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The opinion of the court was delivered by
Six, J.:
Richard R. Kendall, Jr., appeals his felony conviction under K.S.A. 1999 Supp. 8-1567 of driving under the influence (DUI), his convictions of driving while license suspended and refusing a prehminary breath test, and his sentence. The issues are whether: (1) the trial court erred in its response to a jury question regarding the definition of driving and, if error, was the error harmless; (2) the trial court erred in allowing a witness to give an opinion as to whether Kendall was under the influence of alcohol; and (3) the use of Kendall’s two prior DUI convictions to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
We hold that (1) although the trial court’s response to the jury’s question was incorrect, the error was harmless; (2) the trial court did not err in admitting the officer’s testimony concerning Kendall’s condition; and (3) the use of Kendall’s two prior DUI convictions to change the classification of the DUI here from a misdemeanor to a felony does not violate Apprendi.
We affirm Kendall’s convictions and his sentence.
FACTS
On April 8, 2000, Officer Ogbum found Kendall slumped over the steering wheel of his tmck, which was resting in the middle of a public street in a residential neighborhood. The tmck’s motor was running, and Kendall was wearing his seat belt. The track’s headlights and brake lights were on. Kendall appeared to be asleep. He had one foot on the brake. Officer Ogbum testified that the truck was in neutral.
Backup officers arrived and Officer Ogbum reached into the tmck, turned off the engine, and took the keys. Kendall did not wake up. The officer shook Kendall repeatedly. When Kendall woke up, he said, “I’m not driving.” The officer smelled alcohol and asked Kendall to step out. Kendall tried to get out without unfastening his seat belt. Officer Ogbum testified that Kendall was having problems with balance and coordination.
Officer Ogburn asked Kendall to perform field sobriety tests. The officer testified that Kendall recited the alphabet to the letter Q. Kendall stopped and inquired if he should continue, then recited the rest of the alphabet. The officer testified that Kendall’s speech was noticeably slurred and he could smell alcohol on Kendall’s breath.
Officer Ogbum asked Kendall to: (1) stand on one leg for 15 seconds (Kendall tried twice but stood on one leg for only 1 second each time); (2) walk a straight line heel-to-toe with his hands at his side (the officer testified that Kendall used his arms to steady himself and he was staggering; the officer stood beside him throughout the test because he was afraid Kendall would fall); and (3) take a preliminary breath alcohol test (Kendall refused).
The officer placed Kendall under arrest. Kendall refused to turn around and put his hands behind his back, and another officer turned him around. Officer Ogburn described Kendall at that point as “not agreeable.” Once taken to the law enforcement center, Kendall again refused to take a breath alcohol test.
Kendall was charged with DUI, driving while license suspended, and refusing a preliminary breath test. Kendall’s defense at trial was that he had not been drinking and he did not drive the truck.
Kendall’s Testimony at Trial
Kendall testified that the day he was arrested, he had worked 144/2 hours at his construction job, ate dinner, slept for a few hours, then went to a party with a woman who was his friend. The friend drove his tmck to the party because his license was suspended. Kendall said he was tired, and he and his friend eventually left the party. On the way home, he and his friend argued as she drove. She threw an alcoholic drink in his face, stopped the tmck, and walked away. He slid over into the driver’s seat and fastened his seat belt, unsure of what to do. He said he tried to lick the alcohol off his hands and the “[n]ext thing I know the officer s waking me up.”
The Sentence
Kendall was convicted of each crime. His motions for judgment of acquittal and new trial were denied. His criminal history includes seven DUIs. Only two convictions occurred within the 5 years preceding the instant DUI. Under K.S.A. 1999 Supp. 8-1567(k)(3), only those two may be considered in determining whether the instant DUI was a first, second, third, or fourth offense. He was sentenced to 12 months’ probation, with an underlying prison term of 12 months. As a condition of his probation, he was ordered to serve 5 days in jail and 85 days under work release supervision.
DISCUSSION
The Jury’s Question
Kendall argues that the trial court erred in its response to a jury question that asked for a legal definition of driving. Kendall contends that the trial court’s answer to the jury’s question was a misstatement of the law. He also asserts that the answer relieved the State of its burden to prove an element of the crime and deprived him of a fair trial.
K.S.A. 22-3420(3) says:
“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 die prosecuting attorney.”
The trial court has considerable discretion in determining the substance of its response to jury questions during deliberations regarding matters of law or evidence in the case. State v. Robbins, 272 Kan. 158, 168, 32 P.3d 171 (2001). Judicial discretion is abused only when no reasonable person would taire the view adopted by the trial court. State v. Lopez, 271 Kan. 119, 125, 22 P.3d 1040 (2001).
Further, we have said: “The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” State v. Morris, 255 Kan. 964, 985-86, 880 P.2d 1244 (1994).
Before deliberations, the jury was instructed on the crime of DUI. Instruction No. 7 said:
“The defendant is charged with the crime of operating a vehicle while under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant drove a vehicle;
“2. That the defendant, while driving, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and
“3. That this act occurred on or about the 8th day of April, 2000, in Reno County, Kansas.”
The instruction was taken directly from PIK Crim. 3d 70.01. The jury was also instructed on the alternative theory of attempted DUI.
Instruction No. 8, taken from PIK Crim. 3d 70.01-B, said:
“The defendant is charged in the alternative with operating or attempting to operate a vehicle while under the influence of alcohol. You are instructed that the alternative charges constitute one crime.
“You should consider if the defendant is guilty of operating or attempting to operate a vehicle while under the influence of alcohol and sign the verdict upon which you agree.”
Instruction No. 9 said:
“The defendant is charged with the crime of operating a vehicle while under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must he proved:
“1. That the defendant attempted to drive a vehicle;
“2. That the defendant, while attempting to drive, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and
“3. That this act occurred on or about the 8th day of April, 2000, in Reno County, Kansas.”
During deliberations, the jury submitted two questions to the trial court. First, the juiy asked: “Was Richard Kendall’s truck a standard transmission or automatic transmission?” The trial court, upon the agreement of the parties, answered: “You must rely on your collective recollection of the testimony and evidence, and the instructions as a whole.”
Second, the jury asked: “Is there a legal definition of driving?” After hearing arguments of counsel, the court answered: “The words To drive’ and ‘operate’ are synonymous under Kansas law. Movement of the vehicle is not required. Again, the jury should refer to the answer to Question No. 1 above.” At trial, Kendall took issue only with the second sentence of the answer.
Kendall argues that the trial court’s statement that “[mjovement of the vehicle is not required” is a misstatement of the law. We agree that it applies as to operation, but movement is not required for attempted operation.
K.S.A. 1999 Supp. 8-1567(a) says no person shall “operate or attempt to operate” any vehicle within this state while under the influence of alcohol.
We explored the meaning of “operate” under K.S.A. 8-1567 in State v. Fish, 228 Kan. 204, 612 P.2d 180 (1980). Fish was discovered in his car parked off the highway at a community trash receptacle. He was asleep in the front seat. The motor was running and the car was in park. There was an open liquor bottle on the front seat. A highway patrol trooper woke Fish and suspected that Fish was drunk. Fish was charged with DUI under K.S.A. 1979 Supp. 8-1567(a).
The State appealed on a question reserved. We described the State’s argument as follows:
“On this appeal, the State requests this court to hold that there is a distinction between the terms ‘to operate’ and ‘to drive’ as used in K.S.A. 1979 Supp. 8-1567(a) and (b). The State maintains that the word ‘operate’ is a broader term than is the term ‘drive’ and includes acts of a person in a motor vehicle not involving the actual driving of die vehicle. Thus, the State argues, an intoxicated person, who starts the motor of an automobile and, thereafter, remains seated in die vehicle, has violated die provisions of K.S.A. 1979 Supp. 8-1567(a). The State points out there is no Kansas law defining the term ‘to operate’ in the context of this statute.” 228 Kan. at 205.
In Fish, we examined other traffic laws and analyzed the legislative intent behind 8-1567(a) and concluded:
“[T]he word ‘operate’ as used in section (a) of that statute should be construed to mean ‘drive,’ thus requiring some evidence, either direct or circumstantial, that the defendant drove the automobile while intoxicated in order for the defendant to be convicted under that section. Proof of driving does not require an eyewitness to the driving. It may be shown by circumstantial evidence as was done in State v. Dill, 182 Kan. 174, and State v. Hazen, 176 Kan. 594.” 228 Kan. at 210.
From Fish, we derive two things: (1) to operate a vehicle as set forth in 8-1567(a) means to drive it; and (2) in order to be convicted of operating a vehicle under the influence, there must be some evidence, direct or circumstantial, that the defendant drove the vehicle. Nothing in Fish says that movement of the vehicle is not required to convict a defendant under 8-1567(a). In fact, in Fish, we noted: “The Kansas cases on tire subject have assumed that proof of driving or movement of the vehicle is required in order to sustain a conviction.” 228 Kan. at 205-06.
The State here counters that the definition of “operate” is much broader than the definition of “drive” and encompasses other activities involving a vehicle, including sitting inside it with the engine running or fastening a seat belt. The State insists that Fish was wrongly decided. It also points to K.S.A. 1999 Supp. 8-2,128(j), which defines “drive” to mean “drive, operate or be in physical control of a motor vehicle.” The State characterizes this statute as a legislative response to Fish. K.S.A. 8-2,128 was enacted in 1989, 9 years after Fish, and is part of the Uniform Commercial Driver s License Act, K.S.A. 8-2,125 et seq. The statute makes clear that the definitions it contains apply to the Commercial Driver s License Act. K.S.A. 1999 Supp. 8-2,128 malees no difference here.
More to the point, K.S.A. 8-1567 has been amended since our decision in Fish. The DUI statute at issue in Fish, K.S.A. 1979 Supp. 8-1567, prohibited the operation of any vehicle by a person who was under the influence of alcohol. The statute was amended in 1985 to prohibit the operation or attempt to operate any vehicle by a person under the influence of alcohol. L. 1985, ch. 48, sec. 9. Thus, the current version of the DUI statute at issue here encompasses both those accused of actually driving while under the influence and those who merely tried but failed, with no election required. Movement of the vehicle is not required in order to con vict a defendant of DUI under the theoiy that defendant attempted to operate the vehicle.
Here, the jury was separately instructed on both theories of guilt under K.S.A. 1999 Supp. 8-l567(a): (1) operating a vehicle while under the influence of alcohol and (2) attempting to operate a vehicle while under the influence of alcohol. The juiy was given three options in the verdict forms:
“VERDICT
Count One-Driving Under the Influence
“We, the jury, do upon our oaths find the defendant guilty of Driving While Under the Influence by driving a motor vehicle.
Presiding Juror
“We, the jury, do upon our oaths, find the defendant guilty of Driving while Under the Influence by attempting to drive a motor vehicle.
Presiding Juror
“We, the jury, do upon our oaths, find the defendant not guilty.
Presiding Juror”
The juiy asked for a legal definition of driving. The trial court responded: “Movement of the vehicle is not required.” This was not a correct statement of the law. It is true that movement of the vehicle is not required to convict a defendant of DUI under the theoiy that he attempted to operate the vehicle. However, nothing in Fish or other pertinent Kansas law says that the definition of “driving” does not require movement of the vehicle.
The trial court’s response to the jury’s question about the legal definition of driving was a misstatement of the law. Given the fact that Kendall’s defense was anchored to his claim that he did not drive the truck, the trial court’s response to the jury’s question was erroneous.
The question becomes whether the trial court’s error was harmless. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997).
The jury convicted Kendall on the theory drat he operated a vehicle while under the influence of alcohol. Contrary to the trial court’s statement, proof that Kendall drove (or moved) the vehicle was required to sustain the conviction under that theory.
However, proof that Kendall drove (or moved) the vehicle was not required to convict Kendall of DUI on tire theory that he attempted to operate a vehicle while under the influence of alcohol. Even if we assume the trial court’s statement led the jury astray and resulted in the jury’s conclusion that Kendall — by sitting in his truck in the middle of the street with the engine running and his seat belt fastened — operated the vehicle, the trial court’s statement does not change the fact that there was ample evidence that Kendall attempted to operate the vehicle.
Kendall’s defense at trial was that a woman drove his truck, then abandoned it in the middle of the street, prompting Kendall to move to the driver’s seat, buckle his seat belt, put his foot on the brake, and fall asleep with the engine running. Kendall claimed he neither drove the truck nor attempted to drive it. The jury either believed him or it did not. Kendall’s general denial applied equally whether the jury believed he actually moved the vehicle or just attempted to move it. At oral argument, Kendall’s attorney reiterated that Kendall claimed he did not drive. The attorney also stated there was no evidence that he attempted to drive.
In finding Kendall guilty of DUI under the theory that he operated the vehicle, the jury rejected Kendall’s general denial. The “no movement required” statement from the trial court impacted only the jury’s choice between guilt based on operation (movement required) or guilt based on the attempt to operate (no movement required). It did not impact the jury’s decision whether to accept or reject Kendall’s defense.
Where a defendant’s theory of the case was not prejudiced by an erroneous instruction, the error is harmless. See State v. Shumwaij, 30 Kan. App. 2d 836, 50 P.3d 89, 99, rev. denied 274 Kan. 1117 (2002) (any error in giving a lesser included instruction to the jury without adequate notice to defendant was harmless given his denial of involvement in the incident). The same basic reasoning applies here.
Kendall was found in the driver s seat of his truck with the engine running, the headlights on, his foot on the brake, and his seat belt fastened. The truck was sitting in the middle of a public street in a residential neighborhood. Even if the jury believed Kendall did not move his vehicle while under the influence of alcohol, there was sufficient evidence to convict Kendall of DUI on the alternative theory that he attempted, but failed, to operate the truck.
The trial court’s answer to the jury’s question, while error, was harmless.
The Testimony of Officer Henderson
Kendall next argues that the trial court erred in allowing Officer Henderson, who arrived at the scene after Officer Ogburn, to testify that, in his opinion, Kendall was under the influence of alcohol. Kendall objected to the testimony at trial. He argues that the testimony was tantamount to an opinion regarding his guilt or innocence and was a determination that should have been left to the juiy-
The admissibility of evidence lies within the sound discretion of the trial court. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Villanueva, 274 Kan. 20, 49 P.3d 481, 487 (2002).
K.S.A. 60-456 governs the admissibility of opinion testimony, and says:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue orissues to be decided by the trier of the fact.”
At trial, the State offered Officer Henderson’s opinion as either expert or lay testimony. It matters litde, since either type of testimony is acceptable even though it embraces the ultimate issue to be decided by the jury.
In City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997), we considered whether the trial court abused its discretion in admitting the opinion testimony of police officers on the issues of whether Hadley was intoxicated and whether he could safely operate a vehicle. We found no abuse of discretion, observing that the officers did not express an opinion that Hadley was guilty of the crime. Further, we noted that even if admitting the evidence was error, it was harmless, pointing out that Hadley had a bench trial, not a jury trial, and the other evidence against him was overwhelming. 262 Kan. at 239-42.
Here, as in Hadley, Officer Henderson did not opine that Kendall was guilty of a crime. Officer Henderson simply stated that, in his opinion, Kendall was under the influence of alcohol. Further, the testimony of Officer Ogbum provided ample evidence on the subject. Officer Ogbum testified without objection that, given the smell of alcohol, slurred speech, bloodshot eyes, and Kendall’s poor balance, he believed Kendall had been drinking and was probably intoxicated or, at least, impaired.
The trial court did not abuse its discretion in admitting the opinion testimony of Officer Henderson.
The Apprendi Issue
Kendall argues that the use of his two prior DUI convictions to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We disagree.
K.S.A. 1999 Supp. 8-1567(a) prohibited the operation or the attempt to operate any vehicle in this state while under the influence of alcohol. Subsection (d) provided that upon a first DUI conviction, a person shall be guilty of a class B nonperson misdemeanor and sentenced to not less than 48 consecutive hours or more than 6 months of imprisonment or, in the court’s discretion, 100 hours of public service, and fined not less than $200 or more than $500.
Subsection (e) provided that upon a second conviction, a person shall be guilty of a class A nonperson misdemeanor and sentenced to not less than 90 days or more than 1 year of imprisonment and fined not less than $500 or more than $1,000. The person must serve at least 5 consecutive days’ imprisonment but, after 48 consecutive hours’ imprisonment, the balance may be served on work release.
Subsection (f) stated that upon a third or subsequent conviction, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days or more than 1 year of imprisonment and fined not less than $1,500 or more than $2,500. The person must serve at least 90 days’ imprisonment and, after 48 consecutive hours’ imprisonment, the balance may be served on work release.
Kendall was sentenced under K.S.A. 1999 Supp. 8-1567(f). He argues that under Apprendi, the fact that he had two prior DUI convictions must be proven to a jury beyond a reasonable doubt before that fact can be used to change the classification of his crime from a misdemeanor to a felony and increase his sentence. He contends that because such a jury finding was absent here, his Sixth and Fourteenth Amendment rights have been violated and his sentence must be vacated and the case remanded for resentencing.
Kendall’s argument raises a question of law over which we have unlimited review. State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
The United States Supreme Court in Apprendi held: “Other than the fact of a prior conviction, any fact that increases tire 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.
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, 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 46-48.
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 history 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 854-55.
Kendall complains of the fact that his two prior convictions of DUI were used to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence. The use of the prior convictions here, as in Ivory and Graham, falls squarely within the prior conviction exception of Apprendi. Kendall’s sentence is constitutionally sound.
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The opinion of the court was delivered by
Davis, J.:
Lisa Boldridge appeals her first-degree premeditated murder conviction and hard 50 sentence. She advances the following contentions in this appeal: (1) The trial court violated her rights under the Fifth Amendment to the United States Constitution by admitting into evidence at trial her statements made to police, (2) the trial court erred by admitting certain hearsay statements, (3) the State failed to present sufficient evidence to support the imposition of the hard 50 sentence, and (4) the imposition of the hard 50 sentence violates the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 St. Ct. 2348 (2000). We affirm.
