (1) “Tyler would be entitled to UM benefits under EMC’s policy only if he could qualify as a permissive user of a vehicle with respect to which the policy provides UM coverage.” (2) “EMC’s policy provides UM coverage only with respect to vehicles owned by the named insured which are subject to the mandatory insurance provisions of Kansas law. The accident vehicle was a patrol car titled to the Jefferson County Sheriff.” (3) “The sheriff of a county is a separate and distinct legal entity from the county, not a subdivision of it.” (4) “Even if the accident vehicle had been owned by the County, the policy would not be required to provide UM benefits for persons operating it, because the vehicle was exempt from the [Kansas Automobile Injury Reparations Act] KAIRA and K.S.A. 40-284. . . . Any UM coverage for a government owned vehicle is purely contractual in nature, since no such coverage is mandated by statute.” and (5) If “Tyler could qualify for UM benefits under EMC’s policy, the amount demanded . . . would clearly exceed any potential liability for benefits of that type.”
EMC also asserted that any amount payable as UM benefits would still be subject to dispute because of Tyler’s alleged pending appeal of the workers compensation award. According to EMC, the appeal was voluntarily dismissed in November 2000.
The Contract Action Against EMC
After EMC’s refusal to pay UM benefits under its policy, Tyler sued EMC and Farmers in Jefferson County in a contract action to compel payment. He prayed for judgment against EMC and Farmers in the amount of the Shawnee County judgment entered against Hosier.
After discovery, Tyler moved, for summary judgment against EMC. He argued that EMC’s refusal to pay under the policy was an example of bad faith in light of its earlier admission (when it moved to intervene in Shawnee County) that the patrol car was insured and that there was UM coverage in the policy. Tyler also claimed that EMC was estopped from asserting that the patrol car was not insured because EMC admitted in the Shawnee County litigation that the patrol car was insured, and EMC also paid for the patrol car’s repairs.
The District Court’s Findings
In granting summary judgment against EMC, the district court set out “undisputed controlling facts.” We summarize the district court’s pertinent findings.
Hosier, an uninsured driver, was driving an uninsured Datsun on July 12, 1996. On the day of the accident, Tyler was assigned to and was driving a patrol car. After the accident, Tyler provided the investigating officers with the insurance card that was given to him by Jefferson County and kept in the patrol car.
Before the accident, Dean Cook, president and owner of Insurance is a Helping Hand, Inc., the policy “producer,” had submitted a bid to procure insurance for Jefferson County. The bid was for property and casualty insurance, which included coverage for Jefferson County automobiles ranging from ambulances to sheriff s vehicles. As part of the insurance coverage process, Cook submitted a document titled “Automobile Coverages” which requested a $1,000,000 limit for underinsured motorist (UIM) and UM coverage, with a $500 deductible for physical damage and comprehensive coverage. He requested hired and borrowed auto coverage. Attached to that form was a listing of the vehicles that were to be insured.
EMC provided Cook with a document labeled “Quotation— Business Auto Policy” (quotation) valid from October 23, 1995, through December 7, 1995, including the premiums to be paid and policy coverages; liability coverage limits of $1,000,000 for a premium of $16,340.00; UM coverage limits of $1,000,000 for a premium of $3,987.00; and UIM coverage limits of $1,000,000 for a premium marked as “included.” All vehicles to be covered by this quotation were listed.
The patrol car was listed, along with a breakdown of the cost of the insurance premium for this individual vehicle. The listing specified that the liability premium was $288, the UM premium was $81, UIM coverage was included, and the comprehensive premium was $253, with a collision premium of $206.
Cook received the quotation from EMC in the fall of 1995 and presented it to the Jefferson County Commissioners. The commissioners decided to accept the proposed coverage, paying $32,938, the quotation price for the coverage.
The EMC policy was effective January 1,1996, through January 1, 1997. Cook received a stack of insurance cards, which he provided to Jefferson County for all of the insured vehicles. EMC also issued and delivered to Cook tire Commercial Auto Declarations-Business Auto Coverage form with the schedule of covered autos. The premium and coverages were as listed on the quotation.
EMC paid $3,942.79 for the repairs to the patrol car.
Cook testified that EMC never notified him that the patrol car was not covered by insurance. As far as Cook knew, the patrol car was insured by EMC at the time of the accident. Cook testified that Jefferson County did not provide him with any documents rejecting in writing the UM or UIM coverage for the vehicles being insured by EMC. Linda Hibberts, an employee of Helping Hand, Inc., in the normal course of business prepared and sent a letter to the Jefferson County Sheriff s department listing the vehicles that were insured. This list included tire patrol car. In fact, for each and every motor vehicle listed on the EMC policy form with the schedule of covered autos, a charge for UM coverage was included. EMC’s insurance contract specifically provided that permissive users were to be considered insureds.
The District Court’s Conclusions
The district court concluded that EMC was contractually liable. Tyler was entitled to $411,554.73, plus accrued interest of $74,633.01 through September 1, 2000, plus $113.07 per day thereafter until paid. Based on this conclusion, the district court deducted the workers compensation award from the $450,000 judgment. Tyler was also awarded $12,568.75 in attorney fees and $946.11 in costs.
EMC later filed a motion for reconsideration and for supplemental findings. The district court amended its previous decision to “accurately reflect” that its decision against EMC was based upon a finding of contractual liability. The district court specified that it “did not determine liability against [EMC] based upon the legal theory of equitable estoppel.”
DISCUSSION
The pivotal question is whether the EMC policy issued to Jefferson County provided UM coverage for Tyler while he was driving the patrol car.
The patrol car was specifically listed on EMC’s policy quotation presented to the county commissioners. Attached to the policy issued by EMC to Jefferson County was a schedule of owned/covered autos. The patrol car was described in the policy as having UM coverage.
Summary judgment is appropriate if there are not genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Summary judgment decisions are reviewed de novo. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 863 P.2d 355 (1992). EMC’s assertion on appeal is that the district court’s ruling was incorrect because of an improper interpretation of both insurance policy language and applicable law. EMC does not challenge summary judgment as an improper procedure for disposing of the contract dispute at issue here. The essential facts are documented in the parties’ summary judgment submissions and the district court’s findings. Our standard of reviewing summary judgment is well established. See, e.g., Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Policy language
EMC argues that the policy provided only liability coverage, not UM coverage, for the patrol car.
Under the policy, liability insurance was included for “any auto.” UM and UIM coverage was included for autos owned by the County. The policy under “Section I Covered Autos” said:
“6. OWNED ‘AUTOS’ SUBJECT TO A COMPULSORY UNINSURED MOTORISTS LAW.
Only those ‘autos’ you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage. This includes those ‘autos’ you acquire ownership of after the policy begins provided they are subject to the same state uninsured motorists requirement.”
The patrol car was titled in the name of “Jefferson County Sheriff Dept.” EMC asserts that the patrol car was not owned by the named insured, “Jefferson County, Kansas,” and, therefore, did not have UM coverage. The basis for EMC’s argument that the County did not own the patrol car arises from the fact that the car title listed the Jefferson County Sheriff s department as the owner. The district court did not make a specific finding that the patrol car involved in the accident was owned by Jefferson County. However, county ownership is implicit in the district court’s ruling that the patrol car had UM coverage.
EMC calls on Lee v. Wyandotte County, Kan., 586 F. Supp. 236 (D. Kan. 1984), and State v. McCarty, 104 Kan. 301, 179 Pac. 309 (1919), to support its no ownership claim. A review of the facts in Lee and McCarty shows why neither case is persuasive here. Lee involved a 42 U.S.C. § 1981 etseq. (1982) civil rights action brought by former jail inmates. The inmates sued the county and county officials, including the county commissioners, for alleged participation in the wrongful shooting of the inmates by a former deputy sheriff. Lee noted that under K.S.A. 19-801a, the sheriff was an independent elected official of the county. The commissioners had no authority to supervise discipline or remove the sheriff. The conduct of the sheriff and his subordinates could not be attributed to the county commissioners. 586 F. Supp. at 238-39. McCarty was an appeal by defendants convicted of felonious obstruction and resistance of a sheriff in executing a warrant of arrest. The McCarty court, in affirming the convictions, said that “the sheriff is the state’s chief executive and administrative officer in his county.” 104 Kan. at 305.
EMC also asserts that “[o]wnership and legal title are presumed to be one and the same concept in defining the scope of insurance coverage.” EMC cites several cases to support this argument; however, we do not find the cases apt precedent under the facts here. See Farmers Ins. Co. v. Schiller, 226 Kan. 155, 156-57, 597 P.2d 238 (1979) (involving a question of ownership when a truck was wrecked before its sale was complete and before a proper title certificate was delivered); Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, Syl. ¶ 3, 429 P.2d 931 (1967) (sale of individual’s automobile was void because of failure to assign and deliver certificate of title; thus, purported seller remained the owner). EMC does not allege a sale between Jefferson County and the sheriff s department. The County purchased the insurance and paid the premium for UM coverage on the patrol car. We said in Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 84, 211 P.2d 113 (1949): “A person may actually own an automobile and thus have an insurable interest in it and yet not have legal evidence of title.” Here, the County owned and had an insurable interest in the patrol car and insured that interest by contracting with EMC. Again, different facts and different issues distinguish Farmers Insurance and Maryland Casualty from the case now before us. EMC also cites Canal Insurance v. Sinclair, 208 Kan. 753, Syl. ¶ 4, 494 P.2d 1197 (1972) (person named in certificate of title is owner as defined in K.S.A. 8-722 [repealed in 1973]), and Grimmett v. Burke, 21 Kan. App. 2d 638, 651, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996) (issue of which auto dealership owned vehicle at time of accident was for jury). Neither case supports EMC’s position. Here, there was neither a transfer of the patrol car between two parties insured by different insurance companies nor any transfer at all.
We next address EMC’s K.S.A. 28-107b separate ownership contention. EMC argues that K.S.A. 28-107b contemplates the separate ownership of law enforcement vehicles. We disagree. K.S.A. 28-107b addresses the methods available for providing vehicles to the sheriff and deputies. For the purpose of carrying out the provisions of K.S.A. 28-107b the board of county commissioners may either purchase or lease and finance the operation and maintenance of vehicles. The board may also authorize the use of private vehicles and pay mileage. Contrary to EMC’s position, K.S.A. 28-107b does not mandate separate ownership of the patrol car.
The legislature has provided guidance on county-sheriff relationships. See K.S.A. 19-101 (a county is a “body corporate and politic” and is empowered to “purchase and hold real and personal estate for the use of the county”); K.S.A. 19-805(c) and (d) (sheriff submits a budget for the financing of the operation of the office to county commissioners; any personnel action taken by sheriff is subject to policies and procedures established by county commissioners; sheriff submits a budget for approval by county commissioners).
EMC contends that neither the county nor the sheriff intended the patrol car to have UM coverage. If either the sheriff or any of the county commissioners were deposed, their testimony is not in the record on appeal. We find no support in the record for EMC’s assertion that “[b]oth the County and the Sheriff asked for liability coverage only, and no UM coverage, for sheriff s patrol cars before, during, and after the negotiation of the contract of insurance.” Cook, in his deposition testimony, agreed with Tyler’s counsel that to the best of his knowledge, Jefferson County paid for UM coverage on the patrol car. The EMC policy shows that the county obtained insurance coverage for vehicles operated by various departments, i.e., the sheriff s department, appraiser’s department, highway department, plan and zoning, weed department, maintenance, and health department.
According to Cook’s deposition testimony, a 1994 Crown Victoria other than the patrol car was removed from the policy on July 1,1996, after it had been totaled in an accident. A substitute vehicle was added to the policy, but there was no request for UM coverage. The record also includes a letter indicating that a 1991 Ford Taurus was transferred from the sheriff s department to the county appraiser. Attached to the letter was a copy of the Taurus’ insurance card issued by EMC effective January 1, 1996, to January 1,1997. The card indicated “liability” coverage. The Taurus had been listed on the December 1995 schedule that indicated that UM coverage was included. We find no explanation in the record for this change in coverage. The record is clear that no change of UM coverage was made for Tyler’s patrol car.
We agree with the district court. Tyler is entitled to UM coverage, and the patrol car was owned by the County.
The Workers Compensation Award
EMC argues that even if UM coverage applied to the patrol car, UM benefits would be limited because of Tyler’s workers compensation award. EMC’s contention involves the interpretation of K.S.A. 40-284(e)(4); thus, we have unlimited review. Sebelius v. LaFaver, 269 Kan. 918, 922, 9 P.3d 1260 (2000).
K.S.A. 40-284(e)(4) says:
“(e) Any insurer may provide for the exclusion or limitation of coverage:
(4) to the extent that workers’ compensation benefits apply.”
The question here is to what extent did benefits apply? After a 10% reduction for comparative fault, elements of Tyler’s final judgment against Hosier in the Shawnee County tort action were:
(1) Noneconomic loss to date $ 9,000.
(2) Future noneconomic loss to date $ 72,000.
(3) Medical expenses to date $ 36,000.
(4) Future medical expenses $ 90,000.
(5) Loss of earnings & ability to earn $ 8,100.
(6) Other economic loss to date $ 900.
(7) Future loss of earnings & ability to earn $185,400.
(8) Other future economic loss $ 48,600.
(9) Loss of consortium $ O.
Tyler received the following workers compensation award:
Disability compensation $ 16,098.25
Authorized medical $ 21,847.02
Unauthorized medical $ 500.
The district court found that under K.S.A. 40-284(e)(4), EMC was entitled to a credit of $16,098.25 for economic losses and $22,347.02 for medical payments. The district court concluded that EMC owed Tyler $411,554.73 (the difference between the judgment in the tort case and Tyler’s workers compensation benefits) plus accrued interest.
The EMC policy “limit of insurance” subsection said:
“We will not malee a duplicate payment under this Coverage for any element of ‘loss’ for which payment has been made by or for anyone who is legally responsible.
‘We will not pay for any element of ‘loss’ if the person is entitled to receive payment for the same element of loss’ under any worker’s compensation, disability benefits or similar law or personal injury protection coverage.”
EMC reasons that the policy excludes any UM benefits for any portion of the tort award that reflects a loss compensable under workers compensation laws, even if Tyler did not collect workers compensation benefits for such a loss. EMC would have us exclude UM benefits for the portions of the $411,554.73 judgment that reflect medical expense, loss of earnings, or loss of the ability to earn, reducing the judgment against EMC to $81,000.
Tyler counters that the purpose and language of K.S.A. 40-284(e)(4) support a reading that only workers compensation benefits actually awarded to the injured party may be excluded. We agree.
We construe K.S.A. 40-284 liberally to carry out its remedial objectives to provide financial protection to the named insured for injuries caused by a negligent uninsured motorist. Any term of an insurance policy that limits the statutorily required UM coverage must be strictly construed. Insurance policy provisions which purport to condition, limit, or dilute die broad, unqualified uninsured motorist coverage mandated by K.S.A. 40-284 are void and unenforceable. Stewart v. Capps, 247 Kan. 549, 555-56, 802 P.2d 1226 (1990).
We reason that only awarded workers compensation benefits qualify as “duplicative.” The legislature intended K.S.A. 40-284(e)(4) to permit an insured to recover UM/UIM benefits which are not duplicative of workers compensation benefits. Any other result would negate the legislature’s intent to require UM/UIM coverage protection. See Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686, 847 P.2d 1292 (1993). An insurer may exclude or limit its UM/UIM coverage only to the extent that duplicative workers compensation payments have been awarded.
Here, the district court correctly allowed a setoff for duplicate benefits awarded to Tyler. Any language in EMC’s policy contrary to the language of K.S.A. 40-284(e)(4) allowing a set off for duplicative workers compensation benefits is void and unenforceable.
EMC also argues that the “other insurance” clause in the policy reduces its liability. According to EMC, its coverages are excess if the accident vehicle is not owned by the named insured. Our ruling on the patrol car’s ownership disposes of EMC’s “other insurance” clause contention. Because the patrol car was owned by the County and covered by EMC’s policy, any UM benefits would be paid by EMC, the primary insurance carrier.
The Judgment
EMC claims error in the “form of the judgment” and in the award of prejudgment interest and attorney fees. Resolution involves questions of law, over which we have unlimited review. See Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 242, 898 P.2d 1131 (1995).
In awarding UM benefits to Tyler, the district court found that Tyler (1) was a permissive user, covered by a written insurance contract providing UM/UIM coverage, and (2) is entided to collect the amount of the judgment he obtained against Hosier from EMC based upon the written insurance contract.
EMC points out that: (1) its policy provided no liability insurance for Hosier; (2) under K.S.A. 40-287, it would be entitled to subrogation rights against Hosier; and (3) it has no obligation to pay the judgment against Hosier. The district judge commented that he did not think anyone disputed these points. Tyler’s counsel agreed.
EMC furthers its objection to the judgment form contending that the district court erroneously ordered it to pay the Shawnee County tort judgment, which would extinguish its subrogation rights against Hosier. EMC relies on Ray v. Caudill, 266 Kan. 921, 974 P.2d 560 (1999). In Ray, a UIM case, the heirs of a deceased truck driver obtained a $2,000,000 judgment against Caudill, the tortfeasor. The heirs filed a garnishment action to collect the $2,000,000 under the UIM provisions of the insurance policy on the truck. The district court granted summary judgment in favor of the heirs for $300,000 (the difference between the South Dakota UIM policy limit of $350,000, and Caudill’s $50,000 liability limit). Finding the lack of a statutory basis for garnishment, we reversed and remanded with directions to dismiss the garnishment action. 266 Kan. at 925.
Here, Tyler did not file a garnishment action. Instead, he claimed UM benefits under the EMC policy in a separate contract action against EMC and Farmers. The litigation path followed by Tyler is described in Ray. 266 Kan. 921, Syl. ¶ 2.
As Tyler points out, he used the measure of damages in the tort action to claim the amount owing in the contract action against EMC. As the insurer of the patrol car, after paying UM benefits to Tyler, EMC has K.S.A. 40-287 subrogation rights against Hosier. The judgment against EMC was based on contractual liability under the UM provision in the insurance contract. The district court did not err in rendering a judgment against EMC based on contractual liability.
Interest
EMC also argues that the district court erroneously ordered it to pay prejudgment interest dating back to November 28, 1998, the date the judgment was rendered against Hosier in the Shawnee County tort suit.
According to EMC, Tyler’s appeal from the workers compensation award prevented a final determination of the applicable UM benefits. Tyler argues that the damages became liquidated when the Shawnee County District Court determined that Hosier was an uninsured motorist and fixed the amount of damages arising out of the accident. In arguing that it was unnecessary to have a final determination of workers compensation benefits, Tyler maintains that “[t]he amount due is fixed by the court’s entry of judgment, and EMC retains a right of recoupment in any amounts that Tyler may later collect from workers compensation.”
K.S.A. 16-201 provides in part:
“Creditors shall be allowed to received interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining tire balance.”
We considered the prejudgment interest question in Kilner: “A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation.” 252 Kan. at 686-67. We found that Kilner was not entitled to prejudgment interest. The parties had agreed that Kilner would be entitled to recover $75,000 if duplicative workers compensation payments were excluded. However, the insurer sought a setoff for all workers compensation benefits rather than simply duplicative benefits. The district court agreed with the insurer. Even though we reversed the district court, we held that the claim was not liquidated because the amount due Kilner was not certain. K.S.A. 16-201 did not apply.
Both Tyler and EMC advance Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, 24 P.3d 711 (2001), to support their positions. Mitchell involved two separate policies written by Liberty Mutual and Shelter Mutual providing UIM coverage. The district court found that prejudgment interest began to run on October 12,1999, when the court entered its judgment finding Liberty Mutual not liable. On appeal, Mitchell disagreed and contended that interest should have begun on March 29, 1995, which was the date partial judgment was entered against the tortfeasor.
Mitchell argued that Kilner was distinguishable in that the amount of damage in Mitchell’s case was not in dispute and the only issue was whether Shelter or Liberty would be liable. We said: “The fact that a good faith controversy exists as to whether the defendant is liable for the money does not preclude a grant of prejudgment interest under K.S.A. 16-201.” 271 Kan. at 705. We found that in Mitchell, the question was really one of coverage, not amount. There was no question that Shelter was liable for $50,000. Thus, we concluded that the interest ran from the date of the judgment, March 29, 1995, at which time the amount Shelter was required to pay became fixed. 271 Kan. at 706.
The record here contains the administrative law judge’s (ALJ) workers compensation award dated November 30, 1999, and the later nunc pro tunc order of June 29, 2000, amending the award to reflect that Tyler was not awarded future medical benefits. The ALJ’s award had originally shown that future medical compensation would be considered upon proper application. The Jefferson County District Court’s March 15, 2001, memorandum decision shows the workers compensation award, totaling $38,445.27, as an undisputed, controlling fact.
Since the record shows that the question of future medical benefits was decided June 29, 2000, the amount of workers compensation was no longer in question as of that date. The district court is correct in ordering prejudgment interest; however, die key date is June 29, 2000, when the amount due and the date both were “fixed and certain.”
Attorney fees
EMC also takes issue with the district court’s decision to award attorney fees under K.S.A. 40-256. We review the district court’s decision regarding attorney fees under an abuse of discretion standard. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 262-63, 815 P.2d 550 (1991). The issue is to be determined by the district court based on the facts and circumstances of each case. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598-99, 528 P.2d 134 (1974).
K.S.A. 40-256 provides, in part:
“[i]n all actions hereafter commenced, in which judgment is rendered against any insurance company . . ., if it appear[s] from the evidence that such company, .... has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs.”
The presence of a good faith legal controversy, particularly if it involves matter of first impression, may constitute just cause or excuse for insurer’s refusal to pay. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 522-23, 661 P.2d 812 (1983). EMC argues that an issue of equitable estoppel was present here and represented an issue of first impression in Kansas. In its March 15, 2001, memorandum decision the court included the following “uncontested controlling” fact:
“36. Plaintiff sued Mark Hosier and Employers entered its appearance admitted [sic] that the vehicle that Mike Tyler was driving was insured by the Defendant Employers [EMC] and that there was underinsured motorist coverage and defended the actions of Mark Hosier in the case.”
The above finding noted EMC’s position in the Hosier tort case in Shawnee County. The district court determined EMC’s liability based on the contract, not on the doctrine of equitable estoppel. In its May 24, 2001, journal entry clarifying the March 15, 2001, decision, the district court said:
“[T]he Court’s decision was upon a finding of contractual liability and the Court did not determine liability against Employers Mutual Casualty Company based upon the legal theory of equitable estoppel.”
We observe that EMC asserted its standing as a UM carrier to intervene, citing Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985), in the Shawnee County tort action against Hosier. EMC, as a UM intervenor, twice unsuccessfully moved for a directed verdict in that case. We find no declaration or letter in the record from EMC similar to a reservation of rights letter. (Tyler says in his brief that EMC never issued such a letter). EMC’s policy listed the patrol car as having UM coverage. The district court did not abuse its discretion in awarding attorney fees and costs.
K.S.A. 40-284
EMC argues that K.S.A. 40-284 does not apply to an automobile liability policy purchased by a governmental entity. K.S.A. 40-3105(a) exempts government-owned vehicles from the KAIRA.
K.S.A. 40-284(a) says in part:
“No insurer shall be required to offer, provide or make available coverage conforming to this section [UM coverage] in connection with any excess policy, umbrella policy or any other policy which does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation or use of a specifically insured motor vehicle.”
EMC contends that under K.S.A. 40-284, Jefferson County was not required to provide UM coverage because the policy here was insuring a fleet of vehicles, rather than a policy insuring specific motor vehicles. We agree that Jefferson County was not required by law to purchase UM insurance on its vehicles; however, it chose to do so. The EMC policy listed UM coverage on the patrol car. Although EMC raised the K.S.A. 40-284 issue below, it was not addressed by the district court. In his brief, Tyler notes that he did not argue to the district court that K.S.A. 40-284 mandated UM coverage; rather, Tyler argued that the County purchased UM coverage under the insurance policy. We do not need to reach the question of whether K.S.A. 40-284 applies to a liability policy covering a fleet of government vehicles. Tyler s claim against EMC is grounded on the contention that he was entitled to UM coverage because the County opted to purchase such coverage, not because K.S.A. 40-284 mandated such coverage. Under the facts here, the County paid and EMC collected a UM premium for coverage on the patrol car. Tyler was assigned to drive the car and was injured in a collision while on duty. It is common knowledge that deputy sheriffs drive county patrol cars. EMC contracted here for the UM coverage and must live up to its contract. If EMC did not intend to provide UM coverage for the patrol car and the other Jefferson County vehicles specifically listed in the policy, there should not have been a UM premium quoted, the coverage listed, and the premium accepted.
Estoppel
Finally, Tyler argues in a purported cross-appeal that EMC is estopped from denying UM coverage on the patrol car because of its intervention in the Shawnee County tort case against Hosier and its admission that the patrol car was insured by EMC. Tyler failed to file a notice of cross-appeal. Thus, we do not have jurisdiction to consider this argument. See Carlson v. Ferguson, 270 Kan. 576, 584, 17 P.3d 333 (2001).
Affirmed in part, reversed in part, and remanded with directions to recalculate the interest due on the judgment from June 29,2000, rather than from November 28, 1998.
Abbott, J., not participating.
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The opinion of the court was delivered by
Larson, J.:
This complex litigation raises the question of when plaintiffsVgas producers’/lessees’ causes of actions for unjust enrichment, restitution, money judgment, and setoff arose in order to determine whether a valid defense of the statute of limitations bars their attempts to recover ad valorem taxes, plus interest, which were paid from 1983 to 1988 by the producers on behalf of their royalty owners. The constitutionality of K.S.A. 2001 Supp. 55-1624 is also challenged.
While we resolve and dismiss these appeals as not being from a final judgment, we first set forth a brief summary of the claims and the proceedings below which give rise to the issues before us.
Plains Petroleum Company (Plains), Amoco Production Company (Amoco), Oxy USA, Inc. (Oxy), and Anadarko Petroleum Corporation (Anadarko) are producers of natural gas in the Hugoton Field in southwest Kansas. Each producer’s petition asserts claims against royalty owners on the leases they operate. The producers’ petitions name several individual royalty owners but contend those owners properly represent a class of 14,000 to 15,000 royalty owners as to Oxy’s leases, with Amoco and Anadarko not estimating any class numbers, but all contend the facts alleged justify class certification pursuant to K.S.A. 2001 Supp. 60-223.
Highly summarized, the basis for the producers’ causes of action is that from 1983 through 1988 producers paid the Kansas ad valorem taxes on behalf of the royalty owners and passed such amounts on to the pipeline companies as a part of the price of natural gas which was contended could lawfully be charged. After years of hearings before the Federal Power Commission, which later became the Federal Energy Regulatory Commission, changes in the Natural Gas Policy Act, 15 U.S.C. § 3301 et seq. (1988) (repealed eff. Jan. 1,1993), and decisions of various federal district and circuit courts, it was ultimately determined in Public Service Co. of Colorado v. F.E.R.C., 91 F. 3d. 1478 (D.C. Cir. 1996), cert. denied 520 U.S. 1224 (1997), that Kansas ad valorem taxes were not a severance or production tax within the meaning of § 110 of the Natural Gas Policy Act (15 U.S.C. § 3320) and that producers must refund all Kansas ad valorem taxes collected since the date when all interested parties were first put on notice that the taxes might not be recoverable. 91 F.3d at 1481.
The claims for relief of the producers are basically for unjust enrichment, plus a declaration that the producers’ right for monetary recovery and right of setoff are not barred by any Kansas general statute of limitations or by K.S.A. 2001 Supp. 55-1624 and, in the alternative, that such statute is unconstitutional.
The various royalty owners answered, alleging multiple defenses including (1) failure to state a claim upon which relief can be granted, (2) estoppel, quasi estoppel, and waiver, (3) all claims were barred by the applicable statutes of limitations (see K.S.A. 2001 Supp. 55-1624; K.S.A. 60-511; K.S.A. 60-512; K.S.A. 2001 Supp. 60-513), including laches or other principles of law or equity, (4) that a putative defendant class was not maintainable under K.S.A. 2001 Supp. 60-223, (5) the producers have not made irretrievable payment of refunds on behalf of royalty owners, (6) the producers’ payments were voluntary, (7) payments were due to mistake of law, (8) recovery cannot be asserted because the Federal Energy Regulatory Commission cannot lawfully compel payment by royalty owners, (9) maintenance of a class would violate constitutional requirements, (10) the producers have made no overpayment of royalties or overriding royalties that relate to a unit of production which is a characteristic of a royalty or overriding royalty payment, and for such additional defenses suggested by discovery or subsequent proceedings.
The cases before us on appeal were consolidated and transferred to Stevens County District Court, pursuant to K.S.A. 60-242(c) and Kansas Supreme Court Rule 146 (2001 Kan. Ct. R. Annot. 198).
Just prior to oral argument, Plains settled with all necessary parties. Both Plains and its royalty owner defendants have been dismissed without prejudice to the claims of the remaining parties.
The trial court in its first case management/discoveiy planning order dated April 17, 2000, substantially adopted a proposed order submitted by Amoco with certain clarifications! The order stated in applicable part:
“On or before May 26th, 2000, all parties herein shall file their motion for summary judgment, motion for partial summary judgment, or motion to dismiss upon only two issues, that being the applicability of the general statute of limitations to the claims of the Plaintiffs and Counter-Petitioner Anadarko Petroleum Corp. and upon the issue of the constitutionality of K.S.A. 55-1624.
“Any responses to those motions shall be filed on or before June 30th, 2000.
“The motions of summary judgment, partial summary judgment, or motion to dismiss upon the issues of applicability of the general statute of limitations upon the claims herein and upon the constitutionality of K.S.A. 55-1624 shall be heard upon oral argument on July 24th, 2000, commencing at 9:00 a.m.
“The Court is making this clarification so that there is no misunderstanding that dispositive motions upon other issues or other grounds need not be filed pursuant to the dates set forth herein, nor will any other dispositive motions be heard upon oral argument on July 24th, 2000, commencing at 9:00 a.m.”
Summary judgment motions and or motions to dismiss were submitted with attached briefs. Oral arguments were held. On January 23, 2001, the trial court entered an 18-page decision in which it held the statute of limitations against all of the producers’ claims against royalty owners commenced running on December 1,1993. The producers’ claims that were instituted on August 2,1999, were held to be time barred.
The trial court further stated:
“Although this Court has already decided that the applicable statute of limitations to all Plaintiffs’ claims commenced on December 1, 1996 [sic], there are two additional matters that have been raised within the Motions for Summary Judgment by either the Plaintiffs or the Defendants in this proceeding and this Court, recognizing the necessity of an appellate decision, feels it is incumbent upon this Court to decide all matters before it at this time.
“The Defendants in their Motions to Dismiss or their Motions for Summary Judgment have raised an issue of equity as a defense to the Plaintiffs’ claims of unjust enrichment.”
The trial court then went on to state and hold:
“The Defendants have contended that there is an inherent unfairness in allowing the Plaintiffs to proceed upon claims that arose between 10 and 15 years ago.
“This Court has considered those Defendants’ arguments and finds there is a basis of support for them.
“The equitable right of restitution from one unjustly enriched is terminated if circumstances have so changed that it would be inequitable to require restitution. See Restatement, RESTITUTION, Sections 69, 142.
“A change of circumstances is a defense to a claim of unjust enrichment if the conduct of the recipient of the benefit was not tortious and the recipient was no more at fault for his receipt or retention of the benefits than was tire claimant. Restatement, RESTITUTION, Section 69 (2) and 142 (2).
“Any change of circumstances which would cause the recipient a loss, if the claimant were to obtain restitution, is such a change of circumstance which would prevent restitution if the recipient was not guilty of a tort or substantially more at fault than the claimant. Restatement, RESTITUTION, Section 142. In this case, this Court is well aware that there has been a substantial change in circumstances which, in this Court’s opinion, would disallow the Plaintiffs’ claim for unjust enrichment on an equitable basis.
“First of all, all of these facts of the instant case took place during a time when the United States Government regulated the production, transmission and sale of natural gas.
“The royalty owner Defendants had no input into the various Federal Power Commission or Federal Energy Regulatory Commission decisions which impacted the Plaintiffs in this case and allowed or caused them to pay ad valorem taxes on behalf of the Defendant royalty owners.
“Two things are clear to this Court. First, deregulation of natural gas sales has had a tremendous impact upon both the producers and the royalty owners in this lawsuit. Secondly, the royalty owners had less control over the payment of ad valorem taxes than did the Plaintiffs in this proceeding.
“On this basis alone, this Court would find the Plaintiffs’ claims should be dismissed.
“The last issue to be decided by this Court is the constitutionality of K.S.A. 55-1624.”
The trial court further considered the provisions of K.S.A. 2001 Supp. 55-1624 and held they violated due process under § 18 of the Kansas Constitution Bill of Rights and were, therefore, unconstitutional and void.
The court finally stated:
“The Plaintiffs in their arguments upon their Motion for Summary Judgment asserted that a claim of setoff can be asserted even though the cause of action is barred by the statute of limitations. While this Court is not going to decide at this time whether or not the Plaintiffs have a right of setoff, the Court is mindful of the laws established by Waechter vs. Amoco Production Company, [217 Kan. 489], and Lightcap vs. Mobil Oil Corporation, [221 Kan. 448], in which the law is well settled that a setoff is only applicable when a claim is barred by statute of limitations if the claim coexisted at some time with the Plaintiffs’ claim and arises out of the contract or transaction on which the Plaintiffs’ claim is based. (Emphasis added.)
“It Is, Therefore, the Order, Judgment and Degree of this Court that the Motions for Summary Judgment upon the issue of the statute of hmitations of the Plaintiffs shall be and are hereby denied.
“It Is The Order, Judgment and Decree of this Court that upon the Plaintiffs’ claim of unconstitutionality of K.S.A. 55-1624, Summary Judgment shall be and is hereby granted.
“It Is, Therefore, the Order, Judgment and Decree of this Court that upon the Motion for Summary Judgment by the Defendants upon the issue of the statute of hmitations, said Motion is granted on behalf of all Defendants against all Plaintiffs, the Court having specifically found that the commencement of the statute of hmitations for the cause of action of unjust enrichment by the Plaintiffs commenced on December 1,1993, and, therefore, judgment is rendered in favor of all Defendants and against all Plaintiffs.
“This decision is the final order and decision of this Court without the necessity of any further journal entries or orders of any nature.
“It is the further decision of this Court that this order is final and appealable at this time.”
All of the parties to the case appealed or cross-appealed from the trial court’s rulings.
The Producers (Amoco, Oxy, and Anadarko) couched their appeals slightly differently but essentially contend the trial court erred in ruling that (1) their claims for unjust enrichment, restitution, or recoupment were barred by the applicable statute of hmitations (K.S.A. 60-512) and in finding the claims accrued earlier than August 2, 1996, (2) it was reversible error to consider and rule on the equitable defense of “change in circumstances” when the trial court had earlier issued an order that tire only two issues to be briefed on summary judgment were the constitutionality of K.S.A. 2001 Supp. 55-1624 and whether the statute of limitations had run on the producers’ claims, and (3) in Lightcap vs. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ ¶ 8, 9, 562 P.2d 1, cert. denied 434 U.S. 876 (1977), reh. denied 440 U.S. 931 (1979) and Waechter v. Amoco Production Company, 217 Kan. 489, Syl. ¶¶ 3, 4, 537 P.2d 228 (1975), it is well settled that a setoff is only applicable when a claim is barred by a statute of limitations if the claim coexisted at some time with the Plaintiffs’ claims and arises out of the contract or transaction on which the Plaintiffs’ claims are based.
The royalty owners — Vincent Youngren, Jr., and Robert Larabee in the Amoco case, Opal Littell, et al., in the Oxy case, and Gilbert H. Coulter and Elizabeth Leighor in tire Anadarko case — argue in their joint cross-appeal that (1) the trial court addressed an unnecessary constitutional question by considering the constitutionality of K.S.A. 2001 Supp. 55-1624, and (2) the trial court erred in holding that 55-1624 was unconstitutional.
Each of the producers in its docketing statement answered affirmatively the question whether the order appealed from was a final order. Each indicated that invocation of the provisions of K.S.A. 2001 Supp. 60-254(b) was “not applicable.” Finally, in response to the question relating to statutory authority for appeal, each producer responded that the specific authority for its direct appeal was K.S.A. 60-2101(b), “an appeal from a final judgment of a district court in [a] civil action in which a statute of this state . . . has been held unconstitutional.”
Despite the above answers in tire docketing statements of the producers, an examination of page 17 of the journal entry of decision by the trial court dated January 23, 2001, immediately raises the question of whether the decision of the trial court was a “final order” which is appealable. As previously set forth, the trial court’s opinion specifically stated that the producers alleged “that a claim of setoff can be asserted even though the cause of action is barred by the statute of limitations.” The trial court then appears to ac knowledge that there was at least one additional legal issue which remained to be resolved in the case, by stating:
“While this Court is not going to decide at this time whether or not the Plaintiffs have a right of setoff, the Court is mindful of the laws established by Waechter vs. Amoco Production Company, supra, and Lightcap vs. Mobil Oil Corporation, supra, in which the law is well settled that a setoff is only applicable when a claim is barred by statute of limitations if the claim coexisted at some time with the Plaintiffs’ claim and arises out of the contract or transaction on which the Plaintiffs’ claim is based.” (Emphasis added.)
Our concern that the decision we are asked to review was not one which finally resolved all of the issues in the case was strengthened when at oral argument counsel for the royalty owners admitted the recoupment and right to setoff issues remained and even if the statute of limitations had run the right of the producers to recover was still in issue.
Although none of the parties to this appeal have raised the question of jurisdiction, this is always an issue which we have the duty to question on our own motion. As Justice Lockett, speaking for a unanimous court in McDonald v. Hannigan, 262 Kan. 156, 160, 936 P.2d 262 (1997), clearly stated:
“The right to appeal is entirely statutory and not a right contained in the United States or Kansas Constitutions; . . . Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Jones v. Continental Can Co., 260 Kan. 547, Syl. ¶ 1, 920 P.2d 939 (1996). An appellate court has the duty of questioning jurisdiction on its own motion. If the record discloses a lack of jurisdiction, the appeal must be dismissed. Snodgrass v. State Farm Mut. Auto. Ins., Co., 246 Kan. 371, 373, 789 P.2d 211 (1990).” (Emphasis added.)
The apparent basis for jurisdiction for this appeal is K.S.A. 60-2101(b), which provides in part: “An appeal from a final judgment of a district court in any civil action in which a statute of this state or the United States has been held unconstitutional shall be taken directly to the supreme court.” It must be noted that this statutory provision specifically requires that the order appealed from must be a “final judgment.”
Directly on point as to the question of jurisdiction we face is our recent opinion of State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 941 P.2d 371 (1997), where the trial court found K.S.A. 65-2872a unconstitutional based on a motion for partial judgment on the pleadings but reserved judgment on the question of whether Beyrle, a naturopath, had unlawfully prescribed drugs or exceeded his statutory authority. The trial court stated that it granted Beyrle’s motion for permission to take an interlocutory appeal, but no K.S.A. 60-2102(b) finding that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” was made. Nor did Beyrle comply with Supreme Court Rule 4.01 (2001 Kan. Ct. R. Annot. 28) to obtain permission from the Court of Appeals to accept an interlocutory appeal.
After stating in Beyrle that issues remained for later determination, we pointed to K.S.A. 60-254(a) as defining a judgment as “the final determination of the rights of the parties in an action.” 262 Kan. at 509. We proceeded to state:
“In Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128 (1992), we quoted from Gulf Ins. Co v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975):
“ ‘ “No definition of ‘final decision’ is contained in the statute but this court has previously construed it to mean, 'one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.’ [Citations omitted.]”
“Honeycutt cites 6 Vernon’s Kansas C. Civ. Proc. § 60-2102, Author’s Comments, § 2102.2 (1967) and 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2102, Comments (1979), and states: ‘In Gard, the author commented that a “ ‘final decision’ ... is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.’ ” 251 Kan. at 457.” 262 Kan. at 509-10.
Syllabus ¶ 2 in Beyrle succinctly states: “A final judgment is one which finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court.”
It is not necessary to further belabor this question, but we point to Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977), for an excellent discussion of what does or does not constitute a “final decision.” The issue of punitive damages was reserved there, as it was 21 years later in Wilkinson v. Shoney’s Inc., 265 Kan. 141, 958 P.2d 1157 (1998), where we held that a trial court, even if it issued an order in compliance with K.S.A. 60-254(b), could not render an order final, and therefore appealable, which is not in fact final. 265 Kan. at 143-44.
Another recent case with similar jurisdictional deficiencies was Gillespie v. Seymour, 263 Kan. 650, 952 P.2d 1313 (1998), where the entry of judgment expressly provided that the reasonableness of attorney fees or the share thereof of one of the litigants remained to be determined. We said:
“ ‘Even if a section 254(b) certificate is issued, it is not binding on appeal; the trial court cannot thereby make an order final and therefore appealable, if it is not in fact final.’ Elliott, Survey of Kansas Law: Civil Procedure, 27 Kan. L. Rev. 185, 194 (1979) (citing Henderson, 1 Kan. App. 2d 103).” 263 Kan. at 655.
The trial court’s decision and journal entry in this case that its “order is final and appealable at this time” is legally incorrect. It was not, and is not, a final order. We do not have jurisdiction over the appeals or the cross-appeals in this case.
We point to the observation from Henderson, quoted in Gillespie that “ ‘should a future appeal be taken in this case from what is a “final decision,” a motion to utilize the present record and briefs, suitably supplemented, would be favorably received.’ [Henderson,] 1 Kan. App. 2d at 112-13.” Gillespie, 263 Kan. at 656.
Finally, we note that only the statute of limitations and the constitutionality of K.S.A. 2001 Supp. 55-1624 issues were to be considered under the trial court’s first case management/discovery planning order of April 17, 2000. However, the trial court, contrary to that order, appears to have considered and ruled on an issue relating to a “changed circumstances” defense of the royalty owners without allowing any of the parties to be heard and provide legal authorities on the issue. That issue must be heard anew, without consideration of the previous ruling and without prejudice to any party.
The appeals and cross-appeals are dismissed.
Davis, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Defendant Timothy A. Carr claims (1) the district court’s imposition of a dispositional departure — incarceration rather than presumptive probation- — -violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and (2) the district court’s reasons for departing were not substantial and compelling. These arguments were rejected by the Court of Appeals. State v. Carr, 29 Kan. App. 2d 501, 28 P.3d 436 (2001). We granted Carr’s petition for review pursuant to K.S.A. 20-3018(b). The State did not cross-petition for review of the Court of Appeals’ finding that the district court failed to provide adequate notice of its intent to depart; thus, that issue is not before this court for review. We agree with the Court of Appeals’ conclusion that (1) Apprendi does not apply to a dispositional departure imposed under K.S.A. 2001 Supp. 21-4716 and (2) the district court’s reasons for departing were substantial and compelling.
Carr was arrested on November 23, 1999, 26 days after his release from the Youth Center in Topeka, where he had served a sentence arising from a juvenile adjudication on drug charges. Wichita police officers pulled over Carr after observing him driving without a vehicle license tag. When Carr admitted to driving on a suspended license, he was placed in custody, and the car was impounded and inventoried. A stolen revolver was found in the vehicle’s passenger compartment.
Carr was charged with criminal possession of a firearm pursuant to K.S.A. 2001 Supp. 21-4204(a)(4). He entered into a plea agreement in which the State agreed to recommend a mid-range sentence in the applicable grid box under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., no fine, and probation under the guidelines presumption. At sentencing on April 13, 2000, the district court noted that Carr had a criminal history score of E. Criminal possession of a firearm in violation of K.S.A. 2001 Supp. 21-4204(a)(4) is a severity level 8 offense. K.S.A. 2001 Supp. 21-4204(c). Neither Carr nor the State disputed the criminal history score or the offense severity level.
After soliciting comments from Carr, Carr s attorney, and the prosecutor, the district judge immediately and without notice exercised the discretion granted him under the KSGA, refused to grant Carr probation, and imposed a prison sentence of 15 months. The district judge stated that Carr was “not amenable to rehabilitation,” observing that: (1) the firearms offense occurred shortly after Carr s release from the Youth Center, (2) Carr had failed at juvenile probation, and (3) Carr had a lengthy criminal history of drug possession. The district judge authorized placement at Labette Correctional Conservation Camp (Labette). The parties made no objections. Carr appealed. The record is not clear as to whether Carr was actually placed at Labette. Carr s brief on appeal suggests he was not.
Before the Court of Appeals, Carr sought reversal of his dispositional departure sentence. Carr claimed that the dispositional departure by the district court violated his constitutional rights under Apprendi; that the district court gave inadequate notice of its intent to depart; and that the district court’s reasons for departure were not substantial and compelling.
The Court of Appeals (1) held that Apprendi did not apply to an upward dispositional departure, (2) found that the reasons for departure were substantial and compelling, and (3) vacated Carr’s sentence and remanded the case for resentencing on the basis that the district court did not provide adequate notice of its intention to depart on its own volition under K.S.A. 21-4718(b).
The primary issue before us is whether the United States Supreme Court intended Apprendi to apply to upward dispositional departures, i.e., imposing prison rather than granting probation or parole, under the KSGA. Because we are discussing a dispositional departure under the KSGA, the fact that Carr’s conviction resulted from a guilty plea rather than a juiy verdict does not change our analysis. See State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001). Carr s challenge involves a question of law, over which we have unlimited review. See State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999).
To support his assertion that dispositional departures and durational departures are similarly affected by Apprendi, Carr cites State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, this court declared the Kansas scheme for imposing upward durational departure sentences void under Apprendi. 271 Kan. 394, Syl. ¶¶ 2, 3, and 6. Carr contends that the rationale behind the holding in Gould, though couched in the context of an upward durational departure of a sentence, included dispositional as well as durational departures.
The Court of Appeals, recognizing that although Gould had concluded that the upward durational departure provision “of K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face,” stated:
“[I]t is difficult to see how a dispositional departure such as Carr’s fits under the rationale of Apprendi. Pending contrary explicit guidance from the Supreme Court, we find Gould inapplicable to upward dispositional departures. It does not constitute an alternative basis for vacating the sentence in this case. Indeed, we view the Supreme Court’s post -Gould decision in State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), as implicitly supportive of our reading of Gould. In McKay, the Supreme Court reached the merits of an upward dispositional departure sentence rather than reversing it immediately as violative of the Sixth and Fourteenth Amendments to the United States Constitution.
“Furthermore, our decision on this issue appears philosophically and analytically consistent with that in State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), which held that a district judge’s decision to impose a hard 40 sentence did not run afoul of Apprendi. In Conley, the hard 40 sentence potentially altered the mode of service of the defendant’s fife sentence, delaying initial parole eligibility from 25 years to 40 years. Here the dis-positional departure also merely altered the mode of service of Carr’s sentence; it did not extend its length. Gould did not affect the district judge’s power to alter the mode of service of the offender’s sentence.” 29 Kan. App. 2d at 505.
The Court of Appeals looked to State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), for guidance. In McKay, the district court imposed a prison term rather than the statutory presumptive grant of probation. The Court of Appeals reversed the district court, concluding that the particular fact presented — that McKay had absconded for 2 months during the pendency of his case — did not constitute a substantial and compelling reason to impose a dispositional departure. We granted the State’s petition for review. We agreed with the Court of Appeals and vacated McKay’s sentence. 271 Kan. at 731.
McKay was decided 1 year after Apprendi and only 2 months after our decision in Gould. Apprendi was neither briefed nor argued by counsel. The dispositional departure in McKay was vacated, not upheld. Thus, the issue of whether Apprendi applied to dispositional departures was not before us.
In deciding that Apprendi did not apply to upward dispositional departures, the Court of Appeals also relied upon this court’s decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). In Conley, we found that the imposition of a hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of life imprisonment imposed under K.S.A. 21-4706(c). The hard 40 limited the lower end of Conley’s life sentence. Thus, Conley’s hard 40 sentence violated neither the Due Process Clause of the United States Constitution nor his right to trial by jury under tire Sixth Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights. Conley, 270 Kan. 18, Syl. ¶ 3.
Our reasoning in Conley was based on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). McMillan held that facts that do not increase a defendant’s punishment beyond that authorized by statute need not be proven to a jury beyond a reasonable doubt. Because the hard 40 did not increase the length of Conley’s life sentence and because the Apprendi Court had refused to overturn McMillan, we concluded that Conley’s 40-year mandatory minimum sentence did not violate Apprendi. Conley, 270 Kan. at 32-35. Thus, the reasoning of Conley is also not dispositive of the issue at hand.
The key question is whether Apprendi applies to dispositional departures. Apprendi considered the situation of a New Jersey defendant who pled guilty to possession of a firearm. The trial court, under a separate “hate crime” statute, found by a preponderance of the evidence that Apprendi committed the crime with a purpose to intimidate the victim because of race. The trial judge, based on this finding, imposed a sentence of 12 years’ imprisonment. The departure extended Apprendi’s sentence beyond the 5 to 10 years authorized by the firearm statute. Apprendi appealed.
The Apprendi Court opened its analysis of durational departures in dramatic fashion, stating:
“At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Amdt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Amdt. 6. Taken together, these rights indisputably entitled a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” 530 U.S. at 476-77.
The United States Supreme Court then surveyed the historical role of the sentencing judge at common law. It noted that the English trial judge of the late 18th century had very litde discretion in sentencing because the substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. 530 U.S. at 479. This preserved, according to the Supreme Court, “[t]he defendant’s ability to predict with certainty the judgment from the face of the felony indictment,” which “flowed from the invariable linkage of punishment with crime.” 530 U.S. at 478.
Shifting its analysis to more modern sentencing schemes, the Supreme Court reasoned:
“We should be clear that nothing in this history suggests that it is impermissible forjudges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. [Citations omitted.]” 530 U.S. at 481.
Ultimately, however, the Apprendi Court concluded:
“The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” 530 U.S. at 482-83.
In determining whether Carr’s assertion as to a dispositional departure is correct, it is important to note that in Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) 530 U.S. at 490. Further, “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494.
We applied Apprendi to upward durational departure sentences for the first time in Gould. Gould was convicted of three counts of child abuse. The district court imposed durational departure sentences of 68 months for two of the counts, to run consecutive to each other, and a presumptive sentence of 34 months for the remaining count, to run concurrent with the other two sentences.
Gould contended that “K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face” in light of Apprendi. The State argued that Apprendi did not apply in Gould’s case. According to the State, the maximum sentence allowed by law was not defined by the KSGA but was instead defined by the strictures of the “double-double” rule contained in K.S.A. 2000 Supp. 21-4720(b)(4). We rejected the State’s argument, stating:
“Under Apprendi, it does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury’s verdict. [Citation omitted.] Gould’s jury verdict ‘authorized’ a sentence of 31 to 34 months for each child abuse conviction. By imposing two 68-month sentences, the district court went beyond the maximum sentence in the applicable grid box and exposed Gould to punishment greater than that authorized by the jury’s verdict.” 271 Kan. at 410-11.
We then applied Apprendi and concluded:
“The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face. Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of die evidence. Apprendi, on the other hand, requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation omitted.] Any other procedure ‘is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.’ [Citation omitted.]” 271 Kan. at 413.
Apprendi, and likewise Gould, only involved the imposition of an upward durational departure sentence and did not encompass dispositional departures. This court must now determine whether an upward dispositional departure, i.e., imposing prison rather than granting probation or parole, like an upward durational departure sentence, increases the penalty for a crime beyond the prescribed statutory maximum, thus triggering the protections afforded in Ap-
When enacting the KSGA, the legislature restricted a sentencing judge’s discretion in imposing prison confinement and in imposing nonimprisonment custody or supervision. Under the KSGA, a sentencing judge is required to impose a presumptive sentence and in some instances a dispositional departure, i.e., grant probation, unless tihe judge finds substantial and compelling reasons to depart. K.S.A. 2001 Supp. 21-4716(a). The Kansas Legislature, when enacting the KSGA, created exceptions to the guidelines, specifically providing that although probation is presumed for a particular offense, a defendant is presumed to be sentenced to prison in other instances. See, e.g., K.S.A. 17-1267(a); K.S.A. 2001 Supp. 21-4603d(f); K.S.A. 2001 Supp. 21-4704a(g); K.S.A. 2001 Supp. 21-4704a(h); K.S.A. 2001 Supp. 21-4704a(k); K.S.A. 2001 Supp. 21-4704a(l). As a further safeguard of public safety, the legislature has provided the sentencing judge with discretion to deny the statutory presumptive grant of probation. See K.S.A. 2001 Supp. 21-4716(b). It must be noted that if the KSGA did not provide the sentencing judge with discretion to deny the statutoiy presumptive grant of probation, offenders of certain crimes would always be granted probation. Application of Apprendi to upward dispositional departures would require a jury to malee a finding beyond a reasonable doubt before any defendant falling within a presumptive probation gridbox could be denied probation.
The answer to our question requires that we analyze the difference between an upward durational departure, which increases a sentence and a dispositional departure, which determines where an individual’s sentence will be supervised.
In Hudson v. State, 273 Kan. 251, 42 P.3d 150 (2002), the defendant asserted that she was entitled to credit on her sentence for time spent on parole. Our unanimous court recognized that
“[p]arole is a privilege, not a constitutional right. Parker v. State, 247 Kan. 214, 217, 795 P.2d 68 (1990). Credit for time spent in jail in determining the service of the term of confinement is wholly a matter of statute. State v. Babcock, 226 Kan. 356, 358, 597 P.2d 1117 (1979). In Segarra [v. State, 430 So. 2d 408 (Miss. 1983)], the court stated:
‘The mere passage of days with one’s liberty in fact restricted does not necessarily count as time served on one’s sentence. What is and what is not a criminal’s expiating punishment is a creation of law. Which days count, and which days do not is likewise determined by law. The fact of restriction, no matter how real, counts for nothing unless the law says otherwise.’ 430 So. 2d at 410.
“When determining a prisoner’s term of confinement courts have relied on the analogous situation of the court’s statutory power to grant probation and whether to give credit for time spent on bail when revoking probation.
‘Just as a sentence of probation requires that some portion of the defendant’s imprisonment or fine be suspended, so parole requires the conditional forgiveness of jail time and the possibility that this jail time might be re-imposed.’ Hill [d. State], 22 P.3d at 27 [Alaska App. (2001)].
‘A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements but the person’s condition, as the Court observed in Morrissey v. Brewer, (1972) 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 is “very different from that of confinement in a prison.” ’ Hall [v. Bostic], 529 F.2d at 992 [(4th Cir. 1975)].
“In the case of probation, the Kansas Court of Appeals reviewed K.S.A. 22-3716(2) (Weeks) and held that giving the court discretion to require the defendant to serve a sentence in full without regard to time spent on probation if a violation of probation is established did not violate the Double Jeopardy Clause of the Fifth Amendment. State v. Snook, 1 Kan. App. 2d 607, 609, 571 P.2d 78 (1977). The Snook court stated:
‘As the Kansas Supreme Court has indicated, however, probation represents a grace period during which the defendant has the opportunity to demonstrate that rehabilitation can be achieved without incarceration. See In re Patterson, 94 Kan. 439, 146 Pac. 1009; In re Henry Millert, Petitioner, 114 Kan. 745, 220 Pac. 509; In re McClane, 129 Kan. 739, 284 Pac. 365. The court stated in In re Millert, Petitioner, supra at 747, “The term of parole [by the court] is one of probation, offered the delinquent as a substitute for punishment in the usual way. One who accepts the substitute does so subject to all the conditions imposed by law and by the court.” When the petitioner in that case failed to satisfy all of the conditions of parole he was subject to confinement under the original sentence “precisely as though no parole had been granted.” (Id.) See also, In re McClane, supra, where the court refused to allow credit for time served in jail as a condition of probation; and Bowers v. Wilson, 143 Kan. 732, 56 P.2d 1212, where the court denied petitioner credit for time spent on probation.’ 1 Kan. App. 2d at 609.” 273 Kan. at 255-56.