Following a bench trial, Lisa Boldridge was convicted of the first-degree murder of her former husband, Kurt Boldridge. The State presented evidence that Lisa and three men, John Goodpasture, Gary Skeen, and Kirk Wilson, went to Kurt’s house where Wilson shot Kurt in the head while he was sleeping. The sentencing court found that the crime was motivated by financial gain, found that there were no mitigating circumstances, and imposed the hard 50 sentence upon Lisa.
In return for a reduced charge, John Goodpasture agreed to testify for the State. Goodpasture first saw Lisa on March 18,2000, while drinking beer at a house with his friends, Harold Gillis and Skeen. According to Goodpasture, Lisa arrived sometime between 10 p.m. and 2 a.m. and announced that she wanted to kill Kurt. Lisa left with Goodpasture, and Wilson and Skeen followed. She drove to Kurt’s house and let the others inside. Lisa obtained a shotgun for Wilson who, followed by Lisa, approached Kurt sleeping in his bed. Wilson brought the weapon within 16 inches of Kurt’s head and fired. The three men stayed for approximately 10 minutes looking for cocaine but left when there was none to be found. Lisa remained at the house. She eventually met Goodpasture, Skeen, and Wilson at the river, where Wilson threw the shotgun into the river.
On March 24, 2000, Kurt’s mother, Sophia Boldridge, contacted the sheriff asking that someone be sent to check on Kurt. Edward LaBarbera, a sheriff s deputy, arrived at Kurt’s house at 10:47 a.m. and found the house locked. Deputy LaBarbera noticed an odor he believed to be a dead body and also noticed flies swarming. Another sheriff s deputy, Jason Wohlgemuth, arrived shortly thereafter. The doors and windows were locked, but Deputy Wohlgemuth found a window that was broken and climbed through to let Deputy LaBarbera in the house. While in the house, Deputy Wohlgemuth also noticed tire odor. Deputies Wohlgemuth and LaBarbera moved through the house until they reached the master bedroom where they found Kurt’s fully covered body. Deputy Wohlgemuth pulled the comforter from Kurt’s body, exposing Kurt’s shoulders and arms. He could not determine the cause of death based on viewing Kurt’s body but told Sophia Boldridge that her son was dead and that it was apparent that he had been dead for some time.
Sheriff John Calhoon testified that when he went through Kurt’s house with the coroner, he immediately identified Kurt’s body but could see no wounds because it was badly deteriorated.
That same day, another search was made by agents of the Kansas Bureau of Investigation (KBI). Special Agent Timothy Dennis entered Kurt’s house shortly after 4 p.m. The cause of Kurt’s death was unknown at this time, and Dennis believed he was investigating an unattended death. There were no signs of a struggle in tire bedroom. Dennis then observed a gunshot wound to the left side of Kurt’s head which he believed to be either a contact wound or a near contact wound. Dennis noticed a small amount of blood splatter on the headboard, which indicated the body had been shot in that location. He also noticed a piece of shotgun wadding which was burrowed under the comforter, indicating the comforter was placed on the bed after the shooting. It was not until 5:45 p.m. that Dennis emerged from Kurt’s house and announced that the cause of death was known.
Rosetta Birch, a hospital employee who works with Lisa’s sister, Rhonda Turpin, testified at trial that Lisa called the hospital between 2 and 2:20 p.m. the same day Kurt’s body was found, asking to speak with Turpin. According to Birch, Turpin was not available to take the call. Birch testified that Lisa told her that Kurt had been found dead with a gunshot wound. Lisa asked Birch to tell Turpin to call her, and Birch delivered that message to Tuipin.
According to Billie Whitfield, a hospital employee who worked with Birch and Turpin, Turpin also had a telephone conversation that day with Lisa and learned that “they had found Kurt Boldridge dead.” When asked by the prosecutor about the cause of death, Whitfield testified she learned from Turpin that “[Kurt had] been shot in the back of the head.” Whitfield testified her conversation with Turpin occurred at 2:20 p.m. on March 24.
On March 28, 2000, Deputy Wohlgemuth visited Lisa to obtain a voluntary consent to search her residence. While there, Lisa gave Wohlgemuth a letter from the Social Security Administration (SSA) dated March 17, 2000, and postmarked the same day.
The State presented the testimony of Pam Langan, another of Lisa’s coworkers. Prior to Kurt’s death, Lisa had complained about Kurt not paying child support and about times when Kurt had abused their son, A.B. Langan testified Lisa made the following prediction prior to the discovery of Kurt’s body: “She told me the Monday morning before Kurt was found, that Kurt had slapped [A.B.] around over the weekend and it would be the last time that he ever touched him. And she said, I guarantee it will be the last time he ever touches him.” Further, Langan testified Lisa believed Kurt would be better off dead: “And [Lisa] made the comment that the best thing that could happen for [A.B.] is if Kurt ended up dead so [A.B.] could collect his social security.”
The State also presented the deposition testimony of Veronica Henderson, an SSA employee. Henderson testified that Lisa telephoned on March 17, 2000, inquiring about death benefits for A.B. Lisa told Henderson the date of Kurt’s death was March 14, 2000. A record of the telephone call was generated by the SSA computer and substantiated Henderson’s testimony. Henderson testified Lisa acted nervous and apprehensive.
The court found Lisa guilty of premeditated murder as an aider and abetter and sentenced her to life imprisonment without parole for 50 years pursuant to K.S.A. 2001 Supp. 21-4638.
(1) Admission of Lisa Boldridge s Statements
The standard of review of a trial court’s determination where an inquiry on the admissibility of a defendant’s statement was conducted and the statement was admitted, is narrow. The trial court’s ruling will be accepted on appeal if it is supported by substantial competent evidence. In this case, the trial court determined after a hearing that all the defendant’s statements were admissible, and our inquiry is thus limited to whether the determinations were supported by substantial competent evidence. See State v. Minor, 268 Kan. 292, 297, 997 P.2d 648 (2000).
“Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that tire State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination. [Citation omitted.] However, an officer’s obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect’s freedom so as to render him or her in custody. [Citation omitted.]” State v. Heath, 264 Kan. 557, 590, 957 P.2d 449 (1998).
A waiver of Miranda rights must be knowing, voluntary, and intelligent under the totality of the circumstances, and the burden of proving a voluntary waiver of rights is on the State. State v. Hedges, 269 Kan. 895, 908, 8 P.3d 1259 (2000). However, a waiver of Miranda rights need not be in writing. State v. Crume, 271 Kan. 87, 97, 22 P.3d 1057 (2001).
Lisa called into question the interviews which took place March 27, 2000; March 29, 2000; April 4, 2000; June 29, 2000; and one interview after June 29, 2000.
On March 27, 2000, Lisa met with KBI Special Agents Johnson and Morgan and sheriffs investigator Larry Myer at the courthouse. Johnson read Lisa her Miranda rights, and Lisa waived those rights. Lisa understood her rights. Lisa was not in custody and came in voluntarily for the interview. Lisa was not “constrained of her liberty in any significant matter” and could have left had she wanted to, which she understood because Johnson told her so.
The second interview took place at the courthouse March 29, 2000. Again, Lisa voluntarily arrived at the courthouse, was not in custody, and was free to go at all times. Johnson read Lisa her Miranda rights out loud, and she signed a form indicating that she understood her rights and voluntarily waived them.
The third interview took place at the courthouse April 4, 2000. The same procedure was implemented to inform Lisa of her rights, culminating in her having initialed the statement to signify she understood the rights and wished to waive them again.
The fourth interview took place at the courthouse the evening of June 29, 2000. Lisa was scheduled to appear on her own but did not do so. Johnson and Myer went to track her down. It is not clear from the record how Lisa made it to the courthouse, i.e., whether in her own car or with Johnson and Myer. At the courthouse, Lisa herself read out loud the Miranda rights. Johnson described the circumstances:
“I had the form out. She took the form. She read the rights out loud to me. She said she understood them. And she then agreed to talk to me. I didn’t sign it because I was just going to do a verbal. You know, you can do it either way. That one I was just going to do a verbal advisement. But she took the form. She read it out loud, acknowledged that she understood, said she didn’t want an attorney, and agreed to talk to me.”
It was Johnson s opinion that Lisa understood the procedure by that time. Lisa was arrested following the June 29, 2000, interview. She did not want to talk after the arrest.
The fifth occasion occurred while Myer was transporting Lisa from Atchison County to Leavenworth for a hearing. Myer did not ask Lisa any questions during this time. Lisa asked to speak with Johnson, and he eventually was summoned to speak with her. Johnson explained the encounter:
“And she was incarcerated in Leavenworth in the old county jail because they hadn’t moved into the new one yet. She was in a room. I walked in there. As soon as I walked in the door, she started talking. So I did not have a rights advisement on that one. But there was nothing of any interest said, anyway.”
The trial court found Lisa made a proper waiver of her Fifth Amendment rights before the interviews March 27, March 29, and April 4. Further, the court found Lisa was not in custody during the March 27 and March 29 interviews. On appeal, Lisa implicitly acknowledged these first three interviews posed no concern, and we find no constitutional infirmities with using testimony based upon these interviews.
Regarding the June 29 interview, the court found Lisa waived her Fifth Amendment rights, although she did not do so in writing. The court also found that Lisa initiated the June 29 interview. With regard to the last interview, the court found Lisa’s statements were not the result of a law enforcement interrogation, as Lisa had initiated the conversation.
With respect to the June 29 interview and the last interview, Lisa in her brief and argument before this court pointed out confusion in the court’s ruling and concluded that “the trial court did not realize that the fourth [June 29] interrogation, after which Lisa was arrested, was distinct from the fifth, in which she requested an interview with Special Agent Johnson.” The court said the June 29 interview was initiated by Lisa despite the testimony indicating that it was the last interview which she initiated. However, it is also clear the court understood separate instances were at issue. The trial court found Lisa also waived her rights before beginning the June 29 interview. With respect to the last interview, the court found that Lisa initiated the conversation, which was “not a result of any interrogation or any questioning by law enforcement.”
Lisa argued further with respect to the June 29 interview that it was error to admit her statements because she did not “sign anything indicating that she wanted to waive her rights.” However, a defendant in a custodial interrogation need not explicitly waive his or her right to counsel. State v. Jackson, 226 Kan. 302, 305, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (2000). In this case, Lisa read the rights, said she understood them, and agreed to speak without the benefit of counsel. There is no evidence in the record to dispute these findings.
Lisa’s rights were similarly not violated during the last interview which occurred with Johnson after her arrest. “An accused may waive Miranda rights by his or her own acts and words in initiating conversation with police.” State v. Groschang, 272 Kan. 652, Syl. ¶ 4, 36 P.3d 231 (2001). Lisa requested the meeting and began talking as soon as Johnson walked into the room. Lisa initiated the conversation and began talking before Johnson could speak. There is nothing in the record to contradict these facts. We conclude that the admission of all statements is supported by substantial competent evidence.
(2) Admission of Hearsay Statements
Lisa argued the trial court erred in admitting the testimony of Billie Whitfield that included multiple hearsay. The State presented die testimony of Whitfield, wbo testified about statements made by Lisa’s sister, Rhonda Turpin, regarding Turpin’s conversation with Lisa. Whitfield testified Turpin spoke with Lisa, who told Turpin, before law enforcement officers had announced that Kurt’s death was a homicide, that Kurt had been lulled by a shot to the back of the head. Lisa lodged contemporaneous objections to any statements made by Turpin on the basis that the statements were inadmissible hearsay.
The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. State v. Humphery, 267 Kan. 45, 55, 978 P.2d 264 (1999).
This issue involves one of multiple hearsay in that it comprises (1) the statement made by Lisa to Turpin on the telephone and (2) the statement made by Turpin to Whitfield about what Lisa said in that conversation. K.S.A. 60-463 governs the admission of multiple hearsay: “A statement within the scope of an exception to K.S.A. 60-460 shall not be inadmissible on the ground that it includes a statement made by another declarant and is offered to prove the truth of the included statement if such included statement itself meets the requirements of an exception.” (Emphasis added.)
In analyzing this issue within the context of 60-460 and 60-463, we first deal with the included statement made by another declar ant. Lisa is the other declarant and her statement that the victim was shot in the back of the head is the included statement sought to be admitted. On appeal, Lisa conceded her own statement would be admissible as an admission by parties. See K.S.A. 2001 Supp. 60-460(g) (“As against a party, a statement by the person who is the party to the action in the person’s individual or a representative capacity and, if the latter, who was acting in such representative capacity in making the statement.”). Thus, under K.S.A. 60-463, the “included statement itself meets the requirements of an exception” under K.S.A. 2001 Supp. 60-460(g). However, Lisa argued that Turpin’s statements to Whitfield could not meet those exceptions.
The question under K.S.A. 60-463 is whether Whitfield’s testimony about what Turpin said is “[a] statement within the scope of an exception to K.S.A. 60-460.” The trial court ruled that it was admissible under 60-460(d)(2) as an excited utterance. Thus, according to the trial court’s ruling, Turpin’s statement to Whitfield was made “while the declarant [Turpin] was under the stress of a nervous excitement caused by such perception”; that is, Turpin was under the stress of a nervous excitement caused by learning of the death of Kurt by a gunshot wound. Thus, according to the trial court, Whitfield’s testimony about what the declarant said constitutes a statement within the scope of an exception to the hearsay rule, more specifically 60-460(d)(2). This statement is not inadmissible on die ground that it includes a statement made by another declarant (Lisa) and is offered to prove the truth of the included statement if such included statement (Lisa’s) itself meets the requirements of an exception. Lisa’s statement fits the exception in K.S.A. 2001 Supp. 60-460(g), as a statement against interest. The requirements of K.S.A. 60-463 are, therefore, satisfied.
In State v. Rowe, 252 Kan. 243, 250, 843 P.2d 714 (1992), we discussed the excited utterance exception and, citing Barbara, Kansas Evidence Objections with Evidentiary Foundations, § 7.6, pp. 7-18 (1988), we analyzed the exception according to the following four elements:
“ T. An event or condition occurred.
“ ‘2. It was startlingly sufficient to cause nervous excitement.
“ ‘3. The declarant perceived it.
“ ‘4. The declarant made the statement while under stress of nervous excitement.’ [Citation omitted.]”
The excited utterance exception has the “ ‘characteristic of spontaneity arising either from the reaction to contemporary perception or from the excitement which carries over from the event.’ ” 252 Kan. at 248-49 (quoting 1 Gards Kansas C. Civ. Prac. 2d Annot. § 60-460[d], p. 239 [1979]).
In terms of the above elements, the following facts must be true to make Whitfield’s testimony as to Turpin’s statements admissible: First, an “event” must have occurred when Lisa called Turpin and spoke to Turpin on the telephone. Second, Lisa’s having broken the news to Turpin over the telephone must have caused Turpin nervous excitement. Third, Turpin must have perceived the event. Last, Turpin must have made the statement that Whitfield relates in court under stress of nervous excitement.
This court most recently visited the 60-460(d)(2) hearsay exception in State v. Bryant, 272 Kan. 1204, 38 P.3d 661 (2002). Bryant, the defendant, was convicted of three counts of first-degree premeditated murder. After the murder in Wichita, Biyant and his coconspirator, Pink, returned to Pink’s house in Arkansas City, and Pink’s wife overheard Pink ask Bryant why he killed the victims. At trial, the State introduced Pink’s statement through Pink’s wife. On appeal, Bryant argued the trial court erred in admitting the hearsay statements of his coconspirator through the wife of his coconspirator. This court disagreed and found the statement was properly admissible under the excited utterance exception, 60-460(d)(2):
“The 'excited utterance’ exception under K.S.A. 60-460(d)(2) allows a hearsay statement to be introduced to prove the truth of the matter when the statement was made under the stress of nervous excitement caused by such perception. Such are the facts in this case because of the emotional state of Malcolm Pink and the close time frame to the triple homicide. The requirements that the event or condition occurred, that it was sufficiently ‘startling’ to show that the declarant perceived it, and the declarant made the statement while under stress of nervous excitement were recognized in State v. Rowe, 252 Kan. 243, 250, 843 P.2d 714 (1992). See Barbara, Kansas Rules of Evidence with Evidentiary Objections and Evidentiary Foundations, § 7.6 (3d ed. 1993).” 272 Kan. at 1209.
Bryant notes that reliability can be inferred when hearsay statements are admitted under the excited utterance exception, but such hearsay statements might be excluded if reliability is found not to exist. 272 Kan. 1209-10, Syl. ¶ 5.
In Bryant, Pink was the declarant, and Pink’s wife was the witness. The court found Pink’s statement admissible because it was made relatively contemporaneous with the startling event, the triple homicide. Thus, from Bryant, it is clear that it is the emotional state of tire declarant that should be examined.
The two real issues in this case are (1) whether the news relayed to Turpin by Lisa that Kurt had been shot in the back of the head was sufficiently startling to Turpin and (2) whether Turpin made the statements to Whitfield while under the stress of nervous excitement caused by the startling event. Lisa argued that only incidents such as a murder or an accident are sufficiently startling to invoke the excited utterance exception. Lisa cites State v. Walker, 28 Kan. App. 2d 700, 20 P.3d 1269 (2001). However, in Walker, there was no evidence of the declarant being startled, and even the defendant, who offered the declarant’s statement, withdrew his offer under 60-460(d)(2) and claimed the statement was admissible under another exception — the general necessity/present sense exception. 28 Kan. App. 2d at 705.
The record demonstrates that the prosecutor attempted to lay a foundation for admission of Turpin’s statement as an excited utterance under K.S.A. 2001 Supp. 60-460(d)(2). Whitfield testified that rather tiran her usual “boisterous and talkative” demeanor, Turpin appeared “[q]uiet and reserved” following the telephone conversation. The prosecutor continued to probe Whitfield about Turpin’s demeanor:
“Q. In fact, you were interviewed by law enforcement within about a day after this incident, were you not?
“A. Yes.
“Q. Do you recall how you described her to them?
“A. Probably as shocked.
“Q. Do you feel that she was in some kind of state of shock at that time?
“A. Yes, after what she had told me.”
The question of whether the news of Kurt’s death was information capable of producing sufficient “stress of a nervous excite ment” is one that must be resolved by the trial court. Here, the trial court determined that the information was not only capable of doing so but that the declarant (Turpin) was under the stress of a nervous excitement caused by hearing the information. These determinations are reviewed under an abuse of discretion standard, and we conclude that no abuse of discretion has been demonstrated. Moreover, there is support for application of the excited utterance exception to a person’s statements made after hearing of the death of someone. See Pugh v. Commonwealth, 223 Va. 663, 292 S.E.2d 339 (1982) (finding a father’s statement of “Oh, no, not again,” made after learning of his daughter’s death, was prompted by sufficiently startling circumstances to qualify for the excited utterance exception).
One further matter must be considered regarding the admissibility of Whitfield’s statement. The United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. 6. In Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the Court said:
“[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, 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.”
The Court later determined that a showing of unavailability of the declarant was not necessary under the excited utterance hearsay exception. White v. Illinois, 502 U.S. 346, 356-57, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992). Recently this court in State v. Deal, 271 Kan. 483, 500, 23 P.3d 840 (2001), held that the excited utterance exception under 60-460(d) is a firmly rooted hearsay exception; reliability may be inferred without any further showing. Thus, admission of Whitfield’s statement did not violate Lisa’s right of confrontation under the United States Constitution.
Finally, we note that the testimony of Whitfield concerning Lisa’s knowledge of the victim’s death by gunshot to the back of the head before that information was public knowledge was admitted into evidence by two other witnesses.
Rosetta Birch also worked at the local hospital with Turpin. Birch had a telephone conversation with Lisa that same afternoon before Lisa spoke with her sister, Turpin. In that conversation Lisa told Birch that Kurt had been found dead with a gunshot wound. Birch testified to the contents of this telephone conversation at trial. Lisa also spoke by telephone with an employee of the SSA, Veronica Henderson. Henderson testified that Lisa called the SSA on March 17 to inquire about death benefits for her son, A.B. Thus, the State established, either with or without Turpin’s hearsay statements, that Lisa knew about Kurt’s death before the law enforcement authorities.
If we were to conclude that Whitfield’s testimony was inadmissible hearsay, the error would be harmless, providing no grounds for reversal of Lisa’s conviction.
“Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless. [Citation omitted.]” State v. Sanders, 258 Kan. 409, 418-19, 904 P.2d 951 (1995).
(3) Sufficiency of Evidence to Support Imposition of the Hard 50
The standard of review where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding is “whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.” State v. Brown, 272 Kan. 809, Syl. ¶ 2, 37 P.3d 31 (2001); State v. Murillo, 269 Kan. 281, 287-88, 7 P.3d 264 (2000). The following standard is applied regarding mitigating circumstance:
“Where the trial court’s refusal to find a mitigating circumstance under K.S.A. 21-4637 is challenged by the defendant, the standard of review is whether, after a review of all the evidence, viewed in a light most favorable to the defendant, a rational factfinder could have found by a preponderance of the evidence the existence of the mitigating circumstance.” State v. Livingston, 272 Kan. 853, 858, 35 P.3d 918 (2002).
Where there is a question involving the sentencing court’s weighing of the aggravating and mitigating circumstances, its ultimate determination will not be disturbed absent an abuse of discretion. State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000).
The trial court found that Lisa committed the crime for herself or another for the purpose of receiving money or any other thing of monetary value, an aggravating circumstance under K.S.A. 2001 Supp. 21-4636(c). The court also rejected Lisa’s argument that the mitigating factors in K.S.A. 21-4637(d) and (h) existed and outweighed any aggravating factors found.
Aggravating Factor
Lisa argues that in contrast to a number of this court’s prior decisions on the financial gain aggravating factor, the evidence was mere speculation. Lisa admits that she called the SSA office but maintains the call was placed after she heard Wilson talk about killing Kurt. Further, Lisa points out that she would not stand to gain from Kurt’s death, although the statute clearly does not require that the financial gain go to the defendant. See K.S.A. 2001 Supp. 21-4636(c).
There is sufficient evidence in the record to support the sentencing court’s finding that Lisa’s motive for the crime was financial gain. Lisa was concerned with her son’s financial support. Langan, who worked with Lisa, testified about Lisa’s concern and as to Lisa’s statements that the best thing that could happen would be for Kurt to be dead. Not only would the physical abuse cease, but A.B. would receive financial support through Kurt’s social security benefits. A letter was found upon the search of Lisa’s residence answering her inquiries concerning social security benefits available for A.B. upon Kurt’s death. Lisa made a call soon after Kurt’s death informing the SSA of Kurt’s death so that payments to her son could be initiated. That Lisa killed Kurt to benefit her son with social security death benefits is established in trial testimony.
Lisa argued that her actions do not rise to the level of financial motive established in other cases. Specifically, Lisa argued the evidence of financial gain was mere speculation. The evidence in this case is not mere speculation. We conclude that evidence established that the defendant committed the crime for another, A.B. for the purpose of receiving money or any other thing of monetary value, and so was a proper aggravating circumstance in accordance with 21-4636(c).
Mitigating Circumstances
Lisa argued that the sentencing court erred in failing to consider the mitigating circumstances of her minor role in the crime and the history of abuse by Kurt. In making this argument, Lisa relied upon the provisions of K.S.A. 21-4637:
“Mitigating circumstances shall include, but are not limited to, the following:
“(d) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(h) At the time of the crime, the defendant was suffering from posttraumatic stress syndrome caused by violence or abuse by the victim.”
The trial court found that Lisa did not play a minor role in the crime as required in K.S.A. 21-4637(d). That subsection requires both that the defendant is an accomplice and that the defendant’s participation is relatively minor. In support of the decision, the sentencing court made the following findings:
“The Court finds — and found — from the evidence that the defendant essentially allowed access to the victim’s house, provided the gun that was the murder weapon, and also ammunition.
“The Court cannot characterize those acts as being relatively minor.
“And the Court considers those to be very major acts.
“As I stated at the time the Court rendered its decision, I see very little difference between pulling the trigger and handing the gun to the person who pulls the trigger.
“I cannot characterize the actions of the defendant in this case as being minor, even though that she was technically an aider and abettor.”
Lisa offered no credible arguments to show the sentencing court’s finding under the applicable standard of review was in error.
State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), affirmed the negative finding that the defendant in that case did not play a minor role in the crime, although someone other than the defendant probably fired the fatal shot to the victim’s forehead. 270 Kan. at 30. The evidence established that Lisa recruited the killer, led him to the victim’s house, obtained the shotgun, and led the killer to the bedside of the victim. We agree with the trial court’s conclusion that in this case, there is “very little difference between pulling the trigger and handing the gun to the person who pulls the trigger.”
The State’s evidence in the present case precludes a finding that Lisa’s role was minor. Lisa announced to Wilson, Skeen, and Good-pasture that she wanted to kill her husband. Lisa showed these men the way to Kurt’s house. Lisa let the men in Kurt’s house and found a shotgun for Wilson to use. When Wilson fired the gun, Lisa had been standing behind Wilson the entire time. When the murder is committed with a shotgun, i.e., only one shot to the head is necessary to complete the act, it is difficult to imagine how Lisa could have played a more active role in Kurt’s death without pulling the trigger herself.
After review of all the evidence, viewed in the light most favorable to the defendant, we determine a rational factfinder could not have found by a preponderance of the evidence that Lisa played a minor role in Kurt’s death.
Lisa also argued there was sufficient evidence she suffered from posttraumatic stress syndrome caused by violence or abuse by the victim pursuant to K.S.A. 21-4637(h). While the record suggests a discordant relationship between the victim and Lisa, Lisa failed to present evidence that she suffered from posttraumatic stress syndrome.
Weighing Equation
Our conclusion that the trial court’s finding of the aggravating factor of financial gain is supported in the record and our further conclusion that the trial court’s determination that the claimed mit igating circumstances did not exist demonstrates that the trial court’s weighing of all factors and its imposition of the hard 50 sentence was not an abuse of discretion.
(4) Apprendi v. New Jersey and the Hard 50 Sentence
Lisa challenges the constitutionality of the judge-imposed hard 50 sentence, arguing the sentence violates the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Lisa cites Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).
Imposition of the hard 50 sentence based on a fact not found by the trial court as factfinder in a bench trial or by a jury in a jury trial does not increase a defendant’s maximum sentence of imprisonment for life. The hard 50 sentence limits the lower end of the sentence. A defendant’s hard 50 sentence violates neither the Due Process Clause of the United States Constitution nor his or her right to trial by jury under the Sixth Amendment of the United States Constitution or Section 5 of the Kansas Constitution Bill of Rights.
This same argument has been rejected by this court in State v. Douglas, 274 Kan. 96, 111-12, 49 P.3d 446 (2002). See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000); see also State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002) (summarily incorporating the Conley analysis with respect to Apprendi and the imposition of the hard 40 sentence). Lisa fails to cite any additional authority for this court to alter its position.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
This is a personal injury action where the trial court granted summary judgment to defendants premised on a finding that plaintiff s expert failed to demonstrate defendants breached their duty of care to her. Based on the standard of review of summary judgment motions, we reverse the trial court and remand for further consideration.
The facts of the incident resulting in the alleged injury to the plaintiff in this case are not disputed. On October 17,1998, Sheila Marshall and her family attended a drag racing event at Heartland Park in Topeka, Kansas. During a race between two top-fuel dragsters, the vehicle driven by Pat Dakin “blew over,” which means the front end of the dragster raised off the ground while it was rapidly accelerating down the track.
The dragster became air bom and both of the large rear tires ripped off. One of the tires hit a 40-inch high concrete barrier wall running along side of the track and then careened onto the grandstand, striking and injuring Marshall who was seated several rows up in the spectator bleachers.
Marshall’s suit against Heartland Park and the National Hot Rod Association (NHRA) alleged negligence in (1) failure to maintain a safe place for patrons to view the event; (2) failure to maintain a fence of adequate height to deflect debris; (3) failure to require owners of drag racers participating in the event to equip vehicles with proper equipment; and (4) failure to warn Marshall that the seating area was dangerous and patrons were subject to severe injury.
The defendants answered, contending (1) the petition failed to state a claim upon which relief can be granted, (2) contributory negligence of other parties, (3) intervening and superseding causation, (4) assumption of risk and waiver of liability, and (5) denial of any liability.
After discovery was held by both parties, the defendants moved for summary judgment, contending there was no evidence that either of them breached any duty to plaintiff or that any act of either of them caused her injuries, and that plaintiff waived and released any liability by the defendants based on her knowledge of warning signs, ticket stub disclaimers, and the resulting assumption of the risks inherent in attending a drag racing event.
Marshall’s response to the defendants’ summary judgment motion relied heavily on the testimony and opinions of her expert witness, Boulter Kelsey. Kelsey is a professional engineer with drag racing experience going back to the 1950’s. Kelsey’s report, which was part of Marshall’s response, concluded the fence next to the track was inadequate, as were the wheel specifications on the dragster, which had been approved by the NHRA. He opined that an 18-foot fence with an angled top like the ones used at major oval racetracks, placed within 35 feet of the drag strip, would be an appropriate fence for drag races and would have prevented the tire in the present case from striking Marshall.
Kelsey’s opinion pointed to the changes in the sport of drag racing over the past 40 years from vehicles that barely reached 150 mph over a quarter of a mile to those exceeding 300 mph. He also noted that racers of today can operate in the range of 6000 horse power. With such power and speed, he concluded that barriers between spectators and the track must be higher and angled to prevent debris from reaching spectator areas.
Kelsey also opined that the standards by which wheels were made and attached to the dragsters were insufficient. He concluded that with appropriate standards, the wheels should not have ripped away from the vehicle. The wheels and attachment appear to have met the standard adopted by the NHRA, although there was testimony by Carl Olsen, an employee of the SFI Foundation, Inc., an independent company that sets minimum performance standards for automotive and racing equipment that the wheel specifications were being “looked at” as the result of this incident.
The defendants’ experts’ reports reached opposite conclusions. One expert stated Heartland Park was state of the art and reasonably safe. The other expert used computer graphics and accident reconstruction techniques and opined that Kelsey’s suggested fence would not have contained the flying wheel. The defendants moved for Kelsey to. be struck as an expert, contending numerous procedural deficiencies, lack of qualifications, lack of foundation for opinion, and various other inconsistencies.
The defendants also relied in part on the configuration of the racetrack and the viewing grandstands, which were claimed to be based on “underwriting”standards established by insurance carriers for the NHRA.
The trial court’s grant of summaiy judgment in favor of Heartland Park was limited to the element of breach of duty, holding no facts showed a failure in the duty of care to prevent the incident. The trial court did not consider or rule on the defense of waiver, disclaimer, and release of liability, nor did the trial court expressly rule on defendants’ motion to strike Kelsey as an expert witness, although the decision stated: “There are problems with the use of this expert report.” Several problems were enumerated, but the trial court did consider Kelsey’s report and conclusions and found them to be insufficient to establish a breach of duty.
Marshall has appealed from the trial court’s ruling. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion).
Our standard of review of summary judgment motions is well known as set forth in Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999):
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).”
We further said in Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998), that “[a] defendant is entitled to summaiy judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiffs case.” But, as we stated in Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 665, 538 P.2d 713 (1975), the party opposing the motion “ ‘is to be given the benefit of all reasonable inferences to be drawn from the evidentiary matter and all facts asserted by the party opposing the motion and supported by affidavits or other evidentiary material must be taken as true.’ ”
We have said that whether a “duty has been breached is a question of fact,” and “whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact.” Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983) disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995). We have also said: “[T]he presence or absence of negligence is ordinarily a question of fact for the jury, rather than one for judicial resolution by summary judgment.” (Emphasis added.) Honeycutt v. City of Wichita, 247 Kan. 250, 251, 796 P.2d 549 (1990).
As we noted in Durflinger v. Artiles:
“Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence.” 234 Kan. at 488.
While the existence of damage to Marshall is disputed, at this point, this case has been decided on the existence or absence of a breach of duty.
The standard established to determine the duty owed to patrons of exhibitors for profit in Kansas has been stated in Cale v. Johnson, 177 Kan. 576, 280 P.2d 588 (1955). In Cale, a patron was struck by debris thrown in his face and eyes by the wheels of a racing stock car and the duty was held to be based on language from Klish v. Alaskan Amusement Co., 153 Kan. 93, Syl. ¶ 1, 109 P.2d 75 (1941), where we stated: “ “While the proprietor ofaplace of public amusement is held to a stricter accountability for injury to patrons than owners of private premises generally, the rule is that he is not an insurer of the patrons, but owes them only what, under the particular circumstances, is ordinary and reasonable care.’ ”
The Cale opinion quotes from Annot., 37 A.L.R.2d 391 and the legal encyclopedias, which summarize the duty as one to exercise care under the circumstances to make a racetrack reasonably safe and free from dangers which are likely to arise during or in consequence of the races. 177 Kan. at 580. A more recent statement of the standard of care is found in 27A Am. Jur. 2d, Entertainment and Sports Law § 78, p. 436, which states: “[Sjuch care being commensurate with the known or reasonably foreseeable dangers incident to racing motor vehicles at high speeds, such as flying wheels. This duty includes the erection of such fences or other protective devices between the track and the places assigned to the spectators as will afford them reasonable protection.”
The authority for the above statement is set forth at footnote 68 to the Am. Jur. 2d cite above quoted, which states:
“Atlantic Rural Exposition, Inc. v. Fagan, 195 Va 13, 77 SE2d 368, 37 ALR2d 378 (that a wheel might become freed from a racing car and enter the area occupied by spectators has been held, under the dominant facts and circumstances appearing in the action, to have been reasonably foreseeable so as to render the owner of the premises and the promoter liable for the resulting injury to a patron).
“While the flying off of a wheel does not happen with great frequency, it is by no means an isolated or highly improbable occurrence, and the jury could have found that the danger was such that the operators of a race should have anticipated it and given suitable warning. Alden v. Norwood Arena, Inc., 332 Mass 267, 124 NE2d 505.
“An operator of a racetrack violated the safe-place statute and was hable to a spectator injured by a flying wheel, where the jury could have found that the racetrack operators acted unreasonably in allowing the spectators to watch the race from tire third and fourth turns; the negligence of the spectator did not exceed that of the racetrack operators, where the spectator testified that she did not realize that watching from a curve would be more dangerous than sitting in the grandstand, nor did she know that tires would fly into the spectator area. Kaiser v. Cook, 67 Wis 2d 460, 227 NW2d 50.”
We have no safe-place statute as exists in Wisconsin, but these cases show that flying wheels are not an unknown occurrence to the racing industry and should have been foreseeable to both NHRA and Heartland Park.
The trial court considered the testimony and conclusions of Kelsey as an expert witness and, under our standard of review, we must resolve all facts in favor of his testimony and allow all inferences which may reasonably be drawn from his report and opinions. At this point, this appears to deal with the allegations of insufficient barriers (fencing) or insufficient wheel standards.