We have previously concluded that a person on probation or parole is not serving a sentence. Probation from serving a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is a privilege and not a matter of right. State v. Lumley, 267 Kan. 4, Syl. ¶ 1, 977 P.2d 914 (1999). This court has repeatedly held that probation is separate and distinct from the sentence. State v. Van Winkle, 256 Kan. 890, Syl. ¶ 2, 889 P.2d 749 (1995); State v. Dubish, 236 Kan. 848, Syl. ¶ 2, 696 P.2d 969 (1985). Probation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increase or decrease the sentence required to be imposed by statute. Cf. Hudson, 273 Kan. at 251.
The determination that probation is separate and distinct from the sentence is demonstrated by the fact that an individual can be placed on probation for more or less time than the length of his or her underlying prison sentence. See K.S.A. 2001 Supp. 21-4611. Additionally, even when an individual’s probationary term has almost been satisfied and probation is revoked, the person must still serve the entire length of the underlying prison sentence and will be denied credit for time spent on probation unless it was time spent in a county jail or a residential treatment center. See K.S.A. 21-4614a. It is also noteworthy that an individual may either accept probation and be subject to serving the entire sentence if his or her probation is revoked or reject probation and elect to serve a known sentence.
As required by K.S.A. 2001 Supp. 21-4204(c) and K.S.A. 2001 Supp. 21-4705, Carr was sentenced to serve 15 months. The district judge then found compelling reasons not to place Carr on probation, exercised discretion, and refused to grant Carr probation. See K.S.A. 2001 Supp. 21-4716. Although the judge refused to grant Carr probation, Carr’s prison sentence of 15 months was not increased.
It is important to note that no federal or state court has applied Apprendi to the question of granting dispositional departures that result in imprisonment rather than probation or parole. In making its claim that no federal or state court has refused to apply Apprendi to dispositional departures, the dissent here fails to recognize that a change in a sentencing structure to apply Apprendi protections to dispositional departures would require either a judicial decision or a legislative act. For example, the Kansas Legislature enacted, following our decision in Gould, Apprendi protections for upward durational departures. See L. 2002, ch. 170 (amending K.S.A. 2001 Supp. 21-4716 and K.S.A. 21-4718). The dissent cites no state or federal legislative act to support its broad claim that other jurisdictions provide Apprendi protections when probation is presumed but not granted.
We conclude that Apprendi applies only to upward durational departures of a sentence imposed under K.S.A. 2001 Supp. 21-4716. The distinction between probation and the imposition of a prison sentence renders the United States Supreme Court’s Apprendi decision inapplicable to a sentencing judge’s decision to impose a dispositional departure prison sentence rather than to grant probation.
As for Carr’s contention that the Court of Appeals erred in finding that the reasons for departure were substantial and compelling, we agree with the Court of Appeals. In this case, both tire frequency of Carr’s past criminal activity and the fact he was released from the youth facility such a short time before his arrest for his current crime constituted substantial and compelling reasons for departure. See Carr, 29 Kan. App. 2d at 504.
The decision of the Court of Appeals vacating Carr’s sentence and remanding for resentencing is affirmed because the district court failed to give adequate notice of its intent to depart. The judgment of the district court is reversed.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
The Shawnee County Board of Commissioners (Board) denied McPherson Landfill, Inc.’s (MLI) application for a conditional use permit (CUP) to establish and operate a construction and demolition (C&D) landfill. MLI petitioned the district court for judicial review. MLI appeals from the district court’s summary judgment in favor of the Board. Our jurisdiction is based upon K.S.A. 20-3018(c) by transfer of this case from the Kansas Court of Appeals.
MLI addresses two major concerns in this appeal. The first concern relates to the fairness of the process before the Board and MLI’s contention that two of the three members of the Board prejudged its CUP application; the second concern is based upon MLI’s contention that the Board’s decision to deny the permit was arbitraiy and unreasonable. Although MLI raises other concerns which will be addressed in this opinion, the two above contentions are critical to its success before this court.
Standard of Review
Before we begin with a discussion of the facts and arguments of the parties, it is helpful to understand how this court reviews and determines the above issues, as well as other issues in this case. In zoning appeals, the standard of review for district courts as well as for this court is set forth in Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980):
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.”
See Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 184, 871 P.2d 1256 (1994) (applying Combined Investment concepts to special use permit decisions); M.S.W., Inc. v. Marion County Bd. of Zoning Appeals, 29 Kan. App. 2d 139, 143-46, 24 P.3d 175 (2001) (applying Combined Investment concepts to conditional use decisions).
With regard to our review of MLI’s first contention involving procedural fairness, this court has decided that where the focus of the zoning authority shifts from the entire city or county to one specific tract of land for which a zoning change is urged, the function of the zoning authority becomes more quasi-judicial in nature than legislative. In such quasi-judicial proceedings, it is incumbent upon the authority to comply with the requirements of due process in its proceedings. Thus, the proceedings must be fair, open, and impartial. A denial of due process renders the resulting decision void. Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330-32; 597 P.2d 654 (1979); see Johnson County Water Dist. No. 1, 255 Kan. at 190-91; Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978); Adams v. Marshall, 212 Kan. 595, 599-602, 512 P.2d 365 (1973); Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P.2d 572 (1967).
Finally, with regard to MLFs second contention that the ultimate decision was unreasonable, this court in Golden observed:
“A mere yes or no vote upon a motion to grant or deny [a request for zoning change] leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action. A board, council or commission, in denying or granting a specific zoning change, should enter a written order, summarizing the evidence before it and stating the factors which it considered in arriving at its determination.” 224 Kan. at 597.
As a suggestion to zoning authorities, the Golden court enumerated eight factors which address the question of whether a final decision is reasonable. 224 Kan. at 598. The Golden factors have become standard considerations throughout Kansas by those charged with the responsibility of voting on zoning changes. However, the following Golden factors are suggestions and other factors may be equally or more important factors depending on the circumstances of the particular case:
“(1) The character of the neighborhood;
“(2) die zoning and uses of properties nearby;
“(3) the suitability of the subject property for the uses to which it has been restricted;
“(4) the extent to which removal of the restrictions will detrimentally affect nearby property;
“(5) the length of time tire subject property has remained vacant as zoned;
“(6) the gain to the public health, safety, and welfare by dre possible diminution in value of the developer’s property as compared to the hardship imposed on the individual landowners;
“(7) The recommendations of a permanent or professional planning staff; and
“(8) tíre conformance of the requested change to the city’s master or comprehensive plan.” Board of Johnson County Comm'rs v. City of Olathe, 263 Kan. 667, 677, 952 P.2d 1302 (1998) (citing Golden, 224 Kan. at 598).
The Board based its denial of the requested CUP largely upon consideration of the Golden factors. The district court applied the eight principles of review contained in Combined Investment, as well as the eight Golden factors, in reviewing the Board’s decision and in granting summary judgment to the Board. Consistent with the above standard of review, we are called upon to make the same review of the Board’s action as did the district court. Applying the above principles, we must decide whether the Board’s CUP denial was consistent with due process and reasonable. We are not free to make findings of fact independent of those found by the Board but are limited to determining whether the given facts could reasonably have been found by die Board to justify its decision. See Golden, 224 Kan. at 595-96.
Facts
MLI is a wholly owned subsidiary of McPherson Wrecking, Inc (MWI). Virgil McPherson is the president of both MLI and MWI. Scott McPherson is the Vice President of MLI. Unless otherwise noted, Virgil McPherson and Scott McPherson will be collectively referred to as the McPhersons. The McPhersons became interested in property owned and operated as a quarry by Martin Marietta. -After an attempted sale of its property to Shawnee County, Martin Marietta, Inc., primarily through Shawnee County contacts, urged the McPhersons to purchase the property for the operation of a C&D landfill.
A C&D landfill is designed to handle solid waste resulting from the construction, remodeling, repair, and demolition of structures, roads, sidewalks, and utilities. A C&D landfill does not accommodate such waste materials as friable asbestos, garbage, furniture, appliances, electrical equipment containing hazardous materials, tires, drums, and containers even though such wastes resulted from construction and demolition activities. See K.S.A. 2001 Supp. 65-3402(u).
Background information leading to the McPhersons’ purchase
Joe Voth, an employee of Shawnee County who worked in solid waste management, explained the McPhersons’ interest and eventual purchase from Martin Marietta. In deposition testimony, Voth said that between 1994 and 1999 there were two potential sites in Shawnee County for a C&D landfill. The first site was at 45th Street and Stubbs Road, which was later sold by the county to Martin Marietta and used as a limestone quariy. The second site and the property at issue in this case was at 29th Street and Ratner Road. According to Voth, this property was similar to a “lunar landscape,” and nothing could grow on 75% to 80% of the property.
Voth said old quarries are suitable for landfills because the quarrying operation removes material until “impervious shale or hard limestone” is reached, which creates a “good preparation for the construction of a landfill.” Voth, who believed the existing landfills in Shawnee County were becoming full, suggested to the county that the 29th Street and Ratner Road property was a candidate for a landfill. As refuse director for Shawnee County, Voth knew that once other locations were full, C&D waste would have to be taken out of county at a huge expense and deposited elsewhere.
Voth discussed with Bill Gahan, a Martin Marietta representative, a proposal for Shawnee County to purchase the property. Martin Marietta had a conditional use permit to operate a quarry at the 29th Street and Ratner Road property. Its quarry activities at this location dated back to the 1950’s. While the active quarrying process discontinued in 1993, Martin Marietta continued to ship large amounts of stone through 1995, and then smaller amounts until 1998.
Voth said that the traffic generated by a C&D landfill would have been less than that generated by Martin Marietta’s quarry. According to Voth, no concern was expressed at that time by county officials that there would be any threat to school children or risk of hfe if the 29th Street and Ratner Road property was used as a C&D landfill.
Martin Marietta offered to sell the property to the county for $850 per acre, but the county rejected that proposal. When Voth realized the county would not purchase the property, he proposed that the McPhersons purchase the property. Voth talked with the McPhersons and introduced them to Martin Marietta representatives. Voth advised the McPhersons that there were no guarantees that the Board would grant a permit to operate a C&D landfill.
Before the purchase of the property from Martin Marietta, Voth scheduled a meeting for the McPhersons to meet with Barry Beagle and John Dugan, who were both employees of the Topeka-Shawnee County Metropolitan Planning Agency (Planning Agency), a joint agency of the City of Topeka and Shawnee County. Neither Beagle nor Dugan expressed any concern that the operation of a C&D landfill would violate the current or any future zoning plan or disrupt growth patterns. Voth explained why, in his opinion, there was no cause for concern: “[B]ecause the use, current use and the past use of that tract of ground was a quarry and quarry activity is under the same, if I recall correctly, conditional use permit as is a landfill. So, the use would not have been different.”
MWI, the parent corporation of the plaintiff, MLI, purchased 678 acres from Martin Marietta at a cost of $850 an acre, less than the original asking price of about three-quarters of a million dollars. Scott McPherson said he believed the C&D landfill would generate $7.2 million over the lifetime of the landfill. Virgil McPherson said in his deposition that he chose the location because of what Martin Marietta said about the land having been used as a quarry. Virgil admitted that there had been no blasting or grinding on the property since 1993.
MWI tried but failed to make the deal with Martin Marietta contingent on its successful zoning application to establish and operate a C&D landfill. Approximately 45 acres were carved out of the 678 acres purchased from Martin Marietta and sold to MLI. MLI paid less than $10,000 for the 45 acres.
It was the McPhersons’ opinion at that time that the Planning Agency staff was favorable to the MLI application. However, Scott McPherson did say that no one on the Planning Agency staff promised a favorable recommendation to MLI’s application. No one characterized the application as a “done deal.” The McPhersons believed the members of the planning staff were very encouraging with respect to the application.
Application
MLI applied to the Planning Agency on March 6, 2000, for a permit to operate a C&D landfill. Following a conference with the Planning Agency staff, the McPhersons added some documentation to their application, including evidence of necessary permits from various county and state offices. The McPhersons hired an engineering firm to make some “additional erosion drawings, reclamations, depth of indentations and a lot of other studies that had not been initially submitted.” The McPhersons estimated the ad ditional work cost between $10,000 and $20,000. The McPhersons submitted a revised application on June 9, 2000, including numerous exhibits to support its application. The McPhersons believed there was enough support for the application prior to the July 19, 2000 committee meeting.
Evidence presented to the Zoning and Platting Committee and the Board
Tim Paris, a planner for the Planning Agency, told tire Mc-Phersons that it would be difficult to obtain a CUP for a C&D landfill. His written report on the property was submitted to the Topeka-Shawnee County Metropolitan Planning Commissions Zoning and Platting Committee (Committee) and the Board. Paris noted that the subject property in its current condition was not suitable for redevelopment. In order to develop the land, the property would have to be subjected to a reclamation process to remove deposits of silts and residues, and a further regrading of the topsoil process to “establish suitable ground for further construction activity.”
The report also noted the following regarding the expected traffic:
“The applicant is expecting to generate an average of 25 additional vehicle trips per day to the site for deposit of construction and demolition debris. This average is subject to seasonal fluctuation, ranging from 16 trips per day in January to a high of 32 trips per day in October. The Shawnee County Public Works Department has granted heavy truck certification and approval for the proposed truck route to and from the proposed landfill site.”
Paris also noted a concern for increased traffic based on increased residential growth and travel to and from such schools as Shawnee Heights High School, Shawnee Heights Middle School, and Tecumseh Elementary School. His report noted the Topeka-Shawnee County Growth Management Plan called for more urbanization in the area.
In conclusion, the Paris report recommended denial of the CUP application, concluding:
“8. As residential development in this area continues to grow, the significance of SE 29th Street as an arterial street will increase significantly.
“9. The introduction of regular truck traffic along this stretch of road will undoubtedly increase the timeframe governing the reconstruction of SE 29th Street to meet arterial street standards.
“10. Based on the classification of SE 29th Street as a minor arterial road, the current condition of this road appears to be substandard on order to meet the current and projected traffic demand east of SE Croco Road.”
A day or two before the commission meeting, the McPhersons learned of Paris’ report. According to the McPhersons, this was the first sign of potential difficulties with the application. However, the McPhersons had addressed traffic problems in their application. On average, MLI expected between 24 and 25 loads per day, and that the busiest times would be at 7 a.m. and 4 p.m. The application stated the belief that the traffic generated by Martin Marietta’s quarry operation was greater than the traffic expected from a C&D landfill. The most common type of truck would be a single axle dump truck.
Consistent with his report, Paris testified in deposition that East 29th Street was not built to handle its intended capacity and that the road in its current condition would not be able to support a C&D landfill. When asked whether there were any alternative uses for the land, Paris said, “Any, any use could be placed on that property. The ground has not been reclaimed since its use as a quarry, but once reclaimed, regraded, anything could, could be built on that property.” When asked to give examples, Paris continued:
“The quarries immediately surrounding this particular site have all been reclaimed, and they are currently being used as agricultural or pasture land. Several of them I believe also have houses on the property and the resulting pond from the quarry is just an amenity for use with the residential property. I know of several other former quarries that — where the actual pond is used as an amenity for an entire subdivision instead of a singular property. A site such as this could also be used for, for parks. They could be used — well, once the property is reclaimed, you know, the — aside from some construction, you know, building construction issues I mean anything could be built there.” (Emphasis added.)
The Shawnee County Health Agency evaluated MLI’s application. The report noted that no groundwater was found on the site and that there was a very limited chance that the drinking water supplies would be contaminated as a result of a C&D landfill on the property. The potential impacts from dust, noise, and odor appeared to be sufficiently controlled.
The record contains a letter from Verne Dow, a geologist, criticizing the geology report submitted with MLI’s application. According to Dow’s letter, the report in MLI’s application was vague and might have been based on information collected from the wrong site. Further, Dow’s letter disputed that there was no groundwater in the area:
“I was Chief Geologist for the Kansas Division of Martin Marietta from January 1963 to April 1974 and worked often at the East Topeka quarry. During that time there was groundwater seepage into the pits from points on the highwall to the base of the Ozawlde. Since groundwater is present in the area it must be considered in the design.”
The Zoning and Platting Committee meeting July 19, 2000
The Committee held a special meeting on July 19, 2000, to consider MLI’s application. The McPhersons’ attorney, Mark Buck, spoke in favor of the application, along with Kenny Blair and Bob Roenbaugh.
Buck noted that the traffic count for 29th Street was 2,817 cars daily and that an increase of 25 to 30 cars per day was insignificant. He told the Committee that the C&D landfill would not be visible from either 29th Street or Ratner Road. Kenny Blair, an engineer with the firm of Cook, Flatt, and Strobel, said the use of the former quarry as a C&D landfill would cause no problems and that the money generated could eventually be used to fund reclamation of the property. Roenbaugh, who owns property adjacent to the McPhersons’ property, did not expect that the C&D landfill would make a poor neighbor. Twenty-four citizens spoke in opposition to the application.
The Committee voted 7 to 0 against the CUP application.
In his deposition, Scott McPherson described the meeting of the Committee as a “circus.” He noted inaccurate information was presented, including allegations that MLI would be burning tires, dumping environmentally sensitive materials and other toxic waste, and polluting the water. Scott McPherson further stated that Dave Ireland, chairman of the Committee, later told him that a vote to approve the application would have been “political suicide.”
The Board’s Hearing August 14, 2000
The McPhersons understood that no member of the Board promised approval of the application for a C&D landfill before the hearing. However, Ireland told the McPhersons there were sufficient votes on the planning commission for approval and that he was going to see to it that the application was approved. The McPhersons understood there were no guarantees, as indicated by the following disposition testimony:
“Q. [To Virgil McPherson] Did they at any time tell you that there were no guarantees in the conditional use permit process?
“A. I’m sure they did, because there isn’t.
“Q. Okay. And you believe there aren’t any guarantees in this process?
"A. Yeah.”
At the Board’s August 14, 2000 hearing, Paris spoke on behalf of the Planning Agency staff. He summarized his report, focusing on the additional growth expected in the area and the expectation that traffic would be a problem in 5 to 10 years. The McPhersons’ attorney spoke in favor of the application. Buck “acknowledged the Commission received approximately 132 form letters, numerous telephone calls, faxes, and contacts from the residents.”
Again, Blair spoke in favor of the McPhersons’ application. Blair told the Board that the Kansas Department of Healdr and Environment (KDHE) would issue a permit, make annual reviews, and determine annually whether to continue the permit. Phil Rosewicz, a representative with KDHE, confirmed that the C&D landfill could be shut down for noncompliance with applicable regulations.
There were no additional speakers in favor of the application, and Scott McPherson admitted in his deposition testimony that the McPhersons presented all their available information to the Board.
Twenty-four people spoke in opposition to the application. Charles Benjamin, an attorney representing a homeowners association, showed the Board a picture of a C&D landfill managed by the McPhersons. Benjamin raised the concern that landfills, whether sanitary landfills or C&D landfills, would attract dumping, i.e., people dumping their things off by the side of the road in the vicinity of the landfill.
Robert Badenoch, who described himself as an appraiser, told the Board he had reviewed some appraisal literature and concluded that the value of property within a 5-mile radius would be adversely affected by an active C&D landfill. Further, Badenoch mentioned that property taxes, which are assessed based upon the value of the property, would decrease and thereby place fiscal strain on the county. Badenoch’s written submission to the Board included a bibliography of eight articles addressing the impact landfills have on surrounding property values.
Gary Reynolds, the Shawnee Heights School District Superintendent, spoke in opposition. Reynolds said the C&D landfill would “impact four of their six attendance centers and indirectly impact the traffic to the other two facilities.” Reynolds said the school board had adopted a resolution supporting those opposed to the application.
Steve Bolton, the Shawnee County Director of Refuse, said if the existing C&D landfill was closed, the county’s operating expense at the Rolling Meadows Landfill would increase by $40,000 annually.
The Board voted to reject MLI’s application, with Commissioners Meier and Ensley voting against the application and Commissioner Kane voting in favor of the application. The Board’s findings of facts noted the following potential problems:
“8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly affect the timeframe governing the reconstruction of Southeast 29th Street to meet arterial street standards. Based on the classification of Southeast 29th Street as a minor arterial road, the current condition of this road appears to be substandard to meet the current and projected traffic demand east of Croco Road.
“9. Southeast 29th Street is characterized as being hilly in this area and currently has minimal shoulder areas in the event of traffic problems or accidents. While this is likely adequate for normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic at this location could substantially increase the risk of serious accidents occurring. Coupled with the projected increases in traffic as this area develops, this presents a grave concern.
“10. Environmental concerns have been presented in regards to potential water pollution. A large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the proposed site for the construction and demolition landfill. Studies and borings completed were reportedly done to the north of 29th Street and not in the specific area where the proposed landfill is to be located. The applicant could not completely address the possibility or such contaminants entering the groundwater system.
“11. Other uses for the property have been identified including pasture or agricultural use, a recreational complex utilizing the lake on die property or potential future residential development. While these alternative uses may not be as profitable as the proposed use, they are legitimate alternative uses.”
Commissioner Kane
Prior to the Board’s hearing, Ireland brought Commissioner Kane to the 29th Street and Ratner Road site and the McPhersons talked with her about the landfill project. Commissioner Kane indicated that, on any give issue, if she was for the issue, Commissioners Ensley and Meier were against the issue 99% of the time. The McPhersons spoke with Commissioner Kane on multiple occasions. They had the impression Commissioner Kane would vote in favor of the CUP application. Voth said Commissioner Kane was supportive of the proposal.
Commissioner Meier
Commissioner Meier said the McPhersons initiated two to four conversations regarding the application. Scott McPherson’s deposition testimony indicates Commissioner Meier spoke favorably about the project prior to the purchase of the 678 acres from Martin Marietta. Voth confirmed in his deposition that Commissioner Meier was initially in favor of the proposal.
After MWI purchased the property from Martin Marietta, Commissioner Meier wrote a letter dated April 14, 1999, to the Mc-Phersons. Commissioner Meier noted that he had received telephone calls expressing concern that the McPhersons would be applying to operate a C&D landfill on the property. Commissioner Meier stated that the purpose of his letter was to “gather information on [the potential application] prior to the Commission hearing [the] request.” In the letter, Commissioner Meier asked several questions, including a question about traffic patterns of trucks seeking access to the landfill. Commissioner Meier noted that there had been an application in 1998 to place a commercial building approximately 2 miles from MLI’s property, but he had nevertheless voted against the application, although the commercial building was less obtrusive than the proposed operation of a C&D landfill. Commissioner Meier ended the letter by suggesting that he believed “it is in the best interests of the community to find more suitable locations where access will not be an issue.”
At the Board’s hearing, Commissioner Meier said that he had given thought to this issue for months and that he had received numerous calls from people who did business with the McPhersons saying there was no one with more integrity.
Commissioner Meier’s deposition testimony indicates the calls regarding MLI’s CUP application were 20 to 1 against approval of the application.
Virgil McPherson said that he never spoke with Commissioner Meier on the issue.
Commissioner Meier testified in his deposition that he did not attend any of the meetings held by those opposed to the Mc-Phersons’ application. He said that at the time of his vote, he was a lame-duck member of the Board. Regarding the political pressure to vote against the application, Commissioner Meier testified that it was never a concern of his on votes in 4 years.
Commissioner Ensley
The McPhersons met with Voth and Commissioner Ensley. According to Scott McPherson, the meeting took place early in 2000. Commissioner Ensley said he was not in favor of the conditional use permit. According to Voth, Commissioner Ensley disapproved of using the property as a C&D landfill, having recalled that he received numerous calls from people complaining of Martin Marietta’s quarry operation and did not want to get those types of calls anymore. According to Voth, the meeting with Commissioner Ensley was before the purchase of the property from Martin Marietta:
“It was before they purchased the property. I wanted to be sure that Virgil wasn’t misled and bought that piece of property thinking that he was assured in any way,' and Ensley made this very clear at that meeting, too, that there were no assurances. He was welcome to do whatever he wanted, but there was no assurances that he’d glean a permit on that, on that property.”
Commissioner Ensley said in his deposition that there was a “higher and best use for the property . . . than a demolition landfill,” but did not know what that use would be. Commissioner Ensley explained why he would reserve his final decision until the public hearing: “Because you don’t have all the information. New information may come forth at a public hearing that’s not available to you prior to that.”
Commissioner Ensley testified he did not attend any of the meetings held by the interested landowners opposed to the Mc-Phersons’ application.
District Court
MLI filed a petition for review with the district court. The district court heard oral arguments and filed its memorandum decision granting the Board summary judgment, and MLI timely appealed.
Due Process
1. Prejudgment
MLI contends that the decision of the Board is void based upon a violation of MLI’s due process rights under the United States Constitution. The proceedings before the Board with regard to MLI’s CUP application were quasi-judicial. Thus, due process attached to the proceedings and those proceedings must have been fair, open, and impartial. MLI’s challenge relates to impartiality and specifically to the statements made by Commissioners Meier and Ensley before the formal hearing. MLI claims that those statements established that both commissioners had prejudged the merits of the application before all of the evidence was presented at the formal hearing. The hearing and final decision was, according to MLI’s contention, unfair and tainted by the commissioners’ prejudgment.
There are no Kansas cases on the issue of prejudgment in a zoning decision. The Kansas Court of Appeals discussed a similar issue in reviewing a decision by the Kansas Corporation Commission (KCC) involving the “conditional approval” of a settlement agreement by all parties before an official hearing. Farmland In dustries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 943 P.2d 470, rev. denied 263 Kan. 885 (1997). The question posed by the court was whether the KCC’s “conditional approval” of the agreement constituted a prejudgment of the issues and violated due process of law. In its order of conditional approval, the KCC noted that it had not issued a final order approving the agreement and that “it would decide upon the reasonableness of the amended settlement agreement after hearing all the evidence.” 24 Kan App. 2d at 188. The court concluded that based upon the order itself, the KCC remained open to additional evidence and denied the prejudgment claim. 24 Kan. App. 2d at 188.
Farmland, Industries echos a common thread running through most of tlie quasi-judicial proceedings cases involving prejudgment. See Annot., Disqualification for Bias or Interest of Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R. 3d 694, § 6; 83 Am Jur. 2d, Zoning and Planning § 601; Dennison, Zoning: Proof of Bias or Conflict of Interest in Zoning Decision, 32 Am. Jur. Proof of Facts 3d 531, § 15. Most cases support the conclusion that prejudgment statements by a decisionmaker are not fatal to the validity of the zoning determination as long as the statement does not preclude the finding that the decisionmaker maintained an open mind and continued to listen to all the evidence presented before making the final decision. See O&G Industries v. Planning & Zoning Commission, 232 Conn. 419, 430, 655 A.2d 1121 (1995); Madison River R. V. Ltd. v. Town of Ennis, 298 Mont. 91, 94, 994 P.2d 1098 (2000) (“To prevail on a claim of prejudice or bias against an administrative decision maker, a petitioner must show that the decision maker has an Irrevocable closed’ mind on the subject under investigation or adjudication.”); Wagner v. Jackson Cty Bd of Zon. Adj., 857 S.W.2d 285, 289 (Mo. App. 1993) (“Familiarity with the adjudicative facts of a particular case, even to the point of having reached a tentative conclusion prior to the hearing, does not necessarily disqualify an administrative decisionmaker, in the absence of a showing that the decisionmaker is not capable of judging a particular controversy fairly on the basis of its own circumstances.”).
MLI advances the following cases in support of its contention that Commissioners Meier and Ensley prejudged its CUP application. Barbara Realty Co. v. Zoning Bd. of Cranston, 85 R.I. 152, 128 A.2d 342 (1957); Lage v. Zoning Board of Appeals, 148 Conn. 597, 172 A.2d 911 (1961); McNamara v. Saddle River, 60 N.J. Super. 367, 158 A.2d 722 (1960). The cases provide little if any support and may be distinguished on their particular facts.
Barbara reviewed a zoning board’s decision to grant an application for a variance in a residential zone for the use of a motor lodge. Mancini, one of the objectors to the variance before the zoning board and a petitioner on appeal, told Harris, a member of the zoning board, that there would be an objection to the application for a variance. Harris, a decisionmaker, replied, “What difference does it make, we are going to shove it down your throat anyway.” 85 R.I. at 154. On appeal, the objectors argued the board erred in refusing to disqualify Harris because the evidence showed that Harris had prejudged the matter before it and, therefore, could not render a fair and impartial decision. The court agreed, concluding that the principles of impartiality had been violated. 85 R.I. at 156-57. The statement, “we are going to shove it down your throat anyway,” demonstrated that the zoning board member not only prejudged the matter, but also intended to ignore evidence not supporting his position.
Unlike Barbara, Commissioner Meier’s letter asked questions and invited answers, which hardly suggests he precluded the consideration of further evidence on the matter. Commissioner Ensley’s testimony indicated that he reserved his decision until the public hearing, which supports a conclusion that he considered all the evidence.
Lage reviewed a zoning boards’ decision to grant a variance to permit the construction and operation of a grocery store in a residential zone. One of the board members had spoken in favor of the variance at a prehminary hearing before the planning commission. The court’s analysis included the following:
“His remarks, however, indicate a preconceived opinion about the desirability of the change, and that opinion must have influenced his vote on the variance. Whether his attitude had any bearing on the decision of his comembers cannot be known. The vote of the other four members would have been sufficient to grant the variance. In a somewhat similar situation, we held that a member of a zoning commission should have disqualified himself. Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 496, 134 A.2d 250. Evarts would have shown much better judgment had he refrained from acting as a member of the board of appeals in this matter. The court should have allowed the introduction in evidence of the portion of the transcript concerning his statement before the planning and zoning commission. The statement could well have been preliminary to development of basis for absolute disqualification.” 148 Conn, at 604.
Lage also fails to lend support to MLTs contention of prejudgment. In that case, the expression of a preconceived opinion at the public hearing suggested more than prejudgment — it suggested that the official had an interest in the matter and was acting more as an advocate, rather than as a quasi-judicial official. The suggestion that the official in Lage so strongly prejudged the matter that he would not consider further evidence is simply not present in the case we now review. In this case, the statements of Commissioners Meier and Ensley were not meant to influence the process, but were meant to help the McPhersons by giving them insight into the concerns harbored by the Board. Armed with this information, the McPhersons had an opportunity to address these concerns.
The last case cited by MLI, McNamara, involved allegations that a councilman’s vote for an ordinance regulating private and parochial schools in residential zones was disqualified because of the councilman’s self-interest. The court recognized the law generally permitted political office holders to vote consistently with preelection statements, but pointed out that the councilman had participated in legislation against the school at issue and also owned property close to the school. The court found the councilman’s motivation was not based on civic interest but, rather, on his interest as a property owner. 60 N.J. Super, at 373-74. The “ultimate question” posed by the court was: “If as a citizen he opposed the establishment of the school, was [the councilman] qualified to vote on an ordinance?” (Emphasis added.) 60 N.J. Super, at 377. The court concluded that the zoning decision needed to be made “unaffected by personal considerations,” an element the court found was lacking in the case of the councilman: “But in the subject matter of the legislation he had a well developed and intense private concern. Its very presence could have impaired his capacity to act in the interest of the citizens at large.” 60 N.J. Super, at 378.
The concern in McNamara involved personal interest. In this present case, there was no suggestion of personal interest. Again, the statements of Commissioners Ensley and Meier were potentially beneficial to the McPhersons in that they served to highlight the commissioners’ concerns, which then could be addressed at the formal hearing with additional evidence.
The facts of this case as set forth in detail above are instructive. There was no indication that Commissioners Ensley and Meier failed to keep an open mind or failed to consider all the evidence. While Commissioner Meier sent a letter suggesting his opposition to the application, he asked a number of questions, which suggested he might be persuaded to support the application if certain facts were established. Further, in the case of Commissioner Ensley, while his statements indicated stronger opposition to the application, he testified in his deposition that he reserves final judgment for the hearing because of the potential that new evidence might surface. Based upon all the circumstances, we conclude that there was no prejudgment in this case.
2. Ex Parte Communications
With respect to the ex parte communications, it should be noted that the parties must be informed of the evidence submitted for consideration and must be provided an opportunity to respond and rebut the evidence. Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 331, 597 P.2d 654 (1979). The American Jurisprudence, Second, encyclopedia notes that “a local legislator may confer ex parte with persons interested in a proposed zoning amendment.” 83 Am. Jur. 2d, Zoning and Planning § 602. But in the present context, ex parte communications come under stricter review:
“However, when ex parte contacts are present in the context of quasi-judicial zoning decisions, such as variances and special use permits, courts will be more receptive to challenges to decisions on grounds of zoning bias. Still courts may simply try to avoid the issue altogether by concluding that the ex parte commu nications were eventually made part of the record decision, so that there was no denial of the due process right to a fair and impartial hearing.” 32 Proof of Facts 531, § 16.
This court in In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 736 P.2d 923 (1987), considered ex parte contacts in the context of review of a district court decision affirming the Johnson County Board of County Commissioners’ decision to permit Overland Park to annex property. The court found the parties opposed to the annexation had an opportunity to respond to the matters involved in the communications between the City and the Board and also noted that the Johnson County Board had received ex parte communications from those opposed to the annexation. 241 Kan. at 371-72.
The testimony of MLI’s attorney before the Board suggests he knew letters were being sent to the commissioners. There is no suggestion in the record or in the briefs that matters contained in the letters or discussed in any other ex parte communications were not disclosed to MLI. The McPhersons indicated that they had presented the Board all the information they had available. Further, the inconsistency in MLI’s positions on appeal and prior to the Board’s decision when it lobbied for its application is worthy of consideration. Had the Board voted in favor of the CUP application, tire same argument could be made by those opposed to the application, citing the McPhersons’ conversations with board members both at the site and in a private meeting.
Our review convinces us that neither prejudgment nor ex parte communications rendered the final decision of tire Board unlawful. MLI fails to establish that the proceedings before the Board denied it due process of law.
Reasonableness
Before beginning the reasonableness analysis under Golden, MLI’s complaint that the Board’s failure to malee timely formal findings of fact should be considered. Paris, the county planner, worked on the findings of fact as late as winter 2000. Initially, it should be noted that formal findings of fact are not required. Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 678, 952 P.2d 1302 (1998). It is more important that there exists a record of what the Board considered before making its decision so that the reviewing court is not left in a “quandary” as to why the decision was made. See 263 Kan. at 679. No harm was found in a similar situation in Landau v. City Council of Overland Park, 244 Kan. 257, 767 P.2d 1290 (1989).
In Landau, the findings of fact had not been made until 6 months after the relevant decision and after the aggrieved party had filed a notice of appeal. The court still determined that at least two of the Golden factors had been considered. Further, the Landau court noted the minutes revealed that the views expressed by citizens at the public hearing addressed the additional Golden factors. Landau, 244 Kan. at 262-63. Similarly, the planning staff in the present case did not recommend approval of the application and, as the analysis below shows, the citizens’ views address additional Golden factors. As in Landau, the record does not leave this court in a quandary as to what motivated the Board to act, and the argument that these findings were inadequate because they were made after the Board’s hearing fails.
MLI contends that the Board’s denial of the CUP was unreasonable and arbitrary. The factors announced in Golden for testing the reasonableness of zoning decisions are applicable in reviewing the Board’s decision. See K-S Center Co. v. City of Kansas City, 238 Kan. 482, 495, 712 P.2d 1186 (1986) (“We have consistently held, in reviewing the grant or denial of a special use permit, the same test of‘reasonableness’ applies as in rezoning cases.”). Just as the Board and the district court did, we consider the following Golden factors to test the reasonableness of the Board’s denial:
(1) The character of the neighborhood
The Board found that “[t]he site lies in a growing residential area with substantial residential development just to the west of the proposed location.” The Board heard testimony from many of the people who own houses near the proposed C&D landfill site. Thus, the Board was reasonable when it concluded the neighborhood was residential.
(2) The zoning and uses of properties nearby
The Board noted the area surrounding MLI’s proposed site is zoned as RR-1. MLI does not dispute this finding but, rather, emphasizes that its property has been used for quarrying activities, which are also classified along with a C&D landfill as a use permitted by a conditional use permit. According to MLI, the operation of a C&D landfill is a nonconforming use and, thus, has become a vested right.
While this Golden factor relates to the “zoning and uses of properties nearby,” 224 Kan. at 598, we pause briefly to address MLI’s argument concerning nonconforming use. MLI argues its operation of a C&D landfill would be a nonconforming use and, therefore, a vested right. See Goodwin v. City of Kansas City, 244 Kan. 28, 32, 766 P.2d 177 (1988). The district court noted that under the possible uses permitted by a conditional use permit, operation of a quarry, City of Topeka-Shawnee County Comp. Zoning Reg., App. C, Art. III, § 48-3.02(c)(5) (1999), and operation of a C&D landfill, City of Topeka-Shawnee County Comp. Zoning Reg., App. C, Art. III, § 48-3.02(c)(17), are under separate subsections. The operation of a quarry under § 48-3.02(c)(5) includes a number of various activities: “Extraction, processing, storage, and sale of raw materials, including ore, minerals, sand, rock, stone, gravel, topsoil, fill dirt, and other materials delivered by quarry, mining, dredging, or stripping operations.” With respect to nonconforming uses, the Topeka-Shawnee County zoning regulations provide that a nonconforming use may be changed to another nonconforming use of the same restricted classification. The regulations define classification as the “[division of uses or activities into groups or subgroups for regulatory purposes.” (Emphasis added.) City of Topeka-Shawnee County Comp. Zoning Reg., App. C, Art. XXXV (1999). However, the right to a nonconforming use is to be strictly construed. Goodwin, 244 Kan. at 32. Thus, under a strict construction of nonconforming use, the operation of a C&D landfill is not a nonconforming use because not only is the operation of a C&D landfill substantially different from the operation of a quarry, but also the C&D landfill is not within the various uses classified in § 48-3.02(c)(5). However, assuming a valid nonconforming use existed at one time, if the use has been discontinued for a year, the privilege of nonconforming use would be lost. Martin Marietta’s quarry operations ended in 1993, but material continued to be removed until 1998. MLI’s application was made in March 2000. Thus, even if a C&D landfill would be a nonconforming use, any such use had long since become unavailable under the zoning regulations.
Thus, MLI’s emphasis on the zoning classification of its own property misses the mark. The evidence of record supports the Board’s finding that the nearby properties are zoned and used as residential areas.
(3) The suitability of the subject property for the uses to which it has been restricted
With respect to the alternative uses for the property, the Board made the following finding:
“11. Other uses for the property have been identified including pasture or agricultural use, a recreational complex utilizing the lake on the property or potential future residential development. While these alternative uses may not be as profitable as the proposed use, they are legitimate alternative uses.”
MLI maintains the property can only be used as a C&D landfill. The Board, however, disagreed and identified several alternative uses of the property in question. While the Board conceded that the property, in its current state and until it has gone through a reclamation process, was unsuitable for residential use, the Board did not limit its consideration to residential use. As indicated by finding No. 11, several alternative uses were found to exist. There is substantial competent evidence of record to support the Board’s finding regarding alternate uses of the property in question. Given our standard of review, we conclude that the Board’s finding that the property in question was suitable for a number of alternative uses is a reasonable conclusion.
(4) The extent to which removal of the restrictions will detrimentally affect nearby property
The Board did not make a specific finding with respect to the detrimental effect tire operation of a C&D landfill would have on the nearby property. The Board reserved the traffic and environmental concerns for the public health, safety, and welfare factor below, and focused instead on the potential dirt, noise, trash, and potential decline in property values. It its brief, MLI inserts the word “neighborhood” into the analysis and repeats the argument that the surrounding areas were used for quarrying activities.
Despite the fact that the Board did not make any specific findings with respect to the detrimental affect on nearby properties, the Golden factors are suggestions only and each Golden factor need not be considered to make the ultimate decision reasonable. See Landau, 244 Kan. at 263.
(5) The length of time the subject property has remained vacant as zoned
The Board noted that quarrying activities ceased in 1993. Thus, at the time of tire Board’s vote, the property had been vacant for 7 years. However, Martin Marietta had continued to remove material from the site until 1998. Thus, the property had been idle for 3 years at the time of the Board’s hearing. Given the Board’s finding regarding alternative uses of the property, its conclusion that there was no reason to believe that the property would remain vacant was a reasonable conclusion supported by the evidence of record.
(6) The relative gain to the public health, safety, and welfare by the destruction of the value of plaintiffs property as compared to the hardship imposed upon the individual landowner
With respect to the gain to safety by denying MLI the CUP application to operate a C&D landfill, the Board made the following findings:
“5. Southeast 29th Street is a primary route for students traveling to and from Shawnee Heights High School, Shawnee Heights Middle School, and Tecumseh Elementary School during early morning and midaftemoon hours. The applicant projected that tire busiest hours of operation of the construction and demolition landfill site would be between 7:00 a.m. and 8:00 a.m. and again in the afternoon between 4:00 p.m. and 5:00 p.m. These projected hours coincide with those times that students are traveling to school in the morning, and in many cases, leave school after extracurricular activities in the afternoon.
“7. As residential development continues to grow, likely eastward, the significance of Southeast 29th Street as an arterial street will increase significantly.
"8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly affect the timeframe governing the reconstruction of Southeast 29th Street to meet arterial street standards. Based on the classification of Southeast 29th Street as a minor arterial road, the current condition of this road appears to be substandard to meet the current and projected traffic demand east of Croco Road.
“9. Southeast 29th Street is characterized as being hilly in this area and currently has minimal shoulder areas in the event of traffic problems or accidents. While this is likely adequate for normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic at this location could substantially increase the risk of serious accidents occurring. Coupled with the projected increases in traffic as this area develops, this presents a grave concern.
‘TO. Environmental concerns have been presented in regards to potential water pollution. A large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the proposed site for the construction and demolition landfill. Studies and borings completed were reportedly done to the north of 29th Street and not in the specific area where the proposed landfill is to be located. The applicant could not completely address the possibility or such contaminants entering the groundwater system.”
MLI separately addresses the traffic concerns prior to addressing the Golden factors. Under this sixth Golden factor, MLI focuses on the loss the county will suffer if the application is denied. This argument implies that there are no alternative sites for a C&D landfill in Shawnee County or any other sufficiently close location.
With respect to the traffic concerns, the Board found the roads used by trucks driving to or from the C&D landfill would also be used by people driving to or from one of three schools in the area. Further, the Board found that the times of heaviest traffic to and from the C&D landfill would in part overlap with the times of busiest traffic to and from the schools.
MLI disputes the reasonableness of the findings. MLI points out that the county public works department granted heavy truck certification and approval for trucks driving to and from the proposed C&D landfill site. MLI argues the 25 additional trips per day do not amount to significant concern. Further, MLI stresses the fact that the traffic associated with the C&D landfill would be less than that associated with the quarry.
MLI cites Taco Bell v. City of Mission, 234 Kan. 879, 678 P.2d 133 (1984), to support its position. This court in Taco Bell affirmed the district court, which had found the City of Mission acted unreasonably, arbitrarily and capriciously in a zoning decision. With regard to traffic, this court found the City of Mission was unreasonable in citing traffic concerns because the evidence showed the development would not attract any additional traffic. 234 Kan. at 890.
Taco Bell can be distinguished from the situation in which a particular use attracts traffic. That is exactly the situation with MLTs proposed C&D landfill, which would attract traffic. Therefore, traffic is a valid concern. Further, Taco Bell stands for the proposition that citations to general terms such as “traffic” are, without more, insufficient. See 234 Kan. at 891 (‘We warned in Golden of the danger of a governing body relying on such general considerations as ‘traffic problems’ and ‘traffic congestion’ to control zoning decisions.”). In this case, there would be a combination of increased traffic along with specific safety concerns, i.e., the combination of truck traffic with school traffic.
The traffic at issue in this case is different from that in Taco Bell. Passenger cars were not in issue in this case, but rather the issue concerns larger trucks loaded with materials bound for a C&D landfill. The Paris report noted that the route has been used by students to attend school or school functions and that this use was expected to increase in the future. The report also noted that the urbanized area of Topeka was growing eastward and that “special consideration should be given not only to observed current traffic conditions in the area, but also to the projected traffic patterns.”
With regard to the county public work’s approval of the truck route, it is not clear how the approval relates to traffic safety as opposed to the road’s capacity to accommodate the trucks without damage.
With respect to the environmental concerns, the Board points out how geologist Dow’s review of MLI’s application questioned MLI’s conclusion that there was no concern for groundwater con tamination. Dow’s letter indicated that there was groundwater seepage at the “East Topeka” quarry. Buck told the Board that further investigation in response to Dow’s letter tended to show Dow’s analysis was incorrect. However, Rosewicz, a representative with the KDHE, told the Board that while tire risk was minimal from this type of landfill, he could not be certain that there would be no groundwater contamination.
Chris Etcheson, an employee with the Shawnee County Health Agency, told the Board, in response to a question from Commissioner Kane, that there was a “possibility for airborne particles from asbestos in an operation of that type” despite the prohibition from dumping asbestos in a C&D landfill. Commissioner Meier asked Etcheson whether the McPhersons’ other C&D landfill had ever contained any impermissible materials, and Etcheson said that this had happened in the past.
Kim Nettleson, a recycling coordinator, said there would be some dust associated with the C&D landfill.
Since “relative” gain implies a balance between the advantages and disadvantages of the denial of the application, the above disadvantages to the application should be first offset by the advantages to granting the application before comparing that “relative gain” to the hardship imposed upon the landowner. MLI emphasizes the county’s need for an additional C&D landfill to remain competitive in economic development. The Board found that other sites were available for a C&D landfill and that those sites would have the added benefit of not being located in growing residential areas.
Regarding the hardship imposed on MLI, the evidence showed MLI paid less than $10,000 for its property. Of course, this hides the fact that MWI, MLI’s parent, paid Martin Marietta between $500,000 and $600,000 for the property. Further, MLI points out the potential lost revenue amounts to $7.2 million.
The inquiry as to reasonableness should focus on the evidence presented to the Board. See Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980) (“Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.”). As the Board points out, the information regarding MWI’s and MLI’s investments was not presented to the Board.
In conclusion, MLI might dispute the Board’s judgment of these factors, but it is clear the Board considered the evidence presented and made its decision. We conclude that the Board’s decision is reasonable and not one so wide of the mark that the decision lies outside the realm of fair debate.
(7) Recommendation of the permanent or professional staff
With regard to professional staff recommendations, the Board noted the following:
“14. The Topeka-Shawnee County Metropolitan Planning Department Staff recommended DISAPPROVAL of the proposal in its report to the Metropolitan Planning Commission.
“15. At a public hearing on July 19, 2000, the Zoning and Platting Committee of the Topeka-Shawnee County Metropolitan Planning Commission considered the proposal and at the conclusion of the hearing recommended unanimously to the Board of Shawnee County Commissioners that the request be DISAPPROVED by a vote of 0-7-0-0.”
MLI concedes the professional staff factor weighs against its position but emphasizes that Paris, the planner, was inexperienced and that he admitted that the question was a close one.
(8) The conformance of the requested change to the adopted or recognized master plan
With respect to the plan, the Board made the following findings:
“6. The subject property lies approximately Vi mile east of the current urban services boundary as reflected on the 2010 Future Land Use Plan, and approximately Vi mile east of the proposed Growth Management Plan currently being drafted by the Metropolitan Planning Staff.”
The Paris report confirms the above. Paris wrote that “[u]nder both the currently adopted future land use plan, and the draft Growth Management Plan, urban density development is projected, and in fact encouraged to within a close proximity to the subject property.” (Emphasis added.)
Conclusion
This court is limited to determining the reasonableness of the Board’s action. An action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. Combined Investment, 227 Kan. at 28. We are limited to determining whether the given facts could reasonably have been found by the Board to justify its decision. Golden, 224 Kan. at 595-96. The above analysis of each factor should not be viewed as a reweighing of the evidence but, rather, a process of pointing out how the Board’s findings of facts were reasonable in light of the record on appeal. While there is evidence in the record to support the granting of MLI’s application — indeed the Board’s vote was not unanimous — in light of our standard of review, we will not disturb the Board’s decision in this case.
MLI raises two additional arguments concerning the Board’s denial of a conditional use permit to establish and operate a C&D landfill. The first claim is that the denial amounted to a taking under the Fifth and Fourteenth Amendments to the United States Constitution. The second argument contends that MLI is entitled to relief under 42 U.S.C. § 1983 (2000). Both arguments lack merit.
Taking of Property
MLI knew that the property it purchased from Martin Marietta was zoned residential. Before the purchase, its parent corporation, MWI attempted to make the deal contingent upon successful rezoning of the property for a C&D landfill. Martin Marietta rejected the contingency, and the property was nevertheless purchased. More importantly, there are alternative uses for MLI’s property. While the alternatives might not be as lucrative as the operation of a C&D landfill, the alternatives exist and preclude a finding that the Board has taken the entire value of the property.
The Fifth Amendment to the United States Constitution restricts governmental taking of property: “[N]or shall private property be taken for public use, without just compensation.” That provision applies to tire States through the Fourteenth Amendment. Chicago, Burlington &c. R’D v. Chicago, 166 U.S. 226, 241, 41 L. Ed. 979, 17 S. Ct. 581 (1897).
MLI relies solely on Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798,112 S. Ct. 2886 (1992). In Lucas, a South Carolina law prohibited the property owner from erecting any permanent habitable structures on his land, which rendered the property valueless. The Court’s analysis began with Justice Holmes’ often quoted words in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158 (1922), warning that compensation is required if regulation goes “too far.” 505 U.S. 1014 (quoting Pennsylvania Coal). Then, the Court noted the lack of specific guidance for determining when, and under what circumstances, regulations went too far, with two exceptions. First, as shown in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982), a physical invasion of property amounts to a compensable taking. 505 U.S. at 1015. Second, there is a compensable taking “where regulation denies all economically beneficial or productive use of land.” 505 U.S. at 1015. The Court, most recently in Tahoe-Sierra Presero. Council v. Tahoe Reg. Planning Agency, 535 U.S. 302, 330,152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002), confirmed the narrow application of Lucas rule:
“But our holding [in Lucas] was limited to ‘the extraordinary circumstance when no productive or economically beneficial use of land is permitted.’ [Citation omitted.] The emphasis on the word ‘no’ in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. [Citation omitted.]” (Emphasis added.)
If the entire value of the property is not destroyed, then the analysis under Penn Central Transp. Co. v. New York City, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646, reh. denied 439 U.S. 883 (1978), is appropriate. Tahoe-Sierra, 535 U.S. at 330.
The Court in Penn Central considered whether restrictions imposed by the City of New York, which prevented substantial additions to Grand Central Station, amounted to a taking. The Court noted the difficulty involved in determining what amounts to a taking and that the “ad hoc, factual inquiries” of determining when “ ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” 438 U.S. at 123-24 (citing Goldblatt v. Hempstead, 369 U.S. 590, 594, 8 L. Ed. 2d 130, 82 S. Ct. 987 [1962]). The Court identified factors that help in the inquiry: (1) the economic impact of the regulation, focusing on the investment-backed expectations of the owner; and (2) the character of the governmental action, i.e., whether a physical invasion is involved, rather than an interference “adjusting the benefits and burdens of economic life to promote the common good.” 438 U.S. at 124. The Court went on to note the following with regard to zoning laws:
“More importantly for the present case, in instances in which a state tribunal reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. [Citation omitted.] Zoning laws are, of course, the classic example, [citations omitted] which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property. [Citations omitted.]
“Zoning laws generally do not affect existing uses of real property, but ‘taking’ challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm.” [Citation omitted.] 438 U.S. at 125.
The owners of the terminal in Penn Central argued the airspace above the terminal amounted to a “valuable property interest,” which the city had taken. 438 U.S. at 130. The Court rejected this argument:
“Apart from our own disagreement with appellants’ characterization of the effect of the New York City law, . . . the submission that appellants may establish a ‘taking’ simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, [citation omitted] but also in approving those prohibiting both the subjacent, [citation omitted] and the lateral [citation omitted] development of particular parcels. [Citations omitted.] ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been en tirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole -here, the city tax block designated as the ‘landmark site.’ ” 438 U.S. at 130-31.
The Court noted that a regulation does not amount to a taking merely because it significantly diminishes the value of the property. 438 U.S. at 131.
This court in Jack v. City of Olathe, 245 Kan. 458, 470, 781 P.2d 1069 (1989), held that there is not a taking following the failure to rezone:
“The cases are further distinguishable from the present case in that the various governmental bodies involved had taken affirmative action to restrict and take away a right to the use of property which already existed. In the present case the action of the City was merely to deny the expansion of the existing right to use file property. No taking of the plaintiffs’ property has been shown in the present case.”
We conclude that the Board’s denial was not a taking under the Fifth Amendment to the United States Constitution but was a decision to deny the expansion of the existing right to use the property.
42 U.S.C. § 1983
MLI contends it is entitled to relief under 42 U.S.C. § 1983, which provides as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to tire party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” (Emphasis added.)
One seeking relief under 42 U.S.C. § 1983 must satisfy the following two requirements: (1) Some person must deprive the plaintiff of a federal right; and (2) that person must have acted under color of state or territorial law. See Cook v. City of Topeka, 232 Kan. 334, 340, 654 P.2d 953 (1982). MLI fails to satisfy the first require ment by failing to establish that the Board deprived it of a federal right.
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The opinion of the court was delivered by
Larson, J.:
This appeal raises the question of whether a conditional payment can be made on a promissory note barred by the statue of limitations and revive the obligation to pay the principal amount but not the interest thereon.
When the makers delivered a partial payment on the principal of a time-barred promissory note, they indicated an intent to repay the balance of the principal only. The payee sued to collect the remaining principal and interest on the note. The makers defended by asserting the statute of limitations. On cross-motions for summary judgment, the district court revived the principal by applying the provisions of K.S.A. 60-520(a) but not the outstanding interest. The parties cross-appealed. The Court of Appeals held that under K.S.A. 60-520(a), the makers’ part payment revived the entire promissory note, both principal and interest. O’Malley v. Frazier, 29 Kan. App.2d 947, 34 P.3d 478 (2001). We granted the makers’ petition for review.
Although both parties suggest there were controverted facts, any disputed facts, however resolved, would not affect the judgment and do not present a genuine issue of material fact. See Bergstrom v. Noah, 266 Kan. 847, 872, 974 P.2d 531 (1999). The trial court found the following facts to be undisputed, which we set forth along with the proceedings and rulings in the trial court and the Court of Appeals prior to our consideration of this appeal.
On May 24, 1984, Kathryn and Ronald Frazier entered into a promissory note with Phillip O’Malley in the amount of $27,000 at 14% interest, due in full in 90 days. The Fraziers did not repay the note according to its terms; however, they did make interest payments from time to time until September 9, 1987.
Ronald Frazier had conversations with O’Malley in which he always expressed his intent to repay, when he could, the $27,000 principal amount of the debt. Frazier never indicated an intent to pay any interest. O’Malley admitted in a deposition that Ronald Frazier always said: “I’m going to pay you the principal, but I can’t pay you the interest.”
On January 24, 2000, almost 13 years after their last payment, Ronald Frazier delivered a $5,000 check to O’Malley. The check was written and signed by Kathiyn Frazier. When Ronald Frazier delivered the check, he stated to O’Malley that he would try to raise the money and try to pay the balance of the principal at some time in the future.
A few months later, Ronald Frazier offered to pay O’Malley the remaining $22,000 in exchange for a release acknowledging no further obligation on the debt. O’Malley refused and initiated this action.
It is undisputed that by the time the Fraziers paid the' $5,000 to O’Malley, the applicablé limitation period for any action upon any agreement, contract, or promise in writing had expired.,K.S.A. 60-511. It is also undisputed that' O’Malley sued the Fraziers within 5 years of the $5,000 payment.
Our appeal centers on the interpretation of K.S.A. 60'-520(a), which states:'
“(a) Effect. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” . •
The trial court concluded that the Fraziers’ part payment on the promissory note was an acknowledgment of a present existing obligation to pay the principal of the note, but they had consistently denied any intention or obligation to pay interest. Thé court granted summary judgment to O’Malley as to tire remaining principal of $22,000, but granted summary judgment to the Fraziers in ruling that no interest prior to the date of the judgment was owing. O’Malley appealed and the Fraziers’ cross-appealed.
The Court of Appeals reversed that portion of the district court’s decision granting summary judgment to the Fraziers and held their part payment revived both the principal and interest on the promissory note. The Court of Appeals reasoned:
“Under the plain language of the statute, part payment by the debtor will toll the statute of limitations. Any of the three means mentioned in tire statute — • payment, acknowledgment, or promise — starts anew the period of limitations which would have been applicable had an action been brought on, the original debt or claim. See Morton v. Leslie, 150 Kan. 213, 215, 92 P.2d 90 (1939) (citing G.S. 1935, 60-312, the predecessor of K.S.A. 60-520[a]). The statute provides no means for reviving one part of the debt and not another. When the statute is clear, it must be applied without judicial construction. Kilner v. State Fann Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993).
“The district court, in support of its decision, cited Golden Rule Oil Co. v. Liebst, 153 Kan. 123, 109 P.2d 95 (1941). In Golden Rule, the court refused to revive the note by relying on the identical predecessor to K.S.A. 60-520. However, the critical distinction between the facts in Golden Rule and the instant case was that the debtor in Golden Rule did not malee a part payment on the debt.
“The Golden Rule court was scrutinizing the text of letters written by the debtor to see if they operated as an ‘acknowledgment’ in removing the limitations bar. 153 Kan. at 124. Part payment does not require such scrutiny as it speaks for itself. See Fisher v. Pendleton, 184 Kan. 322, 336 P.2d 472 (1959); accord Hustead v. Bendix Corp., 233 Kan. 870, 666 P.2d 1175 (1983).
“In Hustead, the court made it clear that part payment and acknowledgment are distinct means to revive a time-barred claim under K.S.A. 60-520. The court pointed out that pursuant to K.S.A. 60-520, a part payment is an executed acknowledgment that requires no writing to establish it and has the effect of tolling the statute of limitations. 233 Kan. at 877.” 29 Kan. App. 2d 947, 949, 34 P.3d 478 (2001).
Our review of the interpretation of K.S.A. 60-520(a) is plenary. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. . . . [W]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The language of K.S.A. 60-520(a) concerning lifting the limitations bar after a part payment provides little guidance as to the legislative intent to be applied in this situation. The statute states that when any part of the principal or interest shall have been paid, an action may be brought in such case within the period prescribed for the same. Clearly this is an alternative form of acknowledgment of the debt, but the statute does not indicate whether the payor can qualify or limit the effect of the part payment with the resulting revival of some portion of the debt and not another. We do not have the means of ascertaining legislative intent when this language has remained virtually unchanged since becoming territory law in 1858. See Terr. L. 1858, ch. 11 § 24; G.S. 1868, ch. 80, § 24; G.S. 1949, 60-312; and L. 1963, ch. 303, 60-520.
In the long history of judicial interpretation of this language, we have not located a set of facts precisely on point where a debtor acknowledged the obligation to pay only the principal of a debt when making a part payment. However, there is a common thread of general rules that run throughout the cases. Typical of the type of language used by this court are the prouncements in Elmore v. Fanning, 85 Kan. 501, 504, 117 Pac. 1019 (1911), where it was held that when a comaker delivers a payment to the payee of his comaker s money and as agent for his comaker, it does not extend the statute of limitations as to himself. The Elmore opinion stated:
“A payment, to toll the statute, must be made under such circumstances as to amount to an acknowledgment of an existing liability. (Shanks v. Louthan, 79 Kan. 363, 365, 99 Pac. 613.) Such acknowledgment must be distinct, unequivocal, and without qualification (Durban v. Knowles, 66 Kan. 397, 71 Pac. 829), and it must be made by the obligor against whom the statute is sought to be tolled, or by someone at his direction (Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545).” 85 Kan. at 504.
The requirement that the acknowledgment must be without doubt or misunderstanding is repeated in another historical authority in this state, Dassler’s Kansas Civil Code, Annot. ch. 4, § 120 (2d ed. 1931), which states:
“Section 23 of the Civil Code [forerunner of our current statute] provides that in any case founded on contract, when any part of the principal or interest shall have been paid, an action may be brought in such case within the period prescribed for the same after payment. The payment to avoid the bar of the statute must be made under such circumstances as to amount to an acknowledgment of an existing liability. Such acknowledgment must be distinct, unequivocal and without qualification, and it must be made by the obligor against whom the statute is sought to be tolled, or by some one at his direction.”
This general rule is repeated in the annotations and legal encyclopedias. See Annot., 10 A.L.R. 4th 932; 51 Am Jur. 2d, Limitation of Actions § 347; 54 C.J.S., Limitations of Actions § 265.
These statements suggest that a payment made with qualification will not toll the statute of limitations. Does this mean oral statements accompanying a part payment can acknowledge the principal portion of the debt and disavow the interest? The Court of Appeals’ negative answer to this question was based in part on statements in Hustead v. Bendix Corp., 233 Kan. 870, 666 P.2d 1175 (1983).
Hustead involved an action brought by the plaintiffs to recover damages for personal injuries suffered in an airplane crash. The insurer representing the defendants admitted liability to the plaintiffs and agreed to pay plaintiffs’ damages. The insurer made several payments to the plaintiffs, but at some point, refused to make further payments. The plaintiffs brought an action to recover their remaining damages on the theories of negligence, strict liability in tort, and breach of implied warranty. Defendants raised the statute of limitations. The district court granted summary judgment to the defendants on that basis. 233 Kan. at 872.
On appeal, one contention of the plaintiffs was that their claimed breach of warranty was founded on contract and, thus, the insurer’s partial payment on their damage claim came within the provisions of K.S.A. 60-520. In response to this argument, this court stated:
“In their briefs, the defendants contend that K.S.A. 60-520 is not applicable because an acknowledgment which will remove the bar of the statute of Mmitations must be distinct, unequivocal, and without qualification, and nothing less than a direct admission of a present existing liability is sufficient, citing Bowen v. Westerhaus, 224 Kan. 42, [578 P.2d 1102 (1978)]. In this regard, we believe that counsel for defendants have overlooked the rationale of Fisher v. Pendleton, 184 Kan. 322, 336 P.2d 472 (1959), which holds that a'part payment is an executed acknowledgment which speaks for itself and requires no writing to establish it. Although in Fisher the question of the tolling of the statute of limitations by part payment involved G.S. 1949, 60-312, we believe that the logic of that case applies also to K.S.A. 60-520. The requirement of a written acknowledgment or promise in K.S.A. 60-520 pertains only to situations involving acknowledgment of an existing liability or a promise to pay the same. A part payment speaks for itself, and, when a part payment is made in a contract case, the provisions of K.S.A. 60-520 come into play, having the effect of tolling the statute of limitations.” 233 Kan. at 877.
This language was not central to the result the court reached, for we reversed the district court because the factual circumstances had not been fully developed by discovery. Also involved in Hustead were the provisions of K.S.A. 40-275 relating to advance payment of damages, and our opinion stated: “The applicability of K.S.A. 60-520 and 40-275 are issues still to be determined by the trial court, and we make no final determination of those issues on this appeal.” 233 Kan. at 878. We do not rely on Hustead to the extent the Court of Appeals did. Hustead differs greatly from our case factually, did not rely on K.S.A. 60-520(a) as to its holding, and did not involve a part payment conditionally made.
We do return to a case relied upon in Hustead, Fisher v. Pendleton, 184 Kan. 322, 336 P.2d 472 (1959), where the issue was whether the statute of limitations could be tolled against a joint maker of a promissory note when part payment was made with that maker s knowledge and acquiescence. In analyzing the issue, the Fisher opinion referred to a similar issue in Gorrill v. Goff, 148 Kan. 765, 84 P.2d 953 (1938). In Gorrill, a credit endorsement was made by the payee of the note, but without the knowledge or consent of the maker. When informed of the credit, the maker failed to raise any objection or protest against the endorsement. The court found the maker had orally ratified the payment and held the maker was bound by such ratification as though he had originally made the payment under circumstances amounting to an acknowledgment of the debt. If one can orally ratify an obligation they should also be able to orally limit the effect of a partial payment.
The court in Gorrill held that ratification of a payment was not the kind of acknowledgment that must be in writing. The Fisher opinion quoted the following from Gorrill:
“ ‘From this statute it is apparent three things may toll the statute of limitations. One is a payment. The others are acknowledgment of the debt in writing or a promise in writing to pay the debt, each signed by the party to be charged thereby. A payment obviously may be made otherwise than in writing. A payment, like any other act, may be ratified.’ ” 184 Kan. at 328 (quoting Gorrill, 148 Kan. at 769).
Still referring to ratification of a payment in Gorrill, the Fisher court continued:
“The court there recognized payment to be an executed acknowledgment which speaks for itself and requires no writing to establish it. The principle upon which part payment takes a case out of the statute is that the party paying intended by such payment to acknowledge and admit the greater debt to be due, and from which the trier of the facts would be warranted in finding an implied promise to pay the balance. (Good v. Ehrlich, supra; and Pessemier v. Zeller, 144 Kan. 726, 62 P.2d 882, 107 A.L.R. 1523.)” 184 Kan. at 328.
Both Fisher and Gorrill appear to uphold an oral acknowledgment of a debt where it is accompanied by a part payment. How ever, both Gorrill and Fisher involved part payments made without qualification. We do not disagree with the statement of the law in these cases, nor with the Court of Appeals’ statement in this case that part payment speaks for itself. However, we only interpret this to mean that a payment requires no writing as do the other forms of acknowledgment or promise. It is only in that sense the payment speaks for itself. It does not mean that a part payment conditionally made is denied the condition which accompanies the payment.
Ronald Frazier’s statements to O’Malley that he intended to pay the principal sometime in the future could never toll the statute of limitations without a writing under the statute. However, when Ronald Frazier delivered the $5,000 check to O’Malley and indicated he would, or would try, to pay the balance of the principal in the near future, the payment spoke for itself, but only as to the principal obligation under the promissoiy note.
If Ronald Frazier had delivered the $5,000 check to O’Malley without qualification or condition, we believe the entire debt would have been revived under the statute. However, K.S.A. 60-520(a) does not prevent a payor from acknowledging a portion of the debt or acknowledging an obligation to pay principal while disavowing any obligation to pay interest. There is no language in K.S.A. 60-520 stating what liability is revived.
In Miller v. McDowell, 69 Kan. 453, 77 Pac. 101 (1904), it was contended that the statute of limitation barred an action attempting to charge one-half of a debt against the estate of John McDowell. There was evidence that before his death, John McDowell went to the bank and stated that he was liable for one-half the debt in issue and that he desired to pay his proportion of the interest, which he did. Addressing the statute of limitation issue, this court stated:
“Of course, an oral admission of a debtor of his liability will not toll the statute, but payment made to the agent of the creditor to be applied on the debt, accompanied by a statement by the person making it that he is liable for one-half of it, is sufficient acknowledgment of his liability to toll the statute as to him.” (Emphasis added.) 69 Kan. at 456.
Immediately following the above quote, the Miller opinion recites the wording of § 4452 of the General Statutes of 1901, which is substantially die same as K.S.A. 60-520(a). The part payment accompanied by a qualified acknowledgment of liability was recognized in Miller as it should be as to the Fraziers’ part payment and conditional statements limiting the liability only to tire principal of the note.
Part payment of a debt is a voluntary acknowledgment which implies a new promise to pay the debt. “Such part payment may be qualified and limited as a new promise may be.” 54 C.J.S., Limitations of Actions § 264.
The Fraziers’ part payment of principal was an unequivocal acknowledgment that additional amounts of principal were due. A promise to pay the remaining principal is all that could be inferred. At all times, Ronald Frazier indicated he could not and would not pay the interest. The payment/promise was limited to the principal. The Fraziers, by their actions, did not lose the protection of the statute of limitations on the interest portion of the promissory note.
Although our analysis by necessity relates to the statutory language of K.S.A. 60-520(a), we also believe the public policy announced in Huntingdon Finance Corp. v. Newton Artisian, 442 Pa. Super. 406, 411, 659 P.2d 1052 (1995), concerning the common-law acknowledgment doctrine is relevant to our decision.
The Pennsylvania court stated:
“The acknowledgment doctrine serves a very useful purpose to both parties in that the creditor receives payment on a debt that would otherwise be unenforceable and the debtor satisfies a moral obligation to make payments pursuant to a contract where no legal obligation exists, thereby bolstering the credibility of its business. To accept appellant’s position [that a payment of principal should also revive interest], debtors would be discouraged from acknowledging debts because of the corresponding interest payments, which in some instances could exceed the principal. The four-year statute of limitation serves to protect individuals from suffering the continuing anxiety over die possibility of the commencement of an action against them in the future. Because this acknowledgment doctrine removes the protection of the statute of limitations, the acknowledgment must be patently clear and distinct and free from ambiguity.” 442 Pa. Super, at 411.
There is a valid public policy to encourage debtors to make payments on obligations that are due but tire collection of which is barred by a limitations period.
Under the undisputed facts as found by the trial court, the Fraziers at all times expressed their inability and unwillingness to repay the interest on the time-barred promissory note. The payment which was offered was qualified and limited to principal only and was not an acknowledgment of the obligation to make any payment of the past due interest thereon. The result reached by the trial court, based on the particular facts of this case, was correct.
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The opinion of the court was delivered by
Six, J.:
Jonathan DeWayne Garcia appeals his sentences following a no contest plea to aggravated batteiy and incitement to riot.
The issues are whether: (1) the fact that Garcia’s crimes were gang related under K.S.A. 2001 Supp. 21-4704a(k) must be proven to a jury beyond a reasonable doubt before that fact can be used to impose a prison term rather than probation, (2) the district court erred in failing to make adequate findings on the record to support imposition of a prison term under K.S.A. 2001 Supp. 21-4704a(k), and (3) there was sufficient evidence to support the district court’s conclusion that Garcia’s crimes were gang related.
Our jurisdiction arises from a transfer on our motion under K.S.A. 20-3018(c).
We affirm the district court’s conclusion that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), does not apply to a prison sentence imposed under K.S.A. 2001 Supp. 21-4704a(k). We vacate Garcia’s sentences on the basis that the district court failed to make adequate findings on the record as required by K.S.A. 2001 Supp. 21-4704a(k). Because we vacate Garcia’s sentences and remand for resentencing, we do not reach the sufficiency of the evidence issue.
FACTS
Garcia was arrested, along with Charles Sanchez, for Garcia’s involvement in the beating of four men in Dodge City. Garcia was charged with four counts of aggravated battery, aggravated robbery, aggravated intimidation of a witness or victim, and incitement to riot. After a preliminary hearing, Garcia agreed to plead no contest to one count of aggravated battery, a severity level 7 felony, and one count of incitement to riot, a severity level 8 felony, in exchange for the dismissal of the remaining charges.
Garcia’s criminal history score of G, combined with the severity level of his crimes, placed him in sentencing box 7-G for the aggravated battery and box 8-G for the incitement to riot. The sentencing guidelines called for presumptive probation for both offenses, with underlying sentencing ranges of 15-16-17 months for the aggravated battery and 9-10-11 months for the incitement to riot. See K.S.A. 2001 Supp. 21-4704a(a).
The district court imposed a 16-month prison term for the aggravated battery conviction to run consecutive to an 8-month prison term for the incitement to riot conviction.
DISCUSSION
Garcia argues that the fact the crimes were gang related, as set forth in K.S.A. 2001 Supp. 21-4704a(k), must be proven to a jury beyond a reasonable doubt before that fact can be used to impose a prison term rather than probation. Garcia argues that because the district court here made the required finding by a preponderance of the evidence, his sentence violates Apprendi and must be vacated.
Garcia’s argument requires interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and is a question of law subject to unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
K.S.A. 2001 Supp. 21-4704a(k) states, in pertinent part:
“If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender’s sentence shall be presumed imprisonment. Any decision made by the court regarding the imposition of the optional nonprison sentence shall not be considered a departure and shall not be subject to appeal.”
Apprendi held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), we applied Apprendi to Kansas’ scheme for imposing upward departure sentences under K.S.A. 2001 Supp. 21-4716. We concluded that because the statute allows the district court to impose a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors made by a preponderance of the evidence, the statute is unconstitutional on its face and void. 271 Kan. at 413-14.
In State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002), we considered whether Apprendi applies to upward dispositional departures under the KSGA. The majority reasoned that “[probation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increases or decreases the sentence required to be imposed by statute.” 274 Kan. 442, Syl. ¶ 3. A majority concluded that because imposition of a prison term in a presumptive probation case does not increase the sentence beyond the statutory maximum, Apprendi does not apply to dispositional departures under K.S.A. 2001 Supp. 21-4716. 274 Kan. at 452.
The question here becomes whether the district court’s conclusion that Garcia’s crimes were gang related, triggering a presumptive prison sentence, increased the penalty for his crimes beyond the statutory maximum. The answer is “No.”
We have not had occasion to apply Apprendi to K.S.A. 2001 Supp. 21-4704a(k). However, State v. Dean, 273 Kan. 929, 46 P.3d 1130 (2002), considered whether a prison term imposed under K.S.A. 2001 Supp. 21-4603d(f), where the guidelines otherwise called for presumptive probation, was unconstitutional based on Apprendi.
K.S.A. 2001 Supp. 21-4603d(f) states, in pertinent part:
“When a new felony is committed while the offender ... is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony, . . . the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
In Dean, we reasoned:
“A ‘departure’ is a sentence which is inconsistent with the presumptive sentence. K.S.A. 21-4703(f). Because Dean’s K.S.A. 2001 Supp. 21-4603d(f) prison sentence is not considered a departure, it is a presumptive sentence. As such, Dean’s prison sentence does not exceed the statutory maximum punishment for his crime, and Apprendi does not apply.” 273 Kan. at 935-36.
The Court of Appeals, faced with the issue we addressed in Dean, came to a like conclusion in State v. Tisdale, 30 Kan. App. 2d 524, 525, 43 P.3d 835, rev. denied 274 Kan. 1118 (2002):
“K.S.A. 2001 Supp. 21-4603d(f) (formerly 21-4603d[11]) specifically provides for the imposition of an incarceration sentence when the current crime is committed while the offender is on parole. In such a case, ‘imposition of a prison sentence for the new crime does not constitute a departure.’ Consequently, Tisdale did not receive a departure sentence. Gould and Apprendi do not apply.”
Garcia counters that Dean and Tisdale are distinguishable on the basis of the nature of the factual findings required to trigger the presumptive prison term. Under K.S.A. 2001 Supp. 21-4603d(f), the fact involved — whether a crime was committed while the offender was on probation, parole, postrelease, etc.— is fairly concrete and easy to verily. The fact that a crime is gang related, on the other hand, is more difficult to prove in that it requires something more than a look at the defendant’s criminal history and presentence investigation (PSI) report.
K.S.A. 2001 Supp. 21-4704a(k) provides that gang-related crimes call for presumptive prison sentences. The district court here, upon finding that the crimes were gang related, imposed a presumptive prison term. Following the reasoning of Carr, Dean, and Tisdale, the prison terms imposed here do not exceed the statutory maximum punishment for Garcia’s crimes, and Apprendi does not apply. See State v. Beasley (No. 87,786, this day decided) (holding Apprendi does not apply to K.S.A. 2001 Supp. 21-4704a[h]).
Findings under K.S.A. 2001 Supp. 21-4704a(k)
Garcia next contends that the district court failed to make adequate findings on the record to support imposition of a prison term based on the fact that Garcia’s crimes were gang related. We agree.
Garcia’s PSI report indicated that the provisions of K.S.A. 2001 Supp. 21-4704a(k) applied to both of his crimes, subjecting him to presumptive prison terms for each. Before sentencing, Garcia and the State filed separate briefs in the district court on the application of Gould to K.S.A. 2001 Supp. 21-4704a(k). After a hearing, the district court concluded that a prison sentence imposed under 21-4704a(k) did not amount to an upward departure sentence; thus, the statute was not affected by Gould. The district court deferred a decision on whether to impose a prison term in Garcia’s case, referencing 21-4704a(k).
The district court held a second sentencing hearing approximately 2 weeks later. Five witnesses testified on behalf of Garcia, including Sanchez, Garcia’s mother, an acquaintance of Garcia’s who was affiliated with another gang, Garcia’s pastor, and the pastor’s wife. After hearing the testimony, the district court made the following comments:
“Mr. Garcia, I have been involved with this case from quite early on. I heard the preliminaiy hearing. I dealt with the Charles Sanchez case also. The preliminary hearing itself took a great deal of time. The transcript was very large. It contained a great deal of information much of [which] Tve reviewed again. I’m hearing some comparisons of your case to Mr. Sanchez’s case and there are some similarities, there’s also some differences.
“Initially what I’m going to do here is I’m going to sentence a control of 16 months on aggravated battery that is the first count. I’m going to sentence you to eight months on incite to riot count, which is the second count and I run them consecutively. The issue is whether to grant probation or to order you [to] serve time. With Mr. Sanchez’s case one other difference is the fact that I had dual recommendationfs] from both parties. I don’t have that here, not [that] that’s ever controlling, but it is a factor that I do look at. During the course of his pre-sentence and most part what I read about him I did not seem to be given deceptive state ments until today. I say that in light of everything that I’ve read and heard about this case.
“Judging his testimony today I find it to be deceptive and I’m not really very happy about that, but out of your mouth I find to be deceptive and I don’t appreciate that your house has been a gang house as has been testified to here today for quite some time. It’s been the siting of many drive-by shootings. The leadership of this LCC gang seems to have rested certainly in times with your family. It’s been an ongoing problem of violence within this community that has not yet abated.
“The situation to these cases to be filed were some horrible beatings of some young men from Guatemala. The night that occurred, according to your statement, you were drinking, you went to a club, you were getting faded, which I [assume is] getting drunk, some of your acquaintances were acting up and so you decided to leave. Much of the rest of what you write in here about being at Jessica’s house when this beating took place and certainly seems to which I’ve read about this case.
“I’ve heard the testimony of Mr. Mathews about you getting the Lord that that has been an important part of your shield. I certainly hope that is the case ’cause I think a person can take what they learned from and they can utilize and it can make them a better person. At the same time if you’re doing what I see you being convicted of and trying to profess a deep religious belief, I see some deep contradictions there.
“I’m going to order, Mr. Garcia, that you serve at the Department of Corrections.”
Garcia points out that the district judge at the second sentencing hearing neither mentioned K.S.A. 2001 Supp. 21-4704a(k) nor made a specific finding that Garcia’s crimes were committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.” The State counters that the language of K.S.A. 2001 Supp. 21-4704a(k) does not require that specific findings be made at sentencing in order to impose a presumptive prison sentence. The State further points out that the district court later made its intentions clear by marking the “crime committed for the benefit of a criminal street gang” box on the journal entry of sentencing.
Again, interpretation of the KSGA is a question of law subject to plenary review. Crow, 266 Kan. at 694.
K.S.A. 2001 Supp. 21-4704a(k) states, in part:
“If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offenders sentence shall be presumed imprisonment.” (Emphasis added.)
There are no appellate decisions interpreting 21-4704a(k). Thus, we look to other sentencing statutes within the KSGA to observe the findings required in analogous sentencing situations.
K.S.A. 2001 Supp. 21-4716(a) states:
“The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for tire departure.” (Emphasis added.)
In State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), Whitesell argued that the district court, in merely referencing the State’s motion to support a departure sentence, failed to make adequate findings under K.S.A. 1999 Supp. 21-4716(a). We agreed, concluding that where the district court fails to articulate reasons for imposing a departure under 21-4716, the sentence must be vacated and remanded for resentencing. 270 Kan. at 294.
In State v. Mares, 20 Kan. App. 2d 971, 893 P.2d 296, rev. denied 257 Kan. 1094 (1995), Mares argued that the district court erred in failing to make specific findings on the record to explain its rejection of his motion for downward departure. The Court of Appeals held that the district court was not required to make specific findings in support of its refusal to depart. 20 Kan. App. 2d at 972.
We find consideration of the provisions of K.S.A. 2001 Supp. 21-4704a(f) regarding border box sentences under the KSGA helpful. The statute says:
“Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional fine, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-1 or 6-G [border boxes], the court may impose an optional nonprison sentence upon making the following findings on the record:
“Any decision made by the court regarding the imposition of an optional non-prison sentence if the offense is classified in grid blocks 5-H, 5-1 or 6-G shall not he considered a departure and shall not be subject to appeal.”
In State v. Clark, 21 Kan. App. 2d 697, 907 P.2d 898 (1995), rev. denied 259 Kan. 928 (1996), Clark argued that the district court erred in failing to malee specific findings on the record to support imposition of a prison sentence in a border box case. The Court of Appeals reasoned that a prison sentence imposed in a border box case is a presumptive sentence for purposes of appeal. According to Mares, a district court is not required to make specific findings of fact when it imposes a nondeparture sentence. Thus, the Court of Appeals concluded, the district court was not required to malee specific findings of fact when it imposed a nondeparture prison sentence on Clark. 21 Kan. App. 2d at 700-01.
In State v. Colbert, 24 Kan. App. 2d 756, 953 P.2d 1058 (1998), Colbert argued that the district court erred in concluding that it was required to impose a prison term under 21-4704(h) unless there were substantial and compelling reasons not to do so. The Court of Appeals held:
“The district court incorrectly viewed and applied the law by finding that substantial and compelling reasons must exist to grant the optional nonprison sanction available under KSGÁ nondrug grid block 5-H. State v. Bost, 21 Kan. App. 2d 560, 570-71, 903 P.2d 160 (1995), notes: ‘[Tjhe Kansas Legislature intended to give sentencing judges the discretion to impose incarceration or probation in border box cases and does not require the court to establish substantial and compelling reasons in the form of mitigating or aggravating factors.’ The same interpretation applies to the nonprison option of K.S.A. 21-4704(h).” 24 Kan. App. 2d at 757.
The State, without citing Mares, Clark, or Colbert, argues that because the district court here imposed a presumptive sentence, it did not need to make specific factual findings to support its decision. This logic, however, ignores the fact that the presumptive prison sentence arises only “[i]f it is shown at sentencing” that the defendant committed the crime “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.” (Emphasis added.) K.S.A. 2001 Supp. 21-4704a(k).
The language of the statute contains an explicit statement of the showing required to trigger the presumptive prison sentence, including the defendant’s “specific intent” to promote or assist certain conduct by gang members. Further, 21-4704a(k) contains a detailed definition of a criminal street gang, which is
“any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more person felonies or felony violations of the uniform controlled substances act . . . which has a common name or common identifying sign or symbol, whose members, individually or collectively engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of the uniform controlled substances act . . . or any substantially similar offense from another jurisdiction.”
A district court, in determining whether the provisions of K.S.A. 2001 Supp. 21-4704a(k) apply, has many things to consider: (1) whether the crime was committed to benefit the gang, was committed at the direction of the gang, or was committed in association with the gang; (2) whether the defendant had the specific intent to promote, further, or assist in crimes by gang members; and (3) whether the gang involved qualifies as a “criminal street gang” based on the makeup of its members and their activities.
The legislature created an exacting fact-sensitive trigger to the presumptive prison sentence provided by K.S.A. 2001 Supp. 21-4704a(k). For the legislature to outline the required showing with such specificity, yet not require that the district court state on the record whether, let alone how, the showing was made makes little sense.
Here, the State admits that the district court at the second sentencing hearing did not mention K.S.A. 2001 Supp. 21-4704a(k). At neither sentencing hearing did the district court find that Garcia’s crimes were committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members,” nor did it make a finding that the gang in question met the definition of a criminal street gang. The State suggests that these facts were “obvious” from the record in this case. This suggestion is of litde comfort to a reviewing court. See State v. Salcido-Corral, 262 Kan. 392, 415, 940 P.2d 11 (1997) (appellate courts will not review the record for aggravating factors which might have justified departure under 21-4716 but which the district court failed to articulate).
The district court failed to make findings on the record consistent with those outlined in K.S.A. 2001 Supp. 21-4704a(k). Garcia’s prison sentences are vacated. On remand, the district court is given the opportunity to make the proper findings and reimpose the same sentences if appropriate. See State v. Peterson, 25 Kan. App. 2d 354, 358, 964 P.2d 695, rev. denied 266 Kan. 1114 (1998).
Affirmed in part, reversed in part, and remanded for resentencing.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Romel Metteh Abu-Fakher, from his conviction for the first-degree murder of his wife, Carol Abu-Fakher. He was sentenced to life imprisonment with no parole for 25 years followed by 24 months of postrelease supervision. His appeal comes before this court pursuant to K.S.A. 22-3601(b)(l), the direct appeal statute for first-degree murder convictions and sentences for life imprisonment.
Abu-Fakher was born in Syria, moved to Jordan, and then lived in Thailand from 1978 to 1991. He owned several houses in Thailand and rented two of them to members of the Iraqi Embassy. Abu-Fakher obtained information for the United States Embassy during Operation Desert Storm about a terrorist plan against the United States and its allies, and in exchange the State Department moved Abu-Fakher to the United States in January 1991.
The record revealed that Carol Abu-Fakher, the deceased victim, had a history of mental health problems. Sharon Whitley, Carol’s sister, testified that she thought Carol had been institutionalized at some point in 1995 for a bipolar or manic-depressive disorder.
Abu-Fakher met Carol in Virginia in 1995 and married her later that year in Tampa, Florida. The couple began having problems. In July 1997, Abu-Fakher called Tampa police because as he tried to leave the house, Carol pushed him and prevented him from leaving. Carol continued to push Abu-Fakher even after police arrived. She was arrested and convicted of battery. Abu-Fakher obtained a restraining order, and Carol moved to her son’s house. Abu-Fakher filed for divorce in September 1997.
The next time Abu-Fakher heard from Carol was in late 1997, after his Caller ID showed he had received calls from a mental health center. He went to the mental health center and learned that Carol was there. She eventually left the facility with AbuFaker, but was recommitted to the facility on two more occasions in that time period.
After her last commitment, Abu-Fakher arranged for Carol to fly back to her family in Boonville, Missouri. Abu-Fakher drove to Boonville to speak with Carol’s family about getting Carol some help. He stayed for 1 or 2 days and then began driving back to Florida. Carol’s family told her to get help or get out, but Carol refused to cooperate and refused to stay. Abu-Fakher called Carol’s family from St. Louis and learned she had left, so he returned to Boonville to look for her. He found her at the truck stop and took her to a hotel. The next morning he got her clothes from her family and drove her back to Florida.
Abu-Fakher testified that he decided it would be best for Carol if he moved her closer to her family, so they moved to Olathe, Kansas, in December 1997. There, Carol and Abu-Fakher worked as real estate agents. According to Abu-Fakher, Carol did better but on occasion when something was wrong with her he had to tell her to take her medicine. She thought the medicine made her hair fall out and hated to take it. During the time they lived in Olathe, another incident occurred where Abu-Fakher called the police. He testified, “We argue, she get drunk, she start argue, and I have to call the police to get out.”
Whitley characterized Carol as vivacious and strong-willed but “very excitable” when she was ill. Joanna Engle, an acquaintance of Carol, thought of Carol as loud and obnoxious and felt “Carol had something wrong.” Engle testified that Carol’s behavior toward Abu-Fakher would often vacillate between “lovey-dovey” and “hateful” several times during the course of a social interaction.
In July 1999, Abu-Fakher rented a house to Jamie Saunders. Saunders telephoned Abu-Fakher later that day and asked him out; they had sex that night. Saunders’ affair with Abu-Fakher continued until the time of his incarceration. Saunders eventually quit her job to work for Abu-Fakher. Approximately 1 week before Carol’s death in September 1999, Abu-Fakher loaned Saunders his black Ford Crown Victoria to drive because her vehicle had been breaking down frequently.
On Saturday, September 18, 1999, Whitley and her husband, Jesse Jackson, drove to Overland Park to visit Carol and Abu-Fakher. Whitley said that “the minute they opened the door, we knew that something was wrong.” Carol told them that Abu-Fakher had given their car away and that she suspected that Abu-Fakher and Saunders were having an affair. Abu-Fakher denied the affair and said he gave the car to a business associate who needed it to get to work. Carol argued with Abu-Fakher all day, riding him hard to get the car back. Carol’s nagging continued even while Carol, Abu-Fakher, Jackson, and Whitley ate lunch. Whitley testified that she tried to get Carol to stop nagging, but said she would not be quiet. After returning to the house, the arguing continued; Whitley left for an hour because it was more than she could stand. At 5 p.m. she returned to find Carol was “still riding him.” Jackson testified that Abu-Fakher tried to leave, but “Carol just stopped in front of him and put her hands up like that (indicating), and he whipped out his little cell phone and he dialed 911, which I had seen him do on a couple of other occasions.”
The 911 dispatcher for Overland Park, Leigh Ann Greene, testified that an individual called from a cell phone at 6:11 p.m. on September 18 and said, “I need some help at 9900 Metcalf, please.” Greene asked Abu-Fakher what was wrong, and he said, “I’m trying to leave the house and my wife, she is stopping me.” Officer Peter O’Malley was dispatched to the Abu-Fakher residence at approximately 6:18 p.m. Abu-Faker was seated on the tailgate of a vehicle in the garage. Carol had locked him out. After officers spoke with Carol, she let Abu-Fakher come into the house to retrieve some clothing. The officers stayed at the residence until Abu-Fakher left in one of the vehicles.
Saunders testified that Abu-Fakher joined her and her mother at a nightclub around 8:30 p.m that night. They had drinks and danced, and Abu-Fakher told Saunders that Carol suspected he was having an affair and he would probably get divorced. Saunders testified that she and Abu-Fakher drove her mother home, then went back to his vehicle; she went home, and he went to his house.
Whitley testified that she had called Carol Sunday morning, September 19, and that Carol sounded great. Carol said she and Abu-Fakher were talking. Whitley thought things were okay between Carol and Abu-Fakher.
On Monday, September 20, Abu-Fakher called Saunders early in the morning and asked her if she could come into the office because he had a family emergency and would not be able to make it. She was surprised to see him stop by the office that morning. Saunders said that usually Abu-Fakher was a very neat person, but tihat morning he looked rough, his hair was a mess, his clothes were wrinkled, and his voice raspy. At trial, Abu-F akher stated that Carol had kept him awake arguing all night Sunday and early Monday.
Don Ballard, a friend and business partner of Abu-Fakher, testified that Abu-Fakher telephoned on Monday around 10 or 10:15 a.m. to obtain help and guidance on how to deal with Carol. He wanted Ballard to recommend a doctor he could take Carol to see. Ballard testified that Abu-Fakher told him Carol was out of control, but when police officers were there she would act normal, and then the officers would leave.
On Monday, around 10:45 a.m., the police were again dispatched to 9900 Metcalf in response to a 911 call classified as a disconnect. Deputy Jennifer Hayes of the Wyandotte County Sheriff s Department testified about a tape recording made of the call. A male voice on the tape said, “She wont go with me to emergency.” A female could be heard in the background using vulgarity and saying, “Hang up the phone.” The male said, “I need some help.” The female said, ‘Well then you are going too because I’m going to tell them what you did. I’m going to tell them what you did.”
Officer Elgio Hernandez was dispatched to 9900 Metcalf at 10:52 a.m. Hernandez testified that Abu-F akher answered the door and said he had called so officers could have his wife taken to seek psychological counseling. Hernandez spoke with Carol in the kitchen, and she explained that Abu-Fakher had called 911 because he wanted her to be committed or to seek psychological counseling because he felt she was having a nervous breakdown. Carol told Hernandez that they had an appointment at 2 p.m. to see a marital counselor. After questioning both parties, Hernandez informed Abu-Fakher there was nothing they could do to help him due to the fact that Carol had not made any threats toward him verbally or physically.
Kathy Calvert, a clinical social worker and psychotherapist, met with Abu-Fakher and Carol at 2 p.m. on Monday. She testified that Carol would not always respond directly to her questions, but was “oriented to person, place, and all of that kind of thing.” Carol told Calvert that her husband was having an affair with a coworker and had given one of their family vehicles to her. She said Abu-Fakher had promised her if she would just come to the appointment he would get the car back from this woman. When Carol asked Abu-Fakher if he was going to get the car back in front of Calvert, he would not respond. Abu-Fakher told Calvert, “Get her records, she has a history of mental illness,” and, “[S]he needs help.” Calvert’s impression was that Abu-Fakher wanted Carol hospitalized or committed in some way. Calvert explained to Abu-Fakher that unless Carol was in imminent danger of harming herself or someone else, she could not force treatment on Carol. Calvert concluded they were not getting anywhere after about 45 minutes, so she gave them both her business card, and told them to call her if one or both of them wanted to continue in some land of treatment. Calvert did not see either of them again.
Abu-Fakher testified that as a result of the prolonged arguing, he got his handgun around 3 p.m. and tried to shoot himself. He stated that Carol saw him, took the gun from him, and put it in the kitchen cabinet.
Ballard went to the Abu-Fakher residence some time between 3 and 3:30 p.m. He testified that he wanted to be a good listener and a friend, try to work through some of the problems they were having, and impress on them that they needed to separate. Ballard asked Abu-Fakher about the affair, but Abu-Fakher denied he was having an affair and told Ballard it was strictly professional.
Ballard testified that he witnessed Carol’s mood swings and stated she was “very aggressive, very boisterous, very argumentative, extremely physical, argumentative, demanding . . .[and] definitely was in charge of that home at that time . . . .” According to Ballard, Carol was completely out of control. Carol would physically manhandle Abu-Fakher, shoving him around, and would at times put her finger toward his face, causing him to jerk his head out of the way to avoid having his eye poked out. Carol told Ballard that Abu-Fakher was going to leave her and make her “homeless again,” and that he would send her back to the “nut house.” Ballard tried to act as peacemaker while he was there, but had to leave to attend a meeting around 6:15 p.m.
Around 8 p.m. Monday evening, Saunders spoke with Abu-Fakher again. Saunders testified that he told her “if there were any questions at the office the next morning, to try to maintain that our relationship was professional.”
Abu-Fakher stated that Carol left the house around 9 p.m., telling him she was going to the drugstore. Engle testified that Carol came to her house sometime after 8 p.m. on Monday evening. According to Engle, Carol was looking for Ballard at her house because Ballard and Engle were dating. Engle testified that Carol was very emotional and was smoking cigarettes “like crazy.” Carol asked for a beer and told Engle to tell Ballard that Abu-Fakher was not the man he thought he was. Carol told Engle something about the car and that Abu-Fakher was having an affair with Saunders. Carol stayed at Engle’s house about 20 minutes and then left. According to Abu-Fakher, Carol did not return home for 3 hours.
Abu-Fakher testified that after Carol left, he went upstairs and got his Sony tape recorder and put it in his pocket. He wanted proof of Carol’s behavior so others would know what was going on. The tape recorder was voice-activated. Abu-Fakher said he laid down on the sofa and fell asleep.
At approximately 11:45 p.m., Carol telephoned Ballard at home, waking him up. Ballard testified:
“She was very demanding of me. She essentially told me that she wanted me to come over to the house ‘right now/ this was going to ‘get resolved tonight.’ She wanted the car back, she wanted Jamie out of her life, she wanted Romel to tell the truth, and it was going to get resolved tonight or she was going to go tell everybody tomorrow at the office.”
Ballard wanted to postpone going to the Abu-Fakher s until morning. After speaking with Carol for about 10 minutes, Carol handed the phone to Abu-Fakher. Ballard testified that he advised Abu-Fakher if he could not get out of the house, to tell Carol whatever he could to pacify her and settle her down for the night. Ballard and Abu-Fakher continued talking as Carol was screaming in the background. Then the phone went dead. Ballard stated that as soon as he got his wits about him he called back, approximately 1 or 2 minutes later. Abu-Fakher answered the phone and told Ballard that Carol had been shot and he needed an ambulance. Ballard instructed Abu-Fakher to hang up and to call 911 and ask for an ambulance.
On September 21, 1999, at 12:41 a.m., an Overland Park police dispatcher received a 911 call from the address of 9900 Metcalf. A man reported that someone had been shot and, in response to the dispatcher’s question, indicated that the shooting was accidental. At trial, the dispatcher testified she thought that the caller threatened to shoot himself.
Officers Kathleen Wedel and Michelle Manfield of the Overland Park police went to the 9900 Metcalf address in response to the dispatcher’s call. When they arrived, Wedel testified she saw Abu-Fakher in the front yard with his hands in the air. He was holding a cordless phone in his left hand. As the officers approached Abu-Fakher to handcuff him, he yelled that there was a woman dying inside. He used the words woman and wife. Manfield recalled Abu-Falcer yelling, “Save my wife.” In response to Wedel’s questions, Abu-Fakher told the officers the gun was in the house, but that no one but his wife was in the house.
Manfield patted Abu-Fakher down while Wedel handcuffed him. Manfield felt a hard object in his jacket pocket and pulled it out. It was a tape recorder. The red light on the recorder indicated that it was recording. Manfield and Wedel both indicated in their trial testimony that Abu-Fakher told them to turn the tape recorder back on and stated they might need it for later. Mansfield gave the tape recorder to Wedel and they put Abu-Fakher in a patrol car.
Officer Tom Keary entered the house and found Carol lying on the floor of the foyer just inside the door. Keary noted what appeared to be a gunshot wound on her right side a little below her armpit. When Keary first saw her it appeared to him that Carol might be breathing, but the paramedics informed him that Carol had been dead for some time.
Later, as Keary checked the house for weapons, he observed a black semiautomatic handgun laying on the kitchen counter. The officer found bloodstains on the front door by the bottom hinge, blood spatter on the foyer walls, and a spent 9 millimeter casing on the floor approximately 6 feet from Carol’s body. According to Black, there were no indications that a struggle had taken place anywhere else in the house.
Sargent Kim Hulett of the Overland Park Police Department testified that she assisted at the crime scene and then helped pat down Abu-Fakher in the fingerprinting room of the police department. He told her, “I just killed my wife.”
Deputy coroner Dr. Michael Handler, a forensic neuropathologist, performed an autopsy on Carol’s body. He stated that the cause of death for Carol was “gunshot wound of abdomen and left arm.” According to Handler, the bullet entered Carol’s right side, traversed the abdominal organs, severed the vena cava, exited her left side, and passed through her left arm, fracturing ribs and her left ulna. He found about IVs quarts of blood in her abdomen, which in his opinion came from the severed vena cava. Handler’s findings were consistent with other testing which indicated that the range of fire was within 3 feet, but not in contact with Carol’s body.
Abu-Fakher testified that Ballard told him over the phone to leave the house, and he told Ballard he was leaving. He said he went to the kitchen cabinet and got the gun from the kitchen cabinet because Carol had threatened to kill Saunders, and also because he feared Carol would hurt herself. At that point, Carol was sitting on the sofa, apparently still talking on the phone with Ballard. Abu-Fakher said he turned the gun to his own head and stated, “It is over.” According to Abu-Fakher, Carol screamed, “Don, Don, help,” and, “He has got a gun.” He testified that he did not shoot himself, but instead moved toward the front door. Abu-Falcher testified that she grabbed the gun and screamed at him to stop it. Abu-Falcher told jurors he ran toward the front door to get away from her and she came behind him, trying to block the door with the left side of her body. They argued briefly, and Abu-Fakher told her, “I want to kill you,” thinking that would scare her and get her away from him. According to Abu-Fakher, they were both holding the gun, struggling with it, when it went off.
A jury trial was held in the District Court of Johnson County, Kansas. The jury unanimously found Abu-Fakher guilty of the first-degree premeditated murder of Carol. Judge Cleaver sentenced Abu-Falcher to life imprisonment with no parole for 25 years. Here, Abu-Falcher appeals his conviction and sentence.
I. TAPE RECORDING
The first assertion of Abu-Fakher is that the trial court erred in denying his motion in limine to preclude jurors from hearing the portion of the tape recording containing Carol’s dying moans and gasps. According to Abu-Fakher, that portion of the tape was irrelevant, could have been redacted, and its prejudicial effect denied him a fair trial.
The standard of review for a trial court’s decision on a motion in hmine is abuse of discretion. State v. Humphery, 267 Kan. 45, 55, 978 P.2d 264 (1999). “The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.” Brunett v. Albrecht, 248 Kan. 634, 638, 810 P.2d 276 (1991).
Abu-Falcher does not argue that the tape recording was inaccurate, unauthenticated, or not freely or voluntarily given to police. Abu-Fakher’s sole argument is that the portion of the tape containing the dying sounds of Carol constituted irrelevant and cumulative evidence. According to Abu-Fakher, that section of the tape recording is irrelevant and cumulative because the only item of evidentiary value ascertainable from that portion of the tape was the 911 call, which was available for the jury to hear on a separate tape. According to Abu-Falcher, the portion of the tape which recorded the sounds Carol made as she lay dying could have easily been redacted and served only to inflame the jury. Therefore, he asks this court find that he was denied his right to a fair trial by virtue of the trial court’s refusal to limit the admission of that particular portion of the recording.
The State’s position is that the trial court did not abuse its discretion by allowing the entire tape recording to come into evidence. The State asserts that (1) the section of the recording in question was material to the State’s case in that it corroborated the testimony of a medical expert on cause of death; (2) that the portion of the tape in question had probative value because it captured Abu-Fakher’s conversation with Ballard; and (3) that Abu-Fakher’s trial counsel invited error by asking jurors to “listen to the tape” during closing argument.
Prior to trial in a motion in limine, Abu-Falcher asked the trial court to declare “inadmissible as gruesome, inflammatory and unduly prejudicial, those portions of the September 21, 1999, audiocassette tape wherein Carol Abu-Falcher is heard moaning and gasping in the background.” On the first day of trial when asked about the recording, Judge Cleaver stated that he “found it to be disconcerting and unpleasant to listen to,” but that he would have to make a determination as to whether “it rises to the level of being eliminated.” On the second day of trial, after defense counsel again brought its motion in limine to the trial court’s attention, the trial court stated it would admit the recording in its entirety. At that time, Judge Cleaver stated:
“With respect to the tape, I’ve had an opportunity to listen to that. I don’t see how you can edit it per your request, Mr. Bath. It is so inclusive that I think that it would be impossible to edit. It is not pleasant listening. At the same time, I think that the probative value of that tape outweighs the prejudicial effect, and I will admit it.
“When the tape is played, certainly Mr. Ballard can comment on his conversation and what he heard. But with respect to any other comments by third-party witnesses, it would be inappropriate and I’ll sustain that on the motion in limine.”
Later, Judge Cleaver clarified his intentions regarding the possibility of editing the recording, stating:
“Again, I don’t mean to quarrel with you, I don’t know that I made a ruling where — what I did was express an approach that I would like to see taken to this and I instructed [the prosecutor] to see if that couldn’t be done. But I think I specifically said I was not going to ehminate the tape simply because it was unpleasant and I was willing to listen to editing a tape to eliminate those unpleasant matters that added nothing to the trial. And, [the prosecutor] said he was going to look at that and it’s on a CD, I think it could be fairly easily edited.
“It looks to me I need to take a copy of the CD and listen to it so I can respond to your request.”
This court has previously observed:
“The purpose for an order in limine is to exclude inadmissible evidence from trial, recognizing that the mere offer of inadmissible evidence at trial can prejudice the jury. [Citation omitted.] A motion in limine should be granted if the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury. [Citation omitted.]” State v. Galloway, 268 Kan. 682, 690, 1 P.3d 844 (2000).
Thus, we must first consider if the portion of the recording to which Abu-Fakiher objects would be inadmissible at trial under the rules of evidence. If so, then we next consider whether the mere offer of the recording would tend to prejudice the jury.
“Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. [Citations omitted.] K.S.A. 60-401(b) defines relevant evidence as ‘evidence having any tendency in reason to prove any material fact.’ ” State v. Leitner, 272 Kan. 398, 412, 34 P.3d 42 (2001).
A court’s determination of relevancy is a matter of logic and experience, not a matter of law. Leitner, 272 Kan. at 414 (citing State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 [1998]). To establish that evidence is relevant to the fact of the crime charged, this court has declared there must be “some natural or logical connection” between the evidence and “the inference or result [it] is designed to establish.” State v. Donesay, 265 Kan. 60, 85, 959 P.2d 862 (1998).
If the tape recording had no relevance to the crime, it would not be admissible. However, we find that the recording offers proof of the elements of the crime charged, including the fact and manner of Carol’s death.
K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
“While K.S.A. 60-445 only refers to the element of surprise, as a rule of necessity the trial judge may exclude any evidence which may unfairly prejudice the jury. [Citation omitted.] Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. [Citation omitted.]” Leitner, 272 Kan. at 415.
Here, Abu-Fakher challenges the trial court’s conclusion that the probative value of the objected-to portion of the recording outweighed its prejudicial effect. For authority supporting his position, Abu-Fakher cites State v. Boyd, 216 Kan. 373, 377-78, 532 P.2d 1064 (1975). There, this court held that the trial court’s admission of autopsy photographs of a body cut open from chin to groin was an abuse of discretion where the cause of death was not in dispute and where the autopsy photographs were unduly repetitious.
In support of its argument, the State cites State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), where the defendant objected to the trial court’s admission into evidence of a tape recording of a 30-m'inute 911 emergency call. The tape recorded a rape victim screaming and crying. On appeal, in addition to challenging that foundation had been properly established, the defendant argued that the recording was so gruesome that its prejudicial effect outweighed its probative value. This court held the argument was meritless and explained:
“The recording went to the very heart of the case showing the victim’s lack of consent, that her resistance was overcome by force or fear, and that the sexual assault occurred. The tape also corroborates the testimony of several witnesses, including the victim. The tape is not inadmissible because it is gruesome and shocking. It is a true reproduction of a gruesome, shocking event. The fact the recording reflects this may not be used by appellant to exclude such evidence as ‘prejudicial.’ It was prejudicial as is all evidence against the accused in criminal actions. That is its purpose. It is only when such prejudicial evidence has little probative value that it is excluded. Here its probative value was strong. The tape recording was properly admitted.” Williams, 235 Kan. at 493.
After reviewing the CD-Rom reproduction of the tape recording, we conclude that the trial court correctly determined'that the probative value of the recording as a whole outweighed any prejudicial impact created as a result of the dying sounds of Carol. As in Williams, the recording captured a shocking, gruesome event; however, the probative value of the recording is strong. The tape recording captured the demeanor of the parties involved and changes in the demeanor of Abu-Fakher and Carol before, during, and after the shooting. In addition, the recording not only corroborates the testimony of Abu-Fakher and Ballard concerning their telephone conversation, but provides evidence of the nature and duration of their exchange. The recording is the most probative and comprehensive evidence of the actual commission of the crime, the sequence in which events occurred, and their duration; it provides considerable context for the manner of death and time span in which the events took place.
The trial court did not abuse its discretion by denying Abu-Fakher’s motion in limine and admitting the recording in its entirety. Because we find no error, we need not address the State’s argument concerning invited error.
II. AUTOMOBILE
Abu-Fakher’s second assertion on appeal is that the trial court abused its discretion in admitting evidence elicited by the State from Jamie Saunders concerning her possession of Abu-Fakher’s and Carol’s vehicles following Carol’s death and his arrest. Abu-Fakher presents a two-part claim of error: (1) He contends the trial court abused its discretion by admitting Saunders’ irrelevant and prejudicial testimony, and (2) asserts that the trial court abused its discretion by denying his motion for a mistrial based on Saunders’ testimony.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionaxy rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Abu-Fakher’s complaints concern the following exchange at trial:
“Q. And why did he loan you the vehicle?
“A. We had a lot of business stuff going on at that point. It was a very busy time, and I had a vehicle that was breaking down frequently and was not being able to get to appointments and to the office when I needed to be there to handle a lot of the business stuff.
"Q. And did you ever get your car fixed?
“A. I did eventually, yes.
“Q. And did you end up giving the Crown Vic back?
“A. Well, all of this stuff happened before my car was repaired. So, no, I mean, I actually have — I still have the Crown Vic in my possession.
“Q. In fact, you’ve got his Explorer now, too; isn’t that correct?
“[COUNSEL FOR ABU-FAKHER]: Objection; relevance.
“THE COURT: Sustained.
“[PROSECUTOR]: It goes to interest.
“THE COURT: Counsel approach.
“(Whereupon, the following proceedings were had at the bench.)
“[PROSECUTOR]: Judge, it goes to the interest and the bias.
“[COUNSEL FOR ABU-FAKHER]: Interest and bias as to what? She confirmed the affair. That was really the only issue in question. The rest is just sleeze to try to throw mud on my client. I’ve let him go a long way, but he’s established everything that he needed to establish.
“THE COURT: You may inquire. I’ll overrule the objection.
(Whereupon, the proceedings continued in open court as follows.)
“Q. (By [Prosecutor]) Ms. Saunders, in fact, you are in possession of the defendant’s Explorer now as well; correct?
“[COUNSEL FOR ABU-FAKHER]: Objection; leading.
“THE COURT: Sustained.
“Q. (By [Prosecutor]) Do you have any other vehicles that belong to any of the parties in this case today?
“A. Yes, I do.
“Q. What?
“A. I have the Ford Explorer and I also have possession of the Mustang.
“Q. And whose car was the Mustang?
“[COUNSEL FOR ABU-FAKHER]: Relevance.
“[PROSECUTOR]: Same. My response would be the same.
“THE COURT: Overruled.
“A. I believe the Mustang was Carol’s.
“Q. (By [Prosecutor]) What happened to the Crown Vic?
“A. I still have it.
“[COUNSEL FOR ABU-FAKHER]: Objection; relevance.
“THE COURT: Overruled.
“Q. (By [Prosecutor]) So you’ve got all three?
“A. I do.
“Q. Do you have anything else that belonged to Carol Abu-Fakher?
“[COUNSEL FOR ABU-FAKHER]: Objection; relevance. Approach?
“THE COURT: Sustained.
“(Whereupon, the following proceedings were had at the bench.)
“[COUNSEL FOR ABU-FAKHER]: I’m going to start moving for a mistrial. [The Prosecutor], I think, is taking it way too far. I’m going to move for a mistrial over the prejudicial information that he is dumping into the case.
“[PROSECUTOR]: Judge, I don’t know how to respond to that. I think —
“THE COURT: I understand. Noted. Overruled.”
Abu-Fakher argues that the testimony elicited was irrelevant and contends that jurors could draw prohibited inferences from the admission of this evidence. Abu-Fakher contends jurors could infer that Saunders exploited Carol’s death, that she had a bad character, or that Saunders and he were involved in a plan to get rid of Carol.
The State’s position is that the questions were properly designed to explore the bias and partiality of Saunders. The State asserts that under K.S.A. 60-420 and Kansas case law, the prosecutor properly employed cross-examination to expose Saunders’ possible bias and motivation.
“The trial court has discretion to allow evidence to be admitted in the least prejudicial manner to show possible bias on the part of a witness.” State v. Wesson, 247 Kan. 639, Syl. ¶ 7, 802 P.2d 574 (1990). The exposure of a witness’ motivation in testifying is a proper and important function of cross examination. Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); State v. Davis, 256 Kan. 1, 15-16, 883 P.2d 735 (1994); State v. Bowen, 254 Kan. 618, Syl. ¶ 6, 867 P.2d 1024 (1994). “A witness can be questioned about possible bias and motivation for testifying regardless of the scope of the direct examination.” State v. Jacques, 270 Kan. 173,181-82, 14 P.3d 409 (2000). “Bias, interest, or improper motives of a witness may always be shown in order to place the witness’ testimony in proper perspective.” State v. Bowman, 252 Kan. 883, Syl. ¶ 1, 850 P.2d 236 (1993).
We find that the trial court did not abuse its discretion in admitting the testimony concerning Saunders’ possession of Abu-Fakher’s vehicles following his arrest and through the time of trial. The testimony elicited from Saunders illustrates a continuing and presumably favorable relationship with Abu-Fakher, as well as a possible dependence on his good graces to ensure her the use of his vehicles. The testimony elicited demonstrating the continuing arrangement between Abu-Fakher and Saunders might, in turn, indicate that Saunders’ testimony was biased or slanted in favor of Abu-Fakher.