Kelsey concluded that in order for the defendant’s fencing to be effective, it should have been at least 18 feet high with a curved or angled section slanting back toward the track and located 35 feet from the track. He concluded that, “had a sufficient wheel/debris fence been placed close to the racing track surface,” the wheel would have been restrained to an area protective of spectators. This testimony provides sufficient basis to show the defendants’ violated their duty of care for purposes of summary judgment.
It has been our consistent holding that after an expert’s testimony is admitted, “the weight of such testimony is a matter of consideration for the trier of fact.” Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). The defendants rely on an exception to this decision as set forth in Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383 (1976).
In Jones, the expert witness testified the amount of malodorant placed in propane gas was insufficient and contributed to an explosion. He opined the amount should have been three to nine times what the existing industry and legislative standard required. We held his testimony was insufficient to create a material question of fact because he had no supporting empirical data justifying disagreement with the recognized industry and legislative standard.
In our present case, there are no existing recognized standards comparable to those in the Jones case. In fact, the “industry standards” seem only to relate to NHRA insurance guidelines. Such guidelines are self-serving and are not of sufficient authority to immunize an insured from liability. The “standards” do not establish the promoters’ duty to their patrons. In fact, one NHRA rep resentative testified, “[W]e don’t characterize them as safety standards.” Jones is distinguishable from Marshall’s case.
The trial court grounded its holding on the defendants’ compliance with the industry standards in noting the barriers in place “met or exceeded the minimum standards in use by the industry and required by the insurance underwriters of racing events.” Such a holding might be justified if the standards had legal, statutory, or some recognized industry basis, but they have none of these qualities. The court admitted the standards are not a total shield to liability but seems to have concluded as a matter of fact that they exemplify reasonable care. This is a fact question to be determined by a finder of fact who should consider Kelsey’s allegations that a higher and closer barrier should be utilized.
While the trial court talks of problems with Kelsey’s report, it does not appear his opinion is beyond his knowledge or field of expertise. As stated by the Court of Appeals in Horsch v. Terminix Int’l Co., 19 Kan. App. 2d 134, 141, 865 P.2d 1044 (1993), rev. denied 254 Kan. 1007 (1994):
“A qualified expert is entitled to express his or her opinion. The factors on which that opinion is based go only to the weight of the testimony and not to its admissibility. The testimony should be stricken only if the factors used by the expert go beyond his or her knowledge and expertise.”
Kelsey has extensive experience in drag racing which dates from the mid 1950s. He is a professional engineer. The trial court did not exclude his conclusions and his report and did not find he was incompetent to testify about the matters as to which he opined. Given our standard of review, his opinion as to the breach of duty was sufficient to raise an issue of material fact that may not be resolved by summary judgment.
Kelsey’s report is attacked for not stating whát kind of material the absent fence should have been constructed of. This omission is not fatal. The question is the size and location of the fencing and not its strength. The issue is not that the wheel broke through a barrier, but rather that there was no barrier there to restrain it.
An examination of Kelsey’s report shows it was based on “materials reviewed,” physical investigation of Heartland Park, and re view of videotapes and facts of the incident. Our duty on this summaiy judgment motion to draw all reasonable inferences in Marshall’s favor requires the conclusion that sufficient available information was considered. We conclude that a material question of fact exists as to the adequacy and safety of the barriers and fencing utilized by the defendants. We hold summary judgment should not have been granted at this stage of the proceedings below.
There was no analysis of the sufficiency of the standards adopted by the NHRA, for the trial court did not reach this question. Whether there is sufficient evidence to support Marshall’s claim of negligence based on faulty wheel specifications is yet to be considered by the trial court.
Additionally, there do appear to be objections as to Kelsey’s report and qualifications which the defendants have specifically raised by separate motion, and they should be considered on remand.
Finally, the issues of waiver, release, or assumption of risk were not considered by the trial court and these issues remain to be considered on remand.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against the respondent, Weston A. Sechtem, an attorney admitted to the practice of law in Kansas, alleging violations of the Kansas Rules of Professional Conduct (KRPC) 1.1 (2001 Kan. Ct. R. Annot. 312) (competence); 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); 1.4(a) (2001 Kan. Ct. R. Annot. 334) (communication); 1.16(d) (2001 Kan. Ct. R. Annot. 387) (declining or terminating representation); 8.1(b) (2001 Kan. Ct. R. Annot. 433) (bar admission and disciplinary matters); and 8.4(d) (2001 Kan. Ct. R. Annot. 437) (misconduct). Violations of Supreme Court Rule 207 (2001 Kan. Ct. R. Annot. 246) (duties of the bar and judiciary) and Rule 211(b) (2001 Kan. Ct. R. Annot. 259) (formal hearings) are also alleged. We disbar the respondent from the practice of law in the state of Kansas.
A hearing before the panel of the Kansas Roard for Discipline of Attorneys was held on January 10, 2002. Respondent failed to appear. The panel received exhibits into evidence and heard the testimony of John' M. Parisi and Richard W. Miller.
After hearing the testimony presented and the arguments of the Disciplinary Administrator, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact:
‘T. ... The Respondent was admitted to the practice of law on October 5, 1988.
“2. The Respondent worked for the Miller Law Firm, first as an associate, then in 1990, as a partner. The Miller Law Firm is located in Kansas City and represents general contractors in Kansas and Missouri.
“3. During the course of the Respondent’s tenure with the Miller Law Firm, the Respondent provided representation to Darrel and Dana Freeman. The Free-mans owned Razorback Contractors of Kansas, Inc. (hereinafter ‘Razorback’).
“4. In January, 2000, the Respondent left the Miller Law Firm. At the time he left the firm, each of the Respondent’s clients were contacted and asked whether they wanted to have their cases go with the Respondent or stay with the firm. Because the Respondent had provided most of the representation to the Freemans and Razorback, the Freemans and Razorback decided that they wanted the Respondent to continue with the representation.
“DA8115
“5. In 1999, the Respondent filed a lawsuit in behalf of Razorback against Chimney Hills Apartments and Wilhoit Properties Construction, Inc. in the Johnson County District Court. The case amounted to an attempt to collect on a mechanic’s hen.
“6. On May 16, 2000, defendant Wilhoit Properties served its First Request for Production of Documents and its First Set of Interrogatories. The response to the requests was due by June 17, 2000. Razorback did not respond to the request by the deadline. The Respondent did not request that the deadline to comply with the discovery requests be extended.
“7. On June 29,2000, the Respondent provided Razorback with the discovery requests sent by defendant Wilhoit Properties. The Respondent did not inform his client that the discovery was already overdue. Additionally, the Respondent did not provide Razorback with a time frame within which to provide the discovery.
“8. On July 11, 2000, counsel for defendant Wilhoit Properties wrote to the Respondent warning him that if he did not comply with their requests for discovery that they would be forced to file a Motion to Compel Discovery. The Respondent did not respond to die letter.
“9. .On July 13, 2000, at a discovery conference, the Respondent acknowledged that the discovery was late and agreed to provide the discovery by July 27, 2000. The Respondent failed to provide the discovery by July 27, 2000.
“10. On August 3, 2000, defendant Wilhoit Properties filed a Motion to Compel Plaintiff to Answer Discovery and For Sanctions. The Respondent failed to inform Razorback that the motion had been filed.
“11. On August 28, 2000, the court granted the defendant’s motion and ordered that Razorback comply with the discovery requests within seven days and ordered that Razorback pay sanctions in the amount of $500.00.
“12. On September 8, 2000, the Respondent wrote to Razorback requesting that they provide responses to the discovery requests. In the Respondent’s letter to Razorback, the Respondent did not inform Razorback that the court granted defendant Wilhoit Properties’ motion to compel, that the court assessed sanctions against Razorback in the amount of $500.00, or that the court ordered that the discovery be provided within seven days of August 28, 2000.
“13. On September 18 or 19, 2000, the Respondent provided the discovery to defendant Wilhoit Properties.
“14. Because the Respondent failed to comply with the court’s order compelling discovery, on September 18, 2000, defendant Wilhoit Properties filed a Motion to Dismiss with Prejudice. Although, on October 5,2000, the Respondent filed a notice of hearing, opposing the motion, the Respondent never informed Razorback that a motion to dismiss had been filed.
“15. Because the President of Razorback had repeatedly attempted to contact the Respondent without success, on October 31, 2000, Razorback terminated the Respondent. Thereafter, the Miller Law Firm re-entered the case. The Miller Law Firm requested that the Respondent forward Razorback’s files. The Respondent failed to provide Razorback’s files to the Miller Law Firm.
“16. In order to learn the status of the case, the Miller Law Firm obtained a copy of the court’s docket. At that time the Miller Law Firm learned that a motion to dismiss had been filed. The Miller Law Firm notified Razorback that the motion had been filed and that the motion was scheduled to be heard on December 5, 2000. The court did not dismiss the case and noted on the record what he believed to be professional negligence and violations of the Kansas Rules of Professional Conduct.
“DA8264
“17. In 1999, the Respondent also filed a lawsuit in behalf of Darrel and Dana Freeman, personally, against Arch-Design Corp. in the District Court of Johnson County, Kansas. In this lawsuit, the Respondent alleged that Arch-Design constructed tire Freeman’s home in a defective manner. Defendant Arch-Design in turn alleged that Kermit Veach, Weather Shield Manufacturing, and Diyvit Systems were responsible. Kermit Veach, Weather Shield Manufacturing, and Dryvit Systems were added as third party defendants. The damages in this case were alleged to be $250,000.
“18. On November 19,1999, defendant Arch-Design served the Respondent with its First Set of Interrogatories and First Request for Production of Documents. Thereafter, the Respondent twice requested additional time to comply with the discovery requests. On February 15, 2000, counsel for defendant Arch-Design wrote to^the Respondent, requesting a status report on the discovery.
“19. On April 10, 2000, third party defendant Weather Shield Manufacturing filed its First Interrogatories and First Request for Production of Documents.
“20. Again, on April 14, 2000, counsel for defendant Arch-Design wrote to the Respondent. In the letter, counsel for defendant Arch-Design requested that the Respondent provide the discovery before April 24, 2000. The Respondent failed to provide the discovery as requested by defendant Arch-Design.
“21. On May 11, 2000, counsel for third party defendant Weather Shield Manufacturing wrote to the Respondent requesting responses to the discovery requests. The Respondent failed to provide the discovery as requested by third party defendant Weather Shield Manufacturing.
“22. On May 26, 2000, third party defendant Weather Shield Manufacturing filed a Motion to Compel discovery. On June 1, 2000, defendant Arch-Design filed a Motion to Compel. The Respondent failed to inform Mr. and Mrs. Freeman that two motions to compel had been filed. The Respondent did not provide a written response to the motions. On June 21, 2000, the court held a hearing on the motions. The court sustained the motions and ordered that the Respondent provide the discovery by July 15, 2000. The Respondent failed to inform Mr. and Mrs. Freeman that an order compelling discovery had been entered. Additionally, the Respondent failed to provide the discovery.
“23. Because tire Respondent failed to comply with the order compelling discovery, on August 10, 2000, third party defendant Weather Shield Manufacturing filed a Motion to Dismiss and on August 11, 2000, defendant Arch-Design filed a Motion to Dismiss. The Respondent did not respond to the motions to dismiss. The Respondent failed to inform his clients that two motions to dismiss had been filed.
“24. On August 18, 2000, Mr. Freeman wrote to the Respondent requesting information on the status of the lawsuit. Mr. Freeman also wrote to the Respondent on September 11, 2000, requesting that the Respondent contact Safeco Insurance. The Respondent failed to reply to the letters.
“25. On August 21, 2000, the court dismissed the case with prejudice. The court also awarded attorney fees in the amount of $367.50 to defendant Arch-Design and third party defendant Weather Shield Manufacturing. The Respondent failed to inform his clients that their case had been dismissed and that they had been ordered to pay attorney fees.
“26. Without authorization from Mr. and Mrs. Freeman, on October 20,2000, the Respondent filed a N otice of Appeal, alleging that the court erred in dismissing the case.
“27. Because Mr. Freeman had repeatedly attempted to contact the Respondent without success, on October 31, 2000, Mr. Freeman fired the Respondent and hired the Miller Law Firm to take the case over. On November 3, 2000, the Miller Law Firm requested that the Respondent forward Mr. and Mrs. Freeman’s files. The Respondent failed to provide Mr. and Mrs. Freeman’s files to the Miller Law Firm.
“28. The Miller Law Firm contacted the Clerk of the District Court and learned that the case had been dismissed. The Miller Law Firm notified Mr. and Mrs. Freeman that their case had been dismissed. The Miller LawFirm attempted to have tire case reinstated by filing Plaintiffs Suggestions in Support of Motion for Relief from Final Judgment. However, the district court indicated that he would not be inclined to grant the request if the case were remanded by the Court of Appeals. The appeal is pending before the Kansas Court of Appeals.
“29. On May 30, 2001, David R. Vandeginste filed a complaint against the Respondent for his conduct in this case. Although he was requested on five occasions to provide a written response to the complaint, the Respondent failed to do so.”
The panel made the following conclusions of law:
“1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part, as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinaiy Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
Id. In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the business address and to the residential address shown on the Respondent’s most recent registration. . . . After attempting to deliver the package, containing the Formal Complaint and the Notice of Hearing to the Respondent’s home, on three separate occasions, the United States Postal Service returned the package and marked it unclaimed. . . . The package containing the Formal Complaint and Notice of Hearing sent to the Respondent’s business address was received. . . . The Hearing Panel concludes that the Respondent was afforded the notice that the rules require.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ’Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ Id. The Respondent failed to competently represent Razorback and Mr. and Mrs. Freeman when he failed to respond to the motions to compel and the motions to dismiss. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. 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 Razorback and Mr. and Mrs. Freeman when he failed to prosecute the civil actions filed in their behalf. Because the Respondent failed to act with reasonable diligence and promptness in representing Razorback and Mr. and Mrs. Freeman, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides, ‘[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 Razorback and Mr. and Mrs. Freeman informed regarding the status of their cases. Mr. and Mrs. Freeman repeatedly requested that the Respondent provide information regarding the lawsuits. The Respondent failed to do so. Because the Respondent failed to provide reasonable communication, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5, A lawyer, even when terminated by his client, must protect his client. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Id. On October 31, 2000, Razorback and Mr. and Mrs. Freeman terminated the Respondent. After terminating the Respondent, Razorback and Mr. and Mrs. Freeman requested that the Respondent forward their files to the Miller Law Firm. The Respondent failed to do so. Because the Respondent failed to ‘take steps to the extent reasonably practicable to protect’ Razorback and Mr. and Mrs. Freeman, the Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“6. In DA8264, the Respondent also violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207. KRPC 8.1(b) provides:
‘[A] lawyer ... in connection with a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
Id. Kan. Sup. Ct. R. 207 provides:
‘(a) The members of tire bar or any state or local bar association shall assist Hie Disciplinary Administrator in investigations and such other matters as may be requested of them.
‘(b) It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Id. On five occasions, the Disciplinary Administrator and Mr. Parisi requested that the Respondent provide a written response to Mr. Vandeginste’s complaint. The Respondent failed to do so. Accordingly, the Hearing Panel concludes that the Respondent ‘knowingly fail[ed] to respond to a lawful demand for information from [a] disciplinaiy authority,’ in violation of KRPC 8.1(b) and Kan. Sup. Ct. R. 207.
“7. ‘It is professional misconduct for a lawyer to: . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Hearing Panel concludes that by repeatedly failing to respond to discovery requests, by repeatedly failing to respond to motions to compel, and by repeatedly failing to respond to motions to dismiss, the Respondent engaged in conduct that was prejudicial to the administration of justice, in violation of KRPC 8.4(d).
“8. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by tire Disciplinary Administrator or the hearing panel.’
Id. In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint in both cases. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“9. The Disciplinary Administrator alleged in the Formal Complaint that the Respondent also violated KRPC 4.1. The evidence does not support the conclusion that the Respondent violated KRPC 4.1. Therefore, the allegation in the Formal Complaint that the Respondent violated KRPC 4.1 is dismissed.”
The panel made the following recommendation as to discipline:
“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 client to provide reasonable diligence and communication.
“Mental State. The Respondent knowingly violated his duty to his client to provide reasonable diligence and communication.
“Injury. As a direct result of the Respondent’s misconduct, Razorback nearly lost its cause of action and Mr. and Mrs. Freeman did lose their cause of action against Arch-Design, et al. Mr. Miller valued Freeman v. Arch-Design, et al. at $250,000.
“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:
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4(a), KRPC 1.16(d), KRPC 8.1(b), KRPC 8.4(d), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction. Other than providing a written response in DA8115, the Respondent has totally failed to participate in the disciplinary process.
“Vulnerability of Victim. All clients are vulnerable to the misconduct of attorneys. Specifically, in this case, Mr. and Mrs. Freeman assumed that the Respondent would provide them with the same competent representation as he had been providing over the previous years. Unfortunately for Mr. and Mrs. Freeman, the Respondent did not. Mr. and Mrs. Freeman suffered significant injury as a result of the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1988. At the time the Respondent committed the misconduct, the Respondent had been practicing law for twelve years. As such, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“Indifference to Making Restitution. The Respondent has made no attempt to provide restitution to Razorback or Mr. and Mrs. Freeman.
“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 circumstance present:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.41. That standard provides, in pertinent part:
‘Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(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.’
Id. In this case, the Respondent knowingly failed to perform services for Razorback and Mr. and Mrs. Freeman. As a result of the Respondent’s misconduct, Razorback nearly lost its cause of action and Mr. and Mrs. Freeman did lose their cause of action. According to Mr. MiEer, Mr. and Mrs. Freeman’s case against Arch-Design, et al. was a good case and worth approximately $250,000.
“The Hearing Panel unanimously recommends that Respondent be disbarred from the practice of law in the state of Kansas.”