The second part of Abu-Fakher’s argument concerning Saunders’ testimony concerning her possession of Abu-Fakher’s and Carol’s vehicles is that the trial court abused its discretion by denying his motion for a mistrial. Abu-Fakher contends the denial of his motion for mistrial resulted in substantial prejudice to him and denied him a fair trial.
“A decision on a motion for mistrial is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. [Citations omitted.] The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. [Citation omitted.]” State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001).
Abu-Fakher argues that allowing the introduction of evidence that Saunders had continued possession of his vehicles led the jury to infer he was guilty of premeditated murder. He argues that this evidence allowed members of the jury to speculate that Abu-Fakher and Saunders were involved in a plan to ldll or get rid of Carol. In support, Abu-Fakher cites State v. Massey, 242 Kan. 252, 265, 747 P.2d 802 (1987).
In Massey, one of the State’s witnesses violated an order in limine by testifying before the jury that a bedspread which had covered the victim appeared to have a bullet hole through it. The defendant argued that “the trial court should have granted a mistrial under K.S.A. 22-3423(l)(c), which provides a court may grant a mistrial when prejudicial conduct malees it impossible to proceed without injustice to the defendant.” 242 Kan. at 264. This court concluded that the evidence was inadmissible and that the witness’ violation of the order in limine was prejudicial to the defendant. Therefore, the Massey court reversed the judgment of the trial court and granted defendant a new trial.
The State contends that Massey is inapplicable because its facts are dissimilar to the facts here. In addition, the State argues that the question that prompted Abu-Fakher’s motion for mistrial went unanswered because the trial court sustained defense counsel’s objection. Therefore, the State contends that Abu-Fakher fails to demonstrate any prejudice.
We agree. Here, the trial court sustained the objection of defense counsel and the final question went unanswered. At that point, the preceding testimony concerning Saunders’ possession of Abu-Fakher’s vehicles illustrated the witness’ possible bias, and its admission was not in error. Because Abu-Fakher has not met his burden of showing substantial prejudice by virtue of the trial court’s admission of Saunders’ testimony, we hold that the trial court did not abuse its discretion in denying Abu-Fakher’s motion for a mistrial.
III. VOLUNTARY MANSLAUGHTER INSTRUCTION
Next, Abu-Fakher challenges the trial court’s instruction to the jury on the lesser included offense of voluntary manslaughter. Abu-Fakher maintains that the instruction on voluntaiy manslaughter adversely affected the jury’s deliberative process, rendering it unable to give effect to mitigating evidence and, therefore, he requests a reversal of his conviction.
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
Abu-Fakher contends that the trial court committed error by failing to pattern its juiy instruction solely after PIK Crim. 3d 56.05(B) (1999 Supp.). Citing the Notes on Use from PIK Crim. 3d 56.05, Abu-Fakher maintains that the elements instructions set forth in alternative A of56.05 should be used when the information charges the defendant with voluntary manslaughter, but that alternative B should be used when voluntary manslaughter is submitted as a lesser-included offense of the crime charged. According to Abu-Fakher, the jury was instructed on both alternatives, rendering alternative B meaningless.
Abu-Fakher acknowledges, however, that defense counsel did not object to the trial court’s voluntary manslaughter instruction to the jury. Therefore, he concedes that as a consequence, this court must review the instructions under a clearly erroneous standard.
Our standard of review, when considering whether a jury instruction should have been given, is governed by K.S.A. 2001 Supp. 22-3414(3), which states, in pertinent part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and file grounds of the objection unless the instruction or failure to give an instruction is clearly erroneous.”
“Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
In this case, the assistant district attorney charged Abu-Fakher with one count of premeditated murder in the first degree. The State did not file alternative charges against him.
The trial court instructed the jury on first-degree murder. In addition, the record reveals that the jury was instructed on the lesser-included offenses of intentional murder in the second degree, unintentional murder in the second degree, voluntary manslaughter, and involuntary manslaughter. Jurors were also instructed that “[w]hen there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.” In addition, the jury was provided with definitions of the terms “premeditation,” “willfully,” “intentionally,” “heat of passion,” and “reckless.”
Abu-Fakher claims that Instruction No. 12, the instruction given on voluntary manslaughter, was clearly erroneous. That instruction stated:
“In determining whether the defendant is guilty of intentional or unintentional murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional lolling done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.
“If you decide the defendant intentionally killed Carol Abufakher, but that it was done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, the defendant may be convicted of voluntaiy manslaughter only.
“To establish this charge, each of the following charges must be proved:
“1. That the defendant intentionally lulled Carol Abufakher;
“2. That it was done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.
“3. That this act occurred on or about the 21st day of September, 1999 in Johnson County, Kansas.” (Emphasis added.)
PIK Crim. 3d 56.05 is the pattern instruction for voluntaiy manslaughter. The Notes on Use of PIK Crim. 3d 56.05 state that “[i]f the information charges voluntary manslaughter, use alternative A. When voluntary manslaughter is submitted to the jury as a lesser offense of the crime charged under K.S.A. 21-3107(2)(a), use alternative B.” Here, the trial court fashioned Instruction No. 12 using alternative B and then appended alternative B with that portion of alternative A which sets forth the required elements of voluntary manslaughter.
Abu-Fakher insists that the instruction on voluntaiy manslaughter improperly shifted the burden to him to prove mitigating circumstances. Abu-Fakher maintains that when a defendant is charged with intentional murder and there is evidence that the killing was committed upon a sudden quarrel or in the heat of passion, the jury must be instructed that “heat of passion” or “sudden quarrel” are not elements the defendant must prove beyond a reasonable doubt, but rather are mitigating circumstances akin to the concept of self-defense. Here, he contends that trial court’s instruction to the jury on voluntary manslaughter was erroneous as a matter of law in that it required these mitigating circumstances to be proven beyond a reasonable doubt. In support, Abu-Fakher cites State v. McCown, 264 Kan. 655, 665, 957 P.2d 401 (1998); State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001); and State v. Harris, 27 Kan. App. 2d 41, 45-46, 998 P.2d 524 (2000).
The State claims that because the jury convicted Abu-Fakher of first-degree murder, it did not need to consider the lesser included offenses of second-degree murder, voluntary manslaughter, or involuntary manslaughter. The State additionally asserts that the language of the voluntary manslaughter instruction accurately stated the elements and was not clearly erroneous.
The question presented is whether this court is convinced the jury would have rendered a different verdict if the trial court had instructed jurors using an unamended version of alternative B of PIK Crim. 3d 56.05, i.e., without adding the elements section of alternative A.
“Generally speaking, it is the duty of the trial judge, under K.S.A. 22-3414, to define the offense charged and state to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of his own. [Citations omitted.]” State v. Miller, 222 Kan. 405, 415 565 P.2d 228 (1977).
In State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), this court reversed the defendant’s conviction of murder in the second degree, finding that the case had proceeded to trial on a fatally defective information which failed to set forth the elements of murder in the first degree. After setting aside the defendant’s conviction due to that jurisdictional defect, this court further commented on the trial court’s troublesome instruction on voluntaiy manslaughter.
In Wilson, the trial court’s instruction on voluntary manslaughter contained several changes from the pattern instruction of PIK Crim. 2d 56.05. Over the objections of the prosecutor and defense counsel, the trial court inserted the element of “without malice” in the instruction on voluntary manslaughter. 240 Kan. at 609. This court stated that “[w]hile the trial court was correct in its statement that voluntary manslaughter is a killing without malice, this instruc tion as given, considered in the light of the other instructions, was confusing.” 240 Kan. at 609.
In addition, this court in Wilson found the trial court’s instruction on the defense of self-defense unclear, due to the fact that the trial court deleted the sentence: “ The State’s burden of proof does not shift to the defendant.’ ” 240 Kan. at 609. This court stated that “[t]he instruction as given thus lacked the clarity of the original PIK instruction and did not warn the jury that when this defense is raised, the State’s burden of proof does not shift to the defendant.” 240 Kan. at 609. In Wilson, this court admonished trial courts to employ pattern jury instructions when appropriate, “unless there is some compelling and articulable reason not to do so.” 240 Kan. at 610.
Abu-Fakher cites McCown and Harris as authority for the proposition that the elements of “heat of passion” or “sudden quarrel” are mitigating circumstances which the defendant need not prove at trial. According to Abu-Falcher, the State does not bear the burden of proving the nonexistence of such mitigating circumstances and, likewise, a defendant is not required to establish mitigating circumstances by a preponderance of the evidence.
In McCown, the defendant was charged with the first-degree murder of his roommate’s stepfather who had suffered 97 bruises, abrasions, lacerations, and stab wounds. The trial court instructed the jury on first-degree murder and on six lesser included offenses, including intentional second-degree murder. On appeal, McCown challenged the jury instruction on intentional second-degree murder given by the trial court because it did not include the element of malice and claimed that without the element of malice, the intentional second-degree murder statute criminalized homicide committed in self-defense. This court concluded that, due to a 1993 amendment to the statute, second-degree intentional murder no longer included the element of malice. In addition, this court found the burden-shifting argument of defendant to be without merit. There, we stated:
“In Kansas, we recognize affirmative defenses. However, unlike the New York statute . . ., we do not require a defendant to establish his or her defense by a preponderance of evidence. Once evidence of self-defense or evidence that the defendant acted with lesser culpability has been raised, the trial court is bound to instruct the jury on self-defense and any lesser included offense raised by the evidence. It is then up to the jury to resolve the question of guilt upon the charged crime. [Citations omitted.]” McCown, 264 Kan. at 663.
“Much like our state, the New York statute at issue in [State v.]Patterson [262 Kan. 481, 939 P.2d 909 (1997)] defined second-degree murder as intentionally killing another person. However, New York, unlike Kansas, required mitigation in the form of extreme emotional disturbance to be raised and established by the defendant by a preponderance of evidence. In Kansas, once evidence of self-defense or other defenses lessening culpability is admitted, the trial court is bound to instruct the jury on the defense or on lesser included offenses raised by such evidence. Failure to do so may result in reversible error and the granting of a new trial. The State, according to standard instructions, must nevertheless prove all elements of the crime by evidence beyond a reasonable doubt. This burden does not require the State to prove the nonexistence of mitigating circumstances . . . .” McCown, 264 Kan. at 665.
In Harris, our Court of Appeals adopted the rule that
“where a defendant is charged with murder and is convicted of the lesser included offense of manslaughter, the defendant’s conviction will stand notwithstanding the fact that there was no evidence to support the jury’s finding of provocation, as long as the evidence was sufficient to convict the defendant of the greater crime of murder.” 27 Kan. App. 2d at 45.
The Court of Appeals held:
“[W]here a defendant is charged with second-degree intentional murder and convicted of voluntary manslaughter based on sudden quarrel or heat of passion, the conviction may stand even absent evidence of sudden quarrel or heat of passion, as long as the evidence was sufficient to convict the defendant of second-degree intentional murder. The sole distinction between intentional second-degree murder and voluntary manslaughter in this case was the presence of mitigating circumstances. The jury, by its conviction for voluntary manslaughter, clearly found that Harris had intentionally killed Garrett. However, the jury, without evidence, decided to find mitigating circumstances. Such a result is favorable to Harris and, thus, he may not complain on appeal that his conviction for voluntary manslaughter was based on insufficient evidence as long as sufficient evidence existed to convict him of the greater offense of second-degree murder.” 27 Kan. App. 2d at 46-47.
Thus, under Harris and McCown, in the context of lesser included offenses, neither the State nor the defendant is required to prove mitigation beyond a reasonable doubt.
Cribbs, 29 Kan. App. 2d 919, is distinguishable on its facts from this case. There, defendant Cribbs appealed his conviction of attempted second-degree murder, arguing that the trial court committed clear error in instructing the jury on voluntary manslaughter based on alternative A of PIK Crim. 3d 56.05. Our Court of Appeals found that alternative B would have instructed jurors to consider convicting defendant on the lesser included offense of voluntary manslaughter as jurors deliberated on the attempted second-degree murder charge, but that alternative A precluded jurors from considering attempted voluntary manslaughter “unless and until it failed to agree on his guilt of attempted second-degree murder.” 29 Kan. App. 2d at 924. The Cribbs court found that members of the jury “may never have fully analyzed whether the shooting was the product of heat of passion or a sudden quarrel, the factors that distinguish the greater and the lesser crimes and the reasons they require simultaneous deliberation when the evidence could support either.” 29 Kan. App. 2d at 924. Limiting its holding to the facts of that particular case, the Court of Appeals found the instruction clearly erroneous and reversed the defendant’s second-degree murder conviction.
In State v. Dixon, 252 Kan. 39, 843 P.2d 182 (1992), the complaint charged defendant Dixon in the alternative with attempted first-degree murder or aggravated battery. Dixon was convicted of attempted first-degree murder. On appeal, Dixon challenged the trial court’s instruction to jurors that they need not consider whether he was guilty of aggravated battery if they found him guilty of attempted first-degree murder. Relying on State v. DeHerrera, 251 Kan. 143, 834 P.2d 918 (1992), this court held that it was not necessaiy for the jury to consider the alternative charge once jurors decided that Dixon was guilty of attempted first-degree murder. There, this court stated:
“In the lesser included offense instruction the jury is directed to consider the offenses in descending order of severity because the greater (or greatest) offense is the one with which defendant has been charged. If the evidence, principally the State’s evidence, establishes beyond a reasonable doubt the defendant’s guilt of the charged offense, the case is over.” Dixon, 252 Kan. at 49.
In this case, the instruction did not preclude the jury from considering convicting Abu-Fakher of voluntary manslaughter. To the contrary, it instructed jurors that “[i]n determining whether the defendant is guilty of intentional or unintentional murder in the second degree, you should also consider the lesser offense of voluntary manslaughter.” While the instruction on voluntary manslaughter may have lacked clarity, it did not state that the defendant had to prove the mitigating elements. On the contrary, another instruction indicated that “[t]he State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless and until you are convinced from the evidence that he is guilty.”
The jury found Abu-Fakher guilty of premeditation, which is a finding inapposite to the mitigating circumstances of “heat of passion” or “sudden quarrel.” While the words “must be proved” should not have been included in the instruction given to the jury, this error does not reach the level of clear error required by K.S.A. 2001 Supp. 22-3414.
IV. MISCONDUCT
For his next assertion of error, Abu-Fakher claims, that the prosecutor committed misconduct during trial and in closing argument which, separately and cumulatively, was of such a magnitude as to deny him his right to a fair trial. Abu-Fakher concedes that his trial counsel did not object to the statements of the prosecutor at issue.
“If a claimed error of prosecutorial misconduct implicates a defendant’s right to a fair trial, the appellate standard of review is the same regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial.” State v. Doyle, 272 Kan. 1157, Syl. ¶ 4, 38 P.3d 650 (2002).
“If a claimed error of prosecutorial misconduct rises to the level of a denial of the Fourteenth Amendment right to due process, the issue of prosecutorial misconduct will be addressed. The analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process. First, an appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, an appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.” Doyle, 272 Kan. 1157, Syl. ¶ 5.
Abu-Fakher claims that the prosecutor (1) misstated the law on premeditation and intent; (2) gave his personal opinion of the credibility of witnesses; and (3) expressed ill will toward him by mocking his accent during cross-examination. We will examine each claim in turn.
1. Comments on premeditation
Abu-Fakher contends that the prosecutor misstated the law and usurped the jury’s function by informing the jury in closing argument that if he shot his wife on purpose it was premeditation. Abu-Fakher complains of the following statement of the prosecutor:
“The instructions, first-degree murder, intentional killing. One of the few things that the defendant agreed with is that, ‘If you shoot somebody in the chest, you mean to kill them/ ‘done with premeditation/
“The instructions, I think that it is No. 14, premeditation/ will tell you, quote, ‘To think a matter over beforehand/ And that is a quote. It doesn’t mean days, doesn’t mean weeks, doesn’t mean months. It can be seconds. And in of this case, it was several seconds. There was plenty of time for the defendant to decide, ‘I’m going to kill you’ and tiren do it about thirty seconds or so later. Time it. Time it when you are back there.
“You’ll also be instructed on the range of other lesser offenses, less serious offenses, second degree, intentional. That is killing somebody intentionally without premeditation. Well, if you believe he killed her on purpose, that is premeditated.” (Emphasis added.)
It is clear that the final comment of the prosecutor incorrectly stated the law on premeditation. An intentional killing alone does not establish the element of premeditation. “Premeditation, as it relates to a homicide, is the process of thinking about a proposed lulling before engaging in the homicidal conduct. Premeditation is a state of mind.” State v. Parker, 273 Kan. 56, Syl. ¶ 3, 41 P.3d 789 (2002).
Although the statement was improper, it does not rise to the level of being gross or flagrant in the context of the previous statement of the prosecutor reading the definition of premeditation. The effect of this misstatement alone did not compromise Abu-Fakher’s right to a fair trial.
2. Statements concerning witnesses’ credibility
Abu-Fakher also complains that during closing argument, the prosecutor characterized him as a liar and personally vouched for the credibility of Whitley and Jackson. Abu-Fakher contends that the prosecutor s prejudicial characterization of him was an improper burden-shifting comment. According to Abu-Fakher, the prosecutor’s expression of his personal opinion concerning the truth or falsity of any testimony violates the rules of professional conduct.
During closing argument, the prosecutor made the following statements:
“And that is why that first line is so very important where it says, ‘It is for you to determine the weight and credit to be given the testimony of each witness.’
“What that means is that, if you don’t believe somebody, you don’t believe somebody, you don’t have to give what they say any weight. You can completely throw it out if you want. And I think there are some witnesses in this case, particularly the defendant, whose testimony that you should give little, if any, weight to. And we’ll talk about that some more later.
“Let’s talk about some of the other witnesses, though, when you look at this weighing, how much credit you are going to give what this witness said.
“The defendant: I’d submit to you, very little. There is a guy who won’t even admit to you that he lied to his wife. He can’t even get that far. He can’t even admit to you that it was wrong to do what he was doing with Jamie Saunders. What do you think he is going to do when it comes to telling you whether or not he is responsible for a homicide? I’d say, ‘No credit.’ ”
The prosecutor further stated:
“And then you’ve got your other people in this case. You’ve got Sharon Whitley, Jesse Jackson. I submit to you that they told you it like it is. A couple of country people up here trying to rekindle a relationship with a sister who has lived across the continent from them for many, many years.
“I think that Sharon Whitley told you the good, the bad, and the ugly about Carol. ’Yeah, she had mental problems at times in her life. Yep, she was loud. Yep, she could be obnoxious. But she was also a lot of fun and she had a nice side to her. Yep, she was on his back that day.’ We know that is true. Wouldn’t you be, though? Is that crazy or is that normal? I think that it is normal.
“Jesse Jackson, another guy that I think is telling you the truth, the evidence, tihe weight of the evidence. What did he say that the defendant said to him right before that call on Monday when he got hung up on? When the cussing is going on, tempers are flaring, what does he say to Jesse Jackson? ’I’m going to kill her and kill myself.’ I suspect, ladies and gentlemen, that might very well be why that tape is rolling in his pocket.”
The State maintains that the prosecutor told the jury that counsel’s arguments were not evidence and to disregard statements of counsel that were not in evidence. According to the State, the prosecutor s statement to the juiy that it should give very little credit to what Abu-Fakher said was based upon the evidence. The State points out that when aslced if he had lied about the affair with Saunders, Abu-Fakher testified, “It is — it is not considered ‘lying.’ ”
As for the prosecutor’s comments on the credibility of Whitley and Jackson, the State maintains that the prosecutor’s statements did not reflect the prosecutor’s knowledge of the witnesses’ veracity and were not improper under State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002). The State contends that the prosecutor’s comments were not so inflammatoiy as to deny Abu-Fakher a fair trial.
In Finley, in closing argument the prosecutor told the jury: “ ‘And don’t forget all the inconsistencies that I pointed out in Tom’s prior sworn testimony. He’s said various things at various times, and the reason why people do that is because they can’t keep all the lies straight.’ ” 273 Kan. at 246. There, we reviewed State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000), and found:
“ ‘Pabst’s credibility was crucial to the case. The prosecutor placed before the jury unsworn testimony which it should not have considered: his personal opinion on Pabst’s credibility and the credibility of the State’s evidence. Stating facts not in evidence is clearly improper. [Citation omitted.] Accusing Pabst of lying goes far beyond the traditional wide latitude afforded to prosecutors in closing argument. [Citation omitted.] Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on the evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the juiy.’
“The Pabst court reversed the conviction based on the prosecutor’s having injected his personal opinion about the credibility of the defendant. 268 Kan. at 510-12.
“The prosecutor’s argument in the present case was not improper. The prosecutor based her argument on an inference drawn from the nature of the defendant’s conflicting stories, not on the prosecutor’s knowledge of the defendant’s veracity. Furthermore, the phrase, ‘they can’t keep all the lies straight’ does not come close to the egregious manner in which the prosecutor in Pabst called the defendant a liar. See 268 Kan. at 505-06. As the comment purported to be based on evidence, not on the prosecutor’s personal knowledge of the defendant’s veracity, it cannot be said the prosecutor’s comment denied the defendant a fair trial.” Finley, 273 Kan. at 246.
Here, the prosecutor s comments on the weight to be given to Abu-Fakher s testimony and the prosecutor’s statements concerning the credibility of Whitley and Jackson cannot be equated with the prosecutor’s statements in Finley. The statements of the prosecutor in this case are clearly outside the considerable latitude the prosecutor is allowed in discussing the evidence in that they invade the province of the jury.
Having decided that these comments fall outside of the scope of permissible argument, we must consider the second prong of the test for prosecutorial misconduct.
“ ‘Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.’ [Citations omitted.]
“ ‘ “Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’ ” [Citations omitted.] ‘Specifically, “[i]n deciding the question of whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.” ’ [Citation omitted.]” State v. Navarro, 272 Kan. 573, 584, 35 P.3d 802 (2001).
In Pabst, the defendant testified that during an argument with his fiancé he retrieved a revolver from his truck, handed it to her, and told her to shoot him if she thought he was so worthless. According to the defendant, they struggled over the gun when it went off, fatally shooting the defendant’s fiancé. There, this court found Pabst’s credibility was crucial to the case and that the prosecutor’s improper comments denied him a fair trial by unfairly prejudicing the jury against him.
We hold there was little or no likelihood that the prosecutor’s instructions to the jury to give no weight to Abu-Fakher’s testimony, while bolstering the credibility of the State’s witnesses who testified that Carol was not acting mentally ill, would change the result of the trial.
3. Imitation of Abu-Fakher’s statement on the tape recording
During the State’s cross-examination of Abu-Fakher, the prosecutor questioned Abu-Fakher about the details of the conversations captured on the tape recording. Abu-Fakher contends that during the following portion of his cross-examination, the prosecutor expressed ill will toward him by mocking his accent:
“Q. (By [die prosecutor]) And then a few minutes later, about five minutes later into that call, when you are on the phone with Mr. Ballard, you begin to — Carol is stiE in the background yeEing things, isn’t she?
“A. Yes.
“Q. She is still griping and being on your back about diings; right?
“A. Yes.
“Q. And then one of the things she has been griping about, as we aE know, is Jamie; right?
“A. Yes.
“Q. And the car?
“A. Yes.
“Q. And dien Mr. Abu-Fakher, you begin to mock her, don’t you?
“A. ‘Mock her’? What mean?
“Q. Making fun of her, don’t you?
“A. I never make fun of anybody.
“Q. You don’t? You say, ‘Oh, I have ten girl friends. I have hundred good friends. If I had a girlfriend, I have ten. How many you want? Ten, twenty?’
“[COUNSEL FOR ABU-FAKHER]: I think [the prosecutor] is mocking Mr. Abu-Fakher, making fun of his race and I don’t appreciate it. I object to that.
“THE COURT: Counsel, make an objection. Just do die objection.
“[COUNSEL FOR ABU-FAKHER]: I object to [the prosecutor’s] conduct; inappropriate.
“THE COURT: I think diat you can read the question without—
“[THE PROSECUTOR]: I’E try to, Judge.
“Q. (By [the prosecutor]) Is that true?
“A. Mr. BaEard asked me to tell her what she like to hear.”
The State claims that the prosecutor was asking the question using the same tone that Abu-Fakher invoked during his tape-recorded argument with Carol. While this is not a clear admission, it is certainly not a denial that the conduct took place. Defense counsel objected to the prosecutor s conduct as improperly “mocking Mr. Abu-Fakher, making fun of his race.” According to the State, the trial court sustained defense counsel’s objection and, thus, no reversible error occurred.
In State v. Smith, 258 Kan. 321, 323, 904 P.2d 999 (1995), as the prosecutor cross-examined Smith, he asked, “Is that the same Bible that says ‘Thou shalt not ldll’?” Because defense counsel’s contemporaneous objections was sustained, this court did. not find reversible error. “It is well established that an appellate court will not find reversible error when an objection to a prosecutor s question or statement has been sustained.” 258 Kan. at 321, Syl. ¶ 3.
The United States Supreme Court has observed that, “[l]ike the Hydra slain by Hercules, prosecutorial misconduct has many heads.” United States v. Williams, 504 U.S. 36, 60, 118 L. Ed. 2d 352, 112 S. Ct. 1735 (1992).
“A prosecutor is a servant of the law and a representative of the people. . . . Sixty-five years ago the United States Supreme Court said that the prosecutor represents
‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).” Pabst, 268 Kan. at 510.
The Berger court further observed that a prosecutor
“may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 2d 1314, 55 S. Ct. 629 (1935).
In this case, the State does not deny that the prosecutor may have imitated Abu-Fakher s accent when cross-examining him. The trial court’s decision to sustain the defense counsel’s objection shows that the conduct of the prosecutor overstepped the bounds of propriety by mimicking Abu-Fakher’s foreign accent. The prosecutor expressed ill will toward Abu-Fakher by his actions.
The objection of defense counsel was sustained, and the trial court admonished the prosecutor to discontinue the conduct giving rise to the objection. We do not find reversible error.
V. SPECIFIC PRIOR INSTANCES OF CONDUCT
For his final assertion of error, Abu-Fakher claims the trial court abused its discretion by allowing the prosecutor to improperly attack his character while eliciting his testimony during cross-examination. Abu-Fakher contends that the admission of this evidence resulted in a denial of his fundamental right to a fair trial, requiring a reversal of his conviction.
“The admissibility of evidence lies within the sound discretion of the trial court. . . . “[I]t is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion.” ’ ” State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Abu-Fakher complains that during his cross-examination, the prosecutor attacked his character by questioning him (1) about a restraining order he obtained in Florida against Carol in 1997; (2) about finding Carol on the streets sunburned, dehydrated, and blisters on her feet; and (3) about a petition for divorce which stated he was financially dependent on Carol and required alimony, exclusive use of the home, and payment of insurance, and requested that he be named beneficiary of Carol’s life insurance. Abu-Fakher concedes that his trial counsel failed to lodge a contemporaneous objection to the prosecutor’s cross-examination. He argues, however, that his character was not at issue and the prosecutor’s elicitation of these specific instances of conduct was, thus, impermissible.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to malee clear the specific ground of objection.” K.S.A. 60-404. “It is well settled that a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal. [Citation omitted.]” State v. Barksdale, 266 Kan. 498, 511, 973 P.2d 165 (1999).
Here, defense counsel’s failure to object to the admission of Abu-Fakher’s testimony on cross-examination precludes appellate review. See State v. Valdez, 266 Kan. 774, 789, 977 P.2d 242 (1999) (stating that although defendant objected at trial to the admission of a DNA report based on chain of custody, the lack of a trial objection to the admission of the report based on the number and preparation of the swabs precluded this court’s review); State v. Cellier, 263 Kan. 54, 64-65, 948 P.2d 616 (1997) (finding that the failure to file a contemporaneous objection to admission of defendant’s confession ruled out appellate review). Abu-Falcher has failed to preserve this issue for appeal.
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The opinion of the court was delivered by
Abbott, J.:
Vaughn and Sharon Lower purchased a cemetery lot located in the Haskell County Cemeteiy, described as Lot 106, Block 5, from Jerry Robson, the local mortician, on October 18, 1994. The Haskell County Cemetery District issued a corporation deed to Vaughn Lower and Sharon Lower for the cemetery lot. The deed was filed at the Haskell County Register of Deeds office on November 2, 1994.
The lot was purchased by the Lowers for tire purpose of erecting a monument for unborn babies. Sharon testified that the lot was not purchased for the burial of a human body. The Lowers’ mo tivation was their belief as Christians in the value, preciousness, and sanctity of human life. The Lowers felt a responsibility “to reach out in love to individuals and families who have lost babies due to miscarriage, stillbirth and abortion by providing aplace such persons can go to grieve . . . and find closure and healing.”
After the Lowers purchased the cemetery lot, the Board of Directors of the Haskell County Cemetery District (Cemetery Board) met and established a policy on the use of cemetery lots in the Haskell County Cemetery District. On November 3, 1994, Dana Leonard, then president of the Cemetery Board, telephoned Sharon Lower and told her she could not do what she wanted to do at the cemetery.
Four years later, the Lowers erected a monument on Lot 106, Block 5, on or about November 1998. The inscription on the monument reads: “IN LOVING MEMORY OF ALL UNBORN BABIES.” In addition, the inscription includes the following verse from the Bible, the Book of Isaiah: “I WILL NEVER FORGET YOU. SEE, UPON THE PALMS OF MY HANDS I HAVE WRITTEN YOUR NAME.”
On May 12, 1999, the attorney for the Cemetery Board sent a letter to the Lowers concerning the memorial stone. The letter stated, in pertinent part:
“The Haskell Count Cemeteiy Board policy provides that all cemetery plots in the Lockport, Ivanhoe, Colusa and Haskell Couniy Cemeteries are to be used exclusively for the interment of human remains. The policy further states that prior to use for any other purpose a request therefor must be made to the Board in writing and have prior approval of a majority of the entire Cemetery Board voting in favor of the use requested. This was not done prior to your setting of the memorial in Block Number 106 plot.
“The Board respectfully requests that the memorial placed without prior written approval of the Board be removed immediately, if the memorial is not removed by May 25,1999, the Board will cause the stone to be removed and it will be stored at your expense.”
The Lowers filed a petition in the District Court of Haskell Couniy, Kansas, on June 29, 1999, challenging the validity of the regulations enacted by the Cemetery Board. The Lowers alleged that the actions of the Cemetery Board had deprived them of their property rights in the cemetery plot and infringed on their consti tutional rights to freedom of speech and freedom to exercise their religious beliefs and to the equal protection of the laws. The petition further alleged that the actions of the Cemetery Board were prohibited under the Civil Rights Act of 1866, 42 U.S.C. § 1983.
The Lowers sought relief from the district court in the form of a declaratory judgment that the regulations enacted by the Cemetery Board were facially unconstitutional and/or unconstitutional as applied. The Lowers also alleged that the Cemetery Board had singled them out and asked them to remove the monument based on the content of the inscription on the monument in violation of 42 U.S.C. § 1983 (1994). The Lowers also asked for temporary and permanent injunctive relief. District Judge Tom R. Smith immediately granted a temporary restraining order which restrained the Cemetery Board from attempting to enforce its regulation against the Lowers by removing, altering, or damaging the memorial stone pending further proceedings.
The district court found that it had proper jurisdiction over the parties and the subject matter. The district court also took judicial notice that the Haskell County Cemetery District was properly created pursuant to Kansas statutes. A journal entry memorialized the following findings of the district court:
“7. The issue at hand is whether or not a permanent restraining order should be issued to stop the Haskell County Cemetery District from removing the monument set on Lot 106, Block 5, owned by Vaughn Lower and Sharon Lower.
“8. The Temporary Restraining order, if lifted, would grant no authority to the Haskell County Cemetery Board or any other party to enter upon the lot for the removal of said stone. Plaintiffs have ownership of Lot 106, Block 5, under that authority granted to them for ownership of the cemetery lot by the Haskell County Cemeteiy District pursuant to statutes governing Cemetery Districts, specifically K.S.A. 12-1441(a) and (b) and K.S.A. 17-1302.
“9. This Court has treated the Motions and responsive Pleadings filed including the arguments of this date as a Motion for Summary Judgment.
“10. The Motion for Summary Judgment is herein denied.
“11. The Court now must deal with the future management of this matter. The following issues need to be dealt with in the framing of this matter for conclusion:
A. For the Defendants to file amended Pleadings asking for the Deed of Conveyance of October 18,1994, to be set aside under either a unilateral or mutual mistake as to the intended purpose for the use of the lot and that its current use may violate Kansas statutes for the use of cemetery lots.
B. For the Defendants to file amended pleadings asking for a permanent injunction against the Plaintiffs for any use of said lot other than as ■ described in the controlling statutes for Cemeteries in the State of Kansas.
C. The Court sees the issues facing the parties as rather simple issues and those issues are as follows:
1. The proper use of a cemetery lot in a cemetery district in the State of Kansas in accordance with statutory and case law.
2. Whether or not the current use of Lot 106, Block 5, is an authorized use of a cemetery lot in the State of Kansas.
3. The definition of sepulcher and the Court herein adopts the following definition of sepulcher: ‘a burial vault to put in a sepulcher: inter,’ as defined by WEBSTER’S II NEW RIVERSIDE DICTIONARY (rev. ed. 1996) and as defined in THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (unabridged ed. 1996) as ‘a tomb, grave or burial place.’ ”
On September 21, 2000, the Cemetery Board filed an amended answer and counterclaim asking for injunctive and declaratory relief on the grounds that K.S.A. 12-1441 proscribes certain uses of cemetery grounds, and that under K.S.A. 17-1302, the authority of the Cemetery Board to convey lots was restricted to the “purposes of sepulture.” The Cemetery Board sought permanent injunctive relief against the Lowers and any other persons acting in concert with them in maintaining the memorial on Lot 106, Block 5.
The Lowers filed an amended petition on February 20, 2001, incorporating by reference all the allegations contained in their original petition. The Lowers renewed their allegation that the Cemetery Board, acting under color of state law, had violated their constitutional rights. In addition, the Lowers asserted that K.S.A. 12-1441 and K.S.A. 17-1302 were unconstitutionally vague and ambiguous on their face and, therefore, did not provide authority for the Cemetery Board to take action to demand or cause the removal of the memorial stone from their lot.
On August 23, 2001, District Judge Kim Schroeder issued his decision in a journal entry concerning the Cemetery Board’s summary judgment motion. One of the district court’s findings was that no human body was currently buried in the lot, and there were no plans for anyone to be buried there. The court declared that the Cemetery Board’s policy for the use of cemetery lots was immaterial to the case in that the law in place prior to the sale of the lot controlled its use.
Without commenting further on the Lowers’ claim that K.S.A. 12-1441 and K.S.A. 17-1302 were unconstitutionally vague and ambiguous, the district court simply wrote that the Kansas statutes governing the use of a cemetery lot were constitutional. Significantly, the district court held that the monument by itself without a human body buried in the lot did not meet the statutory requirements for the use of a cemetery lot. The district court wrote: “The proper use of a cemetery lot has been addressed by the Court in Earhart v. Holbert, 116 Kan. 487, 227 P. 351 (1924), when the Court said at page 488, The lot was purchased for burial purposes. It cannot be used for any other purpose. (R.S. 17-1302.)’ ” The district court granted the Cemetery Board a permanent injunction against the Lowers and ordered the removal of the monument. However, the district court granted the Lowers an order of stay pending appeal pursuant to K.S.A. 2001 Supp. 60-262.
The Lowers filed a timely appeal of the judgment of the district court. The matter comes before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. K.S.A. 12-1441 AND K.S.A. 17-1302
We believe this case is controlled by Connolly v. Frobenius, 2 Kan. App. 2d 18, 574 P.2d 971, rev. denied 225 Kan. 843 (1978). There, the Court of Appeals handled the matter by adopting a Georgia case, saying:
“ “When a tract of land has been dedicated as a cemeteiy, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose. . . .
. • • [I]t must be held that the property in question can only be used as a place for burying the dead, and any other attempted use is an unlawful attempt to appropriate property dedicated for cemetery purposes to other uses, which cannot be done.’ ” 2 Kan. App. 2d at 30 (quoting Greenwood Cemetery, Inc. v. MacNeill, 213 Ga. 141, 97 S.E.2d 121 [1957]).
In Connolly, the Kansas Court of Appeals stated:
“Kansas cases involving cemeteries have been limited to statements of the general rule.
“ ‘ . . . AH lots and tracts of land contained within the boundaries of a cemetery platted by a cemetery corporation are dedicated exclusively for burial purposes and cannot be used for any other purpose. (K.S.A 17-1302, et seq. [Weeks 1969]; Earhart v. Holbert, 116 Kan. 487, 227 Pac. 351; Davis v. Coventry, 65 Kan. 557, 70 Pac. 583.) . . . .’ Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 44, 542 P.2d 278.” 2 Kan. App. 2d at 31.
In Connolly, the Court of Appeals held that property dedicated for purposes of sepulture cannot be used for any other purpose.
K.S.A. 17-1335(a) vests district cemetery associations with “all the authority now provided by law for cemetery associations and corporations” and does not limit that authority to the provisions of chapter 17. Thus, the provisions of K.S.A. 12-1441, which order cemetery governing bodies to prevent unintended cemetery uses, pertains to the Cemetery Board. The district court correctly determined that the Cemetery Board must comply with the mandates of K.S.A. 12-1441, which state:
“(a) The governing body of any city or county which has established, acquired or otherwise assumed control of any cemetery or burial grounds shall prevent such cemetery or burial grounds from being used for dumping grounds, building sites, playgrounds, places of entertainment or amusement, public parks, athletic fields, parking grounds or any purpose other than for burial or other intended cemetery purposes.
“(b) The fact that any tract of land has been set apart for burial purposes and that a part or all of such tract has been used for burial purposes shall be evidence that such grounds were set aside and used for burial purposes regardless of whether graves are visible on any part of the grounds. For the purposes of this act, the terms ‘cemetery’ and ‘burial grounds’ shall mean parcels of land set aside and used for the interment of human bodies.”
The central thrust of K.S.A. 12-1441 is to direct cemetery governing bodies to prevent cemetery grounds from being used for any purpose other than “for burial or other intended cemetery purposes.”
The district court found that no human body was buried in the Lowers’ lot and that they did not plan to bury anyone there. Instead, the Lowers, motivated by their religious beliefs, used their cemetery lot for the purpose of erecting a monument memorializing unborn babies as a class. The district court correctly concluded that the Lowers’ use of their lot solely to erect a monument memorializing a class with no design for the interment of human remains contravened the statutory requirement limiting the use of the lot to purposes of sepulture. Thus, we hold that the district court did not err in determining that in light of K.S.A. 17-1302, the monument erected by the Lowers violated statutory authority.
Because K.S.A. 17-1302 limits the Cemetery Board’s power to convey lots solely for purposes of sepulture, there is no need for this court to analyze whether Kansas statutes give cemetery governing bodies the discretion to determine cemetery purposes. The Lowers were not using their cemetery lot for the purpose of sepulture, burial, or interment as required by 17-1302, and that was the basis for the district court’s decision. The Lowers’ claim premised on a discretionary exercise of power by the Cemetery Board fails.
In sum, we agree with the district court’s conclusion that the phrase “other intended cemetery purposes” found in K.S.A. 12-1441 did not provide authority for the Lowers to use their cemetery lot for any purpose other tiran “sepulture,” as provided by K.S.A. 17-1302. Thus, we find that the district court did not err in interpreting K.S.A. 12-1441, K.S.A. 17-1302, and other Kansas statutes concerning cemeteries as prohibiting the Lowers from placing a monument “In Loving Memory of All Unborn Babies” on their cemetery lot.
We conclude that the legislature has spoken on the subject and limits the use of a cemetery lot to burial purposes. If the law is to be changed, the legislature must change it. The Cemetery Board has authority to malee rules and regulations and to govern the cemetery but only within the authority given to it by the State of Kansas.
As a practical matter, problems arise if a person buys a cemetery lot to bury a loved one and then discovers a marker on the next lot taking a position that the deceased was opposed to in his or her lifetime.
We do not mean to imply that a marker or a memorial cannot be installed, but it must be done within state law and rules and regulations of the cemetery. Here, no attempt was made to have the Cemeteiy Board approve or set aside a special lot for what the Lowers were attempting to do.
We hold that the district court did not err in determining that in light of K.S.A. 17-1302, the monument erected by the Lowers violated statutory authority.
II. GRANT OF SUMMARY JUDGMENT TO CEMETERY BOARD
The Lowers next assertion on appeal is that the district court should not have granted summary judgment to the Cemeteiy Board on its counterclaim because it was not entitled to a judgment as a matter of law. The Lowers contend that their claim pursuant to 42 U.S.C. § 1983 should have survived summary judgment.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 2001 Supp. 60-256(c). On appeal, an appellate court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Brenner v. Oppenheimer & Co., 273 Kan. 525, Syl. ¶ 1, 44 P.3d 364 (2002).
In its August 23, 2001, journal entiy which considered the cross-claims of the Cemeteiy Board, the district court simply stated:
“18. Plaintiff has raised multiple constitutional issues dealing with Freedom of Speech, Freedom of Religion, Due Process of Law, Equal Protection of Law, to cloud the real issue before the Court, which is the correct use of a cemetery lot by the owner.
“19. The statutes governing the use of a cemeteiy lot are constitutional.”
The Lowers maintain that genuine issues of material fact exist as to their claim that the Cemetery Board violated their civil rights in contravention of 42 U.S.C. § 1983. The Lowers argue that they need only establish that the Cemetery Board, acting under color of state'law, deprived them of a constitutional right for their § 1983 suit to survive summary judgment and present four claims of constitutional violations.
The Cemetery Board argues that the Lowers have produced no evidence through discovery or otherwise that provides factual support for the allegations in their petition. The Cemetery Board’s position is that because the Lowers did not acquire or use their cemeteiy lot in a statutorily permitted manner, the language on the Lowers’ monument is irrelevant.
42 U.S.C. § 1983 (1966) provides:
“Eveiy person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
“A § 1983 claim has two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parrott v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds Daniels v. Williams, 474 U.S. 327, 330-31,88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Both state and federal courts are proper forums for such actions. [Citation omitted.]” Connelly v. Kansas Highway Patrol, 271 Kan. 944, 957, 26 P.3d 1246 (2001).
In this case, the Lowers brought suit against the members of the Cemeteiy Board in their official capacities. The Lowers imply that the members of the Cemeteiy Board used “the badge of their authority” to deprive them of their federally guaranteed rights.
“[N] either a State nor its officials acting in their official capacities are persons’ under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45,109 S. Ct. 2304 (1989). However, § 1983 applies to local governmental entities that “are not considered part of the State for Eleventh Amendment purposes.” 491 U.S. at 70. Moreover, “ ‘ “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ’official-capacity actions for prospective relief are not treated as actions against the State.” ’ ” Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 12, 20 P.3d 39 (2001), quoting 491 U.S. at 71 n. 10.
We agree the Cemetery Board meets the definition of a person for purposes of § 1983. Thus, we turn our attention to the second required prong for a § 1983 suit and review the four claims of constitutional violations of the Lowers. In portions of their brief, the Lowers generally describe the violative “action” taken by the Cemetery Board as “the distinction the Board drew by excluding the Lowers’ memorial while allowing others to stand.” In other parts of their brief, the Lowers describe the violative action of the Cemeteiy Board to be the promulgation of new regulations concerning the use of a cemetery lot.
First, the Lowers allege that their memorial is a form of protected religious speech in a traditional public forum and that the restriction of their speech by the Cemeteiy Board is not justified by any compelling interest. The Cemeteiy Board argues that its regulatory actions directed at the Lowers and the statutes on which its actions are based are aimed at controlling conduct, not speech. The appellate standard of review of a district court’s grant of summaiy judgment dictates that all inferences which may reasonably be drawn from the evidence be resolved in favor of the party against whom the ruling is sought. Therefore, although the relevant cemeteiy statutes appear to restrict only conduct when limiting the use of a cemetery lot, we will proceed with a review of the Lowers’ claim that the statutes impermissibly burden their right to free speech.
“Government restrictions on speech on public property are traditionálly analyzed by classifying the regulated property as one of three lands of fora described by the Supreme Court: public fora, designated public fora, and nonpublic fora. In traditional public fora, devoted to assembly and debate by long tradition or government fiat, the government may exclude a speaker only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. In designated public fora, which the government creates by intentionally opening a forum to certain classes of speakers, the government’s exclusion of a speaker who falls within the class to which the forum is made generally available will be subjected to strict scrutiny. In nonpublic fora, the government may restrict access by content or speaker identity, so long as the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). Thus, restraints on speech in a nonpublic forum will be upheld unless they are unreasonable or they embody impermissible viewpoint discrimination.” Griffin v. Secretary of Veterans Affairs, 288 F.3d 1309, 1321 (D.C. Cir. 2002).
In State ex rel. Stephan v. Lane, 228 Kan. 379, 386, 614 P.2d 987 (1980), this court previously stated that “[a] cemetery which is open to the public for burial is a public cemetery regardless of the fact it is privately owned or maintained . . . [and] that ‘[a] cemetery is as public a place as a courthouse, or a market.’ ” Current federal authority, however, supports the idea that while a cemetery may be open and accessible to the public, cemeteries may properly be classified as nonpublic fora for purposes of constitutional review. See Griffin, 288 F.3d at 1322; Warner v. City of Boca Raton, 64 F. Supp. 2d 1272, 1291 (S.D. Fla. 1999); Koehl v. Resor, 296 F. Supp. 558, 561 (D.C. Va. 1969). For purposes of constitutional review, we find it appropriate to adopt the view that cemeteries are nonpublic fora.
“Access to a non-public forum . . . can be restricted as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.’ [Citation omitted.]” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985).
In this case, K.S.A. 17-1302 limits the use of cemetery lots to “purposes of sepulture.” We find that this statutory limitation is a reasonable restriction on the use of a cemetery lot to further “the important State interest in preserving and maintaining cemeteries” (228 Kan. at 393), with no design to suppress the content of expressions on individual monuments.
Further, in light of the purpose for which cemeteiy lots maybe sold and used under K.S.A. 17-1302 and K.S.A. 12-1441, we view the Cemetery Board’s actions toward the Lowers as reasonable and facially neutral. The record does not convince this court that the Cemetery Board acted to exclude the Lowers’ monument while allowing others to stand merely because board members opposed the Lowers’ view. We conclude that the Cemetery Board’s enforcement of the statutory restriction was reasonable and not an effort to suppress expression. Because the second essential element of the test for a 42 U.S.C. § 1983 claim is not met, we also hold that the district court did not err in granting summary judgment in regard to the Lowers’ allegations that the Cemetery Board violated their constitutional right to free speech.
The Lowers’ second claim of constitutional violation is that the Cemetery Board’s action in promulgating its regulation restricting their use of the lot and in enforcing the Kansas statutes burdened the Lowers’ exercise of their religion in violation of the First Amendment of the United States Constitution and § 7 of the Kansas Constitution Bill of Rights. The Lowers state that they are Christians and that their sincerely held religious beliefs compel them to publicly advocate viewpoints based upon those beliefs. The Lowers also state they “believe they are to love their fellow human beings and give comfort and encouragement to those who are sorrowing or experiencing affliction” and, therefore, they decided to erect a memorial in the cemetery for those who lose unborn babies.
The Lowers argue that the Cemetery Board’s regulation, although facially neutral, was adopted “for the specific purpose or objective of infringing upon or restricting the placement of the Lowers’ memorial because of the Lowers’ religious motivation and speech.” Here, the district court’s decision in favor of the Cemetery Board was based on Kansas statutes concerning the correct use of a cemetery lot by the owner. The district court found that the regulations of the Cemetery Board were immaterial. The Lowers do not challenge this finding on appeal.
Generally, “standing” requires that a plaintiff have a personal interest in the court’s decision and that he or she personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant. Amen-Ra v. Department of Defense, 961 F. Supp. 256, 259 (D. Kan. 1997), affd 149 F.3d 1190 (10th Cir. 1998). Because the district court held that the Cemetery Board’s regulations did not apply to the Lowers’ cemetery lot since the regulations were promulgated after the sale of the property, the Lowers lack the standing to complain that the Cemetery Board’s adoption of regulations deprived them of their right to freely exercise their religion.
The Cemetery Board maintains that the Lowers are not entitled to disregard valid statutes simply because their beliefs are sincerely held. According to the Cemetery Board, the facts do not indicate that the State of Kansas or the Cemetery Board burdened the Lowers’ right to worship God according to the dictates of their conscience; compelled them to attend or support any form of worship; controlled or interfered in their rights of conscience; or enacted any law respecting an establishment of religion or prohibiting the Lower’s free exercise of their religion.
“The bill of rights of our state constitution, section 7, provides:
‘The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. . . . ’
“The first amendment of the federal constitution provides:
‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
and the fourteenth amendment thereof provides:
‘. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .’
“In accommodating between the competing right of the state to compel action in the public welfare and the right of the individual to his constitutional religious freedom the courts have distinguished between religious beliefs and religious practices. Failure to comply with reasonable requirements in the exercise of the police power for the general welfare has never been condoned in the name of religious freedom. As stated in Commonwealth v. Beiler, Appellant, 168 Pa. Super. 462, 79 A.2d 134, 137,
‘Religious liberty includes the absolute right to believe but only a limited right to act.’ ” State v. Garber, 197 Kan. 567, 572-73, 419 P.2d 896 (1996), cert. denied 389 U.S. 51 (1967).
“In Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), the Supreme Court held that a law that is religion-neutral and generally applicable does not violate the Free Exercise Clause even if it incidentally affects religious practice. Id. at 878-79, 110 S. Ct. at 1599-1600; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472 (1993) (‘[0]ur cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religous practice.’).” Thiry v. Carlson, 78 F.3d 1491, 1496 (10th Cir. 1996).
The Lowers concede that the Kansas cemetery statutes are facially religion-neutral. The determinative question is whether the statutes had the effect of burdening the Lowers’ religious practice. In Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450, 99 L. Ed. 2d 534, 108 S. Ct. 1319 (1988), the United States Supreme Court stated that incidental effects of otherwise lawful government programs “which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not substantially burden die exercise of religion. The Lowers do not maintain, and the record does not reveal, any evidence that the Lowers were coerced into acting in a manner contrary to their beliefs as a result of the applicable Kansas statutes or the actions of the Cemetery Board.
Again, the second essential element of the test for a 42 U.S.C. § 1983 claim is not met. Thus, we find that the district court did not err in granting summary judgment in regard to the Lowers’ § 1983 claim that the Cemetery Board violated the Free Exercise Clause or § 7 of the Kansas Constitution Bill of Rights.
Third, the Lowers claim that the Cemetery Board’s action deprived them of property without due process of law in violation of their procedural due process rights. The Lowers again point to the Cemetery Board’s promulgation of regulations, a topic immaterial to the district court’s ruling in this case. The Lowers contend that the Cemetery Board did not give them or others opportunity to be heard before adopting new cemetery regulations and assert they are entitled to trial on “the issues of the true motive, manner and purpose of the Board’s hasty meeting of November 21, 1994, and their adoption of new rules targeting the Lowers’ use of their cemetery lot.”
The Cemetery Board first declares that cemetery lots are not subject to the laws of ordinary property and claims that its actions in enforcing regulations did not constitute a taking of the property right conveyed by the deed, which was the right to inter human remains in the lot. The Cemetery Board contends that the laws of the State of Kansas and the action of the Board do not constitute a taking of the Lowers’ property. The Cemetery Board cites United States v. Locke, 471 U.S. 84, 85 L. Ed. 2d 64, 105 S. Ct. 1785 (1985), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992), in support of tire proposition that its actions did not constitute a “taking.”
We previously examined the taking of cemetery property and procedural due process in Lane, 228 Kan. 384-85.
“If a statute falls within the exercise of the police power of the State, those subject to that statute must submit to its provisions, whatever the effect may be upon property or business. [Citation omitted.] However, there are limits to the scope and permissible exercise of the State’s police power. The court described those limits in Grigsby v. Mitchum, 191 Kan. 293, 302, 380 P.2d 363 (1963), cert. denied 375 U.S. 966 (1964), stating:
‘Almost eveiy exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of tire police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
‘Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and unless die decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.’
“In State ex rel. v. Anderson, 195 Kan. at 655, the court entertained a challenge to certain state statutes governing sale of burial lots, burial vaults, and markers. After reciting familiar principles outlining the State’s police power, the court stated: AVe have no difficulty in saying the subject is within the scope of the State’s police power. The state has long had regulatoiy statutes of various kinds touching upon disposition of dead bodies.’ ”
The Lowers also maintain that the Cemetery Board cannot justify the actions taken against them under tire doctrine of police power. The Lowers appear to argue that the prevention of unintended cemetery purposes such as the Lowers’ bears no substantial relationship to the public welfare. In addition, the Lowers appear to contend that the legislature exercised its regulatory police power in promulgating cemeteiy statutes in an arbitrary and capricious manner unrelated to the safe disposal of human remains. There fore, the Lowers maintain that the legislature’s regulations and the Cemeteiy Board’s actions to enforce the statute amounts to the unconstitutional exercise of police power.
The authority of the Kansas Legislature to pass reasonable regulations for the creation and operation of cemeteries is well established.
“It has been universally recognized that a state may, in the exercise of its police power, regulate the location and operation of cemeteries within its borders. [Citation omitted.] In Kansas, the construction and maintenance of cemeteries, and the organization of cemetery corporations, are extensively regulated by statute. See generally K.S.A. 12-1401 et seq.; K.S.A. 15-1001 et seq.; and K.S.A. 17-1302 et seq.” Johnson County Memorial Gardens, Inc. v. City of Overland Park, 239 Kan. 221, 223, 718 P.2d 1302 (1986).
We hold that neither the laws of the State of Kansas nor the Cemeteiy Board’s actions for the removal of the monument constitute a taking of the Lowers’ property interest in their cemeteiy lot in violation of procedural due process. The State’s exercise of police power bears a real and substantial relation to the general welfare of the public for the operation and maintenance of cemeteries. Further, because the district court held that the Cemetery Board’s regulations did not apply to the Lowers’ cemetery lot since they were promulgated after the sale of the property, the Lowers do not have standing to complain they were deprived of procedural due process. Moreover, we do not find that a taking occurred since the Lowers retain the right to use the cemeteiy lot for the purposes of sepulture, which is the original property interest conveyed with title to the lot. The second essential element of the test for a 42 U.S.C. § 1983 claim is not met in regard to the Lowers’ claim of violation of the right to procedural due process. We therefore find that the district court did not err in granting summary judgment.
Fourth, the Lowers claim that the actions of the Cemetery Board violate their guarantee to equal protection of the law. Again, the Lowers challenge the actions of the Cemeteiy Board in promulgating regulations which the district court held did not apply. The Lowers argue that in enacting the new regulations, the Cemeteiy Board treated them differently than other similarly situated persons who purchased a plot and erected a headstone.
The Cemetery Board challenges the Lowers’ assertion that they are “similarly situated” and denies there are any other persons who have placed memorial stones on individual lots placed solely for the purpose of expressing a particular religious belief with no intention of using the lots for the interment of human remains. The Cemetery Board observes that in answers to interrogatories, the Lowers could not identify any stone similarly located with a similar intent.
“Equal protection is implicated when a statute treats ‘arguably indistinguishable’ classes of people differently.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 251, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).
We find that the Lowers’ assertion of equal protection violation fails for two reasons. First, the Lowers lack the standing to challenge tire Cemetery Board’s promulgation of regulations under an equal protection claim since those regulations do not apply to the Lowers’ cemetery lot. Second, the Lowers fail to demonstrate they were treated differently than other similarly situated lot owners in the Haskell County Cemetery. We therefore find that the district court did not err in granting summary judgment to the Cemetery Board because the second element of the test for a 42 U.S.C. § 1983 claim is not met in regard to the Lowers’ claim that their right to equal protection was violated.
Affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in equity to have a trust de dared and impressed upon the proceeds of three life insurance policies upon the life of James Poindexter, payable to his wife, because the funds used by the insured to keep the insurance in force were fraudulently obtained from the plaintiff bank.
The action was brought against Frances Poindexter, the wife of the insured, and the insurance company. The petition alleged that she conspired with her husband in his obtaining two loans from the bank, one on October 3,1929, for $2,123, and the other on April 10, 1930, for $1,019,67, representing at the time that he was the owner of 150 head of cattle and the money was to be used for feeding and caring for them, while he, in fact, owned no cattle at that time but used the funds borrowed to pay premiums on his insurance policies in favor of his wife, and that he was at that time insolvent.
The answer of Frances Poindexter denied that she conspired with her husband to borrow the money from the plaintiff bank, and alleged that she had no knowledge or notice that he had borrowed money from the bank on October 3, 1929, until March, 1930, and denied that she had anything to do with the spending of the money borrowed or paying any of it for insurance premiums, and alleged that her husband had taken out these policies in 1897 and had regularly paid the premiums-on them since that time; that the proceeds of the policies were exempt to her under the insurance laws of the state of Kansas.
The insurance company did not answer, but by leave of court paid into court the full value of the three policies in the sum of $6,018.
The trial court found in favor of the plaintiff, and the defendant appeals.
The following stipulation was filed before any evidence was introduced:
“That James Poindexter was insolvent at the time of his death; that insurance with The Bankers Life Company, as claimed, has been paid into this court, and $2,500 of this amount has subsequently, by agreement, been paid to Mrs. Poindexter; that James Poindexter died on the 21st day of July, 1930; James Poindexter on November 2, 1897, secured three policies of insurance with The Bankers Life Company of Des Moines, Iowa; these were life policies — whole life policies, subject to assessments, payable at death; that premiums were not of a fixed amount, but were variable depending upon deaths; the premiums were payable quarterly and if the premiums were not paid when due or within thirty days thereafter, subject to statutory notice, the policies would lapse; the policies were originally made payable to Lilie J. Poindexter, wife of James Poindexter, and she died shortly thereafter: in 1904 James Poindexter was married to the defendant, Frances Poindexter, and thereafter, in 1926, with the consent of the insurance company, Frances E. Poindexter was named as the beneficiary in the policies; these policies were for the sum of $2,000 each; and at the time of the death of James Poindexter on July 21, 1930, there was due on the policies the sum of $6,018, which amount has been paid into court; that $2,500 of the amount, under order of the court, has been paid to the defendant, Frances E. Poindexter; that during the life of James Poindexter, for the purpose of keeping these policies in effect, there had been paid the sum of $3,208.80; they were caused to be paid by James Poindexter, but the last two premiums were paid by money obtained from the bank; that the last two assessments, one of $96 on January 3, 1930, and one of $90 on April 3, 1930, were paid out of the funds secured by a loan from the plaintiff and deposited with the State Bank of Ottawa, checks being drawn by James Poindexter upon his account in State Bank of Ottawa; the money that was borrowed at the bank was deposited in his account in the bank in Ottawa, and then from that fund so deposited these two last payments were made.”
The trial court included the following findings in the journal entry of the judgment as a part thereof:
“The court further finds, that in the lifetime of James Poindexter, he fraudulently obtained money from the plaintiff in the sum of twenty-one hundred twenty-three and no/100 dollars ($2,123.00) on the 3d of October, 1929, and ten hundred nineteen and 67/100 dollars ($1,019.67) on the 16th of April, 1930, and that plaintiff is entitled to recover in this cause the sum of thirty-five hundred and fifty-two and 06/100 dollars ($3,552.06); and that said sum is a lien upon the money now in the hands of the clerk of this court to satisfy said claim.
“The court further finds, that out of the money fraudulently obtained by the said James Poindexter, deceased, said James Poindexter did, on the 3d day of January, 1930, pay to The Bankers Life Insurance Company, the premiums and assessments then due upon the aforesaid three policies of insurance, amounting to ninety-six and no/100 dollars ($96) and did on the 23d day of April, 1930, pay to the said The Bankers Life Insurance Company, the further sum of $90 out of the moneys fraudulently obtained from the plaintiff as aforesaid, on payments of further premiums and assessments due upon the above-described policies.
“The court further finds that at the time the said James Poindexter, deceased, fraudulently obtained the aforesaid moneys from the plaintiff, he and the defendant, Frances Poindexter, had practically no money other than that so fraudulently obtained; and that they used the money so obtained to defray their living expenses up to the date of the death of said James Poindexter.
“The court further finds that the defendant, Frances Poindexter, was aware of the fact that she- and her husband, James Poindexter, had no money for defraying their living expenses, and for the payment of the premiums and assessments upon said policies as aforesaid, and was charged with notice and knowledge that the money which they were so using had been obtained by James Poindexter in some manner other than through their ordinary sources of income; and she knew that the premiums and assessments of said policies could not be paid by any means except through money which her husband had obtained, and which proved to have been obtained by fraud upon the plaintiff.”
Two major questions are involved: First, whether or not a resulting trust is shown by the evidence and findings, and, second, were the proceeds of the policies exempt under R. S. 1931 Supp. 40-414?
It may at once be conceded that, generally, under the statute above cited the proceeds of a life insurance policy are exempt to a wife of the insured as one having an insurable interest in the life of her husband as against the claims of creditors of the insured, and they shall inure to the sole and separate benefit of the beneficiary named in the policy. This statute has been applied and upheld in many decisions of this state, among which is Emmert v. Schmidt, 65 Kan. 31, 68 Pac. 1072, cited by the appellant.
The acquiring or setting aside of a homestead in fraud of creditors has always been condemned in Kansas, notwithstanding the exemption law in relation thereto. In the case of Kline v. Cowan, 84 Kan. 772, 115 Pac. 587, it was said:
“To impress land with a homestead character some real interest or ownership must exist, and a mere gratuitous grantee of one who conveys to defraud his creditors does not acquire any real interest or ownership, and such grantee is not entitled to an injunction against the sale of such land in satisfaction of the grantor’s debts.” (Syl. If 2.)
A further citation by the appellant furnishes the connecting link between these two questions here for consideration and suggests a possible modification of the exemption provision. It is from 25 C. J. 74, as follows:
“That premiums were paid while the insured was insolvent does not affect the exemption rights of the beneficiary. Even where the money to pay the premiums was secured by the debtor through fraud, the widow’s exemption in the proceeds of the policy will not be affected thereby, if she herself is not a party to the fraud.”
While the trial court did not find the wife in this case to have conspired with her husband in defrauding the plaintiff bank, it by no means exonerated her as a party to that fraud, when it found she was aware of the fact that she and her husband had no money for defraying their living expenses and for paying premiums on the policies, and she was charged with notice and knowledge that the money which they were so using had been obtained by her husband in some manner other than through their ordinary sources of income.
The exemption of insurance money to the beneficiary is no more sacred in this state than the exemption of the homestead, and where the element of fraud enters into the transaction by which the homestead is acquired, the exemption fails.
“We do not think that a debtor being absolutely insolvent, and having his creditors pressing him for the payment of their claims, and fully cognizant of his inability to pay such debts, can, to defraud his creditors, transfer possession of goods purchased by him upon credit and take in exchange therefor land, either in his own name or in the name of his wife, and then claim the same as exempt as a homestead against such existing creditors. ‘A party cannot turn that which is granted him for the comfort of himself and family, into an instrument of fraud.’ ” (Long Brothers v. Murphy, 27 Kan. 375, 380.)
Unless the wife, as beneficiary in a life insurance policy on her husband’s life, pays the premiums out of her own funds, the proceeds of the policy, like the title to the homestead, is a gift to her.
The case of Tootle, Hanna & Co. v. Stine, 31 Kan. 66,1 Pac. 279, nicely distinguishes as to the facts in the case just cited by showing that the goods in the last case fraudulently procured by the husband did not enter into the consideration for the purchase of the homestead.
Appellant cites the case of Bennett v. Rosborough, 155 Ga. 265, which is fully applicable to the facts in this case, except that there is no showing as to the knowledge or notice of the wife, who was the beneficiary, as to the fraudulent conduct of the husband. It was there held she^was entitled to collect the proceeds of the policy upon the death of her husband, although at the time the insurance was obtained and the premiums paid he was insolvent and the premiums were paid with money stolen by him from his creditors. There is a very strong dissenting opinion attached. (See Annotations, 26 A. L. R. 1408.)
In the case of Truelsch v. Miller, 186 Wis. 239, it was said—
“The right to follow the embezzled money was not lost because such money was used to pay premiums on life insurance policies payable to the wife, notwithstanding sec. 2347, Stats., the wife not being an innocent purchaser.
“One who has become a constructive trustee by reason of wrongfully receiving or securing the property of another cannot escape the consequences of his acts by changing the form of the property thus acquired; and as between him and the cestui que trust the latter may pursue the funds into the new investment and charge the same with the trust.
“Statutes guarding the rights of married women in insurance policies and homesteads are liberally construed, but they are not designed to encourage fraud or to make such property a safe depository for stolen funds.” (Syl. lit 6, 7, 8.)
The insured in that case had, at various times during three years of his employment in a bank, embezzled about $4,400, which was something more than his salary for the same period of time. He did not keep these funds separate from his honest earnings, and he paid his premiums regularly. None of the premiums paid during that time could be certainly traced to the funds embezzled, except the last payment made by him an hour before he committed suicide. That amount was taken from the money drawer and paid in currency. He had made payments for two years on one policy before he commenced to embezzle funds. We quote the following from the opinion:
“We cannot sanction the proposition that a fiduciary may embezzle large sums of money, use some of it in maintaining life insurance, and that the injured party has no remedy except to recover the amount paid for the premiums, which may be only a small fraction of the amount embezzled. It would open too wide a door for the perpetration of the grossest fraud.” (p. 262.)
“Where a partner fraudulently misappropriates the money of his firm, and purchases, in his own name, real estate and policies of life insurance with firm funds, he will, in equity, be charged, by construction, as a trustee for the partnership.
“Where all the premiums are paid with partnership moneys, it makes no difference that the fraud doer, in his lifetime, changed the life policies so as to make them payable to his wife. She, having paid no consideration for them, will be charged as a trustee for the firm, and will be permitted to derive no benefit from them.” (Shaler v. Trowbridge, 28 N. J. Eq. 595, syl. ¶¶ 1, 2.)
“The conventional relation of trustee and cestui que trust or other fiduciary relation is not essential to the jurisdiction of a court of equity to declare and enforce a trust with respect to the property stolen from the beneficial owner.” (Lamb v. Rooney, 72 Neb. 322, syl. ¶[ 2.)
“Where the administrator of an estate commingled the funds of the estate with his private funds, and used said trust funds in the payment of life insurance premiums, making the insurance payable to his wife, the proceeds of said policies are impressed with a trust in favor of the estate, notwithstanding 2 Comp. Laws 1915, § 9345, providing that moneys payable under policies in which the wife is named as beneficiary are not subject to the claims of creditors.” (Bonding & Insurance Co. v. Josselyn, 224 Mich. 159, syl. ¶ 3.)
New Jersey has an exemption statute on life insurance policies as to amount of annual premium to be'paid therefor, and fraud was held to be conclusively inferred when there were creditors existing at the time of the payments of such premiums in excess of that amount.
“Payments made by a debtor, as premiums upon a policy of life insurance upon his own life for the benefit of a wife and child, are essentially gifts to the beneficiary, and conclusively fraudulent and void as against creditors existing at the time of such payments.” (Merchants and Miners’ Transportation Co. v. Borland, 53 N. J. Eq. 282, syl. ¶ 1.)
Appellant cites Washington Central Bank v. Hume, 128 U. S. 195, as particularly applicable in this case. It was there held, without any statute of exemption, that it was not fraudulent for an insolvent husband to pay premiums on a life insurance policy in favor of his wife. No actual fraud was there shown on the part of the insolvent except as it might be inferred from his insolvent condition while making payments of premiums. The second paragraph of the syllabus is as follows:
“A married man may rightfully devote a moderate portion of his earnings to insure his life, and thus make reasonable provision for his family after his decease, without being thereby held to intend to hinder, delay or defraud his creditors, provided no such fraudulent intent is shown to exist, or must be necessarily inferred, from the surrounding circumstances.”
In the case at bar we have the fraudulent procuring of the funds partly used for the payment of premiums and the knowledge and notice of the wife, the beneficiary, that the funds they were using for living expenses and for the payment of premiums were obtained in some unusual way and not from their ordinary source of income. The findings show that the wife paid no consideration for these policies, but that they were to her in effect a gift, which would have completely lapsed but for the last two premiums paid with funds fraudulently procured from the plaintiff bank by her husband. To hold that the proceeds of policies thus maintained are, under our statute, exempt to the wife, who is found to have had knowledge and notice that the funds to maintain them were acquired in an unusual manner, is, as was said about the homestead exemption in the Long case, to "turn that which is granted him for the comfort of himself and family into an instrument of fraud.”
The life insurance exemption statute, R. S. 1931 Supp. 40-414, like the homestead exemption statute, should be liberally construed, but it is not designed to encourage fraud, nor give to the beneficiary of the policy the proceeds thereof, as a gift, which were saved from complete lapse by funds fraudulently procured by the insured, the beneficiary having had knowledge and notice that such funds were being procured out of the usual and ordinary way, which knowledge and notice made her to a limited extent a party to the fraud. The beneficent provisions of our exemption statute would have to be excessively expanded to apply to a situation where the wife, with such knowledge and notice, would be enriched by a gift made possible only by funds fraudulently procured by the insured for premiums and living expenses.
The proceeds of the policies thus coming into the hands of the wife became a trust fund and she a trustee of such fund to which the plaintiff bank was equitably entitled.
Appellant contends that even if plaintiff should be held to be entitled to recover, either because she should be held to be a trustee thereof or that the plaintiff should be subrogated to her rights, it should be limited to the sum of two premiums paid out of such fund obtained from the plaintiff, which amounted to $186, as some of the cases above cited have held; but most of them hold that when the fund is deliberately changed into a new investment it will be charged with a trust to the extent of the fund fraudulently procured.
Appellant insists that there was no evidence to support the finding of the trial court that without the payment of these two premiums the policies would have lapsed, because the insured might otherwise, upon his own credit, have procured the amount necessary to meet the premiums, and because there was no evidence as to the intention of the company to forfeit and cancel the policies, as is usually shown by notice to the insured to that effect. The prompt payment of the premiums obviated the necessity of such notice, and the stipulation states, “if the premiums were not paid when due or within thirty days thereafter, subject to statutory notice, the policies would lapse.” The six months’ provision of the statute (R. S. 1931 Supp. 40-410 and 40-411) has reference to the giving of the thirty-day notice mentioned in the stipulation and makes it impossible to forfeit a policy within six months without giving such notice. To make this effective for the appellant it is necessary to assume that the insurance company would not have given the required notice within the six-months’ period. The stipulation, we think, furnishes sufficient evidence to make the policy subject to forfeiture under the statutory provisions, if these two premiums had not been paid.
The other points of error urged by the appellant have been considered, among which were those classified as vested interest of the beneficiary, the creation of an estate in the wife, and the creditor’s bill, and we find no error concerning those matters nor in the conclusion reached in the entire case by the trial court.
The judgment is affirmed.
Harvey and Smith, JJ., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an appeal by plaintiff from an order of the court sustaining a demurrer to his petition. The sole question presented is whether the petition states a cause of action.
Briefly stated, the petition, filed February 11, 1932, alleges that plaintiff is engaged in the garage business at'LawYence, in Douglas county; that the board of county commissioners of that county authorized and directed the sheriff to store and safely keep any and all automobiles which he seized and took into his possession by reason of the fact that they were being operated in violation of the prohibitory laws of the state, and ordered and directed that said automobiles be kept in some garage such as was owned and operated by plaintiff; that similar orders and directions were given to the county attorney; that such automobiles were to be stored and safely kept by the sheriff and county attorney at an expense of not more than five dollars per month for each automobile; that pursuant to such authorization the sheriff, on July 17, 1928, seized and took into his possession a described automobile and stored the same with plaintiff; that such automobile was afterwards by the court declared a common nuisance and ordered sold; that the storage charges amounted to $121.25, and that plaintiff received on his bill therefor the sum of $40, being a part of the proceeds of the sale, leaving a balance due plaintiff of $81.25. Similar allegations are made with respect to other automobiles seized by the sheriff in January, March and July of 1929, and stored with the plaintiff, with the amounts of the pull-in and storage charges on each. The total sum claimed to be due is $439.50. It is further alleged that defendant received the money from the sale of the automobiles and has not paid the storage and pull-in charges incurred in connection therewith; that plaintiff’s claim was approved by the county attorney, filed in the proper office of the county, and presented to the board of county commissioners, and ..that it was necessary for the officers mentioned to store the automobiles with plaintiff or at some other suitable garage, in order to safely keep them, as provided by R. S. 21-2163.
Briefly, the pertinent statute (R. S. 21-2163) provides that on filing a complaint or information charging a common nuisance, as defined, a warrant shall issue to arrest the person using the automobile for the transportation of intoxicating liquors and “to seize and take into his custody . . . and safely keep the same subject to the order of the court.” The next section (R. S. 21-2164) provides for a notice and hearing, and the next section (R. S. 21-2165) provides, if the court finds the automobile to be a common nuisance, as defined, it shall order the officer to advertise and sell, the same and to file his return showing the amount received therefor and pay the same into court:
“The court, if it approves such sale, shall declare forfeited the proceeds of said sale and shall order the money received for said property at said sale paid* into the treasury of the county for the support of the common schools, after paying out of the proceeds of said sale the costs of the action, including costs of sale and the keeping and maintenance of said property.”
Appellant contends that these statutes authorize the officer taking an automobile into his possession under such circumstances to incur a storage bill, which must be paid by the county in which the action is filed if the proceeds of the sale of the car are not sufficient to pay the costs of the action, including costs of sale and the keeping and maintenance of the property.
This contention cannot be sustained. The statutes above summarized do not purport to give the officer who seized the automobile authority to bind the county by a contract of storage. Normally he would have no authority to do so. (Comm’rs of Neosho Co. v. Stoddart, 13 Kan. 207.) These statutes obviously contemplate that the automobile will sell for enough to pay the costs, including that for keeping and maintenance of the property. It makes no provision for paying such costs otherwise.
Acting under the statutes above summarized the sheriff, of course, seizes and safely keeps the automobile in his official rather than in his personal capacity. Perhaps, under its duty to provide “necessary county buildings” (R. S. 19-104) the county should provide a place for the sheriff to keep seized automobiles pending court action. But that question is not presented in this case and we purposely do not determine it. Plaintiff does not allege a contract with the county for the keeping of these automobiles. It is alleged that the board of county commissioners authorized and directed the sheriff to safely keep such automobiles; but the duty of the sheriff in that respect does not come from the board of county commissioners; it comes from the warrant placed in his hands and the statutes prescribing his duties. We do not pass upon the power of the board of county commissioners to contract with plaintiff or some other garage man for the storage of such automobiles in the event it had no building or other suitable place of its own in which to store them, for no such contract or situation is alleged.
The judgment of the court below’ is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for death by wrongful act.
The plaintiffs are the husband and children of Nina Norene Spencer, who died from injuries in the accident which gave rise to this lawsuit.
Strong avenue in the Argentine section of Kansas City is an arterial highway running east and west and paved forty feet wide between curbs and is intersected by Thirtieth street, which is paved twenty-two feet wide between curbs in its general course, the pavement being widened to about forty-five feet as it approaches the south curb line of Strong avenue. The defendant company has a double line of car tracks on Strong avenue, and there are no tracks on Thirtieth street running north and south at the Strong avenue intersection. Strong avenue is a designated arterial highway, and on the east side of Thirtieth street just south of the intersection is a stop sign.
On October 9, 1930, Nina Norene Spencer started to a grocery store in the family automobile, which was operated and driven by her fourteen-year-old son William. They came north on Thirtieth street and stopped at the stop sign, at which time a car of the defendant was coming east on the south track. They started north across the intersection, and a collision occurred, as a result of which Mrs. Spencer received injuries from which she died.
Plaintiffs’ petition alleged their version of the facts and charged defendant with negligence in that the motorman, Bowlin, (1) did not keep the street car under control; (2) did not keep a careful watch for cars crossing defendant’s track at the point of collision;
(3) failed to apply the brakes or give a signal in time to avert the collision; and—
(4) “that- the operator saw, or by the exercise of ordinary care could have seen, Nina Norene Spencer in a position of peril, or about to enter a position of peril, from which she could not extricate herself, so that with the appliances at hand he could have averted striking her, but failed to avoid doing so.”
Defendant’s answer, so far as necessary to detail here, alleged that at the time of the accident Mrs. Spencer was in an automobile driven by her son William, who was her agent and acting pursuant to her directions; that Strong avenue is an arterial highway; Mrs. Spencer, without keeping a careful watch for street cars, crossed the car tracks when a car was approaching and a collision occurred; that Mrs. Spencer and her son saw, or by the exercise of ordinary care could have seen, the street car in time to have stopped the automobile before entering on the track, and that the automobile before entering on the track gave no signal of its occupants’ intention to do so in time to have enabled the motorman to stop. Ordinances of the city fixing age of 'an automobile driver, speed limits and traffic regulations and their .violation by Mrs. Spencer and her son were also alleged. One of these ordinances, about which there was no dispute, gave the right of way to the defendant’s cars, and the court so instructed the jury.
At conclusion of the plaintiffs’ case, the defendant entered its demurrer to the evidence, which demurrer was overruled. The trial proceeded, and at its conclusion requests for certain instructions were denied, and special questions were submitted. A general verdict in favor of plaintiff, and answers to the special questions were returned as follows:
“Q. 1. How many feet west of the east property line of Thirtieth street, south of its intersection with Strong avenue, did the collision between the street car and the motor car occur? A. Twenty-six feet.
“Q. 2. At the time of the collision, where were the front wheels of the motor car with reference to the south rail of the eastbound track? A. Four feet north.
“Q. 3. At what rate of speed, in miles per hour, was the automobile going at the time of the collision? A. Five miles- • .
“Q. 4. Did the motor car make the arterial highway stop at or near the official arterial highway stop sign on the south side of the intersection? A. Yes.
“Q. 5. When the front wheels of the motor car were on the dividing line of the concrete pavement on Thirtieth street and the brick pavement on the south side of Strong avenue, did Billy Spencer, the driver, see a street car approaching from the west? A. Yes.
“Q. 6. If you answer the foregoing question ‘Yes,’ state: (a) How many feet west of the point of collision was the front end of the street car when Billy Spencer saw it? (b) At what rate of speed in miles per hour was the street car approaching the intersection of Thirtieth and Strong? A. (a) 150 to 175 feet, (b) Twenty-five miles per hour.
“Q. 7. From the time Billy Spencer first saw the street car approaching the intersection until the time of the collision, at what rate of speed in miles per hour did the street car run, up to the instant of the collision? A. Twenty-five miles up to intersection of Thirtieth and Strong.
“Or, if you find that the street car ran at different speeds during that time, state what the speeds were and the rate of speed at which the street car ran at the different points. A. From point of intersection of Thirtieth and Strong, fifteen miles per hour.
“Q. 8. At what rate of speed, in miles per hour, did Billy Spencer drive his motor car from the time the front wheels crossed the dividing line between the concrete and brick pavement on the south side of Strong avenue until the instant of collision? A. Five miles per hour.
“Q. 9.' Within how many feet, going from five to six miles per hour, could Billy Spencer have stopped his motor car in the intersection on the day of the accident? A. Three feet.
“Q. 10. Within what distance could a 200-type street car, weighing about 49,000 pounds and about 49 feet in length, be stopped while running on Strong avenue on the day of the accident, while going at the rate of from: (a) Thirty to thirty-five miles per hour, if you find the street car could proceed on a level track at that rate of speed; (b) twenty to twenty-five miles per hour; (c) eighteen to twenty miles per hour," (d) fifteen to eighteen miles per hour? A. (a) Ninety to 105 feet; (b) sixty to seventy-five feet; (c) fifty-five to sixty feet; (d) forty-five to fifty-five feet.
“Q. 11. After the time the front wheels of the motor car crossed from the concrete pavement to the brick pavement on the south side of Strong avenue, until the front wheels touched the south rail of the eastbound track, did Billy Spencer look to the west and see the eastbond street car approaching? A. Yes.
“Q. 12. If you answer the last question ‘Yes,’ when he looked: (a) How far were the front wheels of his motor car. from the south rail of the eastbound track? (b) How far was the front end of the street car from the point of collision? (c) At what rate of speed in miles per hour was the street car then moving east? A. (a) One foot. (t>) Thirty to thirty-five feet, (c) Twenty-five miles per hour.
- “Q. 13. If you find a verdict for the plaintiff; state specifically each act- of negligence of which you find the defendant guilty. A. He failed to exercise the highest degree of care, in that he did not have car under control, and did not apply emergency until center of intersection of Thirtieth and Strong.”
Defendant’s motions to set aside the verdict, to set aside certain answers to the special questions and for judgment notwithstanding the verdict and for a new trial were denied, and defendant appeals.
There was no dispute in the evidence that Mrs. Spencer was being driven by her son, William Spencer, as her agent and under her supervision and direction, and the court properly instructed the jury that if the driver were guilty of negligence then Mrs. Spencer was liable to the same extent as though she were the driver of the automobile.
It is settled by the answers to the special questions that Billy Spencer, just before he entered Strong avenue, saw the street car 150 to 175 feet to the west approaching the intersection at twenty-five miles per hour, and that he 'looked again when within one foot of the south track when the car was thirty to thirty-five feet away and coming at the same speed. No question was submitted thereon, but Billy testified that he didn’t look to the west in the meantime. It is further settled that he was going forward from the time he stopped at the stop sign until the moment of collision at five miles per hour and could have stopped any time within a distance of three feet. There seems no room to question the conclusion that William Spencer was guilty of negligence which, to' say the least, contributed to the accident. And this negligence is practically admitted by the allegations of the petition which invoke the doctrine of last clear chance, upon which doctrine and theory under the instructions the case was submitted to the jury. The only question which needs to be considered then is whether or not the doctrine applies.
In Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 262 Pac. 472, this court said:
“This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased.” (p. 308.)
In the recent case of Goodman v. Kansas City, M. & S. Rid. Co., 137 Kan. 508, 512, 21 P. 2d 322, the doctrine was said to be made up of the following elements:
“(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant, seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care; and (5) as a result of such failure plaintiff was injured.”
For a discussion of the last-clear-chance doctrine see 20 R. C. L. 142, 25 R. C. L. 1258, 45 C. J. 984 et seq. and 60 C. J. 527.
Considering the evidence and measuring it by the above rules, we find (1) Mrs. Spencer and her son by their own negligence placed themselves in a position of danger; (2) that their negligence did not cease but continued up to the time of the accident; (3) and (4) that plaintiffs were proceeding across the intersection at the rate of five miles per hour and could have stopped at any time within three feet; that until they reached a point within four or five feet of the south track the motorman had a right to believe they would stop and give him the right of way both as required by the provisions of the traffic ordinance and as good judgment on their part would demand. At the relative speeds of the two vehicles, when the front of the automobile was five feet from the south rail and still in a place of absolute safety the street car was forty to forty-five feet to the west and coming at twenty-five miles per hour. The automobile came onto the tracks, and the street car, under the answers as to distances in which it could stop, could not be stopped in time to avoid a collision. (5) Mrs. Spencer was injured, but the proximate cause of her injury was her failure to stop when in a position of absolute safety and when the danger of proceeding must have been perfectly obvious to anyone looking out for his own safety.
In order to avoid the consequences of Mrs. Spencer’s failure to stop, it is argued that the motorman saw the automobile approaching and knew it would be in a position of peril and that it was his duty to stop, and Morlan v. Hutchinson, 116 Kan. 86, 225 Pac. 739, is cited in support. The case is not in point. There the driver of a car had an opportunity to see a man lying drunk in the road, but negligence of the drunken man had ceased, however, before the driver of the automobile saw him.
In Muir v. City Railways Co., 116 Kan. 551, 227 Pac. 536, the facts are materially different from those in this case. In the Muir case, it was found that the street car could have been stopped after the plaintiff’s dangerous position was known to the motorman.
In McMahon v. Railway Co., 96 Kan. 271, 150 Pac. 566, a judg ment for the defendant on the answers to special questions was reversed, this court holding that the doctrine of last clear chance forbade a judgment. Under the facts it was held that the injury occurred, not from the concurring negligence of the plaintiff and defendant, but from the continuing negligence of the defendant. ■
So far as the record before us shows, the question of continuing negligence of the defendant, or wantonness on its part, was not raised, either by the pleadings or by requests for special instructions thereon, and the only evidence which would have tended to sustain such a contention has to do with just how soon the motorman applied the emergency brakes. It could not be successfully maintained under the answers to the special questions that the motorman could have stopped the car after he once knew that Mrs. Spencer was going ahead on the tracks and was not going to stop her automobile while it was still in a safe position, especially in view of the fact that the street car had the right of way and was running at a good rate of speed, and the Spencer automobile was going so slowly it could have been stopped within three feet. As has been shown, when the automobile was five feet from the south track, the street car was approximately forty feet to the west coming at twenty-five miles per hour, at which speed the jury found it could be stopped in seventy-five feet. Assuming that the motorman should then have known the automobile would not stop and had started to stop the car, he could not bring it to rest until it had proceeded seventy-five feet. Forty feet were consumed to the point of collision, and thirty-five feet would be left. No special question was submitted, but plaintiffs’ evidence showed the street car stopped about twenty feet east of a certain catch basin, and by reference to the plats offered as exhibits that point would be thirty-five to forty feet east of the point of collision. It would appear that the motorman was not guilty of any continuing negligence.
It must be held that under the facts the doctrine of last clear chance is not applicable. Rather, this case is controlled by the facts and reasoning in Goodman v. Kansas City, M. & S. Rld. Co., supra; Keuchenmeister v. Wichita Transportation Co., 137 Kan. 344, 20 P. 2d 457; Gardner v. Topeka Rly. Co., 123 Kan. 262, 255 Pac. 83, and others cited therein.
The plaintiffs’ intestate was guilty of contributory negligence which precludes a recovery by them, and the cause is remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to cancel a contract for the exchange of real estate.
The petition alleged the execution of a contract whereby plaintiffs were to exchange 400 acres of land in Elk county for at least five separate pieces of real estate in the city of Osawatomie, all of said real estate being subject to encumbrances; that after the contract was executed it was discovered defendant did not have title to one lot he had contracted to convey and that the encumbrance was $522.98 more than represented; that a supplemental contract was made by which the lot was eliminated and defendants were to reduce the encumbrance; that defendants had taken possession of the Elk county land, and that plaintiffs did not have possession of the properties in Osawatomie. Copies of the original and supplemental contracts were attached. It was alleged that defendants had failed to perform and that there had been demand for performance. Reference was made to certain personal property which became h> volved in the transactions, and allegations were made as to certain items of expense. The petition concluded with a prayer for cancellation of the contracts, for return of certain documents placed in escrow and for damages in the sum of $2,292.02.
The defendants’ answer denied plaintiffs’ right to relief, alleged mutual mistake, claimed the right to explain ambiguities in the contracts by parol evidence and by way of cross petition prayed for specific performance.
The cause came on for trial, and plaintiffs made a statement of their case, reading the contracts to the court. The court made inquiries as the statement proceeded. Plaintiffs’ counsel called attention to an item of $402.98 as being a difference between the parties, and the court inquired if it was to be taken care of by a certain mortgage, to which plaintiffs’ counsel responded that it was not taken care of by the mortgage, that it was to be paid, whereupon defendants’ counsel stated: “That is one of the questions at issued’ There was also controversy about other amounts involved, counsel for both plaintiffs and defendants and the court engaging in colloquy concerning the claims and the issues, especially with reference to the condition of title to the lots in Osawatomie. No good purpose can be served by attempting to show the statement, with the interruptions, in detail. The defendants then made a statement of their defense, where considerably the same process as above outlined was followed, but in which it was clearly shown that there was real and substantial controversy between the parties.
According to the journal entry, the court, after hearing plaintiffs’ statement, suggested to the parties and found that the controlling question was the title to certain of the property and ordered that plaintiffs submit a written brief, and that thereafter defendants submit a written reply brief — and continues:
“And now on this 16th day of April, 1932, this cause comes on for final determination and judgment of the court. And the court, having received and carefully considered the written briefs of plaintiffs and defendants submitted to him in accordance with the aforesaid order and being in all things herein well advised, finds that the title to lot twenty-three (23) in block eight (8) in Youman’s addition to the city of Osawatomie, in Miami county, Kansas, is defective,” etc.,
and finding that the title should be quieted, and upon so quieting the title judgment should be for defendants, and ordering specific performance by the escrow bank delivering certain papers.
The plaintiffs appeal and have filed abstract and brief. For reasons evidently satisfactory to them the appellees have filed no brief, and we do not know on what basis or theory they attempt to justify the judgment in their favor. In an effort to learn just what might have been said and what admission might have been made, we have procured the transcript. It would extend this opinion to too great length to call attention to the ambiguities in the contracts, referred to in defendants’ answer, and to state in any detail the varying claims of the parties with reference to matters, some of which are properly to be explained because of ambiguity and claimed mutual mistake, and some of which refer to condition of the titles to the real estate, but we may say that we find nothing that could possibly warrant the court in rendering a judgment that after defendants had quieted title to one of their lots that then specific performance should be had. It may well be that plaintiffs are not entitled to rescission, but if specific performance is proper, plaintiffs are entitled to receive a second mortgage lien on the farm land, the term and interest rate being fixed by the second contract, but the principal sum of which is not stated and can only be determined after the issues of fact presented are settled. And mention of the above is not to be construed as being the only issue in the cause; it is mentioned only by way of illustration.
In Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612, the first and second paragraphs of the syllabus recite:
“As opening statements of counsel are generally no more than outlines of anticipated proof and not intended as a complete recital of the facts to be produced on contested issues, a judgment should not be entered on such statements unless they are understandingly and completely made and the facts so stated absolutely preclude a recovery or a proposed defense.
“Where there is doubt or ambiguity in the opening statement of counsel upon which judgment is asked, the counsel who makes it is entitled to the presumption that he did not intend to make an admission that would be fatal to his case.”
See, also, Moffatt v. Fouts, 99 Kan. 118, 160 Pac. 1137; Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950; Stewart v. Rogers, 71 Kan. 53, 80 Pac. 58; Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635; 38 Cyc. 1476 and 26 R. C. L. 1071.
Opening statements, being permissive and not obligatory, may be brief or full and complete. No judgment should be entered on the opening statements of counsel unless it clearly appears that such statements are knowingly and completely made, and disclose facts which absolutely preclude a recovery by one party and compel a judgment for the other. .
We have searched the record in vain to learn where plaintiffs made any statements or admission which, in the absence of proof, precluded recovery by them, or by reason of which defendants were entitled to judgment in the manner and form in which it was rendered.
The judgment of the lower court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover damages for the filing of a motion in a foreclosure action. The motion was false and untrue and clouded the title of plaintiff to certain real estate. Judgment was for defendant. Plaintiffs appeal.
The petition of plaintiff alleged facts about as follows:
Cyrus D. Sanner and his wife, Myrtle B. Sanner, had been the owners in fee simple of the real estate- in question. They had given the Union State Bank a second mortgage on this real estate. The mortgage became in default and the bank foreclosed and bid in the property and received a certificate of purchase. Some time subsequent to this Herman Davis became the owner of the fee. The plaintiffs Dave Schonwald, Morris Schonwald, John Welch and Guy Ormiston, acquired undivided interests in the oil and gas rights in the land.
The petition alleged that before expiration of the period of redemption Herman Davis redeemed the real estate by paying to the clerk of the district court of Sumner county the amount of the sale price, with interest and costs; that at the time of redemption this land had a great value for oil and gas leasing purposes; that plaintiff began negotiating with the Marland Production Company, and this company had offered plaintiffs $18,000 for a lease on this land, and that such a deal was about to be completed when “the defendant for the purpose of clouding the title of the said plaintiff to said land, and for the purpose of defeating and preventing the plaintiffs to sell said lease and obtain said purchase price, maliciously and without probable cause therefor did cloud the title of the said plaintiffs by filing in the district court of Sumner county, Kansas, in the action referred to above, a motion asking for an order of said court requiring the sheriff of said county to execute to the said Union State Bank a sheriff’s deed for said premises, maliciously and falsely claiming in said motion that the plaintiff Herman Davis had failed and neglected to make redemption of said real estate from the sale above referred to by failing to pay to the clerk of said court the amount of the purchase price at which said property was sold at said sheriff’s sale”; that the allegations of the motion were false and that defendant knew they were false and that the defendant knew at the time that Davis had redeemed the land; that the issues raised by the motion were tried in the district court of Sumner county, and it was determined that Davis had made redemption according to law; that at the time the motion was filed and during the negotiations an oil and gas lease on the land had a value of $18,000, but that while the motion was pending an offset well was drilled and found to be nonproductive of oil and gas, and thereafter this land had no value for these purposes; that by reason of the false assertions of defendant, as alleged, the plaintiffs were damaged in the amount of $18,000, and the Marland Production Company refused to complete the negotiations and the purchase of the oil and gas lease because of the litigation instituted by defendant.
Subsequent to the filing of the first petition plaintiffs filed an amendment to the petition in which they alleged that in addition to the filing of the motion described in the original petition and as a part of the same transaction—
“The said defendant Union Stale Bank, by and through one of its managing officers, Grover L. Dunn, did state and declare to M. B. Fountain, at that time superintendent or officer in charge of the Land Department of the Mar-land Production Company, the proposed purchaser referred to in said original petition, that the said bank was the owner of the title to the land described in said original petition and that the said statement was made by the said managing officer of the defendant bank at the time and in connection with the filing of the said motion referred to in said original petition, and that the said bank so made said statement for the purpose of furthering its plan and intention to prevent this plaintiff from consummating his deal with the said Marland Production Company. The plaintiff further alleges that the said statement on the part of the said defendant bank through its managing officer was false and that said bank had no title to said land, but was made maliciously and for the purpose of preventing the plaintiff, the then owner of said real estate, from consummating the sale of the oil and gas lease to the Marland Production Company as alleged in said original petition.”
This amendment was filed more than a year subsequent to the date the statements were alleged to have been made.
When the case was tried a statement was made by counsel for plaintiff about as given here. At the close of this statement of plaintiff defendant moved for a judgment on the pleadings and opening statement. This motion was sustained. It is from that judgment that this appeal is taken.
The trial court held that the action was for slander of title, and that the slander on which it was based was a motion filed in a pending action, and that such a motion is privileged and cannot be made the basis of an action for slander.
Plaintiffs argue that under the code it is wrong to call an action by any common-law name. Plaintiffs urge that the petition contains all the allegations necessary to state a cause of action for slander of title and also a good cause of action for malicious prosecution of a civil action. The position of plaintiffs is stated in their brief:
“There is no question but that the plaintiffs sustained great damage by the acts and conduct of the defendant bank, and whether such acts and conduct constitute a slander o.f title or whether they constitute malicious prosecution of a civil action, the ultimate fact remains that these acts of the defendant damaged the plaintiffs, for which the plaintiffs are entitled to relief.”
We cannot agree with plaintiff on this point. The rule is laid down in 49 C. J. 117, where it is said:
“Every pleading must be based upon some definite, consistent theory, and the nature and character of an action is determinable by the pleadings. Where it is doubtful upon what theory the pleading was drawn, the court will construe it according to the theory it deems most in accord with the facts alleged. The pleading should be construed so as to prevent parties from being misled. Thus it has been said that the court should consider what the opposite party had reason to understand was the issue tendered.”
In Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, this court held:
“The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not di'awn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.” (Syl. J[ 1.)
To the same effect is McDowell v. Geist, 134 Kan. 789, 8 P. 2d 401, where this court said:
“In considering whether plaintiff’s petition states a cause of action it should be tested upon some definite theory of plaintiff’s right to recover rather than upon the commingling of several theories, none of which is sufficient in itself.” (Syl. 112.)
In the case at bar the plaintiff cannot be heard to say that the cause of action upon which they rely may be either slander of title or malicious prosecution or both. They must rely upon some definite theory.
With this point settled we will examine the petition. A portion of it has been quoted herein. In the petition reference is made to “false assertions” by the defendant, and to “assertions and statement” which constituted a “slander and libel upon the title of the plaintiffs.” Furthermore, some time subsequent to the filing of the original petition, ’ the amendment heretofore referred to was filed. This amendment, it will be seen, is plainly an attempt to state a cause of action for slander of title, with no elements of malicious prosecution. We have reached the conclusion that the petition in this case was an attempt to state a cause of action for slander of title.
Since this conclusion has been reached' we must consider the question of whether the motion relied on was privileged. There can be no doubt that the motion was a proceeding filed in a case pending in court. See Weller v. Farmers Alliance Ins. Co., 132 Kan. 577, 580, 296 Pac. 336, where it was said:
“ 'Ordinarily a mortgage cannot be said to be foreclosed until the mortgagor’s equity of redemption has been cut off or the last step provided for in the process has been taken.’ (41 C. J. 889.)”
On the question of privilege the rule is laid down in 37 C. J. 132 as follows:
“As in case of defamation against the person, it is held that defamatory matter published in due course of a judicial proceeding pertinent or material to the inquiry is absolutely privileged and will not sustain an action for slander of title.”
The matter has been settled in this state in Bugg v. Insurance Co., 114 Kan. 549, 220 Pac. 258, where it Was held that the material and pertinent allegations in a pleading or motion filed in court are absolutely privileged, even though maliciously made and willfully false.
This rule was followed in Stone v. Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78. We conclude, therefore, that the matter contained in the motion was privileged1 and cannot be made the basis of an action.
Reference has been made to the amendment that was filed to the petition. This amendment contained certain statements which it was alleged the president of the bank had made concerning the title of plaintiffs to the real estate in question. Plaintiffs argue that these statements were not privileged and are sufficient upon which to base a cause of action. The trouble with that argument is that the amendment was filed after the statute of limitations had run. The failure of the first petition to state a cause of action was due to a matter of substance and not of form. Under such circumstances the petition did not toll the statute, and matter pleaded after the statute had run was not filed in time. (Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover a balance due on a promissory note made by defendant in favor of one Wright and indorsed to plaintiff. The defendant admits the execution of the note but claims his signature thereto was obtained by fraud and misrepresentations made by the plaintiff, who was his agent in the transaction in which the note was given. Defendant alleges he paid on the note $156 before he discovered the fraud and prays for the recovery of that amount. The case was tried to a jury and judgment was rendered for defendant for $156, interest and costs, and plaintiff appeals.
Defendant owned a farm in Missouri and employed plaintiff to find a buyer for it. Plaintiff, through another real-estate agent by the name of Wright, effected an exchange of the farm with one Campbell for a garage. A contract was executed in which subsequent interlineations were said to have been made by agreement, but the consummation of the exchange was delayed. During this delay it is alleged by defendant that plaintiff told defendant that Campbell would not pay his agent, Wright, a commission, and plaintiff suggested that defendant had made a good deal and might facilitate the closing of it by giving his note to Wright for $200. He did so, and Wright indorsed the note to plaintiff on an account due plaintiff, and the payments of the $156 were made to plaintiff. Defendant alleged these representations about Campbell not being willing to pay Wright his commission were false because he did pay it with a $200 check as soon as the deal was closed. Plaintiff admits making such statements to defendant except that they concerned one-half of the Wright commission of $400, Campbell paying $200 and the defendant, by this arrangement, to pay the other $200. Whether the representations were for the defendant to pay the whole or only half of the Wright commission is where the difference and the falsity and fraud arise in the case.
■ The first assignment of error is'upon the rejection of competent evidence pertinent to the issues in the case. This refers entirely to the testimony of E. C. Wright and to three particulars in connection therewith, two on cross-examination and the other on direct examination, when plaintiff had later called Wright as his own witness to develop the matters he was not permitted to bring out in cross-examination. Wright, on direct examination by defendant, had stated he was the agent for Campbell in the exchange of properties, and he identified the contract for the exchange and a check for $200 made to him by Campbell on which he had received the money. Both exhibits were introduced in evidence.
The trial court sustained the objection of the defendant to the question of plaintiff upon cross-examination, asking witness if there was not a rider attached to that contract, as not being proper cross-examination. The theory of the plaintiff is that this cross-examination was proper because the contract had been introduced in evidence with the understanding that the final written contract with the amendments to it which had been made in writing was not obtainable. That evidently was not the understanding of the trial court after an extended inquiry made by the trial judge of the attorneys on both sides of the case, as shown by the abstract, before admitting the contract in evidence; and no evidence was offéred by either party showing any amendment of the contract.
The other question to which the objection, as not being proper cross-examination, was sustained was to explain how Campbell happened to give him the $200 check. This plainly was not proper cross-examination, neither was the former as to a rider on the contract, in the light of the information given the court by the attorneys on both sides of the case before its admission. At the close of defendant’s testimony, the burden being on him, the plaintiff called Wright as his own witness and by' appropriate questions sought to develop these matters, especially about the $200 check received from Campbell being just for half of the commission due him from Campbell for making the exchange. The trial court sustained objections to questions of this character on the ground of their being incompetent, irrelevant and immaterial. We have diff ficulty in reaching the same conclusion as the trial court did in sustaining these objections. But if it was error to sustain the objections, the matter is not properly here on review for this court to so determine, for the reason that the evidence excluded whs not produced at the hearing of the motion for a new trial, by affidavit or otherwise, as required by R. S. 60-3004 and as sustained by numerous decisions.
“A ruling excluding evidence is not open to review unless such evidence is produced on the motion for a new trial by affidavit, deposition or oral testimony.” (Clark v. Morris, 88 Kan. 752, syl. ¶ 2, 129 Pac. 1195.)
“Rule followed that the exclusion of evidence cannot be a basis on which to establish reversible error, unless the excluded evidence is brought into the record in conformity with the civil code.” (Peoples State Bank v. Hoisington Mercantile Ass'n, 118 Kan. 61, syl. ¶ 6, 234 Pac. 71. See, also, Scott v. King, 96 Kan. 561, 152 Pac. 653; Stout v. Bowers, 97 Kan. 33, 154 Pac. 259; and Cox v. Chase, 99 Kan. 740, 163 Pac. 184.)
Appellant seriously objects to instructions ten and thirteen as being erroneous statements of the law and prejudicial to his interests.
The objection to instruction ten is that it stated that if the jury was convinced by the fair weight and preponderance of the evidence that the plaintiff did represent to the defendant that the deal could not be consummated unless he paid the commission to Mr. Wright, as alleged by defendant, then the verdict should be for the defendant, urging that the issues not being as to having made such representations, except as to it being the whole commission, because plaintiff admitted making the representations with the modification as to its being only half of the Wright commission, but the issue was whether or not such representations were false and untrue, which element was not mentioned in that connection. We think there would be merit'to appellant’s contention if the last half of instruction ten should be considered alone, but the first part of the instruction fully covers the matter of the necessity of the representations being false and fraudulent, where the jury was instructed that if the defendant fails to convince you by a preponderance of the evidence that the plaintiff did make certain false and fraudulent representations as alleged, the verdict should be for the plaintiff. A reading of both parts of the instruction together and not disconnectedly shows the necessity of the representations being found to be false and untrue before a verdict could be rendered for defendant. Besides in the preceding instruction the court, after enumerating the defenses made to the note held by the plaintiff, among which was that of the representations being false and fraudulent, the court concluded by saying if no defense is substantiated by a preponderance of the evidence then the jury should return a verdict for the plaintiff and against the defendant. The instructions given should be considered as a whole, and it is not the rule to single out an instruction as defective because of a missing element if that element is found in another part of that instruction or in other instructions given in the case.
“It is not a fair basis for reversible error to single out an instruction and show that it lacks one element to make it a complete statement of the law, when it clearly appears that the missing element was repeatedly given in other instructions and where the jury could not have been misled by the criticized instruction.” (Glahn v. Mastin, 115 Kan. 557, syl. ¶ 2, 224 Pac. 68.)
Instruction thirteen is also criticized because where it spoke of defendant relying upon the representations made by the plaintiff, it did not tell the jury that the defendant should use ordinary diligence himself to determine the truth of the representations when the facts were open to his observation and investigation. This criticism is capable of being answered in the same way as the objections to instruction ten, by referring to instruction six where the jury was told just what appellant says was lacking in instruction thirteen and in almost the exact language of his requirement, closing with the following sentence, that defendant “cannot close his eyes to plain existing facts and rely upon the statements made to him.”
Appellant earnestly argues that the verdict is contrary to law for the reason that the representations alleged to have been made by plaintiff to defendant were in effect that the written contract of exchange between defendant and Campbell could not be enforced unless defendant paid Campbell’s commission to Wright. Authorities are cited in support of such doctrine, but that was not the theory of the defendant in this case on the evidence introduced which the jury evidently accepted. There is nothing in the evidence about the contract being unenforceable as a matter of law. But there is evidence of each party obtaining from the other some additional property or concession after the contract was first executed. The evidence shows the defendant procured a modification of the contract in his favor for a month’s rent, estimated as being worth $100, and some gasoline and oil valued at $100 more. Later the evidence shows that Campbell was not satisfied unless he could be saved from paying all or part of what he owed Wright as commission. Concessions are often made where contracts are strictly enforceable in order to hurry up the closing of the deal or to avoid the expense of enforcing them. Without any evidence that nothing but the enforcement of the contract was involved, the contention of the appellant is not well taken.
Two other reasons for reversal of the judgment are assigned by appellant, viz., that the verdict is contrary to the evidence and the overruling of the motion for a new trial because the verdict had been procured by corruption. There was sufficient evidence, if believed by the jury, to support the verdict. As to the claim of the verdict having been procured by corruption, an affidavit was presented to the trial court on the hearing of the motion for a new trial stating that the affiant heard the defendant say immediately after the rendition of the verdict in his favor that he had lied while on the witness stand and had obtained the verdict because he had been able to out-lie the witnesses on the other side. The trial judge was the one to determine what credence should be given to this affidavit, and this court, on review, is unable to say he did not fully consider it in finding, as he did, that it should not disturb the result. The motion for new trial was overruled and we find no error in such ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment reducing an award of compensation allowed to Frank S. Davis by the compensation commission.
The facts, in brief, were these: On August 16, 1929, Davis was the managing agent in charge of defendant’s tank station in Leavenworth. While climbing a ladder to measure the contents of a tank, he fell and sustained injuries which totally incapacitated him for some time. His wages were $150 per month. One week after the accident, on August 23, 1929, defendant commenced’ to pay him the statutory maximum compensation of $18 per week, without the formality of an application and award.
While these payments were being made, and altogether without intimation of their discontinuance, Davis filed an application for compensation. An examiner for the commission conducted a hearing on April 15, 1930, and on the evidence and stipulations adduced he found that in the accident of August 16, 1929, the claimant had sustained a fracture of the fifth cervical vertebra, and that he was still disabled as a result of the accident and could not perform manual labor, and that he “will be totally disabled for an indefinite period.” An award of $18 per week was recommended for the period of temporary total disability, not to exceed 415 weeks; and — ■
“Since the stipulations show that the claimant has been paid compensation to date no compensation is due and owing at this time.”
On June 4,1930, the commission approved the examiner’s findings and this award was granted.
About three months later, on September 15, 1930, respondent filed its application to reopen the case, alleging that claimant had recovered from the effects of the injury he had sustained in respondent’s service.
On December 12,1930, this application came on for hearing. Evidence was received, which centered mainly about the alleged continuance of some disabling condition in the cervical region of claimant’s back. One doctor testified that claimant was suffering from a certain “tenderness along his spine,” that his deduction therefrom was that “Mr. Davis is suffering from a real injury . . . it is not permanent, but ... it will take a good long time for him to recover. . . . Mr. Davis is not physically able to perform any labor at this time. I don’t believe he has improved that much (50 per cent), not more than 25 per cent.”
“Q. What does your observation and examination disclose that indicates to you he is suffering now, and is incapacitated now? A. Well, his subjective symptoms. He has this pain, and the examination, pressure over these points where he has pain; we have to use a little common sense, in addition to our scientific knowledge of these things, and I hardly believe the man would try to get along on $18 a week when he is competent to earn more money. That ought to enter into my opinion and it does.”
Another doctor who had cared for claimant described the injury and the method of treatment used, narrated the progress claimant had made towards recovery, and that he had directed claimant in the use of a brace for some time after his discharge from the hospital. He further testified:
“The last time I examined Mr. Davis was November 28, 1930. ... It was my opinion at that time there was no disability present. In my opinion this man is not incapacitated from doing manual labor at this time.”
Another doctor, at the first hearing before the examiner, nine months previously, testified:
“A. At the present time (April 15, 1930) he should return to light work, but not heavy work.
“Q. That is partly for the purpose of regaining his strength which was lost in the course of his being in the hospital for treatment? A. Principally, and also for going about light duty, he will limber up his neck.”
Rather curiously, claimant himself gave no testimony that he was unable to work. He testified that he still felt pain but. was somewhat uncertain as to its whereabouts. He also testified that he had driven his automobile to Pittsburg, Blue Rapids and elsewhere; that the work he had been doing when injured was supervision and management of filling stations, not manual work, work which did not require lifting but a lot of running around, a lot of driving — long trips. He further testified:
“Q. To what companies, if any, have you applied for work since April of this year? A. I don’t have to answer that, do I, judge?
“The Commissioner: Yes, go ahead.
“Mr. Davis: I would rather not answer.
“The Commissioner: Where you have applied for work? It will be required of you.
“A. I applied to the Barnsdall, the Sinclair people and the Porter. Oil Company.
“Q. What kind of work is it you have in mind doing when you take this job? A. About the same kind of work I did have, something like a salesman — something like that.
“Q. Why would you be applying in three different companies if you complained that you weren’t able to work for any of them? A. If you want to shoot elephants, you don’t want to be shooting squirrels.
“Q. Have you had any medical attention, or consulted any doctors for treatment since the treatments you got over at Dr. Dickinson’s office last spring?
“A. No, sir.”
In his findings and recommendations the examiner stated his perplexity at this divergence of expert opinion, saying—
“From this evidence it is impossible for your examiner to say definitely which of these doctors is correct. ... In keeping with the policy of the administration of this act the doubt must be resolved in claimant’s favor— that is, that there is muscle spasm in that region. . . . With this in mind it necessarily follows that a finding must be made that claimant’s disability has continued until the present time and will continue indefinitely into the future. The findings at this time being the same as the findings in the previous hearing, the original award herein will not be disturbed.”
The compensation commission approved these findings, and on January 16, 1931, it ordered that claimant’s weekly compensation of $18 for total incapacity be continued.
The employer appealed to the district court where the cause was reviewed on the record. The court found — ■
“That the claimant, Prank S. Davis, has partially recovered from the temporary total disability heretofore found by the commissioner as set out in his award dated June 4, 1930, and that said claimant is still temporarily partially disabled to the extent that said claimant is entitled to compensation at the rate of $9 per week for the unexpired portion of the original period of 415 weeks remaining after this date, subject to section 28 of the workmen’s compensation act of the state of Kansas.”
Judgment was entered accordingly on November 6, 1931, and eight days later claimant filed notice of appeal. Almost a year afterwards respondent served notice of a cross appeal.
Noting first the matters to which claimant directs our attention, it is contended that the trial court was not justified under the evidence in finding that claimant had partially recovered from his temporary total disability. As to that point this court has nothing to do except to determine as a question of law whether the record contained any substantial -evidence on, which the triad court’s finding could be predicated. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Baldwin v. Manhattan Oil Co., 136 Kan. 238, 14 P. 2d 655; Smyth v. Western Star Milling Co., 136 Kan. 416, 15 P. 2d 419, syl. ¶ 1.) In conformity with this restricted scope of appellate review, we have read the evidence, part of which has been quoted and referred to above; and we must hold that the error predicated on the want of evidence to justify the trial court’s finding is not sustained.
Claimant propounds another question for review:
“May a court diminish an award of compensation by merely finding that claimant has partially recovered from a temporary total disability without specifically finding the per cent, degree or extent of such partial recovery?”