We note that the respondent, having been notified of these proceedings, failed to respond or appear before this court. This failure to appear constitutes a violation of Supreme Court Rule 212(d) (2001 Kan. Ct. R. Annot. 263).
We conclude the panel’s findings are established by clear and convincing evidence and adopt the panel’s conclusions of law and recommendation of discipline.
It Is Therefore Ordered that the respondent, Weston A. Sechtem, be and is hereby disbarred from the practice of law in the State of Kansas in accordance with Supreme Court Rule 203(a)(1) (2001 Kan. Ct. R. Annot. 224) for his violations of the KRPC and Supreme Court Rules.
It Is Further Ordered that respondent comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276).
It Is Further Ordered that this order be published in the official Kansas Reports and the costs of this action be assessed to the respondent. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Each of the defendants in these consolidated cases, Dale Armbrust, Brian Thompson, Theresa Brown, and Timothy Baumann, was convicted before 1999 of crimes that required registration as a sex offender. When they were convicted of the underlying offenses, violation of the registration requirement was a misdemeanor. In the present cases, the State charged each defendant with violating the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., by fading to comply with mandatory periodic address verification. The penalty for violation of the registration act was changed by amendment in 1999 from a misdemeanor to a felony. The district court dismissed the complaints on the ground that the enhanced penalty was prohibited by the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. The State appeals pursuant to K.S.A. 2001 Supp. 22-3602(b)(l), and jurisdiction lies in this court on account of the constitutional question. See K.S.A. 22-3601(b)(2).
Armbrust was required to register with the KBI as a result of his July 11, 1996, conviction. Thompson was required to register as a result of his May 12, 1994, conviction. Brown was required to register as a result of her September 3, 1996, conviction. Bauman was required to register as a result of his February 14, 1997, conviction.
The State charged each defendant with violating the offender registration act by failing to mail a periodic address verification form to the KBI within 10 days of receiving it, as required by K.S.A. 2001 Supp. 22-4904(c)(2). Armbrust was alleged to have failed to mail his address verification form to the KBI within 10 days after August 3, 2001; Thompson within 10 days after June 1, 2000; Brown within 10 days after May 1, 2001; and Baumann within 10 days after February 16, 2001. Each defendant was charged with a severity level 10, nonperson felony.
On the motions of the defendants, the district court dismissed the complaint in each of the four cases. The district court believed that the application of the felony penalty to these defendants, who were convicted of the underlying offenses at a time when the registration violation penalty was a misdemeanor, violated the Ex Post Facto Clause of the federal Constitution.
The State argues on appeal that the key date for purposes of an ex post facto analysis is not the date of conviction of the crime requiring registration but rather the date when defendant is alleged to have violated the registration statute. The State relies on State v. Lueker, 264 Kan. 341, 956 P.2d 681 (1998), and People v. Logan, 302 Ill. App. 3d 319, 705 N.E. 2d 152 (1998).
K.S.A. 2001 Supp. 22-4904(c) provides in part:
“(c) For any person required to register as provided in this act, every 90 days after the person’s initial registration date during the period the person is required to register, the following applies:
(1) The Kansas bureau of investigation shall mail a nonforwardable verification form to the last reported address of the person.
(2) The person shall mail the verification form to the Kansas bureau of investigation within 10 days after receipt of the form.
(3) The verification form shall be signed by the person and shall provide the following information, as applicable, to the Kansas bureau of investigation: (A) Whether the person still resides at the address last reported; (B) whether the person still attends the school or educational institution last reported; (C) whether the person is still employed at the place of employment last reported; and (D) whether the person’s vehicle registration information is the same as last reported.
(4) If the person fails to mail the verification form to the Kansas bureau of investigation within 10 days after receipt of the form, the person shall be in violation of the Kansas offender registration act.”
K. S. A. 2001 Supp. 22-4903 provides that “[a]ny person who is required to register as provided in this act who violates any of the provisions of this act is guilty of a severity level 10, nonperson felony.”
Until 1999, 22-4903 provided that a person required to register under the offender registration act who violates any of the provisions of the act is guilty of a misdemeanor. See L. 1999, ch. 164, sec. 30.
The Ex Post Facto Clause of Article 1, § 10 of the United States Constitution provides that “[n]o State shall . . . pass any ... ex post facto Law.” It is long established that “[a]ny statute . . . which makes more burdensome the punishment for a crime, after its commission ... is prohibited as ex post facto.” Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925).
Defendants contend that enhancement of the punishment for violation of the registration requirements from a misdemeanor to a felony, as applied to them, is prohibited as ex post facto because it malees the punishments for their crimes more burdensome after commission of the crimes. The crime defendants were charged with in the present cases was violation of the registration requirements, and it was classed as a felony at the time each defendant allegedly committed it. Thus, the punishment has not been made more burdensome for defendants’ violations of registration requirements after they failed to return the verification forms.
Defendants, however, contend that each defendant’s duty to register arose when each was adjudged a sex offender and is an ongoing duty. Because conviction of the underlying offense creates an ongoing obligation to register, according to defendants, it is the date of the underlying offense rather than the date of the alleged registration violation that is relevant to ex post facto analysis.
Lueker did not involve the provisions of the Kansas Offender Registration Act, but rather the criminal possession of a firearm. The basis for the charge was possession of a prohibited firearm within a prescribed time after being convicted of a felony. The statute defining what is a prohibited firearm was amended subsequent to Lueker’s felony conviction. We noted that “it is well established that a criminal statute in effect at the time of the criminal offenses are controlling.” 264 Kan. at 345. The issue was whether the statute in effect at the time of the initial felony conviction or at the time of the possession of the prohibited firearm applied. We held the latter and found that there was no ex post facto violation.
In Logan, the defendant argued that the Sex Offender Registration Act was unconstitutional in that it violated the Ex Post Facto Clause of the United States and Illinois Constitutions. His argument was based on the passage of the Illinois Sex Offender Registration Act after he was convicted of the sex offense, and that the penalty for failure to register was enhanced from a misdemeanor to a felony. The latter is also the basis of the defendants’ argument in the present case. The Illinois court, relying on Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), held that the registration was not punishment but rather a de minimis administrative requirement and, thus, not a violation of the Ex Post Facto Clause of the state or federal Constitutions.
Defendants’ theory is analogous to one addressed by the Second Circuit Court of Appeals in United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied 513 U.S. 894 (1994). In Brady, a defendant named DeMatteo invoiced the prohibition of ex post facto laws in contending that his 1951 felony conviction could not serve as the predicate offense under 18 U.S.C. § 922(g) (1988), a statute enacted after 1951 that makes it unlawful for any person convicted of a crime punishable by imprisonment for a term exceeding 1 year to possess any firearm in or affecting commerce. The federal Court of Appeals found his argument to be wholly without merit:
“A criminal or penal law is ex post facto if it is retrospective and it disadvantages the offender affected by it. United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991). The critical question in evaluating an ex post facto claim ‘is whether the law changes the legal consequences of acts completed before its effective date.’ Weaver v. Graham, 450 U.S. 24, 31, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981). A statute does not violate ex post facto principles where it applies to a crime that ‘began prior to, but continued after’ the statute’s effective date. United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991) (quoting United States v. Torres, 901 F.2d 205, 226 (2d Cir. 1990)).
“DeMatteo violated section 922(g) long after it became the law. Section 922(g) became effective in 1986. DeMatteo’s possession of a gun from which the current conviction arises occurred on June 10,1992. Regardless of the date of DeMatteo’s prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted. By 1992 DeMatteo had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Therefore, the Ex Post Facto clause was not violated by the use of a 1951 felony conviction as a predicate for a violation of § 922(g).” 26 F.3d at 291.
The Second Circuit Court of Appeals concluded that the date of DeMatteo’s prior conviction was irrelevant because the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute making it a crime to be a felon in possession of a firearm. In United States v. Allen, 886 F.2d 143, 146 (8th Cir. 1989), that court stated: “So long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.”
In the present case, the actual crimes with which defendants were being charged occurred after the effective date of amendment of K.S.A. 22-4903. The penalty was increased from a misdemeanor to a felony in 1999. Defendants were alleged to have failed to return address verification forms in June 2000 and thereafter. They could have conformed their conduct to the requirements of the amended registration statutes. We conclude that there are no ex post facto violations.
We reverse and remand with instructions to reinstate the charges against the defendants. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the City of Wetmore in Nemaha County, Kansas, from an order of the Kansas Board of Tax Appeals (BOTA) denying the City’s application for exemption from ad valorem taxation, beginning in 1997, on the land, fuel storage tanks, and fuel-dispensing pumps owned and operated by the City. This court transferred the appeal from the Court of Appeals. K.S.A. 20-3018(c).
The issue is whether the real and personal property that makes up the fueling station is exempt from ad valorem taxation under K.S.A. 2001 Supp. 79-201a Second.
The facts are not disputed. The following facts are principally based on the affidavit of the City’s mayor that accompanied the exemption application, which was admitted as an exhibit at the BOTA hearing; the testimony given by the City’s mayor at the BOTA hearing; and facts stated in the BOTA order.
The City of Wetmore operates a self-service fuel station. The above-ground storage tanks and fuel-dispensing pumps are located on land that the City bought in 1993 and 1995 for the purpose of improving the appearance of the community. The tanks and pumps were installed in 1996.
The nearest commercial fuel station is 6 miles outside the city limits of Wetmore. Before the City made fuel available in Wet-more, a survey showed that citizens wanted a local fuel station, and the underground fuel storage tanks that had been used to fuel the local school district’s buses had been removed under order of the Environmental Protection Agency. In an effort to satisfy the need for locally available fuel, the City tried for approximately a year without success to get a privately owned fuel station to locate within the City. According to the City’s mayor, a major factor in the City’s failing to attract a privately owned fuel station is that in the area surrounding Wetmore there are several stations owned by Native American tribes that are able to sell fuel for less than most other commercial enterprises. Concluding that it was in the public interest, the City eventually decided to create a municipally owned and operated fuel station.
The City’s mayor testified that he believed the City could have issued bonds and levied taxes for the fuel station, but it did not do so. The record on appeal includes an opinion letter addressed to counsel for the City that states:
“[S]ufficient statutory authority exists for the City of Wetmore to issue its bonds to finance the acquisition of and improvement of a municipally owned gasoline station to be used to dispense fuel to itself, other public agencies and other members of the general public. Such use would be consistent with and similar to the use of other govemmentally owned facilities by members of the general public.”
The letter is dated May 16, 2001, and signed by Philip B. Wolfe, of Nichols and Wolfe Chartered, Topeka, Kansas. The opinion letter was produced by the City’s counsel at the BOTA hearing.
The fuel station is completely automated. It does not employ personnel, nor does it sell products other than fuel. Fuel is purchased with a major credit card or a “priority card” issued by the City. The City charges 6 cents per gallon over cost, and those using a “priority card” receive a discount of 2 cents per gallon. The margin is used by the City to pay the costs of electricity and maintenance for the station. The City’s mayor testified that overall the station operates at a loss. At the time of the BOTA hearing, the cost of fuel at the City’s station was a few cents more per gallon than nearby commercial enterprises. The City’s station dispenses approximately 17,000 gallons a month.
In this action, the City seeks exemption from ad valorem taxation for the fueling station for the years 1997 on. The City’s previous application for an exemption for 1996 was denied by BOTA, and BOTA’s order was affirmed by the district court.
The Nemaha County Appraiser recommended that the City’s application for ad valorem taxation exemption beginning in 1997 be granted. It appears that Nemaha County had objected to the exemption when the City previously applied. Counsel for the City told BOTA members at the hearing that the County’s changed position and the City’s decision to reapply for exemption was based on discussions the City conducted with legislators and the Kansas Department of Revenue, Division of Property Valuation, following the first denial.
Since Nemaha County now recommends that the exemption be granted to the City, there is no party asking this court to affirm BOTA’s order. Thus, there is no brief or oral argument by an appellee in support of BOTA’s order.
BOTA’s orders are subject to judicial review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Action (KJRA). K.S.A. 77-601 et seq. Since the facts are not disputed, whether the property is exempt is a question of law.
Recognizing that BOTA is a specialized agency that exists to decide taxation issues, the court gives weight and deference to BOTA’s decisions on matters within its area of expertise. BOTA’s interpretation of a statute, however, is not conclusive, and the question whether BOTA has erroneously interpreted a statute is a matter of law over which the court has unlimited review. See, e.g., League of Kansas Municipalities v. Board of Shawnee County Comm'rs, 24 Kan. App. 2d 294, 297, 944 P.2d 172 (1997).
K. S. A. 2001 Supp. 79-201a Second provides that property used exclusively by a municipality shall be exempt from ad valorem taxes levied under the laws of the State of Kansas. It further provides that “[a]ll property owned ... or operated by . . . any municipality . . . which is used ... for any governmental or proprietary function and for which bonds may be issued or taxes levied to finance the same . . . shall be considered to be used exclusively by the . . . municipality . . . for the purposes of this section.” K. S. A. 2001 Supp. 79-201a Second.
BOTA concluded that the City’s use of the property was not a governmental or proprietary function within the meaning of the statute.
The BOTA order states:
“The Board is not aware of, and the applicant has not cited, any statute that expressly or impliedly authorizes a municipality to carry on the business of operating a fuel station. There are statutes that expressly authorize municipalities to carry on the businesses of airports, swimming pools, cemeteries, and golf courses. In the absence of such statutory authority in this case, the Board finds that the applicant’s operation of the fuel station is not the type of governmental or proprietary function entitled to exemption under the applicable statute. To find otherwise would conclude that the Legislature intended all property owned by a municipality and being used for any commercial enterprise by the municipality to be exempt. Such a conclusion would allow municipalities to compete against individuals in all lines of trade. The Board is not convinced that such was the intent of the Legislature. The Board concludes that the applicant’s use of the subject property is not a governmental or proprietary function pursuant to K. S. A. 79-201a Second, and amendments thereto, and the applicant’s request for exemption of the subject property should be denied.”
BOTA’s decision is based on the belief that a governmental or proprietary function within the meaning of K. S. A. 2001 Supp. 79-201a Second must be expressly authorized by some other statutory provision. BOTA cites no authority for this proposition, which is the linchpin of its decision.
In Bigs v. City of Wichita, 271 Kan. 455, 23 P.3d 855 (2001), we noted such legislative authority is not required, stating:
“After July 1, 1961, cities were no longer dependent upon the legislature for authority to determine local affairs. As noted in Claflin [v. Walsh, 212 Kan. 1, 509 P.2d 1130 (1973)], home rule is not without limitation. Essentially, the cities and state have concurrent concerns and authority as to local affairs. Where the legislature is silent as to a local matter, a city may address it by enacting an ordinary ordinance. A city may legislate on the same subject providing the city ordinance does not conflict with a state statute. If there is a conflict, the city can opt out of the statute by enacting a charter ordinance. However, where a statute applies uniformly to all cities, the city cannot opt out by charter ordinance, and such ordinance is void.” 271 Kan. at 464.
No conflicting statute is cited, nor are we aware of any.
In countering BOTA’s edict that only express statutory authorization will qualify a use for tax exemption, the City directs the court’s attention to a case in which the municipality held the property pursuant to statute but did not qualify for exemption. In In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 877 P.2d 437 (1994), the City of Wichita sought tax exemption for property it temporarily owned through civil forfeiture by law enforcement for drug law violations. During the period the City of Wichita held the property prior to sale under law, it remained vacant. Because the property was lying dormant and “was held for sale with proceeds committed to associated expenses and future governmental purposes,” the court concluded that there was no active utilization of the property for a public purpose. 255 Kan. at 846-47. The property, therefore, was not exempt from taxation under K. S. A. 79-201a Second.
In Tri-County Public Airport Auth. v. Board of Morris County Comm’rs, 245 Kan. 301, 777 P.2d 843 (1989), BOTA determined that under K.S.A. 79-201a Second property used for airport purposes was exempt, but such exemption did not extend to that part of the property which Tri-County leased to private entities and used for nonaviation-related businesses. This court, in affirming BOTA’s order, stated:
“Exclusive use as defined by the statute requires actual use of the property for a public purpose. The leasing of portions of the Tri-County property solely for the purpose of generating revenue, while authorized by the Surplus Property and Public Airport Authority Act, does not constitute exclusive use for a ‘governmental or proprietary function’ of the airport authority even though the particular use of the leased property may be proprietary in nature. The use contemplated by the statute and our prior cases is one direcdy connected with an appropriate function of government. As stated by the BOTA, ‘The use must be in the nature of a public use even though proprietary in nature.’ Ownership of property solely for the purpose of producing revenue which may ultimately be used to finance a governmental function, in this case the airport facility, is not exclusive use as defined by K.S.A. 1988 Supp. 79-201a Second.” 245 Kan. at 310.
In all of the above cases, the determining factor for exemption was whether the property was being used for a public purpose. In the present case, the City of Wetmore’s property is being used to make motor vehicle fuel locally available to the school district and Wetmore citizens, who otherwise would have to make a 12-mile round trip in order to obtain fuel. Thus, the City is using its property for a public purpose.
BOTA also expressed concern that a tax exemption would allow the City to compete unfairly with private motor vehicle fuel providers, who do not enjoy tax exemption. In the circumstances of this case, not only are there no private competitors in or near the City but also earnest efforts by the City’s governing body could not entice private competitors to enter the market. Only when there was no prospect of a private source for motor vehicle fuel becoming locally available to the citizens of Wetmore did the City act to create one. Thus, in the circumstances of this case, the municipality’s competing with private enterprise is not an issue.
The order of BOTA denying the exemption to the City of Wet-more is reversed.
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The opinion of the court was delivered by
LARSON, J.:
This is a direct appeal where Richard Taron Powell raises first impression issues that (1) requiring him to wear a stun belt at trial violated his Sixth and Fourteenth Amendment constitutional rights to effectively participate in his own defense and (2) the trial court abused its discretion when it ordered him to stand trial restrained by a stun belt. Powell also contends reversible error was committed when the trial court failed to inquire if jurors were exposed to a prejudicial television report during trial in violation of his Sixth and Fourteenth Amendment constitutional rights to a fair trial and impartial jury.
Powell was charged and convicted of one count of capital murder and one count of criminal possession of a firearm in the shooting deaths of brothers Mark and Melvin Mims. During the sentencing phrase, die trial court found Powell was mentally retarded in accordance with K.S.A. 21-4634 and that a sentence of death could not be entered.
Because Powell does not challenge the sufficiency of the evidence for either conviction, we will highly summarize the facts only to provide background for our findings on the errors claimed.
Factual Background
Three witnesses, Brandy McCullough, Myron Williams, and Donte Jones, testified that on the night of February 5,1998, Powell told them he had lolled Mark and Melvin Mims. Myron Williams was Powell’s nephew and was living with Brandy McCullough. He testified after hearing gunshots, Powell came to their house and was spaced out, ranting and raving, talking crazy, jumping up and down, and calling himself a serial killer. Williams said Powell had a gun and claimed to have shot the Mims brothers. When asked why, he replied they had tried to rob him.
McCullough described Powell as “hyped up” and saying, “I just smoked them. I just smoked them niggas.” She said Powell told them that the Mims had threatened him with a gun but they did not use it so he used it on them. McCullough admitted she had received a $1,000 reward for her information through the TIPS hotline.
Donte Jones had talked with Powell on late February 5 or early February 6. He testified that Powell had told him to watch news reports that there were two brothers dead. At trial, Jones testified Powell told him they would be found on 6th Street, parked in a car (as they were). According to Jones, Powell said he shot them because they were disrespecting him.
McCullough’s and Williams’ testimony was directly contradicted by that of Powell’s sister, Venisa. She was in the room with McCullough and Williams on the night in question. She testified she did not hear Powell say anything about killing anyone. She disputed McCullough’s claim that Richard was raving about killing someone. She did admit she had been diagnosed with a mental illness and was taking medication.
There was testimony of considerable drug usage by the parties and arguments between Powell and Melvin Mims on February 5, 1998. All the physical facts were sufficiently established. The jury returned a guilty finding on both charges.
Imposition of the stun belt
Selection of the jury occurred between June 28 through June 30, 1999. Trial was recessed for approximately 2 weeks before opening statements and presentation of evidence commenced on July 12, 1999.
On that morning and immediately prior to empaneling the jury, the State, on behalf of the sheriff, requested that Powell be required to wear a stun belt. The trial court noted that the sheriff was in charge of security outside of and in the courtroom and asked the reason for the request.
Lieutenant Davis of the sheriff s department gave testimony in support of the request. He first noted this was a capital murder case. He said Powell had been in the detention center for quite a while on a previous case and the present one. On June 16, 1998, Powell had an altercation with another inmate who was stabbed five times with a shank (a homemade weapon) that was found where the injured inmate saw Powell throw it. Powell was charged with aggravated battery and traffic in contraband in a correctional institution, but the case was dismissed at the preliminary hearing when the victim refused to testily.
Powell was again found in possession of a shank on March 23, 1999. This time it was a toothbrush sharpened to a point which was found in his cell in a shampoo bottle. Charges were filed, and this case was pending. Davis stated Powell had been placed in segregation numerous times and opined that Powell was a threat to the safety of the public and to the court.
The prosecutor mentioned two other incidents. He stated that several weeks earlier, Powell had been brought to a hearing where the termination of parental rights of several of his children was in issue and had behaved in such a manner that he was removed from the courtroom by court order. He also related, after the trial court had initially ruled, that another shank had been found in the gym nasinm of the jail over the weekend prior to the trial reconvening. Powell was the last individual to leave the room, but there was no evidence to place it directly on or with him.
In opposing the motion, Powell argued that he had appeared several times before the court without incident, including the jury selection 2 weeks previously. He questioned why the sheriff s department would now decide a stun belt was needed. Powell’s counsel noted he had no experience with stun belts but contended the best evidence was how Powell had previously behaved and that sufficient reasons had not been shown to justify the request.
The trial court initially ruled as follows:
“Well, I personally have had no problems with Mr. Powell in this case. I do recall, however, I think he had refused to come out of his cell for a hearing on this case early on. And — and I understand your position and my position is the sheriff is in charge of security. If he thinks it’s necessary, I’m gonna allow it as long as I’m satisfied that it is, in fact, unobtrusive and doesn’t call any special attention to the defendant.
“This is a capital case. We have a lot of spectators. We have a lot of jurors. While I don’t anticipate — I mean, Mr. Powell has never given this Court any reason to believe he’s gonna act anything other than how he has and that is in a reasonable fashion. I expect that. But I think the sheriff has given us an adequate reason for using the stun belt for security measures.”
After the prosecutor stated that a shank had been found in the gymnasium the preceding weekend, the court agreed with the defense counsel there was nothing to connect that specific shank to Powell. The judge concluded:
“But from the sheriffs perspective, he’s adding that to the pile that he already has and, in his opinion, it’s significant and I can understand the connection. So for all the reasons we’ve talked about here today, I’m gonna allow the use of the belt.”
Two documents relating to usage of a stun belt, the “authorization for use” of the electronic belt system and the “inmate notification” were then made a part of the record.
The reasons for consideration of the use of the belt system on the authorization for use form were stated to be:
“2. Seriousness of current charges.
“3. History of institutional violence especially assaults on staff.
“4. History of verbal or physically assaultive behavior towards staff or officers of the court.”
The authorization for use form contained medical instructions that stated the belt system may not be used if any of the following medical conditions exist:
“1. May not be used on pregnant women
“2. May not be used on people known to have heart diseases, multiple sclerosis, multiple dystrophy, or epilepsy.”
The inmate notification form advised Powell:
“If activated, this belt discharges 50,000 volts of electricity. By means of a remote transmitter, a Deputy has the ability to activate the stun package attached to the belt, thereby causing the following results to take place:
“1. Immobilization, causing you to fall to the ground.
“2. Possibility of self-defecation.
“3. Possibility of self-urination.”
This form further advised Powell that the belt could be activated if he did any of the following:
“1. Tampering with the belt.
“2. Failure to comply with the Deputy’s verbal order to halt movement.
“3. An attempt to escape custody.
“4. Taking any action which indicates an attempt to inflict bodily harm on another person.
“5. Any intentional attempt to avoid visual contact by the Deputy.”
Powell was asked to sign the inmate notification form, but he refused to do so.
After the stun belt was installed and before the trial commenced, defense counsel argued that while the belt was probably not visible while Powell was seated it would be visible when he stood up. Defense counsel’s concern was that if the belt was seen, the jury would assume Powell was a “bad guy.” The trial judge stated he looked closely at Powell when he entered the room and observed the belt was not an obvious sight unless for some reason someone brought special attention to it. The judge stated: “So the record is clear your position on it and I am approving the use of the same.”
At no time during trial was the belt activated or was attention brought to the belt. There was no mention of any detrimental effect of the stun belt in the motion for new trial, which was filed and denied. Powell elected not to testify, and in the colloquy showing this was his free and voluntary decision there was no mention that his actions were in any manner effected by wearing the belt. In short, the result we ultimately reach in this case is driven factually by a complete and total absence or showing of any prejudicial effect arising out of Powell wearing the stun belt.
Claimed potential exposure of jury to Powell’s prior homicide conviction.
After the jury was selected, the trial judge began with the following admonishment:
“In order to keep an open mind, don’t Esten to or read any news accounts of the trial proceedings. These accounts are based upon incomplete information and they sometimes give a distorted view of the case. Perhaps a reporter wiE walk in and sit down — I haven’t — I’ve seen one since we’ve started jury selection. I haven’t seen anything in the paper yet about this particular case, but I can assure you as trial time gets closer, there wiE be some. These guys Esten to a piece of testimony or they get it in their heads to write about something they think is important, has absolutely nothing to do with what’s going on here in court. Please disregard that.
“Everybody here that reads the newspapers is famiEar with the sections that deal with the trial proceedings in the various locations in the greater MetropoEtan Kansas City area. You can save them up if you’d Eke. You can have your family and friends save the newspapers for you and you can review them at your length after this is aE over with. But, until that time, you can’t — you can’t read it. You can’t Esten to it. You can’t have anything to do with it. Again anything Eke that happens, don’t share it with anybody else. Let the baiEff know and we can try to take care of it.”
During the lunch recess of the first day of trial, the court again admonished the jury to not read any news accounts. The court stated that if there was any question about whether a juror had come into contact with a news item, the juror was to tell the bailiff what he or she had been exposed to but not speak to others about it. At the evening break, the judge again noted that he had seen a reporter there which meant there could be an article in the paper. He informed the jury they could not read the article.
On the morning of the second day of trial, defense counsel informed the court that both Powell and some court staff members had seen a televised news clip about Powell’s trial, and that the clip mentioned Powell’s prior homicide conviction. Defense counsel complained that it would be prejudicial if the jury heard the newscast, and he also noted that the source of the information could have been the prosecutor’s office, which would be a violation of the Kansas Rules of Professional Conduct.
The court expressed two concerns: (1) that neither the prosecution nor defense was responsible for exposing this information and (2) that the jury did not view the newscast. The court reminded counsel that it had admonished the jury repeatedly about media coverage and stated that, at this point, it had no indication that the jury was exposed to the broadcast. The court noted that it would continue to admonish the jury concerning media. The court informed counsel that the isolated issue remaining at that point was whether court personnel or the parties had disclosed the prior conviction to anyone. The judge then offered the following remedial action:
“Well, let’s do this. I don’t see this yet as a serious issue. What I will ask [the prosecutor] to do during the course of today is to make inquiries of your office as to whether or not that information came from them. And see if you can satisfy [defense counsel’s] curiosity and the Court’s curiosity about this source.
“As long as it did not come from you folks, then I will be — I’ll be satisfied.”
Both counsel agreed with the court’s action, neither making any objection.
When the jury arrived, the judge gave it the following admonishment:
“I just want to repeat to you the admonition about media coverage of the case, the news, tire radio, television, radio and print. I’ve heard some things on television, also on the radio. I’ve seen an article in the paper. You absolutely, positively cannot be exposed to these — these things as — as we’ve talked to you about repeatedly. If anybody has a problem with anything like that, as I mentioned to you before, please keep it to yourself and then notify the bailiff and we will see what we can do about discovering whether or not it is a problem and what we can do about it, okay?”
The court again reminded the jury of the admonition during the lunch, afternoon, and evening recess. On the third and last day of trial, the court admonished the jury both at the lunch recess and the evening recess. Deliberations began in the afternoon of the third day of trial, and a guilty verdict was delivered the following morning.
Were Powell’s Sixth and Fourteenth Amendment rights violated when the trial court required him to wear a stun belt during his trial?
Powell first complains that requiring him to wear a stun belt put him in such anxiety and fear that he was unable to effectively communicate with his counsel and prohibited him from putting on his defenses in violation of his Sixth and Fourteenth Amendment constitutional rights.
There are two basic problems with this argument. First, as Powell concedes in his brief on appeal, this issue was not raised in the trial court. Our cases are legion that hold when constitutional grounds are asserted for the first time on appeal they are not properly before the appellate court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999); State v. Steadman, 253 Kan. 297, Syl. ¶ 5, 855 P.2d 919 (1993); State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989).
Powell correctly argues that under exceptional circumstances even though the issue was not raised below in order to serve the interests of justice or to prevent a denial of fundamental rights, we have considered constitutional arguments. State v. Willis, 254 Kan. 119, Syl. ¶ 3, 864 P.2d 1198 (1993), State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992); State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982). None of these cases justify our consideration here of constitutional issues not raised in the trial court.
Willis involved the defendant not being present when a deposition of a medical expert was taken and subsequently introduced at trial. In addition, the statutory procedures to utilize such testimony were not followed. Willis is self-distinguishing. Powell’s counsel did not waive any rights on his behalf. Powell was present throughout the trial. By his refusal to sign the notification form and his counsel’s argument against its usage, the propriety of the trial court’s order was challenged. But, there is no showing of re stricted assistance to counsel. Powell shows no exceptional circumstances. Willis’ facts do not support his argument.
Clemons and Puckett likewise do not support Powell’s request based on exceptional circumstances. In Clemons, a constitutional argument not raised below was considered but quickly disposed of by a finding that he had no standing to raise the argument. Puckett involved the failure to allege an element of the crime, a conviction based on a defective information, and is clearly distinguishable.
Assertion of a constitutional right based on mere speculation in law and fact is not the type of infraction contemplated to be considered, when we set forth the requirement that constitutional issues be raised at the trial level.
The other cases Powell cites will be later considered, but they do not justify our reaching his constitutional claims.
We began our discussion of this issue by stating there were two basic problems with Powell’s request. The first, failure to raise the issue below, precludes our consideration. The second will be more fully discussed in our consideration of Powell’s abuse of discretion argument but, factually, there is clearly no showing of prejudice. The allegation that Powell was not “effectively present” has no factual basis. It was argued that there is “presumed prejudice,” but Riggins v. Nevada, 504 U.S. 127, 118 L. Ed. 2d 479, 112 S. Ct. 1810 (1992), does not support that argument. In Riggins, the defendant was heavily medicated without proper factual findings and impairment was presumed. We will not presume an impairment here where none was shown and the record indicates to the contrary.
We decline to consider Powell’s constitutional argument that his Sixth and Fourteenth Amendment rights were violated.
Did the trial court abuse its discretion by requiring Powell to wear the stun belt during the evidence phase of the trial?
The appellate standard of review where an abuse of discretion is claimed to require the granting of a new trial is a challenging one for a defendant. We have said:
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which another way of saying that discretion is abused only when no reasonable person would taire the view adopted by the trial court. 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. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion.” State v. Johnson, 258 Kan. 607, 611, 907 P.2d 140 (1995).
Powell’s argument to the trial court that the belt would be visible to the jury has been abandoned on appeal. He concedes in his brief that any claim that the jury was prejudiced by seeing the belt is not an issue. What Powell focuses on is that the lack of any previous incident in the courtroom and his proper previous conduct in this case do not support the trial court’s imposition of the stun belt. Powell further argues that the trial court abdicated its role to control the courtroom to follow the sheriff s recommendation.
The State counters with a recitation of all the facts testified to by Lt. Davis and the statements of the prosecutor, including: the charge was capital murder, Powell was in custody on a conviction of involuntary manslaughter, a prior stabbing of another inmate, finding a shank in Powell’s shampoo bottle, disruption at a severance hearing, refusal to come out of his cell for previous hearings, and the shank found in the gym when Powell had been the last to leave the previous weekend. The State argues that the court weighed all the evidence presented and found the belt’s usage was justified.
We have not previously considered the propriety of the use of a stun belt during a criminal trial, but we have addressed the use of other restraints.
In State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (1997), the defendant was required to wear a leg brace which was placed under his clothing. The trial court said that absent some compelling reason it would not involve itself in the control of prisoners by the deputies but observed the brace was unobtrusive. Nothing in the record showed that the jury even noticed the leg brace. Our unanimous opinion stated:
“The defendant has the burden of furnishing a record which affirmatively shows prejudicial error occurred in the trial, and absent such a record, the reviewing court assumes the trial court’s action was proper. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). Ninci presented no evidence that the jury knew he was wearing a leg brace, or that the jury detected his slight limp, or that the jury knew his limp was caused by a leg brace, or that the jury knew the leg brace was on for restraint reasons instead of for medical reasons. Thus, the State asserts that this court should assume the trial court’s action in allowing the use of the leg brace was proper and affirm the trial court’s ruling.
“The leg restraint in this case was so unobtrusive that it is not even clear the jury noticed it. Since the restraint was not inherently prejudicial, Ninci was required to come forward with some evidence indicating the jury at least noticed the leg brace or knew it was a restraint.
“In this case, the trial court relied on the deputy’s decision in allowing the use of the brace. It is the trial judge’s ultimate responsibility to assure a fair trial to the accused. The trial court did malee an independent analysis that the leg brace was unobtrusive. Thus, without specific evidence of prejudice, the court allowed the brace. The trial court did not abuse its discretion, and its ruling on this issue is affirmed.” 262 Kan. at 53-54.
A more detailed discussion of the usage of a leg brace and a troublesome comment of the trial court occurred in State v. Davidson, 264 Kan. 44, 47-52, 954 P.2d 702 (1998). Davidson had worn a leg brace throughout the trial, as was then required by the Johnson County Sheriffs Department. No objection had been made until the evidence had been submitted to the jury. Just prior to the instruction conference, the prosecutor, apparently believing that the limp caused by the brace may have caused the juiy to feel sympathy toward the defendant, asked the court to instruct about the shackling. The defense counsel objected to any mention of shackling to the jury.
The trial judge then made the following comment to the jury:
“ ‘Prior to giving jury instructions, I want to make a note of one thing which occasionally arises and is often unexplained. If you’ll recall, during either the opening statement or the voir dire examination, it was pointed out that Mr. Davidson is in custody, pending this trial. As part of the standard operating procedure of the Johnson County Sheriff s Department, the defendants who are in custody and are in trial are equipped with a leg brace which disables them from attempting to run. This is done in any case in which a defendant happens to be in custody.
“ T mention that only for the purpose of indicating to you that it is not — the brace isn’t there because of any disability of the defendant.’ ”
Davidson asserted that requiring him to wear the leg brace was error, and it was compounded by the trial court’s comment. Our opinion noted that the juiy had been informed by the defense counsel in opening statement that Davidson was in custody.