The trial court in effect did indicate the extent of claimant’s recovery by cutting the amount of weekly compensation in half. That ruling was fairly indicative of the trial court’s view of the extent of claimant’s recovery. If claimant was dissatisfied because of any supposed indefiniteness in that finding it should have asked the court to make it more definite. Claimant cannot expect this court to find reversible error on a point not fairly urged upon the trial court itself for correction. (Sproul v. Russell, 135 Kan. 620, 11 P. 2d. 978, syl. ¶2.) Furthermore, the statute expressly says that the trial court may increase or diminish any award as justice may require. (R. S. 1931 Supp. 44-556.)
Appellant contends that the proper measure of award would have been to make a computation of 60 per cent of his average weekly wages before the accident and the average weekly wages he was physically able to earn during the period of temporary partial incapacity. (R. S. 1931 Supp. 44-510.) But where evidence on which to base that computation is wanting the statute says the claimant shall be entitled to not less than $6 per week. We cannot see that the trial court’s award of $9 per week furnishes claimant any just ground for complaint, however respondent may feel about it.
And this conclusion brings us to the cross appeal. Respondent complains because the trial court did not make a finding that the claimant had fully recovered and that the weekly compensation should cease. But this matter cannot now be considered. The statute requires all appeals from final orders by the trial court in compensation cases to be taken and perfected within twenty days. (R. S. 1931 Supp. 44-556.) The trial court made its final order on November 6,1931. This cross appeal was not taken until November 1, 1932, which was altogether too late; consequently this court has no jurisdiction to consider it.
It follows that the judgment on claimant’s appeal should be affirmed, and the cross appeal must be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action against a township on a contract for the purchase of machinery. Judgment was for plaintiff. Defendant appeals.
On June 8, 1931, two members of the township board signed an order for the machine in question. This was done while seated in an automobile, and all are agreed it was not at a meeting of the township board, either regular or special. This contract was signed by the two members with an understanding in writing that it would not be binding on the township unless it was agreed to by the third member. This contract was not agreed to by him, but the machinery was sent on approval. It was used by the township from June 17, 1931, to July 22, 1931. Some time prior to June 20, 1931, a notice was served on all members of the board notifying each member that a special meeting was called for June 20 “to ratify purchase contract of road equipment.” The third member of the board received this notice, but did not .attend the meeting. The other two members did attend and took action as disclosed by the following:
“Special meeting called to order by Trustee H. L. Roberts at 2:00 p.m. at E. H. Kyle resd. Two members present, E. H. Kyle and H. L. Roberts. J. G. McClun did not appear as per written notice. Motion made that twp. board purchase from the Oehlert Tractor & Eqpt. Co., Inc., Salina, Ks., that the board ordered warrants be issued to Oehlert Tractor & Eqpt. Co. . . . and the board hereby ratifies the purchase made June 8, 1931, and that heretofore been done in the matter.”
It will be noted that the notice calling the meeting refers to ratifying the purchase contract of June 8, and the minutes of the meeting show an attempt to purchase and also a ratification. At another meeting on August 10 it was decided to hold a public meeting to decide whether or not to buy the machinery. This meeting was held on August 24 and the proposition was voted down. At this meeting the president of plaintiff and its counsel were present and made speeches in favor of buying the machinery.
Later the township refused to pay for the machinery and this suit followed.
At the close of the evidence of plaintiff defendant interposed a demurrer to the evidence of plaintiff. This demurrer was overruled. When the case was submitted to the jury a verdict was returned in favor of the defendant. This verdict was set aside and a new trial granted on the ground that the trial court thought the jury was confused by an instruction.
This court has decided many times that it will not review a trial court’s order granting a new trial unless that court has specified the particular ground upon which the new trial was granted, and unless it should happen to be a ground which this court is in as good a position to pass upon as the trial court. (Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; Klopfenstein v. Traction Co., 109 Kan. 351, 355, 198 Pac. 930; Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107.)
Defendant objected to the motion for a new trial being heard because rule 27 of this court had not been complied with. Rule 27 is as follows:
“Counsel filing a motion or demurrer or pleading subsequent to the petition, shall on the day the same is filed deliver or mail a copy thereof to counsel of record for all adverse parties.”
This objection was overruled and plaintiff claims this was error. This rule is intended to safeguard parties from surprise and to insure that all parties had knowledge of what proceedings had been had. In this case defendant was not taken by surprise and he was not compelled to act without time to prepare. The better practice is to mail a copy of every motion to opposing counsel, but under the circumstances of this case we cannot hold that the refusal of the trial court to sustain the objection to the hearing of the motion for a new trial was error.
This leaves in the case the demurrer of defendant to the evidence of plaintiff.
The position of defendant is that the action of the two commissioners of June 8 was unlawful and of no effect because it was not done at any meeting of the township board, either regular or special. It then points to the notice heretofore referred to, which called a meeting for the purpose of ratifying the action of the board on June 8. It is argued that under this notice the only thing the board could consider was ratification. It is then argued that the attempt of the board, as pointed out in its minutes, to purchase the machinery was without effect, and that the purported ratification contained in the minutes was without effect because it is an attempt by the board to ratify an illegal act; that is, the attempted purchase of the machinery by the two commissioners on June 8.
Appellant relies upon the rule that a contract which is beyond the powers of the municipality to make or in which some prescribed formality has irrevocably been disregarded cannot be ratified. This rule is without doubt good, but we must examine the facts of this case. Where the board is composed of three members two of them have power to bind the township. What made the action of June 8 bad? It was the lack of a notice that a meeting would be had on that date. Had it not been for this lack the action of June 8 would have bound the township. There was no safeguard lost to the township which was not present when the minutes ratifying the action of June 8 were passed. This court has laid down the rule in such cases. In Coal Co. v. Sugar Loaf Township, 64 Kan. 163, 67 Pac. 630, it was held:
“An act by the officers or agents of a municipal corporation, such as is a township in this state, which is in excess of the express or implied powers of such corporation, is absolutely void and imposes no obligation upon it; but an act which in itself is well within such powers is binding upon it, if executed, where the only objection thereto is that it was not performed in the manner or at the time designated in the statute.”
See, also, Farmers State Bank v. School District, 134 Kan. 47, 4 P. 2d 404. We have concluded that since there was authority in the township board to buy road machinery, and since the only thing wrong with the action of the two members on June 8 was that no notice had been given calling a meeting, the action of June 8, while not binding in itself, was of such a nature that it could be ratified and that it was ratified at the meeting of June 20, and the township was bound thereby.
The judgment of the trial court overruling the demurrer of defendant to the evidence of plaintiff is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained on a public highway temporarily closed for the construction of a culvert.
Plaintiff was the guest of the owner of a motor car which was being driven westward on highway No. 54 between Meade and Liberal in the late afternoon of a stormy day, November 21, 1929. The snow and wind assumed the proportions of a blizzard as the motor car came to the intersection of highways No. 54 and No. 22. The latter highway ran north and south. At that point a wooden barrier had been erected to 'indicate that the road to the west was closed. A sign “Road closed” had been placed on this barricade in large, black letters on a white background; and a detour sign placed thereon read, “Detour 1 mile north to Liberal.”
Plaintiff and his escort went north for more than a mile but found no road going west; so they returned to the detour sign, set the speedometer, and again proceeded north for one measured mile. There they discovered that what had been a temporary road leading west was barricaded with a sign on it saying, “Stop.” The persons in the automobile returned once more to the intersection of the highways 54 and 22, and seeing that the barrier was partly knocked down so that cars could pass through, and seeing also some traces of wheel tracks indicating that cars had recently passed that way, they passed around the north end of the barrier and proceeded westward about half a mile. There they came to an excavation which was nearly filled with snow. Their car ran into it and plaintiff was injured.
In this action plaintiff charged the road contractor with negligence in various respects. Issues were joined, and the jury returned a general verdict for plaintiff and answered special questions, some of which read:
“1. Do you find that a barricade constructed of heavy bridge planks, nailed to upright posts, had been constructed before the accident at the west side of the intersection of highways 54 and 22? A. Yes.
“3. Do you find that such barricade was in position extending from shoulder to shoulder of the highway in the morning, at noon and until about four o’clock p.m., of the 21st day of November, 1929? A. Yes, on the morning and at noon; and until about four o’clock p.m., No.
“5. If you find- that any portion of said barrier had been knocked down or removed, how long had the same been knocked down or removed before the plaintiff passed that way? A. Sometime after noon.
“6a. Do you find that there was upon the center section of this barrier a sign in large, black letters, painted upon a light board, reading ‘Road closed’ when installed? A. Yes.
“6c. If you -answer 6b no, then state when such sign was removed. A. Sometime after noon.
“7. Do you find that there was a detour sign also at this intersection directing traffic coming from the east on highway 54 to turn north on highway number 22? A. Yes.
“8. Did (a), the driver of the car in which the plaintiff was riding, and also (b), the plaintiff, see such detour sign? A. (a) Yes.. (b) Yes.
“9. Could the plaintiff, with the exercise of reasonable diligence, have seen the barrier at the west side of the intersection? A. Yes.
“10. Did the plaintiff know, or with the exercise of reasonable diligence, could have known, that the highway west of the intersection of highways 54 and 22 was in a dangerous condition? A. No, under all the existing conditions we believe plaintiff exercised reasonable diligence.
“15. Did the driver of the car in which plaintiff was riding know, or with the exercise of reasonable diligence, could he have known, that the highway west of the junction of highways 54 and 22 was closed or in a dangerous condition? A. No, we believe under the existing conditions driver exercised reasonable diligence.-
“16. What was the proximate cause or causes of the accident? A. Misleading detour sign and bad weather.
“17. If you find that defendant A. L. Cook was negligent, then state in what such negligence consisted. A. Mr. Cook was negligent in not maintaining correct detour sign.
“18. Do you find that before and on the day of the accident the contractor had placed at the junction of highways 54 and 22 a barrier with a sign reading ‘Road closed,’ such words being painted in black letters at least eight inches in height on a board twelve inches wide and about five feet long, nailed to' the barrier? A. Yes.
“19. Was the accident occasioned by the fact that the detour sign reading ‘Detour 1 mile’ had not been changed so as to plainly read ‘5 miles’? A. Yes.”
On motion of defendant the court set aside the answer to special finding No. 17, and held that defendant was entitled to judgment non obstante on the answers to the other special questions. Judgment was entered accordingly, and plaintiff appeals.
The proximate cause or causes of the accident as found by the jury 'were the “misleading detour sign and bad weather.” (Finding 16.) This finding had the legal effect of acquitting defendant of any other negligence with which he was charged. (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Stock v. Scott, 132 Kan. 300, 295 Pac. 638; Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715.) The jury also found that a barricade had been placed from shoulder to shoulder of highway 54 at the intersection of the two roads, with a sufficient warning sign thereon to show that the road leading westward was closed; and that this barricade and sign were in position until some time in the afternoon of the day of the accident. The law does not require a contractor on road work to keep a guard on duty constantly to prevent motorists from knocking down these “road closed” signs and to set them up again immediately after they are knocked down. It is quite sufficient if he looks after these signs at reasonable intervals. The evidence on this point was that the detour sign and the barricade were set in place by the county engineer. But it is not important who erected the barrier and placed the sign, so long as it was in place and sufficient to warn prudent persons that the barred highway was not safe for travel. A subcontractor testified that he was accustomed to see the barricade twice a day, sometimes three times a day. Occasionally he found a portion of it knocked down and he would nail it up. “The barrier was always replaced promptly as soon as [he] found it down.” “Different [motorists] got by the barrier by driving into the ditch around the barrier.”
Touching defendant’s delinquency as found by the jury in the matter of the misleading detour sign, “Detour 1 mile north to Liberal,” it will be seen that this sign was sufficiently effective to induce plaintiff to detour to the north and not to proceed westward on highway 54 — at least until after he had twice tried the detour. The question now intrudes, What was misleading in the detour sign? Merely the matter of distance to the north before a roadway to the west would be found. This misleading information came about as follows: When highway 54 running westward was closed for the excavation and culvert work defendant had contracted to do, the state highway commission chose to direct the westbound traffic to a road or temporary way one mile north of the intersection. And the detour sign gave that information. By and by, on account of snow and bad weather, that temporary road leading westward a mile north of the intersection became impassable and the westbound' traffic had to be.directed to another westbound road four miles farther north.
The county engineer testified:
“Then the detour got almost impassable . . . and I notified Mr. Pearson (state highway officer) to that effect. Just when the change was made, I don’t know.”
“Q. There has been testimony there was a sign put up ‘stop’ a mile north of this junction; do you know anything about that, who put that up? A. I presume Mr. Pearson or one of his men.”
The statute imposed no duty on the contractor who had taken the job of placing a culvert across highway 54 to keep tab on the shifts and changes made in the temporary detours authorized by the state highway commission. He was not bound to know that the westbound road a mile north of the intersection had become impassable and that road traffic had been detoured to another point five miles north. This conclusion of law is one of necessity; otherwise road contractors’ liability for any inaccuracy of facts stated on detour signs might be indefinitely extended — clear to the boundaries of the state. What the statute says is that when a road is closed for construction work or repairs, or travel is otherwise rendered impassable or dangerous, the contractor must place at the intersection a warning sign in black letters at least four inches in height on a white background, advising the public that said road, highway, street or alley is closed or is impassable or dangerous to travel, and further advising the proper detour or temporary route to be taken by the traveling-public so as to avoid said closed, impassable or dangerous road, highway, street or alley. This advice, which he must give on the detour sign, is required so that the traveling public can “avoid said closed, impassable or dangerous roaid.” Nothing is stated in the statute as to legal consequences if the mileage of such detour is inaccurately stated, or if it eventually becomes inaccurate because of subsequent changes in that mileage made by some public board or officer over whom the contractor has no control.
We think the special findings completely settled the issues of this lawsuit. They supersede the general verdict, and it cannot be reconciled with them. (Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; Carlgren v. Saindon, 129 Kan. 475, 479, 283 Pac. 620.) Moreover the special findings which the trial court permitted to stand demonstrate that .defendant was not responsible in any respect for plaintiff’s unfortunate accident, and he cannot be subjected to judgment in damages on account thereof.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Bxjrch, J.:
The action was one by the receiver of a failed bank to recover on a promissory note given to the bank before it closed. The defense was that the note was given for the bank’s accommodation. Defendant assumed-the burden of proof. At the close of defendant’s evidence plaintiff demurred. The demurrer was overruled. The re ceiver then stood on defendant’s evidence, and the court directed a verdict for defendant. The receiver appeals. The question is whether the note was given for accommodation of the bank, or for accommodation of some of the directors of the bank.
The bank was a national bank. Stockholders had been assessed on their stock. Some of the stockholders did not pay the assessment, but “turned in” their stock — “threw it on the table” — as counsel for defendant expresses it. The giving of plaintiff’s note followed, and the effect of turning in the stock may be discussed before examining the testimony bearing on the subject of accommodation paper.
The order of the comptroller of the currency levying the assessment fixed the liability of the stockholders, and the liability was an asset of the bank. The bank could not assume that liability, and was prohibited from acquiring or holding the stock, except under circumstances not material here. Therefore, so far as the relation of the bank to the stockholders was concerned, throwing the stock on the table was just as futile as throwing it under the table. The stockholders could not effect discharge of their liability by any attempted surrender of stock, and the bank could not accept the gesture as satisfaction of the liability. Of course the bank needed money, or the assessment would not have been made; but the bank could not borrow money or credit to meet the assessment. The stockholders, or some persons for the stockholders, were obliged to provide the money or credit.
Some of the directors undertook to borrow money to pay the delinquent assessment, and the effort in that direction resulted in defendant giving his note to the bank as payee. W. L. Dillman was president of the bank, and conducted the negotiations with defendant. Dillman testified as follows:
“The conversation I had with him took place at his filling station on West Main street. I went to him and told him that some of the directors of the bank needed some money to pay an assessment on some stock that had been turned in, and asked him if he would loan some money he had on deposit there, about $2,200. He stated he had a check out for this money; that he had some investments, and that if he had known it a day or so sooner he would have let us use it. I told him if he would give us his note for it we could still make the deal, and he did so.
“Q. Was there anything said in this conversation which you have referred to in regard to him having to pay this note or not having to pay it, that you recall? A. No, it was to be paid by the directors, who gave him a note for like amount, as well as the interest.
“Q. In fact, it was understood in that conversation that he was not to be called upon to pay this note that he signed, is that right? A. That was the understanding.
“I told him if he would give his note it would answer for the same purpose as the cash. That is, the directors would give him their notes, and his note would be given to the bank. I think he understood that. His note was then turned into the bank as so much cash.
“Certain directors of the bank signed a note for a like amount to Mr. Cozad at the time he signed the note in question in this case. The note signed to Cozad was executed by Dillman, L. F. Carson, L. C. Wilkes and Fred Gasser, all directors of the bank. There were six directors of the bank at that time; two of them refused to sign this note.
“I held the note which had been signed to him by the directors. I do not know whether he ever did have it, and it may be at the bank yet. I was holding it just like I would hold any other collection that anybody had given me to collect. The bank had no interest in it.
“I . . . showed it to Cozad, Cozad saying that when everything was paid on it or interest was credited on it, 'you will have it there.’
“Q. You stated awhile ago you went to Mr. Cozad and told him that certain directors of the bank wanted to borrow money from him to pay their assessment, is that right? A. No, to pay assessment on some stock that had been turned in.
“Q. Then this note was to pay an assessment on the stock that had been turned in, you mean that had been surrendered to the bank? A. Yes, sir.”
Defendant testified concerning the conversation with Dillman as follows:
“He said he wanted to borrow some money, and I told him I did not have any money. He suggested that I had a deposit at the bank, and I told him I had a check out against that to take it all up. He said, well, we don’t need the money. If you can give us your note, you won’t ever have to pay it or pay the interest on it.
“I signed the note because I knew all the directors, and they had accommodated me when I didn’t have any money. I would write a check for my stuff, and they would take care of it. They helped me out in many a pinch. I just thought I would return the accommodation to them.
“I knew the directors of the bank, and they had always been accommodating to me. I wanted to do what I could to help them and the bank out. Mr. Dillman told me they had an assessment on some stock at the bank. He did not tell me what stock it was or who owned it.
“Q. Now, to refresh your recollection, I will ask you if Mr. Dillman did not tell you that the directors of the bank wished to borrow some money; were not those his words? A. Yes, sir; he said they wanted to borrow money to pay this assessment on the stock.”
With this testimony before it, the court was not authorized to render judgment for defendant. Some of the directors wanted to borrow money to pay the assessment on the stock which had been turned in. Defendant could not lend money, but his note could be used in place of cash to make the deal. Defendant gave his note, which was turned to the bank in place of cash. The directors gave defendant their note. The bank had no interest in that note. This is a plain case, and a common case, of individual directors undertaking to make good to the bank the default of assessed stockholders, and there is no basis in the evidence which has been printed for any other conclusion. In such cases the question always is, To whom did the accommodating party in fact lend his credit? When the credit is in fact loaned to a third person to accomplish his purpose, it is not material that the note is given directly to the bank, or that the bank is indirectly benefited. This was made clear in the opinion in the case of Bank v. Watson, 99 Kan. 686, 688, 163 Pac. 637, where the distinction between the legal and popular conceptions of “accommodation” was pointed out.
The important question is whether plaintiff’s demurrer to defendant’s evidence should have been sustained.
Defendant testified he wanted to accommodate the directors. Then he-testified he wanted to help the directors and the bank. Then-he testified as follows:
“Q. And you told him that you would like to accommodate them (the directors) if you could? A. Yes, sir; I told him I would accommodate the bank, as they had always accommodated me.”
Defendant said, however, he was told who wanted to borrow the money, for what purpose it was desired, and that his note would serve in place of the money he was not able to lend. Understanding the facts, he gave his note. As indicated, the matter of who was in fact accommodated controls. It is not the kindly feeling of the accommodating party which controls. This was expressly held in the case of Bank v. Watson, supra. In that case, Blitz had borrowed from the bank all the money it could lend to one person. To help Blitz get more money, which the bank desired to lend, Watson gave his note to the bank. In the opinion it was said:
“The circumstance that the bank was desirous of doing the business, and that the defendant was moved by friendship for the bank rather than for Blitz —by a desire to help the lender to earn interest rather than by a wish to aid the borrower in obtaining a loan — does not affect the legal relationship of the parties.” (p. 689.)
The same opinion disposes of the subject of promise by the presi dent of the bank that the maker of the note would not have to pay it, and the subject of consideration.
Dillman testified it was understood defendant was not to pay his note. It was to be paid by directors, who were to give defendant their note. The directors did give their note to defendant for the same amount as defendant’s note to the bank. Dillman held this note and showed it to defendant, who indicated convenience would be subserved by Dillman holding it. Defendant testified Dillman said they would put up the bank’s note with defendant’s note, and the bank would pay interest on it, and pay it off. Accepting defendant’s version of this part of the conversation, the essential character of the transaction remains the same. Defendant’s own testimony established the fact that money was to be borrowed by somebody to pay something, and the bank was not borrowing the money to pay to itself money owed to itself. Defendant was lending his note in place of cash to enable some directors to pay an assessment on stock, and the matter of how and by whom defendant was to be assured he would not be obliged to pay his note had nothing to do with the undisputed purpose to be accomplished by giving his note.
Defendant testified he did not get the note to him which the directors signed, did not know who signed it, and did not know what was done with it. This merely indicated that after he gave his own note to accommodate the directors, he was either careless or trustful about his security,
Dillman was one of the directors who signed the note given to defendant. Dillman was permitted to testify, over proper objection which should have been sustained, that he was talking to defendant as president of the bank and as a member of the board of directors. If, in his own mind, Dillman approached defendant clothed in official panoply, he did not reveal the fact to defendant. He did not tell defendant the bank, or the president of the bank, or the board of directors, wanted to borrow money. He said some of the directors wanted to borrow the money. The question was not who arranged the accommodation, but who was accommodated, and in Bank v. Watson it was the president of the bank who procured Watson to give his note to help Blitz borrow more money.
After Dillman had related in detail all he said to defendant, Dillman was permitted, over proper objection which should have been sustained, to testify that he put the subject of giving a note up to defendant “strictly as a banking proposition and as a representative of the board of directors.” Dillman could not, by this colorful characterization, add to or detract from the plain tale he had told.
There is nothing else in the testimony of sufficient importance to require special comment.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain plaintiff’s demurrer to defendant’s evidence. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought in the district court of Montgomery county to restrain Seth Wells, as state oil inspector, from collecting or attempting to collect, directly or indirectly, the motor-vehicle fuel tax on gasoline purchased by the plaintiff city for municipal uses. Summons directed to the sheriff of Shawnee county was issued and served in Shawnee county. Thereafter the defendant filed his motion to quash service and to dismiss for the following reasons:
“That he, as state oil inspector of the state of Kansas, keeps and maintains his office and place of business in the capítol building in the city of Topeka, Shawnee county, Kansas, and does'not reside nor has he been served with summons, in Montgomery county, Kansas;
“That the plaintiff seeks to maintain this action against the defendant as a public officer for an act, or acts, alleged to have been done by him in virtue and under color of his office; and this defendant alleges that neither the alleged cause of action, nor any part thereof, arose in Montgomery county, Kansas; that this defendant has no office or duties in said county, but performs all of his official duties in Shawnee county, Kansas;
“That this defendant has taken or performed no action or duty, nor is he about to perform any official act or duty, within the confines of Montgomery county, Kansas, which would or could affect the plaintiff herein in any manner whatsoever, but that any or all such acts affecting plaintiff have been and will be performed in Shawnee county, Kansas; ’
“That if plaintiff has any cause of action or right to an injunction, the same did not arise in Montgomery county, Kansas, and that the pretended service of summons heretofore had herein is void and of no effect, that this court has no jurisdiction of the person of this defendant, and that this action is improperly brought in Montgomery county, Kansas.”
Upon hearing, the motion was sustained, the service of process vacated and the action dismissed. The plaintiff appeals, contending that the motion constituted a general appearance because it tendered an issue of fact.
Plaintiff directs attention to R. S. 60-503, which provides that an action against a public officer for an act done by him in virtue or under color of his office must be brought in the county where the cause, or some part thereof, arose, and argues that some part of its cause of action arose in Montgomery county. It is true that under R. S. 1931 Supp. 79-3001 et seq. a dealer in Montgomery county from whom plaintiff might purchase gasoline has some duties ;fco perform, but in so far as defendant is concerned, his duties are not performed, in whole or in part, in Montgomery county.
The question of venue in criminal actions arising out of a similar, and in part the same, statute was considered in State v. Snell, 131 Kan. 370, 291 Pac. 737, and this court said:
“The first question presented related to the matter of venue. The defendants were residents of Cheyenne county, where they were engaged as dealers in gasoline and other motor-vehicle fuels, and they were prosecuted in Shawnee county, where the state insisted that payments were to be made at the office of the state oil inspector. It is conceded that defendants were not doing business in Shawnee county, where they were tried and convicted. Defendants insist that as ‘offenses committed against the laws of this state shall be punished in the county in which the offense is committed except as may be otherwise provided by law’ (R. S. 62-461), the venue was in Cheyenne county where the defendants were engaged in business. The defendants, as stated, were prosecuted for a violation of chapter 274 of the Laws of 1925, which imposes a tax on the sale or use of motor-vehicle fuels, provides for the payment, collection and disposition of the revenue derived from the tax and imposes penalties for violations of the act. Section 4 of the act requires that sworn reports of the motor-vehicle fuel received by dealers, from any source, shall be made to the state oil inspector at stated times. In section 5 it is provided that at the time of making the required reports the dealers shall pay the tax due to the state oil inspector. The statute does not expressly provide the place of payment, but does require it to be made to the state oil inspector, and it is a reasonable inference that it must be paid at the office maintained by the state oil inspector. There he keeps his accounts with dealers, and there reports by dealers are filed and preserved for future reference. The state oil inspector is a state office created by law, and we must take notice of the existence of his office, and the place where he transacts business with the public. It is a matter of general and common knowledge that the office is at the capítol of the state in Shawnee county, the headquarters of other state officers.” (p. 371.)
And the matter of venue of actions against public officers received attention in State, ex rel., v. Flannelly, 96 Kan. 372, 380, 152 Pac. 22, and involved the right of a receiver to sue the public utilities commission in the court which appointed him, and this court said:
“What part of the receivers’ cause of action against the commission arose in Montgomery county? They say their right to sue, their right to protect the property in their control. All persons have a right to sue when their rights of person or property are invaded. A state officer, acting under the law, at the capítol, may perform an act which some individual somewhere in the state believes invades his rights or does him a wrong. Such party cannot sue unless his rights have been invaded, but that invasion by an act wholly performed in another county does not give the aggrieved party the right to sue outside the county where the act was done. The action in the district court stands just the same as if the receivers were attempting to contest the validity of an act of the legislature, and were seeking to enjoin the attorney-general, or the auditor of state, or the tax commission, or the state board of health, from proceeding thereunder.
“The evident purpose of the statute is to confine actions on account of the conduct of officers to the county or counties in which the act or acts of the officers were done. These views are supported by Clay v. Hoysradt, 8 Kan. 74, where this court said: ‘The language of this section is plain, and needs no comment from us. By it proceedings against public officers for official acts are referred to the courts of the county where the acts are done. It is an expression of the purpose of the legislature to localize suits against officers. It relieves them from the necessity of deciding between the conflicting orders of courts of different counties. They are amenable only to the courts of the county in which they are acting.’ (p. 80. See Fay v. Edmiston, 28 Kan. 105, 108.)”
A logical interpretation of R. S. 1931 Supp. 79-3001 to 79-3011, inclusive, leads to the conclusion that the venue of actions brought against the state oil inspector to determine rights under the above statutes is in Shawnee county.
Did the defendant, by reason of the matters included in his special appearance and motion to quash the process issued against him, enter a general appearance in the action?
In Bishop v. Fisher, 94 Kan. 105,113,145 Pac. 890, it was said:
“The plaintiff’s motion may be read in such a way as to indicate a general submission to the jurisdiction of the court, but here, as elsewhere in procedure, substance alone is to be regarded, and it is quite clear that the sole purpose was to challenge jurisdiction.”
And in Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648, the third paragraph of the syllabus recites:
“A general appearance is not effected by the insertion, in a motion to set aside the service of summons, of allegations concerning some of the facts on which the plaintiff’s claim is founded, which are made because of their bearing upon the validity of the service, and which are material to that question.”
And see, also, Poorman v. Carlton, 122 Kan. 762, 766, 253 Pac. 424.
The statements contained in the defendant’s motion might, in one view of the matter, be said to put in issue some of the allegations of the petition, but it is evident from the whole of said motion that the statements are included because of their bearing upon the question of venue and of the validity of service of process.
The order of the lower court was correct and the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment awarding damages for the condemnation of lands for highway purposes. The plaintiff appealed to the district court from the award of the appraisers, and at the trial the court submitted special questions, to which answers were returned as follows:
“1. What do you find was the reasonable market value on March 25, 1931, the date of condemnation, of the .97 acre of land taken from the appellant for use in the highway? A. $654.75.
“2. What do you find was the reasonable market value on March 25, 1931, just before the appropriation of appellant’s 15-acre tract? A. $9,591.75.
“3. What do you find was the reasonable market value, immediately after the condemnation, of the remainder of appellant’s 15-acre tract, less the .97 of an acre appropriated for the highway? A. $5,299.80.
“4. Do you find that appellant has been specially benefited by the condemnation of his land and the construction of the highway over his land? A. No.
“5. What do you find to be the most advantageous purpose to which the property can be put since March 25, 1931? A. Truck farming and suburban home.
“6. How much, if anything, do you allow the appellant as full compensation, exclusively, for the following items? (a) The division of appellant’s land by the highway into two tracts? A. $86. (b) The inconvenience in
crossing the highway from one tract to the other? A. $1,900.
“7. How much, if anything, do you award the appellant as full compensation, exclusively, for damage to the land on the west side of the highway by reason of the stopping or damming up of overflow waters? A. $271.20.
“8. How much damage, if any, exclusively, do you allow to the remaining tract of land by reason of the highway being elevated above the land? A. $1,450.”
The defendant filed its motion to vacate and hold for naught the answers to the special questions for the reason they were contrary to the evidence, and because of misconduct of the jury in answering the same, and also filed its motion for a new trial because of abuse of discretion in refusing to allow the jury to view the premises, misconduct of the jury in the method used in arriving at a verdict, erroneous rulings and instructions of the court, and that the verdict is contrary to the evidence, both of which motions were overruled.
When the trial started the defendant asked that during the course of the trial the jury be permitted to view the premises, and the court then stated:
“We will permit the jury to examine the property sometime during the trial.”
After testimony had been introduced, the - defendant renewed its request, and the court then refused it because the property had been improved, in part, by erection of a filling station. After the jury had retired to deliberate, it sent a note to the court requesting permission to view the premises, and the court advised the jury it did not deem it proper that the jury view the premises, as improvements had been made and conditions had changed since the condemnation. There had been a great deal of evidence with reference to the effect on the land not taken of the raising of the grade of the highway over that of the adjoining land, the character of the land, the uses to which it had been and could be put, and it is urged that the jury’s request indicated it was not satisfied as to its knowledge. While the court might very properly have permitted a view by the jury, under the statute (R. S. 60-2910) it was discretionary with the court, and we cannot say that there was any abuse of that discretion.
The trial court properly refused to admit in evidence plaintiff’s exhibit D, for so far as the record before us shows, there was no evidence with relation to the city dump or its proximity to the land in question. In view of the testimony concerning the filling station, had the court admitted plaintiff’s exhibit E, there would have been no error, but it only shows a situation concerning which there is much other evidence, and the court’s refusal to admit it was not error.
In his case in chief, plaintiff testified as to the value of his land in question in this action, and that it had been used for farming and that farming was the most advantageous use to which it could be put, and that he had traded off a part to be used for a filling station. ■ Upon being asked whether the balance c'ould be used the same way, he answered not without a great deal of expense, and he was then permitted to testify as to the amount of yardage of earth it would take to fill the land. Stella Miller, owner of land taken in the same condemnation proceeding and who had an appeal pending, testified that the most advantageous use to which the land in question could be put was truck gardening. She also testified she was a clerk in the Wichita street department and familiar with the general charge for moving earth, and she was then permitted to testify as to where such dirt might be obtained, the cost, if the haul was only a certain distance, and the charge for any overhaul. The plaintiff attempts to justify the introduction of this evidence with relation to fill and cost on the ground that defendant, in its opening statement, stated that the building of the highway would be a benefit to the land, and contends that in any event its admission was not error because the jury allowed nothing for the fill. In our opinion, the admission of this testimony was erroneous. The answers to the question as to the items making up the verdict will be discussed later. In so far as the testimony referred to is concerned, it brought before the jury in a forcible manner that if the property was to be brought to grade for some purpose other than farming the cost would run into thousands of dollars, and the effect of such testimony is plainly reflected in the jury’s answer wherein it allowed $1,450 damage because the highway was elevated above the land.
After the trial the defendant procured an affidavit of the foreman of the jury and the affidavits of some of the jurors, which, taken alone, show that the answers to special questions 1, 2 and 3 were obtained by the “quotient method,” and that the answers to questions 6, 7 and 8 were obtained by a percentage method, that is, the total damage to land not taken was first determined and thereafter divided by an arbitrary method, and the amounts of the various elements of damage thus determined. When the motion for new trial was presented, some of the jurors were personally questioned and for one reason and another qualified the statements of the affidavits, and the court found that the verdict was not a quotient verdict. The trial court denied the motions filed against the answers to the special questions and for a new trial.
Whether the verdict was or was not a quotient verdict was a question of fact for the trial court to determine, and the verdict having been approved by the trial court, this court will not disturb the judgment on that account. But it is clear from the record in this case that the verdict was improperly arrived at for another and very different reason. The jury, instead of first determining from the evidence in what manner and to what extent the plaintiff had been damaged, proceeded first to fix the value of his land before the condemnation and allowed for the land taken at a proportionate rate, i. e., $654.75. It then determined the value of the tract after condemnation, and thus arrived at the damages to the land riot taken, i. e., before condemnation, $9,591.75, after condemnation, $5,229.80, leaving a difference of $4,361.95, from which it subtracted the value of the land taken, leaving damage to the land not taken of $3,707.20. It might be remarked here that the exactness of the figures lends a good deal of credence to the claim that a verdict was reached by the quotient method. The jury then determined, in order to answer special questions 6, 7 and 8, that the items therein mentioned bore a percentage ratio to the total damage to the land not taken, and that such percentage ratio made the loss as follows:
6. (a) Division of land........................................... $86.00
6. (6) Inconvenience in crossing.................................. 1,900.00
7. Stopping overflow waters................................... 271.20
8. Damage, exclusively by reason of elevation of the highway... 1,450.00
Total .................................................. $3,707.20
In view of the fact that in answer to question 5 the jury found that the most advantageous use to which the property could be put since condemnation is “Truck farming and suburban home,” it is readily apparent that the specific answers are, in and of themselves, wrong, and are without any evidential foundation — in fact, it is probably not too much to say they are not only arbitrarily arrived at, but they overlap and are inconsistent; the evidence warranted the answer to No. 6 (a), it may have warranted an answer to No. 6 (6), but not the answer returned, and there is an entire lack of evidence to support the answer to No. 8 unless the evidence heretofore referred to as improperly admitted is considered. A somewhat similar situation existed in Telegraph Co. v. Bridge Co., 89 Kan. 418, 131 Pac. 143, where this court said:
“We do not find anything in the evidence showing or tending to show the presence of any personal property on the bridge likely to be damaged by ■reason of the plaintiff’s wires, and we are at a loss to know what the jury had in mind as a basis for this item of allowance. (Postal Telegraph Co. v. Peyton, 124 Ga. 746, 52 S. E. 803, 3 L. R. A., n.s., 333, and note.)” (p. 421.)
In view of the entire situation, we cannot approve what was ' done, we are not well enough advised to delete any particular item of the jury’s answers nor are we warranted in changing any of the specific amounts set, but we are well satisfied that a just and righteous verdict has not been reached.
The defendant’s motion to set aside answers to the special questions and its motion for a new trial should have been allowed.
The judgment of the lower court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Thiele, J.;
This was an action to recover rents. Plaintiff was the owner of a half section of land which was leased to the defendant Woolverton. On June 14, 1929, when the wheat on said land was still growing and unmatured, defendant Mangus, who was a real-estate agent and was the agent of defendant Heston, wrote plaintiff a letter stating, in part:
“I am inclosing Kansas form of warranty deed, for your execution to John F. Heston, who has placed in the First National Bank, Goodland, Kan., the sum of one hundred dollars as earnest money. If married, have your wife sign and acknowledge the deed with you, then forward the deed to the First National Bank, Goodland, Kan., with your instructions to be delivered upon the payment of the full amount of $5,000. You are to furnish abstract showing merchantable title.
“The deed will be taken upon the approval of title.
“Also wire me of your acceptance of the offer.”
On June 17 plaintiff telegraphed acceptance to Mangus and on the same day wrote the bank that Mangus had written him, and he inclosed the deed and abstracts and gave the bank instructions for delivery, the sixth instruction being: “Purchaser to have until July 1, 1929, to close transaction.”'
He also inclosed a confidential communication, reciting:
“Referring to instruction No. 6, my letter — this date of July 1, 1929, is not 'an arbitrary date. You may close on or before July 1, 1929, or you may also allow a few days past July 1, 1929, if it is necessary in closing, but should the parties want longer than July 1 you will have them put up an additional $900 forfeit money in your bank.
“I make this a separate matter, confidential, to you, as it may be necessary for you to show your instructions to purchaser.”
On July 5 plaintiff telegraphed the bank inquiring if the deal had been closed and the remittance made; the bank replied it had not. On July 5 the plaintiff wired Mangus:
“Bank advises no settlement made. Your time up. Advise by wire.”
On July 9 plaintiff wrote the bank a letter, stating:
“As you know, Mr. Mangus failed to go through with this deal, and this letter is for the purpose of giving you further instructions regarding the deed and abstracts which you now hold.”
And instructing the bank to erase the name of the purchaser, to have abstracts certified, that he had the land listed with several real-estate men in Goodland at $5,000 net to him, authorizing the bank to insert name of purchaser in deed, to pay all taxes due, and to remit $5,000, less charges and taxes, and—
“You are authorized to deliver deed and abstracts to purchaser when you have in your possession for delivery to me the sum of $5,000, less the above charges.”
The letter also inquired as to whether the $100 forfeit money had been put up by Mangus. Under date of July 12 the bank acknowl edged receipt of the papers and advised that Mangus had never put up the forfeit. Under date of August 22, the plaintiff wrote the bank to return the deed, that he would make a correction in the same and return it to the bank about August 25 or 26. On August 22, without knowledge of the above letter by either the bank, Mangus or Heston, Heston paid the bank $5,000 in full for said land and took the deed, requesting the bank to write in the name W. T. Green, as grantee. The deed, which contained no reservation of crops, was recorded August 24. There was some corn growing on the land to which plaintiff makes no claim. In so far as the above facts are concerned, they are included in the lower court’s written judgment. In addition, the following undisputed facts appear: Under date of August 23, defendant Woolverton wrote plaintiff stating, in part:
“I just finished threshing; got 3,000 bu, barley and 576 bu. of wheat. . . . One man was out in a. m. and said he had bought the land and gets the rent. Another was out in p. m. and says to hold rent; that he is on a deal for the place. Don’t know who to pay rent to. Would like to know if you have sold the half section.”
That before he paid the rent money to Mangus and Heston he had a telegram from plaintiff reading:
“In answer to your letter, one-fourth of crop belongs to me.”
That Mangus had come out to the farm while he was threshing and wanted landlord’s share of crop, but Woolverton told him to wait until he came to town; that he came to town and learned land had been sold and he then paid Mangus and Heston; that Green had been out before Mangus and that when Mangus was out he had a note from Green to pay the rent to Mangus and Heston.
Plaintiff brought suit to recover the sum of $416.92 rent share due from Woolverton, alleging that Woolverton, without his knowledge or consent, had turned the same over to defendants Heston and Mangus. Woolverton filed his answer admitting the amount of the landlord’s share amounted to $416.92, and that he had paid it to defendants Heston and Mangus, “but denies the knowledge of the right of this plaintiff to the receipt of said rent and relied wholly upon the claim of defendants, John F. Heston and William Mangus to the ownership of said rent.”
The defendants, Mangus and Heston, filed their answer alleging plaintiff’s acceptance of the offer contained in the letter of June 14, and that the deed was without reservations. On trial, the facts as above set forth were shown. The court, in its judgment, included part of the facts as shown and found that the bank was an “escrow depositary” and continued as such throughout the entire transaction, and that time was not of the essence of the contract of purchase, and rendered judgment in- favor of the defendants. The plaintiff appeals and assigns as error the rendering of judgment contrary to the evidence and the overruling of his motion for a new trial.
The first question presented is whether the offer of Mangus was accepted. His offer contained the statement that $100 had been placed in the bank as earnest money and that plaintiff should sign and acknowledge a deed and forward to the First National Bank at Goodland, with instructions to be delivered upon payment of the full amount of $5,000. It is now conceded that the $100 was not placed in escrow at the time this letter was written nor at any other time. The offer was incomplete and, if it be assumed that plaintiff’s telegram of acceptance would have otherwise made a contract, there was none under the facts here. There was no meeting of the minds. Had the plaintiff known that the earnest money had not been deposited as Mangus stated it had, he might have waived it, but on learning that it had not, he promptly gave the bank new instructions. See Weinhold v. Weinhold, 115 Kan. 395, 223 Pac. 297. The original offer made by Mangus, whom the court finds to be the agent of Heston, directed the plaintiff to send his deed with instructions, and these instructions were that the transaction should be completed July 1. The confidential instructions allowed a few days past July 1, if necessary in closing, but should the parties want longer than July 1 “you will have them put up an additional $900 forfeit money.” The original offer made by Mangus was not complete and it was never made complete. As soon as the plaintiff discovered the situation, and on July 5, he telegraphed Mangus that his time was up, and he promptly directed the bank with reference to the disposition of the documents. Under the new instructions, Heston, .or anyone else complying therewith, was entitled to take the deed, but until someone did take it, the plaintiff was at liberty to withdraw it. On August 22, when Heston claims to have complied with the original offer, he did no more than accept the second offer made by plaintiff as contained in his letter of July 9 to the bank at Goodland.
The court’s finding that the bank held the deed in escrow is a conclusion of law not warranted by the facts. The entire evidence as to the offer of plaintiff and what was done up to the time of its acceptance is in writing and is undisputed. Defendants in their brief state that Mangus’ letter of June 14 to plaintiff is not an offer, but that plaintiff’s letter of June 17 to the bank, inclosing the deed, and his subsequent letter of July 9 made an offer, which anyone could accept unless the offer were previously withdrawn. Immediately after plaintiff learned that Heston had not completed the original transaction, he wrote to the bank the letter of July 9, which superseded the letter of June 17. These letters, together with the deed, did not in any manner constitute an escrow. It is stated in 21 C. J. 866 that in order that an instrument may operate as an escrow, not only must there be sufficient parties, a proper subject matter and a consideration, but tire parties must actually contract, and the deposit must be absolute and beyond the control of the depositor, and in Moore v. Moore, 93 Kan. 697, 150 Pac. 230, that the effect of the deposit of a deed in escrow, as between the parties thereto, is largely a question of intention of the parties, and especially of the grantor. The trial court, in rendering judgment, quotes the definition of escrow contained in the first syllabus of Davis v. Clark, 58 Kan. 100, 48 Pac. 563, but an examination of the case shows there was a contract between the parties, and that the escrow was provided for therein. The plaintiff’s letter of July 9 and the previous deposit of the deed under the arrangement which failed, did not constitute an escrow for these reasons, if for no other: the deed was not irrevocably placed with the bank, there was no consideration, and there was no contract. There was an offer to deal and nothing more.
When, on August 22, the offer was accepted, the consideration was paid, and the deed was delivered, there was an executed contract. There is no dispute that the deed then delivered, and which was executed by plaintiff about June 17, contained no reservations or exceptions with reference to crop. Neither is there any dispute that on June 17 the wheat and barley on the real estate were immature and growing, or that on August 22 they were matured, harvested and, if not already threshed, were in process of threshing. And that brings us to the real question in the case — Was the purchaser entitled to the landlord’s share of the crop? If he was, it is by application of the doctrine of relation. It was said in Scott v. Stone, 72 Kan. 545, 548, 84 Pac. 117, that the doctrine is of ancient origin and has always been applied, both at law and in equity, to meet the requirements of justice, to protect purchasers, and to effectuate the intent of the parties to the contract; and whether by this rule the operation of the deed will be carried back to the contract of sale, to the execution of the deed, or only to its actual delivery to the parties, will depend upon the intent of the parties as shown by the transaction. In Baker v. Snavely, 84 Kan. 179, 114 Pac. 370, the doctrine was discussed and it was held that whether a deed executed and placed in escrow relates back to the time and execution thereof so as to vest the grantee with full title from that time or whether it becomes effective only upon full performance seems to depend upon which of the two theories will promote justice under all the circumstances of the individual case. See, also, 53 C. J. 1185, 8 R. C. L. 1018, 10 R. C. L. 640. It will be noted that the doctrine is usually considered in connection with deeds placed in escrow, and not in connection with deeds deposited as is the one here.
When plaintiff wrote the bank his letter of July 9 he made an offer open to acceptance by anyone, the parties defendant or anyone who wanted to pay the named price for the land. Until there was an acceptance, there was no contract, and a contract is operative as such only from the time of the meeting of the minds of the parties as to its terms. (13 C. J. 584; 6 R. C. L. 592, 599.) The general rule is stated in 18 C. J. 216, and it was held in Babbitt v. Johnson, 15 Kan. 252, and in Taylor v. Woodbury, 86 Kan. 650, 651, 121 Pac. 1119, that a deed takes effect from the time of its delivery, and here there is no controversy as to date of delivery. When Heston, on August 22, accepted plaintiff’s order, a contract was completed and it was fully executed by his paying the consideration and receiving the deed.
Assuming for the moment that the doctrine of relation might be applicable here, had Heston been compelled to pay interest, taxes or other charges, there might be some reason to say that equity compelled its application, but it is clear that the situations existing and the reasons invoked in other cases are not present here, and the doctrine should not be applied.
There being no dispute that the crop had been harvested on August 22, it belonged to the plaintiff. (National Bank v. Beegle, 52 Kan. 709, 35 Pac. 814.) A contention is made that if plaintiff claims the rent he can only do so by disaffirming the contract of sale. It is untenable. The purchaser knew when he bought the land that the crop had been harvested and he took no more title thereto than he did to any other personal property there might have been on'the real estate.
The judgment of the lower court is reversed and the cause is remanded with instructions to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Smith, J.:
The action was one to recover money on a written contract. Judgment was for plaintiff. Defendant appeals.
The pertinent part of the contract was as follows:
“The party of the first part agrees to furnish, install and erect a complete heating and ventilating system for the party of the second part in their school building and gymnasium at Mound Valley, Kan., . . . and when work is completed will turn building and equipment over to party of the second part in good and substantial manner. The contractor further guarantees that when the work is completed that it will pass satisfactorily the fire underwriters’ code, and specifications for heating and ventilating apparatus for school buildings. First party agrees that all rooms will be heated to a temperature of 70 degrees at zero weather, and if gymnasium is ceiled with Cellotex or equal to Cellotex, party of the first part will agree to heat gymnasium to a temperature of 70 degrees at zero weather; it being understood, however, that party of the first part will not be held liable for nonheating of any room or rooms where his directions are not specifically complied with. It is hereby specifically pointed out that the school building and gymnasium cannot both together be heated to a temperature of 70 degrees at zero weather, and party of the second part agrees and understands that this heating system is an alternating system and that when one building is to be heated, the other building is to be cut off by means of a damper which will be furnished by party of the first part. . . . Work to be completed in all rooms before September 1, 1929.”
On October 2, 1929, the schoolhouse burned down. The heating plant was destroyed. At the time of the fire some employees of plaintiff were at work completing the installation. Part of the contract price had been paid by defendant. This action was for the balance of the contract price.
The defendant filed an answer and cross petition in which it denied that plaintiff had completed the installation; charged that the building was destroyed through the negligence of plaintiff, and prayed for damages for the value of .the building. The insurance companies, which had the insurance on the building, interpleaded and prayed for damages against the plaintiff and for subrogation.
The jury found generally for the plaintiff. Special questions were answered in part as follows:
“1. Do you find from the evidence plaintiff completed for defendant school district the installation of the heating plant and ventilating system in accordance with the terms of the contract sued on herein? A. No.
“2. If you answer question No. 1 in the-negative, do you find plaintiff substantially completed the installation of said heating plant and ventilating system in accordance with the terms of the contract sued on herein? A. Yes.
“3. If you answer question No. 2 in thé -affirmative, state—
“(a) What you find to have been necessary to complete said installation in accordance with the teims of contract. A. Switch not working properly. Boston lock not installed, tunnel not filled. System not tested out.
“(b) The reasonable value of the labor and material necessary to complete the heating and ventilating system in accordance with the terms of the contract. A. $210.”
Judgment was rendered according to the general verdict.
Defendant argues that these findings are not supported by the evidence and that its motion to set aside finding No. 2 and for judgment on the answers notwithstanding the general verdict should have been sustained.
The things which the evidence showed were not yet done were trivial details; a switch not working properly; a Boston lock, which consisted of only a strip of metal to be placed around a joint in an air duct, was not in place and a tunnel not filled. It cannot be said that these details were of sufficient importance to warrant a court in holding that they constituted a failure to substantially complete the heating plant.
Defendant argues the contract was an indivisible one, that plaintiff did not fully complete it, and therefore plaintiff is not entitled to pay for any part of the work done and materials furnished when the building was destroyed, making completion impossible.
This court held otherwise in the case of Carroll v. Bowersock, 100 Kan. 270, 164 Pac. 143. There the court was considering the question of the right of a contractor to recover for materials on hand to be used in the construction of a cement floor in a building when the building was destroyed by fire. The court said:
“The test of benefit received' has been variously stated. Sometimes it is said that benefit accrues whenever the contractor’s material and labor, furnished and performed according to the contract, have become attached to the owner’s realty. The facts of particular cases suggest different forms of expression. After considering all the authorities cited in the briefs, the court is inclined to approve, for the purposes of this case, the form adopted by the supreme court of Massachusetts in the case of Young v. Chicopee, 186 Mass. 518, cited by the plaintiff. The action was one for labor and material furnished to repair a bridge destroyed by fire while the work was proceeding. The contract required at least half of the material to be ‘upon the job’ before work commenced. The contractor complied with this condition, and distributed material ‘all along the bridge’ and on the river bank. A portion of the ma terial thus distributed but not wrought into the structure was destroyed by fire. Liability for work done upon and material wrought into the structure was not disputed, but the contractor sought to make good his entire loss. The court said:
“ ‘In whatever way the principle may be stated, it would seem that the liability of the owner in a case like this should be measured by the amount of the contract work done which, at the time of the destruction of the structure, had become so far identified with it as that but for the destruction it would have enured to him as contemplated by the contract.’ ”
The rule is also stated in 9 C. J. 807, as follows:
“Where the contract is for the performance of work on an existing structure which must continue to exist in order that the work may be performed, and such structure is not wholly under the control of the builder, as where repairs or alterations áre to be made on a building, or where the contract is for the construction of a particular part of a house, the agreement is on the implied condition that the structure on which the work is to be done shall continue in existence, and if the structure is destroyed without the fault of the builder before the work is completed, he is excused from further performance.”
In the case at bar we have a case which falls clearly within the above rule. The contract was for work on a building over which the contractor had no control; the work was substantially completed and the building was destroyed through no -fault of the plaintiff.
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The opinion of the court was delivered by
Dawson, J.:
In a motion for a rehearing, counsel for defendants reargue their contention that some sort of action other than mandamus should have been brought against defendant T. B. Boyd as an individual and not as state treasurer, and cases from other jurisdictions not fundamentally different from those at bar are again cited to that effect. Counsel argue that some of our precedents cited in our opinion should not be regarded as controlling here. We think they are. In discussing defendant Boyd as a mere stakeholder counsel studiously omit the adjective “official,” which is requisite, in our opinion, to precisely define his status. Why were the protested moneys paid to Boyd rather than to some other state functionary? Because Boyd was state treasurer, and he received those moneys under color of his office. When a state treasurer or any county treasurer receives money paid under protest in temporary obedience to a statute of disputed validity, he does not receive it in his individual capacity. Moreover, it is ordinarily his duty to accept payment under protest, and it was Treasurer Boyd’s duty to do so in the cases at bar. This is Kansas law and Kansas practice, and precedents from jurisdictions where the law is different are of no consequence.
Counsel for defendants suggest other legal questions which they think we should settle in these cases:
1. It is asked “what decision this court might render . . [if] the state treasurer had placed these funds, even though they be paid under protest, in the general revenue fund and had become a part of the general revenue and subject to appropriation and disbursement as other funds reaching the general revenue fund of the state.”
It seems to us that it only needs space to state that question to demonstrate that it could not properly be answered in this litigation. Even in a case where a mere declaratory judgment is sought, an actual controversy must exist before this court or the district court would have jurisdiction to make a binding adjudication concerning it. (R. S. 60-3127; West v. City of Wichita, 118 Kan. 265, 234 Pac. 978; Garden City News v. Hurst, 129 Kan. 365, 282 Pac. 720.)
2. In the motion for a rehearing it is said:
“. . . It is conceded that the objection raised by the state that this inheritance tax money cannot be repaid without an express appropriation made by law, as provided in article 2, section 24 of the constitution, is correct.”
No such concession appears in our opinion, and we cannot follow the argument of counsel predicated thereon.
3. ■ We are urged to distinguish between a right to recover a tax paid under a statute which at the time of payment had been held to be constitutional by the state and federal supreme courts “and the right to recover a tax which has been paid under a statute which has been passed upon by the supreme court, and at the time of the payment said law was attacked on account of the unconstitutionality thereof and later was held unconstitutional by the courts.” ■
Without discussion of such niceties, it is sufficient to observe that these plaintiffs paid under protest, and no prior adjudications to which they were not parties could by any possibility be binding on them.
4. Counsel ask the court to state precisely what the state tax commission is expected to do in view of our decision. In original proceedings in mandamus in this court, while judgment must necessarily go for plaintiff or defendant and the pro forma order usually is “The writ is allowed” or “The writ is denied,” the usual practice when a state officer or state board is the defendant is not to issue any writ at all. The court’s judgment and opinion are accepted as a rule to guide official action and there the matter ends. In Martin, Governor, v. Ingraham, 38 Kan. 641, 17 Pac. 162, the practice in such cases was discussed and earlier cases, including that of State, ex rel., v. St. John, Governor, 21 Kan. 591, were reviewed:
“In that ease an alternative writ of mandamus was allowed. At first the defendant’s counsel filed an answer disputing the jurisdiction of the court, but afterward the governor, by his counsel, expressly waived all question of jurisdiction, and the governor himself also personally desired that the court should hear and determine the case without reference to any question of jurisdiction, stating that he would obey the decision of the court, whatever it might be. The court heard and determined the case, and awarded a peremptory writ of mandamus; but no such writ was ever issued, as the governor immediately proceeded to act in accordance with the decision of the court, which rendered the writ unnecessary.” (p. 646.)
See, also, Bishop v. Fischer, 94 Kan. 105, 115, 145 Pac. 890; Estey v. Holdren, 126 Kan. 385, 389, 267 Pac. 1098.
5. It is further urged that plaintiffs had received credit on their federal estate tax by reason of their payments of these illegal state taxes, and that fact is urged as a reason why the state should now withhold the money which does not belong to it. That reason is not good. The federal government is abundantly able to look after its own interests, and defendants need have no concern therewith.
6. The court is also urged to say what provision of the statute of limitations, if any, should control in proceedings to procure the return of illegal taxes paid under protest. Since these proceedings were promptly begun and diligently prosecuted this question of law is not involved in these cases and cannot be decided herein.