We noted we had recently addressed this issue in Ninci. We looked to Holbrook v. Flynn, 475 U.S. 560, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986), as holding “that certain practices which pose a threat to the ‘fairness of the fact-finding process’ . . . must be subject to ‘close judicial scrutiny.’ 475 U.S. at 568 (quoting Estelle v. Williams, 425 U.S. 501 503-04, 48 L. Ed. 2d 126, 96 S. Ct. 1691 [1976]).” Davidson, 264 Kan. at 49. We further said in Davidson:
“In Estelle, the Court emphasized that a defendant may be prejudiced if he or she appears before the jury bound and gagged. It pointed out that not only it is possible the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but also the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. 425 U.S. at 505.” 264 Kan. at 49.
We then entered into a harmless error beyond a reasonable doubt analysis that apply in cases where the trial error deprived a defendant of a constitutional right as it related to “an unacceptable risk of impermissible factors influencing the juiy.” 264 Kan. at 51. Our Davidson opinion continued:
“We first emphasize the judge’s remark that the sheriffs purpose for using the leg brace was to prevent an individual in custody from escaping served no legitimate purpose in the trial. . . . Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding the alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.
“Control of an individual in custody from the jail to the courtroom and from the courtroom to the jail is the responsibility of the sheriff. All defendants have the right to appear before the jury free of restraints because such restraints present an unacceptable risk of prejudice and compromise the presumption of innocence. It is the judge’s responsibility to insure that the defendant receives a fair trial. In extreme situations, a particularly obstreperous and disruptive defendant may be ordered to be restrained in the courtroom by the judge.
“Neither the sheriff nor the trial judge, consistent with the Fourteenth Amendment due process or equal protection requirements, can compel all persons in custody to stand trial before a jury to wear a leg brace to prevent escape. Here, Davidson was prejudiced because the trial judge’s comment emphasized that the purpose of the leg brace was to prevent escape. This is disturbing because it implied that an accused in custody of the sheriff is more apt to flee than an accused free on bond. The trial judge’s surrender of the control of the courtroom to the sheriff and the judge’s comments as to die reason the defendant was wearing a leg brace were error. However, the defendant’s failure to object is normally sufficient to negate the presence of compulsion necessary to establish a constitutional violation. Estelle, 425 U.S. at 512-13.
“Here, the evidence of Davidson’s guilt is overwhelming.
“After reviewing the record, we can say without any doubt that the judge’s erroneous comments to the jury had little, if any, likelihood of changing the result of the trial.” 264 Kan. at 51-53.
Davidson’s convictions were affirmed, but the language of our opinion is particularly instructive as to the duties and obligations of trial judges where some restraint is imposed on a defendant during a criminal trial.
We also point to State v. Williams, 228 Kan. 723, 621 P.2d 423 (1980), where issues of self-representation were involved but the defendant was extremely disruptive, broke away from officers, and was unruly and profane; the trial court, after a hearing, ruled that under the circumstance he had no alternative but to order all restraints — leg irons, wrist chain, handcuffs — left on the defendant.
Our Williams opinion held that a defendant in a criminal case should not be tried while in handcuffs or shackles except in unusual, compelling, and exceptional circumstances, and the record should clearly reflect why restraints are ordered. 228 Kan. at 730-31. We concluded that the trial judge did not abuse his discretion:
“The trial judge in the case at hand made a careful record of the proceedings. He expressed reluctance to impose restraints, and ordered only the least restrictive restraints required. He directed that they be discontinued when it became apparent that restraints were no longer necessary. The trial judge exercised his discretion carefully. We find no abuse.” 228 Kan. at 731.
The three cases referenced to above set forth in great detail our recent precedent in Kansas on the usage of restraints. Here, we have recited in detail the record at the time the stun belt was imposed. Powell’s appellate counsel reasons that a more extensive record was not developed because the request to use the stun belt was made without prior knowledge to Powell’s trial counsel and the parties had little previous experience with tire issue. While we believe an adequate record was developed for us to resolve the issues presented, we will look to several of the cases cited by Powell on appeal as they relate to the usage of stun belts in other jurisdictions.
We first look to a recent case, Wrinkles v. State, 749 N.E.2d 1179 (Ind. 2001), where the Indiana Supreme Court refused to grant post-conviction relief to a defendant convicted of three counts of capital murder and sentenced to death because trial counsel’s performance on the issue of restraints was not deemed to fall below an objective standard of reasonableness. However, the court agreed with the ruling of the federal district court judge in Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244 (C.D. Cal. 1999), offd in part, rend in part, and remanded 251 F.3d 1230 (9th Cir. 2001), prohibiting utilizing a stun belt and held:
“Although not all courts have taken this stance, we agree with the observations of the federal court judge and thus hold that henceforth stun belts may not be used on defendants in the courtrooms of this State. This is so because we believe that the other forms of restraint listed above can do the job without inflicting the mental anguish that results from simply wearing the stun belt and the physical pain that results if the belt is activated.” 749 N.E.2d at 1194.
Powell’s reliance on Wrinkles and Hawkins is subject to question. Hawkins had been fitted with a stun belt. During a hearing, he made several statements out of order and acted in a generally disruptive manner resulting in its activation. Hawkins later sued the court and other governmental officials for damages and for an injunction against further usage, and he attempted to certify a class. The federal district court granted the preliminary injunction and observed stun belts have a chilling effect on a defendant’s defense and have the potential to compromise an individual’s ability to participate in his or her own defense.
However, this ruling was overturned in part by the Ninth Circuit Court of Appeals as being overbroad. 251 F.3d at 1242. The appeals court stated:
“The stun belt offers more effective protection of courtroom security than alternative methods. Activated by the touch of a button, it can neutralize a security threat instantly and remotely. So long as the prejudice resulting from its use is no greater than that of the alternatives, we should be reluctant to deny recourse to what may be a valuable tool in protecting courtroom security.
“We have seen that in shifting the focus from disruption to security, the belt’s ‘chilling’ effect becomes less prejudicial and the alternatives more so. For this reason, the district court findings regarding disruption do not support the injunction in the context of security. We therefore conclude the district court abused its discretion in ruling that a serious question of a Sixth Amendment violation existed as to the use of stun belts to maintain courtroom security.” 251 F.3d at 1242.
While usage of the belt to restrain a vocally disruptive defendant was improper, the Ninth Circuit held its usage to protect courtroom security was not. 251 F.3d 1242-43. The record in Powell’s case undisputedly shows that the belt was placed on him for courtroom security reasons. The acts stated on the notification form relate to safety, attempting escape, and tampering with the belt.
Additionally, the Hawkins opinion stated the “chilling effect” on a defendant may be decreased where the defendant is represented by counsel and where the defendant does not testify. The opinion stated “threats of violence or escape are sufficiently identifiable to permit a defendant to advocate his cause without fear that excessive zealousness will be mistaken for such a threat.” 251 F.3d at 1240. The court held that judges must balance the safety of the court, jury, and spectators with the rights of the accused, and they must consider whether alternatives are less prejudicial. 251 F.3d at 1240.
The Hawkins court looked to the use of shackling as being potentially prejudicial, surrounding a defendant with guards as being prejudicial, presence of firearms as dangerous to third persons, and threats of contempt as often being meaningless.
The Ninth Circuit opinion had been filed approximately 30 days prior to the Wrinkles decision, but the Indiana Supreme Court appears to have also relied on law review articles negative to stun belt usage. See Comment, The REACT Security Belt: Stunning Prisoners and Human Rights Groups into Questioning Whether Its Use Is Permissible under the United States and Texas Constitutions, 30 St. Mary’s L.J. 239 (1998), Brienza, Stun Belts Zapped by Civil Liberty Groups, 35 Trial 99 (Apr. 1999).
We note the Wrinkles opinion cited Young v. Georgia, 269 Ga. 478, 479, 499 S.E.2d 60 (1998), and Holloway v. Nevada, 6 P.3d 987, 994 (Nev. 2000), as cases where stun belt usage had been approved. See Wrinkles, 749 N.E.2d at 1194 n.4.
We are not prepared to follow Indiana in a prospective ban on stun belts, even though we could do so and still affirm Powell’s conviction because of the complete lack of any prejudice that is shown by the record in his case.
We believe a better view is provided in part by the recent case People v. Mar, 28 Cal. 4th 1201, 124 Cal. Rptr. 2d 161, 52 P.3d 95 (2002), a California Supreme Court decision filed August 22,2002. While the facts in the Mar case, as in most, drive the result, the charges in the Mar case included defendant Mar’s resisting a police officer, resulting in serious injury to an officer while the officer was attempting to move an agitated Mar to a specially padded “detox” cell. The testimony of both sides differed at trial, but the appeal was limited to the issues arising out of the usage of the stun belt.
Mar said he was nervous with the belt on, afraid it was going to be activated, said it stuck out in the back, and asked it to be removed while he was testifying. The trial court was concerned over Mar losing control of his emotions, pointed to a prior incident during transportation, and told Mar it was in his best interest to make sure that nothing happened in the courtroom during the trial in front of the jury. Mar testified on his own behalf. The transcript reflected he became excited and spoke rapidly, but he was able to testify at length as to his version of the events. The belt was not activated at any time during the trial.
While Mar did not contain facts about stun belts, the opinion relied on numerous articles, including those previously cited which were relied on in Wrinkles. The Mar court relied in most part on its earlier decision in People v. Duran, 16 Cal. 3d 282, 127 Cal. Rptr. 618, 545 P.2d 1322 (1976), where the limited circumstances under which a defendant may be subjected to physical restraints such as shackles or manacles are now held to apply to the use of a stun belt. 28 Cal. 4th at 1219-20.
The Mar opinion followed California's earlier Duran decision in holding that when it is established that it is appropriate to impose some restraint upon a defendant as a security measure, the trial court must authorize the least obtrusive or restrictive restraint that effectively will serve the specified security purpose. 28 Cal. 4th at 1205-06, 1225-26. The Mar court disagreed with reasoning that would suggest that a stun belt should be viewed as the security device of choice. It was held that the psychological effect of wearing the device was to be considered and that it might impair a defendant’s ability to “think clearly, concentrate on the testimony, communicate with counsel at trial and maintain a positive demeanor before the jury.” 28 Cal. 4th at 1226.
The Mar opinion further looked to the possibility of accidental activation and possible medical risks and suggested that consideration should be given to whether the design of the belt could be lowered to lesser voltage or shortened in duration. 28 Cal. 4th at 1226-30. The opinion concluded:
“In sum, the compelled use of a stun belt as a security measure in a criminal trial, over a defendant’s objection, raises significant questions that generally have not been addressed by trial courts asked to approve the use of this relatively novel type of security device. Before a trial court approves the use of such a device in the future, the court must consider [applicable] factors and may approve the use of a stun belt only if it determines that the use of the belt is safe and appropriate under the particular circumstances.” 28 Cal. 4th at 1230.
In another recent case, United States v. Durham, 287 F.3d 1297, 1330 (11th Cir. 2002), defendant’s conviction was vacated and the case remanded for more sufficient findings on the record to justify the use of the stun belt. The Durham court stated:
“[A] decision to use a stun belt must be subjected to at least the same ‘close judicial scrutiny’ required for the imposition of other physical restraints. Elledge, 823 F.2d at 1451. Due to the novelty of this technology, a court contemplating its use will likely need to make factual findings about the operation of the stun belt, addressing issues such as the criteria for triggering the belt and the possibility of accidental discharge. A court will also need to assess whether an essential state interest is served by compelling a particular defendant to wear such a device, and must consider less restrictive methods of restraint. Furthermore, the court’s rationale must be placed on the record to enable us to determine if the use of the stun belt was an abuse of the court’s discretion.” 287 F.3d at 1306-07.
In United States v. Edelin, 175 F. Supp. 2d 1 (D.D.C. 2001), the defendant in a capital murder trial moved to preclude the use of stun belts. He argued, in part, that the belt interfered with his ability to assist counsel. The trial court, in the published order, set forth a 12-part test in determining whether the use of stun belts was appropriate:
“1) the seriousness of the crimes charged and the severity of the potential sentences; 2) the numerous allegations of threats of violence made by the defendants against witnesses; 3) previous guilty pleas or convictions of a substantial number of the defendants to prior gun charges and/or violent crimes; 4) belligerent and threatening comments made to the Deputy U.S. Marshals by each of the defendants other than defendant Tommy Edelin; 5) allegations of gang activity, and the likelihood that associates or rivals of the alleged gang may be present at the trial; 6) the strong opinion of the U.S. Marshal for this District, particularly as it relates to knowledge of security in this courthouse and with cases of this nature; 7) potential prejudice to the defendants through the use of the stun belts; 8) likelihood of accidental activation of the stun belts; 9) potential danger to the defendants if the belts are activated; 10) the availability and viability of other means to ensure courtroom security; 11) the potential danger for the defendants and others present in the courtroom if other means are used to secure the courtroom; and 12) the existence of a clear written policy governing the activation of stun belts worn by defendants.” 175 F. Supp. 2d at 5.
After analysis, the court found each of the twelve factors to favor use of the stun belt on the defendant and some of the witnesses. 175 F. Supp. 2d at 5-7.
Cases involving restraints before our Tenth Circuit Court of Appeals have not developed as extensive a commentary on the issue of the use of shackles and stun belts as in other United States Circuit Courts of Appeals.
Yates v. United States, 362 F.2d 578, 579 (10th Cir. 1996), states:
“Appellant also asserts that the trial court erred in denying his motion for mistrial because on one occasion he was brought into the courtroom while shackled. When the incident occurred the trial court formally inquired into the matter and determined that appellant’s appearance in the courtroom while under restraint had occurred briefly about twenty minutes before one session began and in the presence of perhaps ten unidentified people. There was no evidence that any juror saw the incident. On motion for new trial the court gave further consideration to the possible impact of the happening upon the rights of appellant and found that only reasonable restraint had been imposed upon appellant and that he was not prejudiced thereby even if observed by any juror, there being no evidence that any juror had in fact observed appellant under restraint. We are satisfied that the record reflects no abuse of judicial discretion in such regard and that the trial court, after its careful inquiry, did not err in denying the motion for mistrial. Glass v. United States, 10 Cir., 351 F.2d 678 [1965].”
A later case, United States v. McKissick, 204 F.3d 1282 (10th Cir. 2000), involved a stun belt and the opinion limited the discussion to the following:
“1. The Use of a Stun Belt
“After the completion of jury selection, but before opening arguments, counsel for Mr. Zeigler approached the bench and informed the court he had just learned the defendants were wearing stun belts beneath their clothing. The court confirmed it had approved such a precaution and noted the devises were not noticeable. During a hearing in chambers the next morning, the court set forth its reasons for allowing the stun belts to be used. Among these reasons, the court noted the United States Marshals suspected other gang members from Los Angeles might attempt to disrupt the proceedings. The court also found the stun belts were not visible under the defendants’ clothing. Although Mr. Zeigler’s counsel had not noticed the belts because he was sitting across the table from the defendants, he argued the jury might have been able to see them. However, there is no evidence in the record that any member of the jury noticed the stun belts. Thus, we do not presume prejudice to Mr. Zeigler and conclude the court did not abuse its discretion in denying Mr. Zeigler’s motion for a mistrial. See Yates v. United States, 362 F.2d 578, 579 (10th Cir. 1966) (no prejudice to the defendant found where there was no evidence any juror in fact observed him wearing shackles in the courtroom).” 204 F.3d at 1299.
Based on the record before us, we hold it was not an abuse of discretion for the trial court to order Powell to wear the stun belt for the evidence portion of the trial. There is absolutely no showing of any prejudice of any nature whatsoever) Powell elected not to testify. The usage of the belt was not shown to have been a factor in the exercise of this decision. The usage of the belt did not hamper Powell’s right to receive a fair trial. There was an adequate record to justify the trial court’s decision to impose the stun belt. Although it may be argued that undue deference was given to the sheriff s wishes, we hold the trial court did not abuse its discretion under the facts of this case.
Having so held, we now also repeat what we said in both Ninci and Davidson. It is the trial judge’s responsibility to insure that a defendant receives a fair trial. The sheriff is in control of the defendant outside the courtroom, but, within the courtroom, the obligation of courtroom security becomes a matter of shared concern. While deference should be given to law enforcement officers with security obligations, the trial judge must retain complete control over the courtroom and exercise his or her discretion in finally determining if restraints are to be utilized. Prior conduct in court proceedings is an important factor to be considered. If authorized, the trial court must utilize the least obtrusive or restrictive restraint that will effectively serve the specified security purposes. Consideration should also be given whether the imposition of a restraint is related to security reasons or disruptive expectations.
Each case must turn on its individual facts. We hesitate to set forth any list of factors required to be considered. But, the background of the defendant; the nature of the charges; evidence of dangerous incidents; testimony about the restraints sought to be used; prior conduct of the defendant; the objection to use of the restraint and/or the election by the defendant whether to testify; the physical facts of the individuals and the courtroom; the presence or absence of victims, family, or spectators; and other factors that will vary from case to case must be considered by the trial court. Manifest necessity as used by the California court in the Mar case means that the need for the usage of restraints is clearly apparent. But, what that necessity is in the final analysis must be left to the sound discretion of trial judges who have direct contact with difficult situations and must have the necessary flexibility to insure that fair trials are held consistent with safety to all concerned.
Did the trial court commit reversible error when it failed to inquire if the jury had been exposed to a newscast that discussed Powell’s prior homicide conviction?
During the second day of trial, Powell brought to the court’s attention a newscast his counsel and some court staff had seen which mentioned Powell’s prior homicide conviction. The court had, as we set forth in the facts, repeatedly advised the jury not to view any news report concerning Powell’s trial and continued to do so throughout the trial.