7. Defendants do present one question which inheres in the present cases and which should be decided. That is the question whether interest should be paid on the protested sums during the time the state treasurer has held them pending an authoritative adjudication on the legality of the statute. In our opinion the state treasurer served as official stakeholder for all parties concerned. He has no fund to pay interest. While we have held that plaintiffs had no adequate remedy at law, and in consequence they could rightfully bring mandamus in these cases, mandamus was not the only extraordinary remedy available. They might have invoked other extraordinary procedural redress — an injunction or mandatory injunctive proceeding in the district court, and could thereby have procured an adjudication on the state’s claim to these illegal tax exactions without having paid over the money at all. The procedure they did follow was simpler and more expeditious, but it does not entitle them to interest on their funds while they have been in the hands of the state treasurer.
A rehearing on these matters would serve no purpose, and it is therefore denied.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages resulting from a collision of motor vehicles on a public highway.
It appears that on the afternoon of November 16, 1930, while plaintiff was driving westward on highway 50 N, about two and one-half miles west of Canton, a truck belonging to defendant and operated by its employee came out of a field on the south side of the road and turned into the highway alongside of plaintiff’s automobile, headed westward. The truck was driven at such speed that its rear wheels skidded; it struck plaintiff’s car on its left side, caus ing it to upset in the ditch on the north side of the road, whereby it was damaged to the extent of $200, for which sum plaintiff prayed judgment.
The pleadings and plaintiff’s evidence developed the foregoing facts. The evidence for plaintiff also tended to show that defendant’s truck had entered the highway from the south through a gap in the fence and over a culvert which made a temporary side road into the highway. Defendant was engaged in drilling a well in the field about a quarter of a mile from the highway; and as plaintiff was traveling at 35 miles he saw defendant’s truck in the field coming towards the highway. Plaintiff testified that he had not noted the gap in the fence nor the culvert, and that he did not know the truck was about to enter the highway. He also testified:
“Q. As you saw this car driven by the defendant’s employee approaching, what, if anything, did you do with reference to your speed? A. I didn’t do a thing.
“The hind part of the defendant’s car hit plaintiff’s, as defendant’s car swung into the highway the rear of its car struck the plaintiff’s, damaging the left front fender and the side of the car and causing it to turn over on its right side in the ditch.
“I was on the right side of the road.
“Q. Were you over right against the ditch? A. Not exactly; no sir. I would judge four feet, possibly, something like that, from it.”
Another witness testified that he and his wife were driving eastward on the highway and saw the accident. As he approached the place of collision he slackened his speed because he “could see that plaintiff’s and defendant’s cars were going to get to the same place at the same time.”
Defendant’s demurrer to plaintiff’s evidence was sustained on the ground of contributory negligence. Hence this appeal.
Was plaintiff’s contributory negligence so clearly established by the evidence adduced in his behalf as to require that issue to be taken from the jury and make it the duty of the trial court to make a ruling to that effect as a matter of law?
We think not. A plausible jury argument might be made that plaintiff was not negligent in any respect. He was on the right side of the road. Why should he have anticipated that defendant’s truck would be turned into the highway at such, speed that its wheels would skid and that its rear part would swing into the side of his car? It is not even clear from the evidence that plaintiff knew, or should have known, that defendant’s truck was actually coming into the highway, or that plaintiff knew there was an entrance thereabout from the field into the highway.
To sustain the ruling on the demurrer, counsel for appellee call attention to the fact that plaintiff did nothing, did not put on his brakes, and did not slow down. Perhaps a jury would find that he should have done some of these things, and that it was negligence for him not to do them. A court should not say so as a matter of law. Stress is put on the testimony of the eyewitness who foresaw that plaintiff’s and defendant’s cars would meet and collide. But that fact did not demonstrate plaintiff’s contributory negligence.
Some excellent statements of law are quoted in defendant’s brief, and counsel cite some familiar precedents, like Hegarty v. Refining Co., 112 Kan. 151, 210 Pac. 348; Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; and Antrim v. Speer, 133 Kan. 297, 299 Pac. 643. We cannot discern that these authorities and precedents are controlling here. This cause was clearly one for a jury to decide. In Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 516, 43 Pac. 1136, it was said:
“If beyond dispute or cavil it appears that the accident was the result of [plaintiff’s] own negligence, then there was nothing for the jury to decide. On the other hand, if the standard of care required of him was a subject upon which different opinions might be entertained, and the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably-prudent man should have done under the circumstances, the case should have gone to the jury.”
A plethora of later decisions of this court are to the same effect. See Negligence, Hatcher’s Kan. Dig. § 75, p. 1623; id. Supp. p. 206.
It follows that the judgment must be reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff recovered a judgment for damages sustained in a collision of automobiles, and defendant appeals, raising questions touching the regularity of depositions used in the trial, certain rulings and instructions of the court, and on the amount of the verdict.
1. We will notice these points seriatim. Plaintiff’s evidence, in part, consisted of depositions taken before a justice of the peace in Johnson county. These were taken in shorthand and transcribed by one M. J. Bergeman, a notary public of Kansas City, Mo.; and when they were transcribed by him and subscribed by the deponents and authenticated by the justice of the peace, the Missouri notary mailed them to the district court with an indorsement on the outside of the sealed envelope which bore the title of the cause and the names of the deponents, but which, by inadvertence, bore his own name as a Missouri notary instead of the name of the justice of the peace before whom they were in fact taken. These depositions came through the United States mail to the clerk of the district court and. were filed by that officer on December 21, 1931. On February 1, 1932, they were opened at the request of counsel for defendant. Exceptions to the depositions, on account of the inaccurate recital on the outside of the envelope, were not made until May 24, 1932, the day the cause was set for trial. A written exception on account of this inaccuracy was then made and overruled. Counsel for defendant cite the statute which provided:
“The deposition, so taken, shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and addressed and transmitted to the clerk of the court where the action or proceeding is pending. It shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or proceeding, or his attorney.” (R. S. 60-2838.)
The authenticity of the depositions was not questioned. All formalities were observed in their taking; counsel for defendant appeared and cross-examined the deponents. Only the formal recitals on the outside of the sealed envelope were incorrect, and it was apparent that that inaccuracy was a mere inadvertence — the stenographer, being also a notary and familiar with the practice in cases where he served in the latter capacity, put his own name on the outside of the envelope instead of that of the justice of the peace before whom the depositions were taken.
It will be noted that although counsel for defendant must have become aware of the defective recitals on the outside of the envelope when the depositions were opened on February 1, 1932, yet no exception to them was made until May 24, 1932, when the case was called for trial nearly four months later. . It does not lessen the significance of this fact that one of defendant’s attorneys appeared at the taking of the depositions on November 30,1931; that a second caused the depositions to be opened in February; and that a third took the lead in the trial in May.
The inconsequential nature of the irregularity itself, especially in view of the long delay in filing any exception to the depositions, was not sufficient to bar their admission in evidence. Vide the,uniform rulings of this court over á period of sixty years touching the admissibility of depositions, notwithstanding similar slight and unsubstantial objections or exceptions urged against them! (Hogendobler v. Lyon, 12 Kan. 276; Whittaker v. Voorhees, Sheriff, 38 Kan. 71, 15 Pac. 874; St. L. & S. F. Rly. Co. v. French, 56 Kan. 584, 44 Pac. 12; McRae v. Piano Co., 64 Kan. 580, 68 Pac. 54; McKie v. State, 74 Kan. 21, 31, 85 Pac. 827; also, 18 C. J. 726; 8 R. C. L. 1161-1162.)
Following the trial and after appeal was taken, and on notice to defendant and with permission of the trial court, counsel for the appellee withdrew the depositions for the purpose of having the justice of the peace indorse his name on the envelope. Defendant assigns this superfluous maneuver as error. Plaintiff would justify it under R. S. 60-759, but since we have held the inaccurate'recital on the envelope was immaterial in this lawsuit, this incident need not be considered.
Error is also assigned on an instruction which, so far as here pertinent, reads:
“27. . . . And in arriving at the amount of her damages, if any, you may take into consideration the character and extent of such injuries, if any, together with any pain and suffering of body and mind, if any, which she has sustained or is reasonably certain in the future to suffer, occasioned by said injuries, if any.”
Defendants’ objection to this instruction is that—
“There was not a particle of evidence introduced at the trial to the effect that the plaintiff would, in the future, have any pain and suffering of body and mind, or that she was reasonably certain in the future to suffer pain of body and mind occasioned by said injuries, and on account of there being no testimony as to future pain, it is the contention of the appellants that the court erred in instructing the jury that in arriving at the amount of her damages they could take into consideration any pain and suffering of body and mind which she was reasonably certain in the future to suffer occasioned by said injuries.”
It is literally correct that no witness, professional or lay, testified that plaintiff would continue to suffer after the trial. There was ample testimony that she had suffered pain in body and mind ever since she was hurt in the collision caused by defendants’ negligence, which occurred many months before the trial; there was evidence that at the time of the trial she was still suffering in body and mind from the accident, and it was a fair inference that she would continue to endure such suffering for some considerable time in the future. As there was nothing about this case to warrant a suspicion that it was a fake lawsuit, it could not be presumed that plaintiff would make an instantaneous recovery from her ailments the moment the jury retired to consider their verdict. Moreover, the record does not show that this particular point was raised at the trial, in which situation the rule announced in Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 798, applies. It was there said:
“Where an instruction to the jury was given during the trial of a case and no objection to it or request for its modification was made, and the instruction correctly stated the law, it is too late to raise the question that the instruction was not warranted by the evidence for the first time on an appeal to this court.” (Syl. IF 4.)
The next error complained of relates to the giving of instruction No. 34, which reads:
“In answering these special questions, you are not to consider what effect your answer to any one or all of the special questions will have upon your general verdict, as that is a question for the court to determine.”
Defendant contends that by giving this instruction—
“The court suggested to the jury that the answer by the jury of any one or all of the special questions submitted might have an effect upon the general verdict.”
In support of this contention cases are cited where we have held that it is error to charge the jury that they should make their answers to the special questions harmonize with the general verdict. Here, however, we are asked to say that it is error for the trial court to instruct the jury that they should not consider what effect their answers to special questions would have on their general verdict. No case is cited, and we may be permitted to doubt if any exists, which carries this point to such an extremity. The error predicated on instruction No. 34 cannot be sustained.
It is finally urged that the verdict was excessive. It was for $4,-000, and its constituent items were shown in a special finding thus:
“Question No. 10: What amount of damages did you allow plaintiff for: (A) Medical attention and expense? A. $51. (B) Permanent injuries? A.(C) Pain and suffering? A. $3,724. (D) Damage to automobile? A. $200. (E) Loss and impairment of ability to perform household services? A. $25.
“Joe Lafayette, Foreman.”
As we have so often said, error based on a claim that the verdict is excessive is difficult for an appellate court to review. (Ellis v. Kansas City Public Service Co., 131 Kan. 555, 559-561, 292 Pac. 939; Shrout v. Bird, 135 Kan. 218, 9 P. 2d 673.) Here it was shown that plaintiff, 39 years old, before the accident giving rise to this action was strong and able to do her own housework and enjoyed excellent health. In the collision she was thrown to the top of her automobile, then jammed down between the seat and the dashboard and stunned; a lump the size of a hen’s egg was formed on her head; her neck was severely twisted; her shoulder and arm were wrenched and bruised; her abdomen bruised; her back and hip wrenched and bruised; her right leg cut in two places. Her nervous system received a severe shock from which she was recovering but slowly when the trial took place some eight months after the accident. The twisting of her neck was peculiarly painful and for about three months prevented her from talking above a whisper. She continued to suffer from headaches, menstrual irregularities and sleeplessness at the time of the trial, and at that time, also, it pained her to talk above a whisper. Without summarizing the evidence showing the extent of plaintiff’s injuries at greater length, it must be quite apparent, we think, that the record presents nothing this court can lay hold of to justify a remittitur, nor does it vindicate defendants! contention that error inheres in the size of the verdict or in the judgment based thereon.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a promissory note. Judgment was for plaintiff. Defendant appeals.
The petition prayed for judgment on the note for $484.20. Defendant filed an answer and cross petition. The cross petition alleged that the defendant had entered into an agency contract with plaintiff whereby the plaintiff agreed to pay defendant twenty per cent commission on all combines and other farm machinery sold through the agency of defendant and paid for in cash at the time of the delivery. The cross petition alleged further that two combines had been sold by plaintiff through the agency of defendant for $1,000 each; that defendant should have been allowed $200 commission each on these combines and that defendant was only allowed $80 commission on one combine and $79 commission on the other. Defendant alleged that on this account plaintiff was indebted to defendant in the sum of $241. Defendant made other allegations in his cross petition which are not of interest here. In answer to these allegations in the cross petition plaintiff admitted the agency contract and the sale of the combines for $1,000 each, but alleged that the contract provided that commissions on all goods sold should be calculated on the list price and that all discounts, including cash discounts allowed a purchaser, should be charged against the commission. The answer further alleged that the full list price of the combines sold was $1,150 each; that $150 was deducted from the sale price of each combine and the same amount was deducted from the commission due defendant and that this left due defendant $80 on one combine and $79 on the other, the difference being $1 exchange for a bank draft drawn on defendant.
To this answer of plaintiff to the cross petition defendant filed a reply denying that the plaintiff rightfully deducted from the commission of the defendant on the sale of each of the combines mentioned the sum of $150 and alleging that if there was a deduction or discount made by said plaintiff it was without the knowledge or consent of defendant.
With the pleadings so framed the jury answered special questions as follows:
“1. At the time of the sale of the Bailey and Smith combines did J. I. Case Company have a fixed, printed or written ‘list price’ for these two machines; or do you find that the list price of these two machines was a price fluctuating to correspond with the conditions- of each individual sale to be determined by the J. I. Case Company at the time the transaction took place? A. Yes, J. I. Case Company has a fixed and printed ‘list price.’
“2. What was the list price of the Bailey and Smith machines? Bailey $1,150. Smith $1,150.
“3. Did the defendant know of, authorize or consent to a discount on either of the machines sold to Bailey or Smith? A. Yes.”
Judgment was entered accordingly.
On appeal defendant argues that these findings and judgment were contrary to the evidence.
After some general statements the manager of the defendant testified as follows:
“That the representative of the plaintiff, Elder, advised Sinning that sales price of the machines was $1,000.
“Q. At that time was the amount of commission credited to you explained by Chadwick? A. He said they cut the price on the machine and we had to stand the cut.
“Q. Did he tell you the list price on the combines? A. He did not.
“Q. Have you ever, up to this time, heard or learned the list price on the ten-foot combines? A. No, sir, don’t know what they are to-day.
“Q. You took part in the deal only with the knowledge received from Elder they might be sold for $1,000? A. Elder,.Roberts and Lockley, your men.”
A witness for plaintiff testified as follows:
“Q. I hand you plaintiff’s Ex. A, and ask you to state what that is. A. It is a price list of secondhand machinery at our branch in Kansas City dated Feb. 2, 1928. It was a list covering secondhand machinery which we had offered for sale.
“Q. At the time that list was made up, Feb. 2, 1928, was the defendant company a dealer of the plaintiff company? A. They were.
“Q. What was the purpose of making up that list? A. To give our dealer the list price of secondhand machinery we had for sale.
“Q. What did-you do with that list? A. It was mailed to all of our dealers, including our salesmen.
“Q. Who has charge or supervision over mailing out these secondhand price lists? A. Myself.
“Q. Do you know now that a copy of that list was mailed to the Sinning Brothers Motor Company? A. It was mailed to all of our dealers.
“Q. I hand you plaintiff’s Ex. B, and ask you to state what it is, if you know. A. It is a cash-sale report.
“Q. On account of what transaction? A. L. C. Smith, covering the sale of a combine.
“Q. To whom was the order for that cash sale reported? A. It was mailed to the dealer through whom the machinery was sold.
“Q. The Smith machine was sold by the defendant company as plaintiff’s dealer? A. Yes.
“Q. Do you know whether or not the order was mailed to the Sinning Brothers Motor Company? A. I did not see it mailed, it was sent to all our dealers.
“Q. I hand you plaintiff’s Ex. C, and ask you to state what that is. A. A cash sale report.
“Q. On account of what transaction? A. The sale of a combine to H. L. Bailey.
“Q. Was that a transaction for which the defendant company was entitled to a commission credit? A. Yes.
“Q. The original of that is supposed to have been mailed to the party entitled to that credit? A. Yes.”
Defendant argues that because this witness could not testify specifically that he mailed the various documents in question there was no evidence that they were mailed.
In the modern manner of carrying on business where there are thousands of letters sent out every day testimony that a particular piece of mail was put into the routine of being mailed is sufficient evidence that it was mailed without producing an employee of the company who can testify that it was dropped into the mail box. (See Ennis-Baynard Petroleum Co. v. Plainville Mill & Elevator Co., 118 Kan. 202, 235 Pac. 119; also, Prescott, Wright, Snider Co. v. City of Cherryvale, 134 Kan. 53, 4 P. 2d 457.)
We think there is sufficient evidence in this record to sustain the judgment.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an. action for a sum claimed to be due for merchandise sold. The'jury answered special questions and returned a verdict for defendant. Plaintiffs have appealed.
The facts disclosed by the record are not seriously in dispute and may be stated as follows: The defendant, O. P. Barker, is a retail merchant at Wichita doing business under the name of the Barker Hardware and Furniture Company. The New Home Sewing Machine Company, of Rockford, 111., and the Free Sewing Machine Company are subsidiaries of the Consolidated Industries, Inc. The plaintiff W. H. Diehl is comptroller of Consolidated Industries, Inc., and the plaintiff W. E. Stauffer is auditor of the Free Sewing Machine Company. They devote practically all business hours to their positions of comptroller and auditor, respectively. The two individuals constitute a partnership known as Merchants Securities Company, purchasing accounts and securities, and are plaintiffs in this action. About May 23, 1930, one R. E. Banks went to defendant’s store and represented to him that he was state supervisor and general salesman for the New Home Sewing Machine Company and talked about selling sewing machines. As a result of his talk with defendant two instruments in wilting were executed practically at the same time, one a few minutes before the other. We set them out in the order of their execution.
“Memorandum Agreement.
“City: Wichita. State: Kansas. Date: 5-24-30.
“This is to certify that the undersigned dealer has purchased of the New Home Sewing Machine Company 10 New Home sewing machines upon their regular terms, 2 per cent discount in 30 days, 6 mo. net, with the understanding that the state supervisor will furnish one (1) or more salesmen to assist the undersigned dealer in selling machines under the following conditions:
“1. The net retail price and maximum old machine allowance are to be arranged and agreed upon by the dealer and the state supervisor. Net retail $175. Old machine $25.
“2. The dealer is to pay the retail salesman 20 per cent commission on the net retail price received after the old machine allowance given has been taken off. $7 from each sale held in reserve.
“3. If for any reason the salesman makes a greater allowance for an old machine than the maximum old machine allowance agreed upon by the dealer, the excess allowance is to be charged against the retail salesman’s commission by the dealer, and is to be deducted at time of settlement. It is further agreed that the old machines at all times are to be the property of the salesman.
“4. It is further agreed that stands and portable machines may be sold on terms as low as $5 down and $5 per month, if salesman is compelled to do so. On the console electric machines terms are not to be less than $10 down and $10 per month.
“5. The undersigned dealer agrees to pay the retail salesman each Saturday night his commission in full on all machines sold during the week.
“6. Sales at all times are made subject to the approval of the undersigned dealer. “Signed: Barker Hdwe. & Furn., Dealer.
O. P. Barker.
“Signed: R. E. Banks, State Supervisor.
E. H. Wodd, Salesman.
“Will take up all machines in the original crate in sixty days unsold and give credit for same at invoice prices. R. E. Banks.”
“New Home Sewing Machine Co.
1902-60 Eleventh St., Rockford, 111.
Dated 5-24-30.
“Ship to Barker Hdw. & Fur. Co.; Town, Wichita; State, Kansas.
“Ship by freight. Ship F. O. B. Orange, Mass., or Rockford, 111.
New Home Electrics. Price per
Quan. Style. Round bobbin. Finish. machine. Quan.
8 K40M Colonial desk with light, sit straight.... Walnut only...... $66.85 $534.80
2 K54M Windsor Consolette, light, sit straight... Walnut only...... 74.00 148.00
2 K112M Portable with light................... Walnut only...... 51.00 102.00
“Terms: Net 60 days: 2 per cent for cash in 30 days from date of invoice f. o. b. shipping point.
“If further time is desired we (or I) agree to give note or notes with accompanying order, or upon receipt of invoice. (With interest at 6 per cent per annum, 60 days from date of shipment.)
“Due six months net.
“It is understood that no conditions agreed to by any solicitor or agent and not embodied herein will be in any way binding on the New Home Sewing Machine Company, and it is understood and agreed that the New Home Sewing Machine Company shall not be in any way liable under any separate or collateral agreement made between the undersigned and solicitor or agent.
“Salesman: Banks.
Signed: Barker Hdwe. & Furn.
O. P. Barker."
These appear to have been executed in duplicate and one each left with the defendant. Banks stated he would send the others to the New Home Sewing Machine Company. On May 29, 1930, the New Home Sewing Machine Company shipped the sewing machines to defendant. He received them and paid the freight on them, amounting to $22.43. On June 2, 1930, the New Home Sewing Machine Company made up a statement of its account with defendant and assigned the same to plaintiffs for a consideration of $753.40, which plaintiffs paid by check. On June 5 the New Home Sewing Machine Company wrote defendant advising him that his account represented by the invoice of May 29 had been discounted with the Merchants Securities Company, 505 Manufacturers National Bank Building, Rockford, 111., and when the invoices matured for payment please to remit direct to the Merchants Securities Company. Under date of June 7, 1930, the Merchants Securities Company wrote defendant:
“Under date of June 2 your account with the New Home Sewing Machine Company for 8784.80 was purchased by us. This covers the New Home Sewing Machine Company invoice dated May 29, 1930, ... In accordance with the wording of the contract we are inclosing a note ready for your signature. Please sign and return promptly.”
Under date of June 9, 1930, defendant’s attorney wrote the New Home Sewing Machine Company:
“On the 24th day of May, 1930, your state supervisor and agent, R. E. Banks, made and entered into an agreement with Barker Hardware and Furniture Company, with which said agreement you are familiar. The covenants and stipulations in said agreement contained have been violated, particularly with reference to furnishing a salesman to distribute said sewing machines. You are hereby notified and will take notice that the Barker Hardware and Furniture Company and/or O. P. Barker rescinds said contract and will treat same as a nullity in the future. We are holding the machines . . . subject to orders from you. . . . This letter will also serve as an answer to your letter of June 5, 1930, advising you had discounted this account with the Merchants Securities Company of Rockford, 111. Although you are no doubt familiar with this fact, you are advised that under date of June 7, 1930, the last-mentioned company forwarded a promissory note for the signature of Mr. Barker advising that they were now the owner of said account. We suggest that if these machines are now the property of the Merchants Securities Company that you adjust the matter with them immediately.”
Under date of June 17 the New Home Sewing Machine Company wrote defendant’s attorney:
"Replying to your letter of June 9, please advise immediately what agreement is referred to in your first paragraph. Do you mean to state that a separate written agreement was entered into in addition to the purchase contract? If so, please let us have a copy of this agreement at once, as this office knows nothing of it.”
On June 26 defendant’s attorney forwarded to the New Home Sewing Machine Company a copy of the contract and again asked what disposition it wished made of the machines. On July 3 the New Home Sewing Machine Company wrote defendant’s attorney:
“Replying to your letter of June 26, you are referred to the clause on the bottom of the two purchase contracts dated May 24, directly under which is the signature of the Barker Hardware and Furniture Company, O. P. Barker:
“ ‘It is understood that no conditions agreed to by a solicitor or agent and not embodied herein will be in any way binding on the New Home Sewing Machine Company, and it is understood and agreed that the New Home Sewing Machine Company shall not be in any way liable under any separate or collateral agreement made between the undersigned and solicitor or agent.’
“We cannot understand why the Barker Hardware and Furniture Company was so unfair to the New Home Sewing Machine Company as to enter into a private agreement with the salesman. If we had known any such agreement existed we would have declined to ship the machines.
“There is nothing further we can do in the matter, however, as we no longer own the account. We wash our hands of the whole unpleasant business.”
On July 7,1930, plaintiffs wrote defendant’s attorney:
“Any dispute you may have with the New Home Sewing Machine Company is, of course, no concern of the Merchants Securities Company. We do not care to enter into the matter. Payment will be expected,” etc.
On August 6, 1930, the Merchants Securities Company wrote defendant the account was due and payment should be made, but if he preferred to take advantage of note settlement he would find a note inclosed. On August 26 plaintiffs wired defendant that they would draw a draft on him within five days if the account were not paid. On September 4 the draft was drawn and a letter written defendant advising him of that fact. The draft was not paid.
On August 15 the New Home Sewing Machine Company wrote defendant’s attorney:
“A copy of your letter of August 9 to the Merchants Securities Company has just been received. We are wondering just how many notices your clients require to convince them that solicitors for the New Home Sewing Machine Company have no authority other than to take orders subject to acceptance or rejection of the home office. Mr. B,. E. Banks went on vacation June 28. We have not heard from him since. . . . We regret very much the unpleasantness of the situation, but we cannot see that the Barker Hardware and Furniture Company have anyone but themselves to blame for it.”
Under date of August 14 plaintiffs wrote defendant’s counsel, replying to his letter of August 9:
“. . . You will refer to our letter of July 7, in which we plainly stated that we cannot enter into any dispute you may have with the New Home Sewing Machine Company. The account is now past due, and we must insist upon immediate remittance. . . . We do not know Mr. Banks, excepting that he was a solicitor for the New Home Sewing Machine Company. He certainly has no connection with the Merchants Securities Company. . . .”
Plaintiffs predicated their action on the order for the machines executed by defendant and its assignment to them. Defendant in his answer undertook to plead two defenses: (1) That he had been induced to execute the order by the fraudulent representations and agreements of Banks, the general agent of the New Home Sewing Machine Company; and (2) that under the facts pleaded the two instruments — the memorandum agreement and the order for the machines — should be construed together as embodying the contract of the parties.
As respects the agency of Banks, defendant alleged that he was a general agent for the New Home Sewing Machine Company. Plaintiffs in reply denied that Banks was a general agent and alleged that he was soliciting agent only, whose orders solicited had to be approved by the New Home Sewing Machine Company before they were binding, and that he had no authority to do anything other than take orders. When defendant’s counsel wrote the New Home Sewing Machine Company on June 9, referring to R. E. Banks as “your state supervisor and agent,” the reply of the New Home Sewing Machine Company of June 17 did not deny that relation. There is evidence that R. E. Banks was in the employ of the New Home Sewing Machine Company from about April 9, 1930, until he “went on his vacation, June 28.” The contract between him and the New Home Sewing Machine Company is dated April 9, 1930, it fixed territory in which he was to travel, which we assume included Wichita, Kan., since no one contends it did not, and contained, among others, this provision:
“Second party (R. E. Banks) shall solicit orders for sewing machines only at such prices and upon such terms as may be from time to time authorized in writing by first party, and shall offer the prospective purchasers only such inducements to purchase as first party may from time to time in writing authorize, and shall at all times conduct his solicitation of orders so as to fully comply with first party’s instructions.”
The first party reserved the right to accept or reject any orders, and — •
“. . . it is specifically understood and agreed by and between the parties hereto that second party is a traveling solicitor only for first party, who shall solicit orders for sewing machines; . . . that second party is without authority to bind first party by his statements or writings, and that under no circumstances whatsoever shall second party make a contract or agreement, oral or written, that shall purpose to bind first party.”
It does not appear defendant knew anything of this contract until it was produced in court, but it should be noted that by its terms the first party might, in writing, authorize the second party to make “inducements to purchase.” We find no evidence in the record as to whether the New Home Sewing Machine Company had authorized Banks to make, as an inducement to purchase, the memorandum agreement which he did make with defendant. There is no evidence he had not been so authorized.
Defendant had a cross petition for freight paid and storage charges, but since the jury allowed him nothing on that, and there is no cross appeal, we give it no attention.
Neither R. E. Banks nor the New Home Sewing Machine Company, or anyone acting for it, seriously undertook to carry out the memorandum agreement with respect to the sales campaign or taking up the uncrated machines in sixty days.
Special questions were submitted to the jury and answered as follows:
“No. 1. Did the agent and salesman of the New Home Sewing Machine Company, for the purpose of obtaining the written order sued upon, from the defendant, represent to him that he would sell the certain sewing machines? A. Yes.
“No. 2. Were said sewing machines so sold? A. No.
“No. 3. Did defendant rely on the fact that said machines were to be sold in the signing of said order? A. Yes.
“No. 4. Did Banks represent that he had authority to make the written contract in question? A. Yes.
“No. 5. Did defendant rely on said representations? A. Yes.
“No. 6. Did defendant have any knowledge of any limitation on Banks’ authority? A. No.
“No. 7. Under all the circumstances, did the defendant have reasonable cause to believe Mr. Banks had authority to bind his employer the New Home Sewing Machine Company to the terms of the contract executed by the defendant and Mr. Banks, defendant’s exhibit A? A. Yes.
“No. 8. If you answer the foregoing question in the affirmative, then state in detail the circumstances and facts which you find justified the defendant in so believing. A. We, the jury, find that Mr. Banks was an authorized agent of New Home Sewing Machine Company and had all reasons to believe same.”
We have been furnished an exceptionally well-written brief for appellants. The several points relied upon for reversal are clearly stated and argued, and numerous authorities are cited, all of which we have examined. The points argued, however, all center about and depend upon the one main contention made in the case, namely, that defendant is irrevocably bound by the order which he signed, because it contained this clause:
“It is understood that no conditions agreed to by any solicitor or agent and not embodied herein will be in any way binding on the New Home Sewing Machine Company, and it is understood and agreed that the New Home Sewing Machine Company shall not be in any way liable under any separate or collateral agreement made between the undersigned and solicitor or agent.”
It is argued this clause was printed in clear type directly above defendant’s signature; that he had an opportunity to read it; that if he did not do so it was his own fault. Defendant testified in substance that he did not give the wording of the order of the machines much attention and that he was induced to execute the order by the representations made by Banks and embodied in the memorandum agreement. The New Home Sewing Machine Company, having obtained the order containing this clause signed by the defendant, and having assigned it to another unit of its business group, concluded to wash its hands of the whole unpleasant matter; and plaintiffs, having procured the assignment of the order, declined to take any interest in any quarrel which defendant had with the New Home Sewing Machine Company. Are these parties under the facts in this case justified in taking such a position?
We first observe that this order for the machines is not a negotiable instrument. It was assigned to plaintiffs — not negotiated to them free from defenses — hence plaintiffs are in no better position to maintain this action than the New Home Sewing Machine Company would be.
Much is said in the argument about the limitations of the authority of R. E. Banks as agent for the New Home Sewing Machine Company. It is clear he was the agent of the seller, not the agent of the buyer, hence the representations he made in order to effect the sale were made for and on behalf of the seller. Plaintiffs contend that the memorandum agreement was never forwarded by Banks to his principal. If so, that dereliction was not one for which the defendant is responsible. The seller must stand such inconvenience or loss as resulted therefrom. The evidence sustains the jury’s finding that in dealing with defendant Banks was the authorized agent of the New Home Sewing Machine Company.
It is argued that Banks was a soliciting agent only, and that the contract of purchase was not complete until it was accepted at the home office. There is nothing on the order for the machines to indicate that it required acceptance at the home office. On this order Banks was designated as salesman. Defendant was justified in believing that the entire contract for the purchase of machines was being made with Banks as “salesman” and “state supervisor” of the seller and that all the things agreed upon by them and reduced to writing constituted their contract. It is true that in the contract between the New Home Sewing Machine Company and R. E. Banks, the terms of which were unknown to defendant, Banks was designated as solicitor to take orders and report them to his principal for approval. But even in that contract Banks was authorized to make such “inducements to purchase” to a buyer as his principal directed, and it is not negatived by the evidence in this case that he had been directed to make the inducements to purchase which he did in fact make to the defendant.
On the point of the principal being bound by any dereliction of its agent in reporting the contract made with the purchaser, this case is much like that of White Sewing Machine Co. v. Edwards, 120 Kan. 151, 242 Pac. 129. There a proposition had been made to send help to sell the machines if an order were given, and the purchaser insisted on having written in the contract the agreement relating to this point. The agent wrote it in the copy left with the buyer, but not in the one he sent to his principal, but he succeeded in getting both signed by the buyer. It was held the seller could not recover. To the same effect were Shook v. Manufacturing Co., 75 Kan. 301, 89 Pac. 653; Hart v. Haynes, 96 Kan. 262, 150 Pac. 530; Advertising Co. v. Smalley, 101 Kan. 645, 168 Pac. 677; and Manufacturing Co. v. Scranton, 116 Kan. 93, 225 Pac. 731.
It is argued no fraud was shown in the case. But can that reasonably be said? Considering all the facts disclosed by the record in this case, details of which need not be restated, fair-minded jurors and the trial court should not be criticized if they reached the conclusion that this entire selling scheme was conceived in fraud, which plaintiffs are aiding by seeking to enforce the collection of the account. Even written contracts may be so drawn and used as to be indicative of fraud. See Yates v. Sugar and Land Co. et al., 117 Kan. 405, 414, 231 Pac. 1034; S. Pearson & Son v. Dublin Corporation, 1907 A. C. (House of Lords) 351. It was not error for the court to instruct the jury on this point of the case, and the special findings of the jury relating thereto are supported by the evidence.
But, passing that — since R. E. Banks was the agent of the New Home Sewing Machine Company for the purpose of negotiating with defendant for the sale of the machines, whatever he did in ■that respect was the same as though it were done by the company itself, and the two instruments executed at that time must be re garded as embodying the contract of the parties. (Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793; Hudson v. Riley, 104 Kan. 534, 180 Pac. 198; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594.) Since there was no substantial effort made by the seller to comply with the provisions of the contract on its part with respect to sales to be conducted, defendant was justified in rescinding. This he did with reasonable promptness.
There was no material error in the admission of evidence or in the instructions of the court.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover on an indorsement on municipal bonds. Judgment was for defendant. Plaintiff appeals.
The bonds were deposited by defendant with the insurance commissioner. At the time they were deposited the following statement was put upon them:
“This bond is our property. National Reserve Life Ins. Co. — Geo. Godfrey Moore, Pres, or Vice Pres., and is not transferable without our indorsement below, executed by the president or vice president and secretary or treasurer.”
The words “Geo. Godfrey Moore” were written with a pen. The-rest was printed.
When the bonds were withdrawn from deposit and sold the following was written beneath the words already described:
“Geo. Godfrey Moore, President.
“I. G. Hayter, Treasurer-Secretary.”
In the course of trade the bonds reached the hands of plaintiff. The city of Frontenac made default in payment and this action followed.
Aside from the question of the custom of insurance companies in putting a statement of this kind on bonds that are deposited with the state, which question is not of interest to us here, there was no dispute as to the facts.
The theory upon which plaintiff seeks to recover is that the bonds are negotiable instruments and the writing of the names last described in this opinion constituted an indorsement of the instruments just as in the case with a promissory note and made defendant liable as an indorser.
Defendant contends that the entire statement was put on the bonds under the terms of R. S. 52-1801 and that the words which plaintiff seeks to construe as an indorsement really only served to restore the quality of negotiability to the bonds and did not operate as an indorsement.
R. S. 52-1801 is as follows:
“The owner or holder of any corporate or municipal bond or obligation (except such as are designated to circulate as money, payable to bearer), heretofore or hereafter issued in and payable in this state, but not registered in pursuance of any state law, may make such bond or obligation, or the interest coupon accompanying the same, nonnegotiable, by subscribing his name to a statement indorsed thereon, that such bond, obligation or coupon is his property; and thereon the principal sum therein mentioned is payable only to such owner or holder, or his legal representatives or assigns, unless such bond, obligation or coupon be transferred by indorsement in blank, or payable to bearer, or to order, with the addition of the assignor’s place of residence.”
The plaintiff points out R. S. 52-604, which is as follows:
“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”
It then argues that when the signature of appellant was placed on the bonds in question it was bound as an indorser because it did not clearly indicate by appropriate words its intention to be bound in some other capacity.
The signature, by which it is sought to charge defendant as an indorser, must be considered along with the statement on the bonds to which it was attached. When plaintiff bought the bonds bearing the so-called indorsement it took them charged with notice of the statement. When this statement is examined, it is manifest it was put there for one purpose and one purpose only and that was to make the bonds nonnegotiable instruments so that they could only be transferred by having the signature affixed.
An examination of R. S. 52-1801 makes it plain that this was the purpose of putting the statement on the bonds in the first place. The statute provides that the owner of municipal bonds might make them nonnegotiable by doing the very thing that was done to these bonds. No argument is made and also no reason appears why the statute is invalid. Hence, we conclude that the statement appearing on the bonds did make them nonnegotiable.
Since this is the case, what was the effect of attaching the signature of defendant to the bonds when they were later sold? Having once put the statement on the bonds defendant could only sell them by attaching the signature, as provided in the statute. Manifestly no one would buy them without the signature. This signature was not intended to bind the defendant in any way. It was only affixed for the purpose of making the bonds payable to others than defendant or its. legal representatives. This was simply completing the statement that had been placed on the bonds in the first place. The bonds were not negotiable instruments when the signature was affixed. They had been made nonnegotiable by putting the state ment described on them. Some act was needed to take away the effect of this statement. This act was the signature described. It cannot be said that the same signature could operate to restore negotiability to the bonds and also be an indorsement.
This was the conclusion reached by the trial court and we see no reason for disturbing it.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a tenant of rooms on the second floor of a building, for personal injuries sustained because of failure of defendants to light a stairway furnishing means of access to the rooms. A demurrer to the petition was sustained, and plaintiff appeals.
Defendants were owners of adjoining lots on each of which stood a two-story brick building. The upper stories of the buildings were reached by a common stairway. The rooms of the upper stories were reached from the head of the stairway by a common hallway. The stairway was lighted by an electric light, the switch for which was in the ground floor room of the Tobias building, and for many years the practice had been to turn on the light at dusk of each day. Plaintiff conducted a dressmaking establishment in upstairs rooms of the Holmes building. On the evening of November 3,1930, plaintiff closed her rooms for the purpose of descending to the street. It was dusk outside the building, and was dark in the hall and stairway. The petition contained the very illuminating statement that the “stairway was dark owing to the fact that said stairway was not lighted,” and proceeded as follows:
“That said stairway was not lighted because of the fact that the defendants, and each of them, had failed, neglected and refused to cause said stairway to be lighted. That said plaintiff proceeded with due care and as cautiously as she could, but owing to the negligence and carelessness of the defendants, and each of them, in failing to light the stairway, stumbled at or near the top step of the stairway, and fell the length of the same and almost to the street below."
It will be observed the petition alleged defendants “failed, neglected and refused to cause the stairway to be lighted.” Refusal to light the stairway implied the electric light was not functioning, demand or request for light and refusal to furnish it. Such an interpretation of the petition would involve it in a confusion of theories of liability which evidently was not contemplated by the pleader, since cause of the accident was later definitely stated to be failure to light the stairway.
The petition did not state facts apprising defendants of the nature of the charge against them. There was no allegation of defect in the lighting apparatus, whether in the switch, the connection with the lamp, or the lamp itself, and there was no allegation that the light was not turned on as usual at dusk of the day of the accident. In her brief plaintiff enlarges on the petition, and says the building in which the switch was located was undergoing repair, and the light was out of commission. The petition, however, left defendants in total darkness with respect to what they did or what they omitted to do which caused the harm to plaintiff.
Defendants sought light on the nature of their fault by motion to make the petition more definite and certain. The motion was that plaintiff be required to state how long the stairway had not been lighted. The journal entry recites that plaintiff opposed the motion, declined to confess it, and the court overruled it.
As indicated, no facts were stated in the petition to show the switch was not turned as usual on the day of the accident, or to show the light did not function when the switch was turned, or to show the light went out or was put out of commission through act or omission of defendants. All the petition said was, defendants negligently failed to light the stairway. While defendants had assumed the duty of lighting the stairway, the duty was not absolute. They were bound only to exercise of reasonable care.- If the light went out, or was put out, without fault of defendants, as, for example, by wrongful conduct of a contractor repairing the building, defendants would be subject to liability only if, by exercise of reasonable care, they could have discovered the condition and could have remedied the condition before the accident occurred. The time when cause of plaintiff’s harm — failure to light the stairway— occurred, was therefore an important fact bearing directly^upon the blind charge of negligence, of which defendants should have been informed. With knowledge of when the cause of injury occurred, they might fortify against responsibility for consequences.
Plaintiff did not take the position she did not know when failure to light the stairway occurred, and offer to amend accordingly. She simply resisted the motion, and procured it to be denied. She thereby elected to stand on the naked facts appearing in her petition, which were to the following effect: Defendants were under obligation to light the stairway; there was no light; because there was no light, plaintiff was injured. This is the position taken by plaintiff in her brief:
“It seems to us clear that where the landlord has maintained lights or a light in his upstairs hallway for the protection, convenience and guidance of his tenants, and those visiting his tenants, it then becomes his manifest duty to maintain the light in proper condition. In the case at bar this was a jointly owned hallway, and the joint obligation rested upon both the appellees, defendants in the lower court, to so maintain the lighted hallway.”
The correct standard of liability is stated in section 231 of the Restatement of the Law of Torts, which reads:
“Section 231. A possessor of land, who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land in the right of the lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved therein, and (b) could have made the condition safe.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by devisees under the will of James Anderson, deceased, against his son, J. Richard Anderson, and his son’s wife, Jean, for possession of a tract of land, for rents and profits, and for partition. As an incident to recovery plaintiffs sought to set aside a deed of the land made by James to Richard and Jean while James was, and was known by the grantees to be, mentally incompetent to convey. One of the devisees who did not join with plaintiffs was made a defendant. Judgment was rendered for defendants on the pleadings and opening statement of counsel for plaintiffs, and plaintiffs appeal.
On February 8, 1911, James Martin, then owner of the land, conveyed it by general warranty deed to James Anderson and J. Richard Anderson, their heirs and assigns. The consideration for the conveyance was $13,000. The petition alleged that James paid $4,300, Richard paid $2,200, and the vendees gave the vendor a note secured by mortgage for $6,500. When this note fell due James paid $4,500 Tn cash and James and Richard paid $2,000 in cash, which they borrowed and secured by a new mortgage. This mortgage was subsequently assigned to Jean, wife of Richard, who now holds it. The indebtedness secured has not been paid and is not contested.
A preliminary question relates to quantity of'interest in the land which James acquired and which he could subsequently devise. The petition alleged Richard owned a one-fifth interest and the devisees of James owned a four-fifths interest. This conclusion is derived in the following way:
There are decisions that it is presumed the grantees in a deed to A and B and their heirs take in equal proportions. The presumption is rebuttable. If it be shown they contributed unequal amounts, another presumption arises — a presumption that they take interests in proportion to their contributions. (See Lowell v. Lowell, 185 Ia. 508, and cases cited in the opinion.) In this instance a total of $11,000 was paid in money on the purchase price of the land. At the time of purchase James paid $4,300. Afterwards he paid $4,500 on the mortgage, making $8,800 in all. Richard paid $2,200 at the time of purchase and has paid no more. Therefore it is contended James owned four-fifths and Richard one-fifth.
The purchase-money mortgage for $6,500 was paid in full in cash on January 15, 1918. As indicated James paid $4,500. The remainder was borrowed from R. W. Tuck on a note for $2,000, signed by James and Richard and secured by a mortgage on the land in which they both joined. The question obtrudes, What interest did James have and what interest did Richard have from February 9, 1911, the date of the deed to them, until January 15, 1918?
The whole interest of vendor Martin passed from him by virtue of his warranty deed to his vendees. James paid $4,300 in cash, and Richard paid $2,200 in cash. On the theory of interest in proportion to cash contribution to price, James “presumptively” received by the deed 43/65 and Richard 22/65. Therefore, until January 15, 1918, James and Richard “presumptively” owned in approximately the proportion of two-thirds to James and one-third to Richard.
On plaintiffs’ theory on January 18, 1918, something happened to ownership of the land. James and Richard took up the $6,500 mortgage. James paid $4,500 in cash. So, “presumptively” James’ share rose to four-fifths and Richard’s share fell to one-fifth.
The original mortgage was taken up by cash furnished by James and by cash borrowed from Tuck on a note secured by mortgage in the sum of $2,000. If when that mortgage fell due Richard had paid it, “presumptively” a $2,000 interest in the land held by James would have left him and gone to Richard.
The court cannot agree that after land has been conveyed to A and B and their heirs, quantity of interest shall be determined by subsequent contributions made through a period of years, first by one and then by the other, on presumptions bobbing up with each cash payment, causing agile interests to hop from one coowner to the other.
Going back to the beginning, why should interests be determined by the circumstance that one vendee paid more of the cash part of the consideration than the other? This land was not purchased for cash. One-half of the consideration was paid to vendor Martin by the joint note of James and Richard for $6,500 secured by their joint mortgage of the land. Under the law of this state, each maker of the note was severally liable for the full amount. By signing the note, Richard contributed just as much to $6,500 of the consideration as James contributed. If one subsequently paid the note or paid more than half the note, he might claim contribution from his comaker, but, as indicated, it overworks the fiction called “presumption” to say ownership was changed.
Adopting the theory of interest in proportion to contribution, by means of the joint note and mortgage for half the consideration James and Richard each bought a one-fourth interest in the land. Adding this to the proportion each obtained by the unequal cash payments, James got a total of 151/260 interest and Richard got 109/260. The same result would follow if, instead of giving the mortgage, each purchaser had paid $3,250 more in cash than he did pay. Such a result would have, without doubt, been very astonishing to James and Richard when, manifestly, all that happened was they bought a farm together, and James, having more ready cash than Richard, advanced the larger portion of the cash payment.
Proof of the fact that at the time of purchase vendees contributed unequal sums in cash is not proof that they took or intended to take in that proportion. The proof merely shows one paid more cash than the other. For example, land is deeded to A and B and their heirs and assigns. In the deed they assume and agree to pay a mortgage already on the land securing payment of a large sum. The vendor has only a small equity in the land. Besides assuming the first mortgage, the vendees give a note secured by a second mortgage for part of the consideration and pay the remainder, a small sum, in cash in unequal proportions. Inequality of the cash contribution is purely adventitious, means nothing with respect to what interests the grantees take, and imposition of a presumption they take in unequal proportions is arbitrary and unwarranted.
This is not an equitable action for an accounting and final set tlement of business affairs between James and Richard in which the court might, if deemed necessary or proper, secure any balance due James by a lien on Richard’s interest in the land. The land was purchased in 1911. James lived seventeen years after the purchase. An accounting between James and Richard for what occurred in 1911 was legally barred by the statute of limitations, was stale in equity, and the action was one of ejectment brought by purchasers from James, taking by will, to establish and recover the share of the land James acquired by the deed to himself and Richard.-
As a matter of fact, there is neither necessity nor basis for invention of a “presumption” respecting what interests the deed to James and Richard conveyed. The deed was a written instrument manifesting the intention of the parties. Its interpretation was a matter for the court. When interpreted the deed had an effect pronounced by law. The instrument made no discrimination between James and Richard, and the legal effect was they took equal interests.
If James and Richard had executed an agreement in writing that, notwithstanding the terms of the deed, they should hold in unequal proportions, that agreement would, of course, control. Otherwise James could establish a larger interest than Richard only pursuant to the statute of trusts. If James paid all the consideration and took title in Richard, no use or trust would result in favor of James, but title would vest in Richard. (R. S. 67-406.) Title having been taken in James and Richard, Richard would not, without more, hold his undivided one-half interest in trust for James for the excess of James’ advancement, but title would vest in James and Richard in equal proportions. However, it might be shown that, by agreement made without fraudulent intent, one held an interest in the land in trust for the other who paid a larger part of the consideration. (R. S. 67-408.) Without such an agreement no trust arises when one of two grantees pays more than one-half of the consideration for the conveyance.
“An allegation that one spouse contributed almost the entire purchase price of a tract of real estate which was taken in the name of both of them is not sufhcient to create a trust in the real estate in favor of the spouse who contributed most of the purchase price in the absence of an allegation that there was an agreement that the one who contributed the least should hold this undivided one-half in trust for the other.” (Pricer v. Simonton, 134 Kan. 211, 5 P. 2d 835, syl. ¶ 3.)
In this instance, the petition was amended several times. The last amendment was that there was an unwritten agreement between James and Richard that they should be seized in proportion to the amount of the purchase price each paid. Omission of an allegation that the agreement was made without fraudulent intent was fatal. (Garten v. Trobridge, 80 Kan. 720, 723,104 Pac. 1067.)
The result of the foregoing is that James’ will disposed of a one-half interest in the land. '
On July 20, 1927, James Anderson executed an elaborate contract whereby he agreed with Richard and Jean to convey the land to them. On the very same day James did execute a deed of the land to Richard and Jean. Evidently the purpose of the contract was to provide written evidence of the consideration for the deed, and the contract summarized obligations of James to Richard and Jean which on execution of the deed were canceled, as follows:
“Money paid on notes and obligations of James Anderson............$1,400
Borrowed by James Anderson from defendant Jean Anderson........ 1,500
One-half of the Tuck note and mortgage........................... 1,000
Board, care and medical attention furnished by defendants to said
James Anderson, during the prior years.......................... 2,500”
A further consideration for the deed was that Richard and Jean would furnish James with board, lodging and medical attention for the remainder of his life. The contract was careful to provide that if it should be unenforceable in whole or in part the satisfied obligation should revive.
The deed was filed on July 21,1927. On October 3,1927, Richard filed in the probate court an affidavit of lunacy stating that his father was insane and unsafe to be at large. On October 12, examining physicians filed a report stating that James was past ninety years of age and was insane, was not conscious of his surroundings, was unable to recognize relatives, that he suffered from delusions and hallucinations, and that he had shown disposition to injure Jean. The report further stated that the cause of the mental condition was senility, that the condition was of two years’ duration dating from the first manifestation, that the manifestation was general and gradual, and that the disability was increasing. On October 12 the probate judge approved the medical certificate of insanity.
James died on September 12, 1928. His will, made January 31, 1924, was probated on February 1, 1931. The will disposed of the testator’s estate as follows: One-tenth to his niece Helen Anderson, daughter of his son J. R. Anderson; one-tenth to his niece Leonore Anderson, daughter of his son Victor- C. Anderson; and eight-tenths to Eva Anderson, widow of his son Victor.
The action of ejectment and to set aside the deed of July 22, 1927, to Richard and Jean, was commenced on April 28, 1931, by Eva Anderson and Leonore Anderson. The petition alleged that James’ mind commenced to deteriorate in September, 1924, and continued gradually to deteriorate and weaken until his death; that on July 20, 1927, James was weak mentally and physically and wholly unable to comprehend any business transaction or its import; and that he was wholly unable understanding^ to enter into any business transaction or to have or to assert any will of his own. The petition further alleged that the recitations of the contract accompanying the deed were untrue and were known by Richard and Jean to be untrue, and that when the contract was signed they knew James did not have sufficient mental capacity to comprehend or understand its meaning. The petition further alleged that in 1925 James went to live with Richard and Jean and continued to live with them until about October 3,1927; and that by undue influence and by reason of the weakened mental condition of James, which was well known to Richard and Jean, they secured execution of the contract and deed. The petition further alleged there was no adequate consideration for the deed and that Richard and Jean took advantage of James’ weak mental and physical condition to procure the deed without adequate consideration and by means of the contract and deed deprived him of his property.
Defendants construe the cause of action to set aside the deed as based on fraud and undue influence in the nature of fraud.. Undue influence consists of undue means of overcoming the will of a person having mind and will to be overcome. Fraud consists in deluding a person having mind and will to be moved by corrupt means. The petition charged that James did not have mental capacity to understand the nature of any business transaction or to comprehend the nature of the transaction in which he did engage. Whatever influence there was consisted in getting signatures affixed without James knowing what he was doing. Whatever fraud there was consisted in tricking James into doing something about which he had no comprehension. Therefore, the gravamen of this feature of the action was total lack of mental capacity necessary to a valid act.
The parties debate the question whether the deed was void or was voidable only, and debate the consequences flowing from de termination of that question. When a man who knows another to be insane sets about getting a deed from the insane person of the insane person’s land, and succeeds, the court takes the land away from the clever person and restores it to the insane person’s estate. Rescission as in cases of fraud is not required, and no statute of limitations commences to run against the insane person. So it may be said a deed procured under the circumstances stated is void, and devisees under the will of the insane person, made before the conveyance and while he was competent to make a will, are proper persons to bring an action to determine what appears to be an adverse interest created by the deed. (Waller v. Julius, 68 Kan. 314, 74 Pac. 157; Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530; Jenkins v. Jenkins, 94 Kan. 263, 146 Pac. 414; Keefe v. Kill, 135 Kan. 15, 9 P. 2d 640.)
The judgment of the district court is reversed, and the cause is remanded for trial in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment on demurrer to plaintiff’s petition in which it complained that defendants, as officers of the city of Holton, were exacting excessive rates for utility services supplied to plaintiff as a customer of the municipal light and power plant and the city’s water supply.
Plaintiff’s petition alleged that it was engaged in the corporate business of manufacturing butter and dairy products in Holton, in the prosecution of which business it is a large user of water and electric current, both of which services are supplied by the city at a rate fixed by city ordinance, and that the—
“Rate for said electric current and water . . . being charged ... is high, oppressive and confiscatory, . . .; that . . . the plaintiff is unable to pay said rate and compete with other concerns engaged in the same business, but notwithstanding the same the said defendant threatens to, and will, unless restrained and enjoined by an order of this court, and without notice, cut off the creamery of plaintiff from said electric current and water, which will be to its great and irreparable damage,, and,that it has no adequate remedy at law.”
Plaintiff also alleged that these excessive rates were far in excess of the legitimate requirements of the water and light plant of the city, and that temporary and permanent injunctive relief should be granted.
Defendants’ demurrer to this petition was sustained and the matter is brought here for review.
Turning first to the brief of counsel for defendants for an explanation of the trial court’s ruling on the demurrer, we read:
“Appellees, for the purpose of this demurrer, admit that the rates charged by the city are high, oppressive and confiscatory, and that it is making a profit from said rates and creating a surplus thereby. However, appellees ■contend that the court has no jurisdiction to interfere with the city in the matter of establishing rates for light and water.”
A related contention of the appellees is:
“Section 66-104 of Revised Statutes of Kansas for 1923 vests in the city the exclusive control and regulation to public utilities operating in the city, subject only to the right to apply for relief to the public utilities commission.”
Under the statute which authorizes municipal ownership of public utilities (R. S. 12-801 et seq.) the city is authorized to supply those services to its inhabitants, and R. S. 12-813 provides:
“The governing body shall by ordinance fix all rates for water and sell and dispose of water to any person or corporation within or without said city.”
Notwithstanding this grant of power, however, the city cannot exact any rates it sees fit to impose. Such rates must be reasonable; and persons and corporations dependent on these utilities are entitled to judicial protection against excessive or confiscatory rates. In Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616, a customer of the municipal water plant had a dispute with the city over his water bill, and the water rates were brought into the controversy. This court said:
“Cities which undertake to furnish water to their inhabitants are subject to the same limitations in this respect as private companies operating under city franchises.” (p. 109.)
In Am. Aniline Prod. v. Lock Haven, 288 Pa. St. 420, 50 A. L. R. 121, the familiar common-law rule was stated that courts have the power to determine questions relating to rates of a municipality in furnishing a water supply, where complaint is based on the questioned reasonableness of the ordained rate, the justness of its application, or discrimination amounting to confiscation.
In 27 R. C. L. 1443 it is said:
“A municipality operating its own water system is subject to the same duties and obligations and responsibilities as an individual or private corporation running and operating a like business, and is subject to have the rates charged, regulated and fixed, in the same manner prescribed by law for the fixing of water rates generally.
“When a constitution or statute provides for the fixing of rates or compensation, it means reasonable rates and just compensation. So a board or other body to which rate-making power is delegated has no right to fix rates arbitrarily and without investigation or without exercising its judgment or discretion to determine what is a fair and reasonable compensation.”
In the same volume it is said:
“The doctrine that the legislature is, for political reasons of manifest force, wholly exempt in all its proceedings from any legal process or judicial control, is not, nor is any portion of it, true, when applied to a subordinate municipal body which, though clothed to some extent with legislative and even political powers, is yet, in the exercise of all its powers just as subject to the authority and control of courts of justice, to legal process, legal restraint, and legal correction, as any other body or person, natural or artificial. And if water rates are fixed by subordinate bodies acting under legislative power or otherwise than by appropriate judicial proceedings, in which full notice and an opportunity to be heard are given, it is within the province of the courts to review such action to the extent, at least, of determining whether the rates so fixed will furnish some reward for the property used and the services rendered.” (pp. 1447, 1448.)
In. 43 C. J. 421 it is said:
“The power to fix rates for public utilities, whether owned by private interests or by municipal corporations, rests primarily with the state. The state in doing so may make different regulations for municipally owned utilities and privately owned utilities. While the state may limit the rates and charges so that they will be sufficient only to meet outlays and expenses of every kind by reason of their ownership and operation, the corporation may fix the fates so as to derive a fair and reasonable revenue therefrom. It may change the rates from time to time as the circumstances may demand it. The rates cannot be discriminatory. They must be reasonable; and they are subject to review by the courts in the same manner as the rates fixed for public utilities privately owned.”
In 5 McQuillin’s Municipal Corporations, 2d ed., 64, 65, it is said:
“Where a municipality owns its water or light works, it is settled that it has the right to charge rents against consumers who make use of its service. How ever, the rates must be reasonable, although the municipality may charge a rate which will yield a fair profit, and need not furnish the supply or service at cost; and the same rules in regard to the reasonableness of rates apply as in case of the rates of private companies owning a public utility. Otherwise stated, where the municipality owns its plant, the rates for water, light or any other product, furnished by it must be fair, reasonable and just, uniform and nondiscriminatory.” (See, also, 3 Pond’s Public Utilities, 4th ed., .eh. 30.)
Considering next the contention of appellees that control of rates and services of the utilities owned and operated by the city of Holton is vested in the city government subject to review before the public utilities commission by virtue of the statute of 1911 and its amendments (R. S. 66-101 et seq.), that statute specifically provides :
“Nothing in this act shall apply to any public utility in this state owned and operated by any municipality. . . .” (R. S. 66-104.)
The plain language of the statute just quoted apparently has been so generally understood that this court hitherto has not been called on to consider it, although it was incidentally before us in Humphrey v. City of Pratt, 93 Kan. 413, 144 Pac. 197, where it was decided that it was not necessary for the city to obtain a certificate of convenience and necessity from the public utilities commission as prescribed by section 31 of the act (R. S. 66-131) before the city could set about the construction of a municipal light plant. In response to certain criticism of this state of law resulting from the enactment of the utilities act of 1911, the court said:
“Conceding this argument to be economically sound, it should be addressed to the legislature which indisputably disregarded it by the plain and unambiguous exclusion from the definition of ‘public utilities’ of public utilities owned and operated by municipalities. To strain the definition to include municipally owned utilities brought into being subsequent to the enactment of the statute would be to amend the law and not to interpret it.” (p. 417.)
In Springfield Gas Co. v. Springfield, 292 Ill. 236, 18 A. L. R. 929, the city owned and operated an electric light plant and furnished electricity to private consumers in competition with a private corporation; and a question of the power of the state commission to regulate the rates and services of the municipal plant came before the supreme court. The pertinent Illinois statutes, which were not fundamentally different from ours, were considered, and it was held:
“Appellant’s contention, therefore, that public utilities owned and operated by municipalities are subject to the same regulation and rates under the public utilities act as those owned and operated by private corporations, and that it should be granted an injunction on the grounds contended for by it, cannot be sustained.” (p. 254.) (See, also, the same case in 257 U. S. 66, 66 L. Ed. 131.)
In Pabst Corporation v. Milwaukee, 190 Wis. 349, 45 A. L. R. 1164, the court held that a water plant owned and operated by a municipal corporation was subject to regulation as to rates by the public service commission, but that conclusion was reached by interpretation of the pertinent Wisconsin statutes, which on this point are diametrically at variance with ours.
Under our statute the rates and services of a utility corporation (not municipally owned) which operates wholly or principally within one town or city are under the control of the city government in the first instance but subject to the right of anybody concerned to apply for relief to the public utilities commission. (R. S. 66-104; Street Lighting Co. v. Utilities Commission, 101 Kan. 438, id. 774, 166 Pac. 514, 169 Pac. 205; City of Parsons v. Water Supply and Power Co., 104 Kan. 294, 300, 178 Pac. 438; Utilities Co. v. Railway Co., 108 Kan. 285, 292, 195 Pac. 889; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 350, 264 Pac. 68; Wichita Water Co. v. Public Service Commission, 126 Kan. 381, 268 Pac. 89.) Where the utility company serves more than one town or city, the regulatory jurisdiction in the first instance is in the state commission (with its periodic and frequent changes of title). (State, ex rel., v. Water Co., 92 Kan. 227, 140 Pac. 103; City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 586, 587, 207 Pac. 813.) Here, however, as we have seen, the defendant' city owns the light and water plant, and municipally owned utilities are expressly excluded from the governance of the utilities act. In the case of State, ex rel., v. McCombs, 129 Kan. 834, 839, 284 Pac. 618, where 'fault was found with the statutory scheme for regulating the municipally owned utilities of Kansas City, this court said:
“Municipal ownership of public utilities is new, the more modem utilities at least; consequently legislation for their management is bound to be empirical and subject to frequent change as 'experience dictates; and the transfer of the control of the water and light plants from the general control of the city government to a special board having no other municipal concerns to attend to is quite a proper exercise of experimental legislation. If it succeeds, good and well; .'if not, the legislature has plenary power to try something else or restore control to the governing body of the city.”
In view of the for'egoing 'the trial-court’s ruling on the demurrer cannot bé sustained; and this necessitates that the. cause be remanded to the district court with instructions to set aside its ruling on the demurrer and to proceed with the cause. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus, commenced in this court on March 16, 1933, to compel the city clerk of Kansas City to carry out arrangements for holding a city election, contrary to an act which took effect March 13, 1933, dispensing with holding the election. The cause was heard on the application for the writ. The writ was denied, and the reasons for that judgment may be stated as briefly as possible.
■ The city is a city of the first class, operating under the commission form of government. In February, 1923, the following statute became effective:
“That in all cities of the first class having a population of more than one hundred thousand now operating, or which may hereafter operate, under the commission form of government, there shall be elected five commissioners as follows: A mayor commissioner, commissioner of waterworks and street lighting, commissioner of finance and revenues, commissioner of streets and public improvements, and a commissioner of parks and public property. And all five commissioners shall be elected in April, 1923. The three commissioners receiving the largest number of votes cast at said election shall be elected for a term of four years and the other two shall be elected for a term of two years. Thereafter and in April, 1925, there shall be two commissioners elected for a term of four years; and thereafter all commissioners elected shall hold their offices for a term of four years.” (R. S. 13-1707.)
When this statute was enacted, it applied to the city of Kansas City only. On February 10, 1933,' the city clerk commenced publication of notice of a primary election to nominate candidates for city offices to be voted for at the city election to be held April 4. The officers to be elected were one commissioner of parks and public property, one member of the board of public utilities, and three members of the board of education. Plaintiff was a candidate for nomination and' election to the office of commissioner of parks and public property, to succeed an incumbent whose term of four years would expire following the election on April 4. On March 13 the following statute took effect:
“An Act providing for uniformity in the commencement of terms of office, avoiding expense of unnecessary elections and providing for quadrennial elections in certain cities, dispensing with the biennial election in 1933 in such cities, and preventing the occurrence of vacancies that might result therefrom.
"Be it enacted by the Legislature of the State of Kansas:
“Section 1. That in all cities of the first class having a population of more than one hundred and twenty thousand (120,000) operating under the commission form of government, wherein by law biennial elections are now provided for, and wherein the regular term of all elective officers is four years, city elections shall be hereafter held every four years only, beginning with the year 1935.
“Sec. 2. That all city commissioners, members of boards of public utilities, and members of boards of education in the cities governed by section 1 of this act, whose terms of office would expire in 1933, shall continue to hold office for two years beyond the expiration of their present terms.
“Sec. 3. This act shall take effect and be in force from and after publication in the official state paper.” (Laws, 1933, ch. 135.)
The statute, if valid, would necessarily frustrate the hopes of gentlemen ambitious to senm the city, and plaintiff denounced the statute as follows:
“That said enactment did not and does not express the sentiment of the people of Kansas City, Kan., and that said enactment, if permitted and allowed to remain upon the statute books, will disfranchise more than sixty thousand voters of said city; that it is oppressive, un-American, contrary to law and public policy; tyi'annical in its results, and destroys the functions of government ...” ■
Plaintiff contended the title of the act is defective. The court regards the title as sufficient.
Plaintiff contended the act is a piece of special legislation relating to ope city only, the city of Kansas City, and consequently the act violates section 17 of article 2 of the constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
The constitutional provision quoted does not prohibit special legislation. Only laws of a general nature shall have uniform operation throughout the state, and when a general law cannot be made applicable, special legislation to accomplish desired ends is permissible. Whether a law is repugnant to the provision of the constitution is a matter to be finally determined by this court. The question is usually one of classification, and in such casés the court must determine whether sufficient differences exist to make distinctions substantial. In doing this the court must consider the nature and purpose of the legislation and the conditions and circumstances under which it was enacted.
In this instance, the statute now applies and was intended now to apply to but one city, the city of Kansas City. It is the only city in the state having a population of more than 120,000, operating under commission or other form of government, and it is not likely any other city can attain the required population before 1935. There, however, is that city, in a distinct class by itself. It so happened that in this particular year there were to be a primary election to nominate candidates and then an election to elect just two city officers and three members of the board of education. The city budget, made in August, 1932, appropriated $16,975 to operate the election machinery. Unofficial estimates of the actual cost of the two elections were greater. The expense of conducting an election in a large city is proportionately greater than in a smaller city, and just now municipal expenditure is a subject of the gravest concern.
At the time this is written, the premiers of England and France are in Washington, conferring with the president of the United States upon measures for relief of world economic conditions. The congress of the United States is in special session, dealing with the subject of economic conditions in this country. At the session of the legislature at which the act in question was passed, the governor sent to the legislature a special message which reads in part:
“In my recent message to you I advised that I would discuss certain matters affecting our state in a special message. Any program of economy must consider our many state departments and branches of government, and analyze their organization.
“The government of Kansas should not spend a dollar if fifty cents will do the job, and before we spend the fifty cents, we should ask ourselves, ‘Do we need it? Can we afford the price?’
' “Our most sincere efforts are needed to do away with waste, extravagance, duplication, and unnecessary service.
“It is my duty, under our constitution, among other things, to recommend such measures for your consideration as I believe are expedient and for the best welfare of our government. In a time of business chaos, such as now exists, we must be willing to face conditions as they are, and to cooperate in cutting out unnecessary expenditures and in eliminating lost motion, slack and extravagance. Government must continue, but we must carry forward on a solid basis of economy. We are now forced to make decisions on the merits of our expense accounts. Government, generally speaking, has but one source of income: That is taxation. As our expenses have increased the rate of taxation has climbed until it has become a tremendous burden upon real property.
“Every business and every person in the nation has been compelled to reduce overhead and to retrench. The state and its subdivisions must do likewise. ...”
The conditions under which the legislature met were unprecedented in modern history. As the governor said, the time is one of business chaos, and the local situation to which the act applied was unique. Therefore, if the legislature chose to heed the governor’s recommendation, and on the score of economy alone to dispense with the city election of 1933 in the city of Kansas City, this court declines to hold that the legislature transcended the limits of its constitutional power.
The legislature has undoubted power to declare whether city elections shall be held annually or biennially or quadrennially, to change from one kind to another as it considers the public interest and welfare require, and section 1 of the act is perfectly valid.
Section 1 accomplished the legislative purpose. How the city government should continue to function until the election of 1935, was an incidental and collateral matter, and was dealt with in section 2. Whether present officers should hold over was not of the substance of the act, and the court holds section 1 to be valid, whatever may be said of section 2.
The foregoing disposes of plaintiff’s present concern about the statute. However, the validity of section 2 was fully briefed and argued. Indeed, the briefs and arguments were chiefly devoted to validity of section 2, and a majority of the court felt that, to save trouble and expense of future lawsuits, the views of the court concerning validity of the entire act should be expressed.
The constitution contains the following provisions:
“The tenure of any office not herein provided for may be declared by law; when not so declared such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.” (Const, art. 15, § 2.)
The legislature created the office of commissioner of parks and public property. At first the term of office was two years. Then the term was made four years. In 1929 a commissioner was elected for the term of four years. His term expired in April, 1933. Plaintiff’s contention is the statute extended his term two years more, with the result that the legislature has attempted to create an office the term of which is six years.
The statute of 1933 did not create any office. The office was already in existence. The term of office was four years, still is four years, and the statute contemplates it will continue to be four years. What happened was that by cancelling the election in 1933, there is to be an interval, not a part of any term, between April, 1933, and April, 1935. Such an interval is given various names — interim, interregnum, exceptional term, etc. “Exceptional term” is a misnomer here, because no term of any length is involved.
A term of office is one thing. An office holder is something else. The incumbent may go out, nobody come in, and the term goes on. If a successor is appointed or elected, he fills the unexpired portion of the term. A term may come to an end, but the incumbent may rightfully carry on. The term of the commissioner of parks and public property, elected in 1929, expired in 1933. No other term began or will begin until after the city election in 1935, and whoever exercises the functions of the office until 1935 will not do so as the holder of any term, or extension of term, or part of a term.
When there is an interval between the end of a term and the beginning of another, the public business must go on without interruption. Some one must do the business in the capacity of a public officer. The constitution provides that executive officers of the state shall hold for a term of two years and until their successors are elected and qualified; that judicial officers shall hold until their successors shall have qualified; and that county and township officers shall hold for a term of two years and until their successors are qualified. (Art. 1, § 1; art. 3, § 12; art. 4, § 2.) The prevailing rule in the United States is that in the absence of constitutional or statutory provision to the contrary, express or implied, an officer is entitled to hold until his successor is chosen and has qualified. (46 C. J. 968, § 110.) A constitutional provision of this state that no person shall hold the office of sheriff or county treasurer for more than two consecutive terms, was held to express a definite public policy which disqualified a county treasurer from holding over beyond his second consecutive term. (Adkinson v. Noonan, 110 Kan. 335, 203 Pac. 694.)
The general law relating to- cities of the first class provides that the term of all elective officers shall be two years and until their successors are elected and qualified. (R. S. 13-307.) The general commission form of government law provides for the election of a mayor and commissioners who shall hold their offices for a term of two years and until their successors are elected and qualified. The commission form of government statute specially applying to Kansas City (R. S. 13-1707) says “All commissioners elected shall hold their offices for a term of four years.” Plaintiff makes much of the omission of the usual provision for holding over.
The statute provided for four-year terms instead of two-year terms. All five commissioners were to be elected in 1923. The statute then assigned to three of them four-year terms, and to two of them two-year terms. At the expiration of the two-year terms, two commissioners were to be elected for four-year terms, and the language of the statute is that “thereafter all commissioners elected shall hold their offices for a term of four years.” There is no implication here that the legislature thought anything about holding over, much less that it intentionally added another specialty to the act, abrogated, the rule relating to public officers generally, and prohibited holding over in Kansas City.
The result of the foregoing is that if section 2 had not been inserted in the act, incumbents would hold over until the next election in 1935. In essence and effect what the legislature said in section 2 was that to fill the hiatus between the ending of existing terms in 1933 and the beginning of the next terms in 1935, present incumbents should hold over — “continue in office.” The legislature might have made other provision, but the provision it did make was within its constitutional power.
"For the purposes named [uniformity of terms, dispensing with unnecessary elections] the legislature has constitutional power to readjust the commencement of official terms by postponing elections for a reasonable time, and provisions for the filling of the offices during the interval between the end of one regular term and the commencement of another are not invalid.” (Wilson v. Clark, 63 Kan. 505, syl. ¶ 2, 65 Pac. 705.)
In the opinion it was said:
“It will be observed that in some of the cases cited the vacancies or exceptional terms have been filled by provisional appointments, and in others that the incumbents have been permitted to hold over until the beginning of the regular term. It is immaterial whether the interval between the regular terms is called a vacancy, an interregnum, or an exceptional term. .Whatever it is, there is no doubt power in the legislature, under the authorities cited, to make provision for the occupancy of- the office until the beginning of the next regular term, . . .” (p. 514.)
The office of justice of the peace is a constitutional office, the term, of which is two years, fixed by the constitution. (Art. 3, §§ 1, 9.) Justices of the peace are township officers, and previous to 1875 township officers were elected in April. In that year a statute was enacted providing that township officers should be elected at the general election in November, and the statute contained the following provision:
“Provided, That the several township officers whose terms of office would expire upon the election and qualification of their successors in office at the April election, a. d. eighteen hundred and seventy-five, shall continue to hold their several offices until their successors are elected and qualified at the election provided for in the first section of this act.” (Laws 1875, ch. 92, § 1.)
The case of Jones v. Gridley, 20 Kan. 584, related to a contest over the office of justice of the peace. In the opinion the court said:
“The act of 1875 expressly continued the terms of the township officers, expiring upon the election and qualification of their successors in April, 1875, till after the township election in November of that year; and those township officers, whose term of office, prior to the adoption of that statute, would have expired in April, 1876, were by said act necessarily continued in office until their successors were elected and qualified at the election held in November of that year.” (p. 587.)
The question here involved was not considered. As indicated, the question of power of the legislature over postponement of elections was considered in the case of Wilson v. Clark. The opinion was written by then justice, now Chief Justice Johnston, and the statute of 1875 and the decision in Jones v. Gridley were cited to illustrate exercise of the legislative power.
■ Because of the exceptional and purely provisional nature of the arrangement for conduct of the public business during an interval between the ending and commencement of terms created by change in time of election, holdover provisions are in no sense “appointments,” and do not infringe on the power of appointment to fill vacancies.
Without pursuing the subject further, a majority of the members of the court hold that when an election of city officers is postponed, as by the act under consideration, the legislature may provide that incumbents whose terms would have expired if the election had been held as usual, may continue in office until the election provided for is held.
As indicated in the syllabus of the decision in Wilson v. Clark, the postponement must be reasonable. In the case of the justice of the peace referred to above, the postponement of election was from April to November of the same year. In the case of Wilson v. Clark, the postponement was for one year. In the case of Jordan v. Bailey, 37 Minn. 174, municipal judges were elected in 1883 for terms of four years and until their successors were elected and qualified. In 1885, a statute was enacted abrogating provision for election in 1887, and providing for an election in 1889. The statute made the terms of judges uniformly six years. It was held the postponement with respect to judges whose terms expired in 1887 was not unreasonable, and they were entitled to hold until 1889. In this instance, the postponement was to the only practicable time, the next election; a time within which it is hoped the exigencies necessitating postponement v?ill disappear.
It is conceivable that a legislature not having the fear of God before its eyes, but being moved and seduced by the instigation of the devil, as the court contemplated in the case of People, ex rel., v. Bull, 46 N. Y. 57, might undertake to abuse its power, in order to defeat popular elections, entrench favorites in office, etc. The integrity and sincerity of the house and senate which passed the bill under consideration, and of the governor who signed it, are above reproach.
For the foregoing reasons, the writ was denied.
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The opinion of the court was delivered by
Tiiiele, J.:
These are actions brought in this court by the state to oust the above-named defendants as corporations within the state of Kansas.
The petitions are similar and charge due and legal incorporation for the following purposes, to wit:
(а) The Wheat Farming Company on September 3, 1927, for: (1) The encouragement of agriculture and horticulture. (2) The improvement of the breed of domestic animals by importation, sale or otherwise. (3) The promotion of immigration. (4) The erection and maintenance of market houses and market places. (5) The conversion and disposal of agricultural products by means of mills, elevators, markets and stores and otherwise. (6) The erection of buildings and the purchase and sale of such real estate and real-estate products as may be incidental to the full performance of the purpose of this corporation as a farming company.
(б) The Sledd Farm Corporation on December 22, 1925, for: (1) The encouragement of agriculture and horticulture. (2) The construction and maintenance of dams and canals for the purpose of irrigation.
In each case it is alleged that the corporation has been and is abusing its power and exercising powers not conferred upon it by law, viz.: producing, planting, harvesting and gathering and selling for profit, and for profit alone,' wheat, corn, barley, etc.
In the Wheat Farming Company’s case, the following is alleged:
“Your relator further alleges and says that the organization of said defendant company has been continued solely upon the theory of its engaging in the business of farming for profit, and said defendant has been and is now selling stock to the public, offering, as the sole inducement for said sales, great profit to be derived in corporation farming, and that said corporation is not now, nor has it been, engaged in scientific research, experimental farming- or any other work for the encouragement of agriculture or horticulture save and except such work as may have been incidental to its own operation as a farm corporation for profit and to further its own financial interests and those of its officers, directors, servants, agents and employees, and that said defendant has bought up and now owns in the state of Kansas enormous tracts of land, the exact area of which is to this plaintiff unknown, but is to the defendant well known, and now has enormous land holdings in the state of Kansas, which said land is far more in area than is adequate or necessary for the defendant to use in its legitimate business in encouraging agriculture and horticulture, and that all of said land now held by the defendant as aforesaid is held for the sole purpose of commercial farming.
“Your relator further alleges and says that the defendant has purchased and now holds a great quantity of farm equipment, farm implements and farm machinery, which is far more in quantity than is necessary for the encouragement of agriculture and horticulture and that said equipment, machinery and implements are not now being used for the encouragement of agriculture and horticulture.
“Your relator further alleges that said defendant, the Wheat Farming . Company, has practically abandoned its corporate franchises, privileges, purposes and functions.”
And in the Sledd case, with appropriate change of name, almost identical allegations are made. Copies of the charter granted and amendments thereto are attached as exhibits in each case.
The. Wheat Farming Company filed an answer containing forty paragraphs, which are summarized as follows: Admission of incorporation, of producing the crops mentioned, and that it has lands and implements; alleging that it was organized for the purpose of showing by experimentation and demonstration how farming, especially in grains, could be made profitable instead of unprofitable, as it had been, and in carrying out- its purposes had only gotten fairly started; that it is incorporated for fifty years and, if permitted to pursiiie its activities, will continue to show by means and methods promulgated by it how agriculture in western Kansas can be changed from nonprofit to profit; that among the things done and to be done are actual demonstration of discoveries of experiment stations, operation of large units with modern machinery and equipment, scientific study of weather and soil and their relation to productivity, improvement and adaptation of seed, seed treatment and development of agricultural experts; that the advancement of the company and its accomplishments had encouraged the adoption of its methods by others to their benefit; that the company owns market houses, elevators, buildings and real estate, and buys and sells agricultural products; that the counties in which it operates since it -began have increased in population; that it owns 64,000 acres of land in seven counties; that the charter board of the state of Kansas knew 'it was intending to engage in business for profit and that other companies were chartered for similar businesses before and after it was chartered, and that licenses for the sale of stock in such corporations have been granted and thousands of Kansas citizens have invested millions of dollars in the stock of such companies; that on January 5,1928, by the action of the charter board, the capital stock was changed from $150,000 divided into 1,500 shares of $100 each to 150,000 shares of no par value, and on January 18,1928, the capital was changed to 150,000 shares of common stock of no par value and 3,000 shares of preferred stock of $100 par value, and on October 8, 1930, the common capital stock was increased to 300,000 shares of no par value, and that in connection therewith all requisite fees were paid; that the corporation fees and blue-sky permit fees amounting to several thousands of dollars were paid; that ad valorem taxes for the years 1928, 1929 and 1930, approximating $30,000, have been paid; that in pursuance of authority granted, over 100,000 shares of common stock and preferred stock to the amount of $300,000 to over 1,100 different persons, and approximating $2,000,000, had been sold. The history of certain bills introduced in the legislature is detailed and- many other allegations are made which need not be noticed here but will be referred to as occasion demands.
The Sledd Farm Corporation filed an answer admitting its incorporation and alleging that its application for and the charter granted to it set forth that it is organized for profit and that the purposes for which it is formed are:
“Farming land under irrigation. The encouragement of agriculture and horticulture. The construction and maintenance of dams and canals for purposes of irrigation. The erection and maintenance of such buildings necessary for a general farming business. The purchase and maintenance of machinery necessary to carry on a general farming business and the doing of all things necessary and incidental thereto.”
At the time of its incorporation the capital stock was $50,000; on October 2, 1928, the capital stock was increased to $100,000; on April 9, 1929, the capital stock was increased to $200,000; on September 19,1929, the capital stock was increased to $600,000, and on May 13,1930, it was increased to $1,750,000, the requisite fees being paid to the state. The answer further alleges that the charter board is established for the purpose of making investigation of applications for charters and to determine whether the business proposed to be engaged in is one for which a corporation may be formed, and that no provision is made by law for the review of its decisions, and, therefore, this court is without jurisdiction in this matter. It also alleges that many other similar corporations have been chartered, that they have filed reports as required by law and have paid to the state thousands of dollars in taxes, fees, etc.; that before it sold its shares of stock it complied with the laws of Kansas, and that its books and records have been examined by the bank commissioner. It further alleges that the legislature of Kansas has recognized the extent and validity of the corporations by the enactment of certain statutes which will be hereafter referred to; that the legislature has been in session many times and has made no changes in the general corporation laws with reference to similar corporations until 1931, and the history of certain bills offered for enactment is set forth. It is further alleged that its operations are carried on in western Kansas by experimentation, and by the adoption of modern methods it has been able to farm land and produce crops, especially wheat; that it owns 5,000 acres in Kearny county and 3,000 acres in Hamilton county, and that as a result of its efforts and demonstration other persons in the proximity of its land have been encouraged to cultivate their lands in like manner; that it has experimented with different kinds of farming machinery and equipment and has demonstrated the value and practicability of certain machinery and farming operations; that it has-conducted soil experiments and experiments with different kinds of seed, and that individual landowners have adopted to their own use and benefit the means and methods used by the defendant, and that it encourages the leasing and renting of its lands to private persons who are ready and willing to farm the same according to its methods. It is further alleged that it now has a paid-up capital of $1,122,600; that its shareholders are residents of forty-one different states and number 1,967; that the ouster of defendant would cause irreparable loss and injury to many persons; that the legislature of Kansas has recognized that defendant and similar corporations might be legally incorporated and carry on business such as the defendant is engaged in and by reason thereof many persons had purchased shares of stock in this and other similar companies and would not have done so except for the decision, opinion and judgment of duly constituted officers of this state and the recognition by the legislature of the validity of the corporation; that the legislature, by action and inaction, has recognized that upon principles of equity and good faith defendant and others similarly situated should not be forced to liquidate with resultant loss to shareholders, and that the state has waived any right it may have had to maintain the action; that the legislature of Kansas, by its various actions and inactions, has recognized the Validity of the incorporation and business of the defendant and other similar corporations but has manifested an intention that no further incorporations of such nature will be permitted, and by reason thereof the plaintiff' is estopped to maintain this action.
To these answers the state has filed replies putting in issue the matters presented by the answers.
Prior to the trial in each ease certain facts were admitted by stipulation and testimony was taken with respect to other matters in controversy. As might be expected in an action of this kind, the .inquiry was not limited by the commissioner who heard the case, and much testimony was taken, the materiality or relevancy of which is somewhat difficult to discern. Both plaintiff and defendant filed requests or suggestions for findings of fact and conclusions of law. At the conclusion the commissioner made findings of fact in each case.
In so far as the Wheat Farming Company is concerned the findings may be summarized as follows: The company was chartered February 3, 1927, for the purposes charged in the petition, and the charter was thereafter amended with respect to the capital stock as hereinbefore shown. On February 27, 1928, the company filed its application with the bank commissioner for permission to sell both common and preferred stock. Thereafter ■ other applications were made, and since the organization of the defendant company it has sold common stock in the amount of $2,428,418.90 and preferred stock to the amount of $300,000. There are over 1,200 stockholders, most of them residents of Kansas and over seventy per cent of them farmers. The defendant is not and has not been engaged in the improvement of the breed of domestic animals by importation, sale or otherwise, nor in the promotion of immigration, nor has it been engaged chiefly in the erection of market houses, although it does own four elevators which are maintained chiefly for its own use, although they are open to the public generally. The fourth finding of fact is as follows:
“That ever since its incorporation the defendant has been and is now engaged in the general farming business for profit, planting, raising, producing, gathering and selling wheat, corn, barley, oats, rye and other agricultural products, and in conducting said general farming business it has acquired from time to time various tracts of land until it now owns about 64,000 acres of land, located chiefly in the counties heretofore named, and has also acquired and now owns and uses in its business machinery and equipment to the amount or value of about $234,000, as shown by its quarterly report of March 31, 1931. That said business of general farming is now and has been ever since its organization the chief or main business of said defendant, and the chief and principal object of the defendant in its operations as a farming company is and has been to realize profit for its stockholders.”
The fifth is as follows:
“That the defendant, in carrying out its business of farming for profit, has sought, by actual investment and experiment and practice, to put in use the newest discoveries in agriculture, to the end that agricultural production may be increased to the fullest extent possible and the cost thereof reduced to the lowest point, and in so doing has used the following specific procedures, among others:
“(a) The use of bookkeeping and cost systems in farming. (b) Extensive use of power, (c) Preparation of the soil and treatment of seed according to tested and approved methods. (d) Fallowing and weed destruction, (e) Moisture conservation and the use of the moisture tests. (/) Use of newest methods in harvesting and seed-bed preparation, and smut treatment. (g) Elimination of Hessian fly damage through observance of fly-free date of seeding. (h) Working out of maximum economic unit one foreman can manage, (i) Farm to factory engineering, consisting of correspondence with factories and obtaining needed changes in farm machinery, (j) Economies through use of the one-way plow in breaking sod. (fc) Use of the combine for harvesting sorghum. (D Use of the dumb-box sorghum harvesting, invented by the Wheat- Farming Company, (to) Use of big hitches for power and labor economies. (n) Elimination of cultivation of row crops by use of deep-furrow drill, (o) Construction of line of elevators, (p) Saving on trucking by working out a definite cost record for that class of service, (q) Development of unit farming, (r) Donation of milo seed for tests among farmers.”
The commissioner further found that a large portion of the land acquired by defendant had not previously been farmed; that it was level land, as that was the only kind suitable for plaintiff’s operation ; that where occupied lands were purchased, the dwelling houses would frequently be removed; that it was not the policy of the company to rent any part of its land except isolated small tracts, and that the investment in lands, as reported to the blue-sky de partment on March 31, 1931, was $1,861,083.19, and it owed mortgages thereon of $263,593.18; that the defendant company organized and owns all of the stock of the Hays Tractor and Equipment Company, which latter company handles and sells at retail farm and road machinery and equipment; that the company owns 64,453 acres situated in Ellis, Rooks, Trego, Graham, Gove, Sheridan, Logan, Thomas, Wallace and Sherman counties; that there have been at least eighty-six corporations either formed or admitted to do business in the state of Kansas, as corporations for profit, the purposes for .which they were formed being similar to the purposes of the Wheat Farming Company; that each of said corporations has paid the fees required by the laws of Kansas, and thousands of citizens in Kansas have invested in the capital stock and securities of such corporations; that at the granting of the charter of the Wheat Farming Company and on the approval of all amendments thereto there was no dissent by any member of the charter board; that approximately thirty of the eighty-six corporations referred to are in existence at this time engaged in agricultural and farming activities; that since 1926 there has been a pronounced movement whereby farms in that region of Kansas wherein the defendant company operates have become and are still rapidly becoming of larger acreage than heretofoz-e; that the organizez’s of the defendant company, and particularly its president, are men who have taken an interest in agriculture for a nuznber of years, are possessed of much information and knowledge covering the subject, and have generally utilized the knowledge and information, as well as their own experiences and experiments, and the defendant company has given to the public the information acquired and possessed by it as a result of its operations; many publications, pamphlets and newspaper articles have been written and distributed, and meetings were held attended by employees of the defendant company and to which the public generally was invited, at which the operations of the coznpany and its methods and business generally were discussed. There are also findings with respect to the quantity of grain produced by the defendant company and its cost per acre dependent on the size of the field. It was also found:
“The fourth subdivision of section 17-202 of the Statutes of Kansas, ‘the encouragement of agriculture and horticulture,’ has been a part of the corporation statute of this state ever since 1868, and from time to time until the passage of the law creating the charter board in 1898, many corporations were chartered under this provision for the purpose of farming for profit. Be ginning with 1899, after the charter board was created and up to 1931, many applications- for charters for corporations, whose -purpose it was to engage in farming for profit, were presented to and granted by the charter board, and the various officers who composed said charter board to whom such applications were presented, and those whose duty it was to pass upon the same, always construed and interpreted the said provision in the corporation law as authorizing the creation of corporations for the purpose of farming for profit; and during all this time there was a continuous and uninterrupted administrative construction and interpretation of the said provision of the corporation law to the effect that it authorized the creation of corporations for the purpose of farming for profit; and the fact that corporate charters had been granted for such purpose was known to the legislature of this state at least for a number of years prior to the granting of the charter to the defendant company.
“Although farming corporations have been created and in existence since as far back as 1880, there is no evidence that any department or officer of the state of Kansas ever questioned the validity of any charter issued to a corporation for the purpose of engaging in farming for profit or ever questioned the right of any corporation to engage in the business of farming for profit, until the year 1931.
“That at the time the charter was granted to the defendant company the charter board knew that the purpose of the proposed corporation was to engage in farming for profit.
“Under the evidence in this case, the facts disclosed are sufficient to create an estoppel against the state and are sufficient to and do make out the defense of laches and estoppel, as pleaded in the answer, if it should be held as a matter of law that the doctrine of laches or estoppel may be invoked as against the state.
“The fact' that the defendant corporation is engaged in farming for profit does not constitute a public menace nor does it effect any injury whatever to the public, and the public interest would not be subserved by granting the writ of ouster.
“If the writ of ouster should be granted it would cause a great depreciation in the value of the property and assets of the defendant company as a going concern and would cause a corresponding loss to the defendant and its stockholders.”
The commissioner concluded, as a matter of law, that if there was any ambiguity in R. S. 17-202, in the light of a continuous and uninterrupted construction, an interpretation placed on it by. the various officers and departments of Kansas authorized the granting of the charter to the defendant company and that the charter board iü granting the charter must be deemed to have found that the business in which the company proposed to engage would in fact be an encouragement of agriculture within the meaning of R. S. 17-202, subdivision 4; that the defendant, as a matter of law, may not in voke the doctrine of laches and estoppel, but that the fact which would make out such a defense may be taken into consideration in determining whether a writ of ouster should or should not be granted, and that, in his opinion, the discretion of the court should be exercised against the issuance of a writ.
In so far as the Sledd Farm Corporation is concerned, many of the facts were stipulated and evidence was taken as to matters in dispute. The commissioner made findings of fact with respect to the charter and the authorized capital in line with the allegations of the petition and answer and further found that in a little over three years’ time the outstanding capital stock of the company increased from $87,000 to $1,123,500, and that it acquired and owned approximately 20,000 acres of land located in Finney, Gray, Greeley, Seward, Grant, Wallace, Osborne, Lane, Hamilton, Kearny and Rice counties, and:
“That since its incorporation the defendant has been and is now engaged in the general farming business for profit, producing, planting, raising and selling wheat, corn and other grain and farm products generally, and for the purpose of conducting said general farming operations it has acquired from time to time various tracts of land in amounts and location as heretofore found; and has also acquired and uses in its farming operations a considerable amount of machinery and equipment. That said business of general farming has been and is now the chief or main business of said defendant, and the chief and principal object of the defendant in its operations has been and is to realize profit for its stockholders.
“A part of the land acquired by the defendant was land which had previously been cultivated, but the far greater part of the land it acquired was sod land that had never been cultivated. The evidence shows that after the company acquired the land some of the improvements on one tract, namely, one house, an elevator, a chicken house and fences, were removed, and there were left on this tract- of land a house, granary, chicken house, windmill, barn and storage tank.
“In the year 1931 the defendant rented about 3,000 acres belonging to other landowners who desired that the defendant break the land and sow it to wheat, and this was done. During the years 1930 and 1931 the defendant also rented to others a considerable acreage of its own land, one of the purposes being, as expressed in the letter of Mr. Sledd to the state banking department, dated July 19, 1930, ‘to off-set any unfavorable public opinion that the people have in regard to the Farm Corporation;’ ”
and made findings with respect to other corporations engaging in like .business in Kansas similar to those found in the Wheat Farming case, and made conclusions of law as in the Wheat Farming case.
The plaintiff has filed its exceptions to the reports of the commis sioner in both cases, which will not be specifically treated. An examination of the record, apart from the commissioner’s findings, supports a general finding that the allegations of the plaintiff’s petitions, as hereinbefore noted, are true.
It may be remarked here that the charter of the Wheat Farming Company in its statement of purposes includes subdivisions (4), (31), (33), (36) and (39) of R. S. 1931 Supp. 17-202, but there is no showing that it has done anything to improve the breed of domestic animals or to promote immigration. On the contrary, the evidence shows that its principal activities have been, as its name implies, the raising of wheat and taking care of it, and the selling of stock to raise funds to enable it to pursue its business. The charter of the Sledd Farm Corporation includes subdivisions (4) and (37) of the above statute, farming land under irrigation, and the erection and maintenance of buildings, and purchase • and maintenance of machinery necessary to carry on a general farming business, but the evidence shows that it has not engaged in building any dams. A corporation for farming land under irrigation is not authorized by the statute, and the erection of buildings and purchase of machinery are incidental to the encouragement of agriculture within the meaning of that statutory purpose. The evidence shows that its activities have been confined to general farming and the selling of stock to raise funds to pursue its business. While there may be collateral questions involved, it is apparent that the solution of one question is decisive in these cases, and that is: Can a corporation organized for the purpose of “the encouragement of agriculture and horticulture” engage in a general farming business for profit as its principal business? or, put in another form, Does the statute authorize the formation of a corporation whose principal business shall be general farming for profit?
The parties differ on the meaning of the statutory phrase, “the encouragement of agriculture and horticulture,” but they do agree on defining the meaning of the component words. In so far as the word “encouragement” is concerned, all authorities consulted give substantially this definition: “To help, to forward, to give courage to, to inspire with courage, spirit or hope.” In so far as the word “agriculture” is concerned, we are inclined to give a more complete definition than either of the parties, viz.: “The cultivation of the ground; especially, cultivation with the plow and in large areas to raise food for man and beast, tillage; farming. Theoretical agri culture, or the theory of agriculture, is a science comprehending in its scope the nature and properties of soils, the different sorts of plants and seeds fitted for them, the composition and qualities of manures, and the rotation of crops, and involving a knowledge of chemistry, geology, and kindred sciences. Practical agriculture, or husbandry, is an art comprehending all the labors of the field and of the farmyard, such as preparing the land for the reception of the seeds or plants, sowing and planting, rearing and gathering the crops, care of fruit trees and domestic animals, disposition of products, etc.” (See Century Dictionary.) The same work defines horticulture as “The cultivation of a garden; the art of cultivating or managing gardens. The ordinary productions of horticulture are generally classed under the three heads of fruits,.flowers and vegetables, which on a large scale are cultivated separately, but in small gardens are more or less combined.” There is no ambiguity in the statute itself, the contention between the parties is rather as to whether certain operations, about which there is not much .dispute, are for the encouragement of agriculture or otherwise.
In its last analysis the contention centers around the application of the word “encouragement” and whether, under the statute and charter, the conceded operations of the defendants were for the encouragement of agriculture or for the advancement of the interest of the stockholders. The question has been exhaustively briefed by both parties, and reference in detail to the many instances cited in the briefs of the use of the term “encouragement” in statutes of many states, in charters granted by legislatures, and in grants by the crown in England is forbidden by the limits of time and space. It will have to suffice here to say that examination of many of these statutes and grants shows that while the word “encouragement” is used in them there follows a grant of power to do certain things, the powers in some cases being broad and in others narrow.
The state makes a contention, based on the arrangement of the statute, that private corporations are of-three kinds: 1, for religion; 2, for charity or benevolence; 3, for profit (R. S. 17-103), and that in stating purposes (R. S. 1931 Supp. 17-202) the same arrangement is and was intended and, therefore, a private corporation whose purpose is the encouragement of agriculture is one having characteristics of charity and benevolence and cannot be for profit. We do not agree. A private corporation to teach the science of agriculture might- be formed and derive some profit from its operation; so might a corporation to promote an agricultural fair,- .and the legislature in providing for a corporation for the encouragement of any learned profession recognized that it might be for profit. (R. S. 17-204.) But profit is not the test. Under the statute last mentioned a private corporation might be formed of lawyers ■ ostensibly to conduct ■a law school at a profit, but it would not follow (ignoring for the moment other disabilities) that it could practice law at a profit and claim that it had devised new methods of office practice, accounting, specialization of work, etc., at greater profit than realized by others and thus encouraged the profession.
The evidence shows that the Wheat Farming Company has acquired over 60,000 acres of land; has sold stock for over $2,700,000 to be used in its operations; that of this amount over $1,850,000 has been expended for lands and over $500,000 has been used for organization and promotion; that it produced in 1931 over 600,000 bushels of wheat; has invested over $230,000 in machinery; has spent over $100,000 in acquiring elevators; has, by reason of its operations and methods, been able to lower the cost per acre for production; has made some experiments with relation to-types of crops to be grown, and that publicity has been given to its activities and successes. It is impossible to say just how much was spent by the company for educational purposes, as distinguished from advertising for the purpose of selling stock, etc., but the amount was negligible when compared with promotion and organization expense. It is not necessary to reproduce any of the many exhibits offered, but the same show that the company advertised its success in glowing terms and offered the investing public the opportunity to get in on what it professed was a business venture with an assured success. Much publicity was given to the earnings and dividends.
In so far as the Sledd Farm Corporation is concerned the evidence showed it had sold stock for over $1,222,000 and had acquired over 20,000 acres of land; that it leased other lands for its own operations and leased some of its own lands to tenants. At least so far as abstracted, most of its testimony was offered to show the history of granting charters by the state, which matter is hereafter discussed.
From the showing made the state argues, among other things, that the main and principal business of the defendant corporations is farming, and that the business has been so conducted that if there is any “encouragement” of agriculture it is negligible; the defendants call attention to the many farm operations, as shown in the commissioner’s findings, and argue that their successful operations, in connection with the publicity which has been given, have and do encourage agriculture. One would have the encouragement objective, the other subjective.
While undoubtedly evidence of successful operation in any industry or calling might induce others to enter, and successful conduct might induce others in the same line to change methods, it would not necessarily follow that the conduct of those first successful was for the purpose of inducing others to be successful. Example is not always encouragement, and neither are protestations as to motive of much consequence; the course of conduct must be traced. It clearly appears that the activities of these corporations have been concentrated on building up a huge business venture, and from the record we can come to only one conclusion, and that is that the purpose of these corporations is and has been to make profits and pay dividends to the shareholders; if there has been any encouragement to agriculture in it, it has been incidental and not in any sense a primary purpose. Putting aside for the moment other phases of the problem before us, we have no difficulty in arriving at the conclusion that the statute does not authorize the formation of a corporation to engage in a general fanning business for the purpose of profit, and that, regardless of the statement of purposes in their respective charters that they are formed to encourage agriculture, the defendants have not been and are not so doing.
It is urged, however, even if that be true, the state has recognized that, under the purpose phrase in question, a corporation may be formed to conduct a general farming business; that many charters have been so granted; that the charter board knew when the charters were granted that the proposed corporation intended to conduct a general farming business and that the legislature in enacting chapter 153 of the Laws of 1931 (R. S. 1931 Supp. 17-202a) had recognized such course of construction, interpretation and administration of the law.
Prior to 1898 the method of procuring a charter was materially different than since. The charter board was then created (Laws 1898, ch. 10) and required to make a careful investigation of each application and to inquire especially with reference to the character of the business in which the proposed corporation is to engage, and if it determined that the business is one for which a corporation may lawfully be formed, to grant the charter. Much testimony was taken with reference to farming corporations whose charters were granted before and after 1897, and with reference to what the charter board did in the way of determining the character of the business which the proposed corporation intended to engage in and conduct. It must be conceded and assumed, however, that when any charter was granted it was intended only to grant a lawful charter, and that the corporation proposed only to engage in that business in which, under the statute, it had a right to engage. The charter board’s powers were fixed by statute, and they could only be exercised in connection with a lawful purpose, and neither the board nor the corporation could extend or enlarge either the purposes for which a corporation could be formed or the powers of the corporation. Since 1898 charters have been granted to a considerable number of corporations and, while not absolutely true, in most instances, in addition to other purposes, has been the stated purpose to encourage agriculture, and, under such charters, the corporations have engaged in general farming operations without any objection being raised by the state that such operations were beyond the charter purpose and, therefore, power of the corporation. Within the past few years, however, some of these corporations, evidently taking note of the financing ventures of other corporations, have embarked on a financing scheme marked by sales of stock, and in these cases the evidence shows that while general farming operations have been carried on, so have campaigns for sale of preferred and common stock. These activities became of such magnitude and of so great publicity that the attorney-general was directed by resolution of the house of representatives'of the state legislature to institute this action. It might be remarked here that this is some evidence of legislative intent. Defendants argue that by reason of the fact that the charter board, when granting the charters, was aware that the companies proposed to engage in general farming on a large scale, and later that when capital stocks were increased and blue-sky permits to sell stock were granted, a course of interpretation and construction of the statute was inaugurated and thereafter continued by the executive and administrative authorities; that by reason of legislative inaction in part and by the enactment of R. S. 44-301 and R. S. 1931 Supp. 17-202a, the legislature has tacitly approved such construction and interpretation, and that the state is now precluded from bringing these proceedings, and in support cite the following: Harrison v. Benefit Society, 61 Kan. 134, 59 Pac. 266; State v. Shawnee County, 83 Kan. 199, 110 Pac. 92; Cavlovic v. Baker, 118 Kan. 412, 234 Pac. 1009; Citizens Bank v. State Tax Comm., 132 Kan. 5, 294 Pac. 940; State, ex rel., v. State Highway Comm., 132 Kan. 327, 295 Pac. 986; National Lead Co. v. United States, 252 U. S. 140, 64 L. Ed. 497; Poe v. Seaborn, 282 U. S. 101, 75 L. Ed. 239; and 25 R. C. L. 1042; and our attention is directed to United States v. Dakota Montana Oil Co., decided March 13, 1933, wherein appears the following:
“The administrative construction must be deemed to have received legislative approval by the reenactment of the statutory provision without material change.” (77 L. Ed. 585, 589.)
An examination will disclose, however, that the rule applies only where the statute is either ambiguous, or where by its terms it does not fully cover the field. It is stated in 59 C. J. 1022 that where the language of a statute is ambiguous or uncertain the construction placed upon it by contemporaries, although not controlling, may be resorted to as an aid in ascertaining legislative intent, but is unnecessary and improper where the language used is clear, and that under that principle a course of conduct indicating a particular understanding of a statute will frequently be of great value in determining its real meaning, especially where long continued.
“A practicable construction of a statute is not conclusive on the courts, but if unvarying for a long period of time it should be disregarded only for the most cogent reasons. The doctrine arises only from a course of conduct, and is never applied to a single case. Moreover, no matter how long the usage has been established, or how general the acquiescence in the customary construction, it will not be permitted to override the plain meaning of a statute, nor will the rule of practicable construction apply where the ambiguity is merely captious and not serious enough to raise a reasonable doubt in a fair mind reflecting honestly on the .subject.” (59 C. J. 1024.)
In Swift Co., v. United States, 105 U. S. 691, 26 L. Ed. 1108, it was said:
“The rule which gives determining weight to contemporaneous construction, put upon a statute by those charged with its execution, applies only in cases of ambiguity and doubt.” (Citing cases.) (p. 695.)
In discussing the rule of contemporaneous construction, it is said in 25 R. C. L. 1043:
“The rule now under consideration has, however, no application unless the construction is a doubtful one and the ambiguity which arises from the language is so great as to compel the court to seize upon extraneous circumstances to aid in reaching a conclusion.”
The same authority, discussing executive or departmental construction, says, in part:
“Since executive or departmental construction can only be resorted to in aid of interpretation, it is the general rule that such construction is not controlling where the statute is clear and explicit in its language, and its meaning is not doubtful, and an executive or departmental construction of a proviso to an act which makes the proviso plainly repugnant to the body of the act is inadmissible. A custom of a department, however long continued by successive officers, must yield to the positive language of the statute.” (p. 1046.)
In Railway Co. v. Cowley County, 103 Kan. 681, 685, 176 Pac. 99, it was said:
“The rules of statutory construction are not rules restricting the power of the legislature in passing laws: they are rules observed by the courts in trying to ascertain what the legislature intended by the laws that have been passed.”
And in the same case the rule was approved that “the cardinal canon of construction, to which all mere rules of interpretation are subordinate, is that the intent, when ascertained, governs.” (See cases cited.)
And in Alter v. Johnson, 127 Kan. 443, 272 Pac. 474, the first paragraph of the syllabus recites:
“A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to the obvious purpose the court should follow the intent as expressed by the words used and is not warranted in looking beyond them in search of some other legislative purpose or of extending the meaning beyond the plain terms of the act.”
The second subdivision of R. S. 77-201 reads as folíows:
“Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law shall be construed according to such peculiar and appropriate meaning.”
The phrase “the encouragement of agriculture and horticulture” can hardly be said to be a technical phrase, or such as has acquired a peculiar and appropriate meaning in law, so we conclude it shall be construed according to the context and the approved usage of the language. The latter phase of construction has been heretofore discussed. As to the context, it will be noted that the phrase under consideration is numbered (4) in the statute R. S. 1931 Supp. 17-202. Those preceding it pertain to (1) public worship, (2) benevolent, etc., undertakings, (3) literary and scientific undertakings, maintenance of a library and promotion of fine arts; and those immediately following are: (5) maintenance of public parks for skating and other innocent sports, (6) club for social enjoyment, (7) public or private cemetery. If context means anything, the encouragement of agriculture was not considered by the legislature as being a business venture. We conclude that the phrase “encouragement of agriculture and horticulture” is composed of words of ordinary and approved usage, not technical in any sense; that it is not ambiguous, and therefore no resort should be had to any administrative construction that might have been placed upon it. The fact that members of the charter board may have misconceived the meaning of the phrase does not and cannot have the effect of making the statute mean something other than it plainly states, and, as has heretofore been referred to, the purpose stated in the charter was in the statutory language, and it must be assumed that everyone concerned, the applicants as well as the members of the charter board, intended that a charter be granted only for lawful purposes and that the present activities of the corporation were not within contemplation unless duly authorized by statute.
It is contended, especially by the Sledd Farm Corporation, that this court is without jurisdiction, because whether defendant is engaged in a business for which a corporation may be lawfully formed is the identical question heretofore determined by the charter board, and if the same is a Judicial question now, it was when it was determined by the charter board, and is now res judicata. We shall not discuss the contention further than to remark that the matters complained of in these actions grow out of operations since the charters were granted. The charter board could not create a corporation for purposes other than set forth in the statute and could not enlarge the statutory powers of any corporation organized for a lawful purpose. See Winslow v. Board of Dental Examiners, 115 Kan. 450, 452, 223 Pac. 308, and First State Bank v. Bone, 122 Kan. 493, 503, 252 Pac. 250. And, in addition, special provision has been made for this precise form of action when a corporation abuses or exercises powers not conferred by law. Article 29 of chapter 80 of the General Statutes of 1868, pertaining to proceedings in quo warranto, read, in part:
“Fourth, where any corporation do or omit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law.”
And the same provision, somewhat expanded, now appears as R. S. 60-1602, 4th subdivision. It is the duty of the court to see that a corporation does not exercise powers beyond its charter. Whetstone v. Ottawa University, 13 Kan. 320, 338.
The contention heretofore referred to that the state is bound by something in the nature of estoppel is also without merit. In State, ex rel., v. Paul and Grice, 113 Kan. 412, 214 Pac. 425, it was said:
“This court has never given its sanction to any such doctrine. It is altogether out of accord with the theory of Kansas jurisprudence. Beginning with Wood v. M. K. & T. Railway Co., 11 Kan. 323, 349, there is a long and undeviating line of decisions down to and including In re Mosley’s Estate, 100 Kan. 495, 164 Pac. 1073, and The State, ex rel., v. Piper, 103 Kan. 794, 798, 176 Pac. 626, which hold that laches and estoppel do not operate against the state, that no procrastination of public officials prejudices the state and that their tardiness neither bars nor defeats the state from vindicating its sovereign rights, except where positive statutes so provide.”
And see City of Emporia v. Humphrey, 132 Kan. .682, 693, 297 Pac. 712.
Complaint is made that actions are not brought against all companies which may be said to be similarly situated. Perhaps the attorney-general was of the opinion that the trial of these two suits would settle the controversial questions which would- be involved in any disputes with other companies, and good judgment demanded that he prosecute one or two actions to a conclusion before proceeding against other offenders; but, whatever his motive, it is no defense to defendants here, and, for that matter, there is no evidence but that the attorney-general is proceeding against such other companies if any there be. See Boynton v. Fox West Coast Theatres Corp., 60 F. 2d 851, 854.
A considerable space is given to a discussion of agriculture and public policy with reference thereto. We do not deem it necessary to enter into any discussion of agriculture with the idea of proving whether it is a means of making a livelihood, whether it is in the future to become a great business, or other matters of similar nature suggested. Neither are we here concerned with the question of the advisability of allowing corporations, or individuals, for that matter, to accumulate large holdings of lands to be used for agriculture or any other purpose. Our problem is to determine whether the defendant corporations have exceeded the purposes for which they were formed and have abused their corporate powers, and if so, to correct the wrongs which exist by reason thereof. Much is said in the briefs bearing on the proposition that these corporations have been permitted to continue in existence, to acquire vast bodies of lands, and to sell their stocks so that now the holders thereof can be counted in the hundreds; that if ouster is granted it will have the effect of depriving these stockholders of their property, for the reason that an ouster will compel throwing on the market, at a time when real-estate values are already depressed, a large number of farms, and it is urged that even though the court find that ouster might be proper, that, in the exercise of its discretion, the situation should be viewed from the standpoint of the stockholders and the ouster denied.
Under the evidence it appears that there has been nonuser and lack of performance by the Wheat Farming Company of those purposes named in its charter having to do with improvement of the breed of domestic animals and the promotion of immigration, and by the Sledd Farm Corporation of the construction and maintenance of dams, and ouster to these extents is ordered.
The evidence also shows that the Wheat Farming Company organized and owns all the stock of a corporation engaged in sale of farm machinery, and it is ordered that it sell and dispose of the stock of such corporation.
We are of opinion that, under the evidence, it would be justifiable that a complete forfeiture of the charter of each defendant corporation be ordered and decreed, but are likewise of opinion that it is not necessary or expedient at this time that such an order and decree be entered. In so far as these actions are concerned, they are brought solely on the ground that the corporations are exceeding their statutory purposes and therefore powers, and not because of otherwise improper conduct of their affairs, although some evidence tending to show mismanagement was attempted to be offered. The court is likewise of opinion that these corporations should so arrange their affairs that within a reasonable period of time they will have disposed of all real estate and other property not necessary for use in the lawful exercise of the purpose for which they were created, and if it is impossible to so limit their respective activities, that they will liquidate their assets and dissolve their respective corporations. Jurisdiction of the cause is retained and if steps are not taken by the respective corporations in line with the above suggestions then, upon notice, the writ of ouster will issue and such further orders as may be necessary and expedient will be made.
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