The trial court inquired as to the potential source of the information although, as die prosecutor pointed out, the fact of Powell’s prior conviction was information accessible to the public. After hearing Powell’s concern, the court again admonished the juiy to avoid looking at or reading media reports. Powell did not further object or request the jury to be polled to determine if the newscast had been viewed.
Now on appeal, Powell contends the trial court should have questioned the jury to see if anyone had seen the newscast in question.
This contention is directly contrary to a long line of Kansas cases where we have held that polling the jury would likely draw attention to a media report and might further prejudice them. We so held in State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976), and have continued that holding in State v. Yurk, 230 Kan. 516, 522-23, 638 P.2d 921 (1982), and several other cases. We see no reason to change our long-time rule and dechne to follow several Tenth Circuit Court of Appeals cases cited to us by Powell that espouse a duty to inquire. We believe the potential for placing prejudicial material before a jury exists, and to inquire as to media reports places an unnecessary burden on trial courts.
The trial judge here admonished the jury on every occasion not to consider media reports. There is nothing to show this admonition was not followed. We continue Stewart and its progeny as our Kansas rule.
The convictions are affirmed. The requests for a new trial were properly denied.
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The opinion of the court was delivered by
Allegrucci, J.:
Steven Papen was convicted by a jury of premeditated first-degree murder of Dana Anderson. A hard 50 sentence was imposed. He appeals his conviction and sentence.
On appeal, Papen argues that: (1) the trial court abused its discretion in excluding the testimony of Papen’s expert psychological witness and in responding to the jury’s request regarding the testimony of a witness; (2) the especially heinous, atrocious, or cruel aggravating circumstance was unconstitutionally vague; (3) there was insufficient evidence to support the trial court’s determination that the murder was especially heinous, atrocious, or cruel; and (4) State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), which held that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), did not affect hard 40 sentencing, should be overruled.
The victim, Dana Anderson, was a secretary in the respiratory care unit at Wesley Medical Center in Wichita. Cody Anderson, Dana’s 12-year-old son, left Wichita the last weekend in July 2000 to visit relatives in Missouri and Arkansas. He was scheduled to return on Friday, August 11, 2000. Steve Papen was a mechanic for Case Corporation. On August 10, he was on unpaid leave during the company’s annual 3-week shutdown.
Dana, Cody, and Papen shared a two-bedroom house, which Papen was buying. They lived together, at Papen’s suggestion. Dana and Papen shared a bed, but did not have a conjugal relationship. Although they had never married, Papen considered Dana to be his wife. Papen testified that he and Dana had signed common-law marriage papers so that Dana and Cody could be covered by Papen’s insurance.
Dana and Papen met in September 1994, when he was 31 and she was 23. Dana suffered from rheumatoid arthritis, she was unable to bend or twist, and she had already had one hip replacement. They engaged in sexual intercourse one time in December 1994. It caused Dana pain. Papen testified that he then realized that it would not be a relationship with “a lot of sex.” He loved her, and decided “not to malee an issue out of sex.”
On August 10, 2000, Dana left work at approximately 3:30 p.m. The drive from the hospital to their house took approximately 13 minutes. Papen told police that he killed Dana in their bedroom right after she got home. He thought she arrived home at approximately 4:30 and that he killed her between 4:30 and 5.
Papen gave a statement to police in September 2000. He said that he went into the bedroom, where Dana was getting undressed, and she got mad at him for being in the room while she was changing. He lost his temper, picked up a bat, and hit her. Papen said, “I don’t think I could stop hitting her.” He said that Dana kept baseball bats and canes by the bed, rather than a gun, for defense. He picked up a bat and swung as hard as he could. He didn’t really know how many times he hit her with the bat, but he estimated 2 to 4 times. Later, he choked her with his hands. Papen said she probably was unconscious and that “[i]t was more like I was just taking my frustrations out on her.” With regard to his wrapping Dana’s face in plastic wrap, Papen seemed to say that he wanted to be sure she was not breathing because he did not want her to be suffering. He also told police that while he was cleaning up, he knew he had killed Dana.
Papen told police that he did not remember what made him “pop.” At first, Papen said that he and Dana had discussed “fooling around” after she got home from work, a “discussion that went on about everyday,” but she said no. Later, he told police that he did not bring up sex that afternoon. He said that he asked her about her day and why she had taken so long to get home.
Papen said that he was “pretty upset” about their home life. He said that his feelings had been building. He told police that Dana had met a new friend at work. He was about Papen’s age, a good Christian, who treated her well. He e-mailed Dana constantly. Pa-pen said he got very jealous over that. He believed that Dana was spending time after work with her new friend, but she denied it. He complained that when Dana did come home, her idea of a good time was being “out spending my money.” Papen told police, “I don’t think I let myself realize it though I mean I just, it just build, build, build.” He denied thinking about killing Dana, but he admitted that he “thought about just whacking the shit out of her, I mean, back-handing her.”
Papen told police that what caused him to kill Dana was “an accumulation of everything and that night I was gonna insist we had some type of relations.” He did not get to that point. He said, “I was just in the same room with her and it’s like you know ‘get the hell out of here I’m trying to dress’ and shit like that and it, and it just turned into me having to defend my own person.” Papen clarified that what he was doing was defending his honor because Dana “had a way of just making me feel like a big f--g turd.”
At trial, Papen told a different story. He said that as Dana began to undress, he put his arm around her, she fell back into his arms and expressed a need for physical intimacy. Papen testified that he fondled her breasts and used a vibrator, which she did not respond to. She asked for a cucumber instead. He went to the kitchen, selected a cucumber, and peeled it. By the time he returned to the bedroom, Dana was getting dressed. She said she was done and told him to do the dishes. Papen testified that he threw the cucumber and then he “lost it.” He picked up a bat and hit Dana on the side of her head. He testified that Dana fought back fiercely and called him names. Papen testified that he pushed her down on the bed. “And I couldn’t stop myself. I was pissed.” He was yelling at her, telling her everything he was mad at her about. He had his hands around her throat, and then she lay still. Police did not find a cucumber in the bedroom.
After killing Dana, Papen tried to put her into a duffle bag, but she did not fit. He threw a sleeping bag over her and closed the bedroom door. After cleaning himself up and changing clothes, Papen went next door and told the neighbor that they would be out of town. He was “trying to divert any suspicions.”
Later, he put a pillowcase over Dana’s head because he did not want to look at her. He tried to tape the pillowcase around her neck, but the tape did not stick. Papen testified that he had to cover her face because he was “freaked out.” He wrapped her head in pink plastic wrap, put her in the sleeping bag, and took her out the back door.
Near midnight, he put the sleeping bag in the trunk of Dana’s car and began to drive to Colorado. Papen left Dana’s car, with her body in the trunk, at the airport in Colorado Springs. He flew to Las Vegas, took a taxi to a casino, won some money, and got a motel room for Friday night, August 11. On August 12, he flew from Las Vegas to Seattle. He took a taxi to the waterfront, rode ferries, and slept outside Saturday night. On Sunday, August 13, he went to Discovery Park and took two bottles of Dana’s prescription medicine.
Papen regained consciousness in a Seattle hospital on September 6. By September 18, it was determined that Papen was completely cognizant and that his memory was complete. Wichita police were contacted, and on September 19 an officer flew to Seattle to interview Papen.
Cody had arrived home from visiting his relatives at approximately 4:30 on Friday, August 11. Cody and the relatives who brought him home were surprised that Dana, who had been expecting them, was not there. They called police at approximately 5:45. Wichita police talked to Dana’s father, who said he was worried because there had been previous domestic strife between Dana and Papen. Although there were signs that someone had made an effort to clean up, police found bloodspatters and blood-pooling in the bedroom and bloodstains on the deck and driveway.
Papen’s truck was found at the Wichita airport on Saturday, August 12. The date and time on the airport parking ticket in the truck were August 10, 9:54 p.m. Papen testified that he drove his truck to the Wichita airport and took a taxi home to try to create a “diversion.” The truck contained, among other things, an aluminum bat, a spray bottle of Clorox Clean-Up, and a dark green duffle bag. There was blood on the bat and bag.
Dana’s car was found at the Colorado Springs airport on August 17. There was quite a bit of camping equipment in the car, a cooler, two bags of clothing, a hair trimmer, and a blond hair coloring kit. Papen testified that he took the camping gear because he thought he might be out in the wilderness hiding from the police. The hair coloring and trimmers were to aid him in disguising himself. In the sleeping bag in the trunk, Dana’s naked body was in an advanced state of decomposition. There were several layers of pink plastic wrap wrapped around her head and several iayers of duct tape going around the base of the plastic wrap.
An autopsy showed “rather deep” bruises on her left forearm, which could have been defensive injuries, and other severe bruises on her left calf, shin, and ankle. There was hemorrhaging on the right side of the head, above the ear, and a “great deal of hemor rhage within the soft tissue on the right cheek.” The hemorrhaging on her head was consistent with being hit by a blunt object. In addition, there was quite a bit of hemorrhaging on her left collarbone, in the muscles around her voice box, and directly over the hyoid bone, and her hyoid bone was broken. The pathologist testified that with the exception of severe traffic accidents, hyoid bones only get broken when the person is strangled, either by hands or ligature.
The pathologist was not able to pinpoint the cause of death. She attributed death to “suffocation associated with strangulation and blunt force trauma of the head.” She said that the blunt force may have caused Dana to lose consciousness but probably was not enough to kill her. Although strangulation had the potential to kill, it may or may not have done so. Suffocation also had the potential to kill right away and definitely would have killed eventually.
Papen denied that he ever planned to kill Dana. The State presented evidence tending to support its theory that Papen had thought beforehand about killing Anderson. Two of Dana’s friends reported troubling conversations with Dana in the weeks before her death. Brenda Whitson testified that on August 1 Dana told her that she was afraid to stay with Papen by herself. Vicki Baca cut Dana’s, Cody’s, and Papen’s hair on July 24 before Cody left for Missouri and Arkansas. Papen told Baca that it aggravated him that Dana and Cody always went to Arkansas when he was working and that it would really upset him if she waited until after he returned to work from the 3-week shutdown to go to Arkansas. Baca testified that Papen said, “[I]f she does wait till after he returns to work August 14th, he’s liable to beat her to death with a ball bat.” Baca told police that Papen threatened to beat Dana with a bat, but not to beat her “to death” with a bat.
In the weeks before he lulled Dana, Papen engaged in some conduct that differed from his conduct during the same period of the preceding year. He failed to return to work after lunch on July 21, the last day before the 3-week shutdown. Papen testified that at lunchtime he went to a liquor store, bought a 40-ounce beer, and drank half of it. He did not go back to work after drinking because that would be grounds for firing him. As soon as his last Case paycheck had been automatically deposited, Papen withdrew nearly all of it in cash. Then on July 28, there was a $400 deposit into Papen s account and an immediate cash withdrawal of $300. In July and August 1999, there had been no large cash withdrawals from Papen s account. Papen testified that he withdrew the money in 2000 in order to keep from spending it. In his statement to police, Papen said he withdrew the money to keep from spending his money on Dana. He and Dana kept separate bank accounts, but the PIN for his debit card was her birthday and she had used the card.
Papen estimated the time he killed Dana as between 4:30 and 5 on August 10, and he said that he went to the neighbors’ house after he killed Dana. The neighbor, Clarence Mai, testified that he ran one errand at about 2 and returned home at approximately 3 or 3:30. When he returned from that errand, his wife told him that he had just missed Papen. Thus, according to Mai, Papen’s visit occurred before 3:30.
Papen purchased pink plastic wrap on August 8. He purchased duct tape on August 5. He purchased Clorox Clean-Up on August 9, along with a large quantity of groceries. Papen told police that he “didn’t go out and buy a bunch of stuff ... to do away with Dana.” He testified that he bought the duct tape for their above-ground swimming pool. He did not remember buying the plastic wrap, but said that they used containers and plastic wrap for leftovers. Papen testified that the groceries were for the weekend when Cody would return with relatives, but after killing Dana he packed the groceries in his cooler to take with him. There was evidence that Papen used the Clorox Clean-Up to clean after he killed Dana. There also was evidence that the woman who cleaned house every other week for Papen and Dana routinely used Clorox Clean-Up, that when she cleaned on August 9 there was not any, and that Dana had assured her she would put it on the grocery list.
We first consider whether the trial court abused its discretion in excluding the testimony of Papen’s expert psychological witness. After reviewing the report and interview of the proposed defense witness, Dr. Robert Schulman, the State filed a motion in limine requesting the trial court to exclude any evidence from him. The grounds for the motion were that “the proposed testimony of Dr. Schulman is not evidence of a mental disorder or defect, and is therefore not relevant pursuant to K.S.A. 22-3219 or K.S.A. 60-407(f). The expert opinion of Dr. Schulman would not assist the trier [of] fact in interpreting technical facts or in understanding material evidence . . . .” The trial court granted the State’s motion in limine.
A proffer of testimony that Schulman would have given if he had testified during Papen’s trial is in the record. Based on his psychological evaluation of Papen, Schulman stated:
“Dana Anderson and the defendant had been involved in a long tortuous relationship that had lasted nearly 6 years. They were involved in an approach-avoidance relationship. They could not fully consummate the relationship nor could they separate and seek other relationships. When they did try and separate they were drawn back together and when they were together it was as if a wedge were between them. The defendant believed that if he were patient ultimately the relationship could be consummated psychologically and physically and they would be able to remain together. It was that hope and desire that kept him in the relationship and there were positive aspects of the relationship that led him to believe that it would be successful. At the same time he was very frustrated with her not being more available to him physically and psychologically and he is able to describe how she taunted him with the idea of her being available to him. Although neither of them realized it or would have characterized their relationship as being a death struggle, it in fact was.
“The defendant’s hope was to succeed in the relationship and he could not conceive of not being in the relationship with her. Because of the nature of the relationship, he could not have planned and in a deliberate or premeditated way cause her death. What happened at the time of her death was spontaneous, in part precipitated by the victim and done in the heat of passion with diminished capacity.
“. . . Neither of these individuals would have harmed the other in a premeditated way and yet each could not live with or without the other one.
“The defendant is not a psychologically ill man, but he is a man who was caught in a desperate struggle with the woman he loved.”
The trial court found “as a matter of law that Dr. Schulman’s testimony cannot be presented to the jury on the issue of heat of passion or voluntary manslaughter. Those matters [are] for the jury to determine based on ordinaiy evidence and it doesn’t require an expert opinion.”
The trial court has broad discretion in admitting or excluding the testimony of an expert witness. Necessity arising out of the particular circumstances of the case is the basis for the admission of expert testimony. To be admissible, expert testimony must be helpful to the jury. Where it is not helpful, that is, where the normal experience and qualifications of laypersons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert testimony is inadmissible. State v. Smallwood, 264 Kan. 69, 80, 955 P.2d 1209 (1998).
In the present case, the trial court determined that the normal experience and qualifications of the laypersons serving as jurors would permit them to draw proper conclusions from the evidence. Accordingly, the trial court ruled that Schulman s testimony would not be admitted.
The trial court’s ruling was sound. Schulman’s proffer stated that for 6 years Papen and Dana had been in a psychologically and physically unfulfilled relationship. Papen testified that he and Dana met in 1994. They bought a house together, but Papen complained of bearing the financial burden. Even though they slept in the same bed, there was no physical intimacy between them. Papen said that Dana was very cold to him, and he suspected her of forming relationships with other men. From Papen’s testimony, the jurors could have concluded for themselves that the relationship was psychologically and physically unfulfilling for Papen, and there was no need for expert psychological testimony.
Schulman offered the opinion that “[bjecause of the nature of the relationship, [Papen] could not have planned and in a deliberate or premeditated way cause[d] her death.” Furthermore, Schulman opined that “[w]hat happened at the time of her death was spontaneous, in part precipitated by the victim and done in the heat of passion with diminished capacity.” In other words, Schulman would have testified that Papen did not have the mental capacity to plan to kill Dana.
Although Papen filed a notice pursuant to K.S.A. 22-3220, he did so out of an abundance of caution. In response to the State’s motion in limine, Papen responded that he was not offering the psychiatric testimony to present a mental disease or defect defense but to support his defense of a lack of premeditation.
In similar circumstances in State v. Hobson, 234 Kan. 133, 159-60, 671 P.2d 1365 (1983), the court affirmed the trial court’s excluding expert psychiatric testimony about the defendant’s mental capacity to arrange a murder. The court found no authority that would support the admission of evidence of a defendant’s' mental capacity to commit a specific act where insanity was not an issue. The court stated:
“It is well settled that expert opinions are admissible on the issue of sanity or insanity in criminal prosecutions because it is an area where expert opinion is particularly useful and oftentimes necessary to interpret for the jury the manifestations of mental derangement and the significance of symptoms. See State v. Garcia, 233 Kan. [589,] 598-99 [, 664 P.2d 1343 (1983)] arid authorities cited therein. No case law or other authorities are cited by the appellant which state evidence of a defendant’s mental capacity to commit a specific act is admissible where an insanity defense has not been raised and insanity is not an issue. The appellant did not raise an insanity defense in the instant case.
“The ultimate issue of fact to be determined by the jury was whether the appellant did or did not commit the crimes charged. The proffered opinion testimony by Dr. Day, based on his contact with the appellant subsequent to die time when the crime was committed, was that she could not have committed the crime because she lacked the mental capacity to do so. This evidence squarely embraced the issue to be determined by the jury. As stated above expert opinion testimony is permitted only insofar as it ‘will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.’ The facts presented by the evidence were neither technical, complicated nor beyond the average experience and common understanding of the jury. In rendering a verdict the jury was required only to weigh the evidence and pass on the credibility of the witnesses. Either they believed the appellant’s version of the events or the version presented by the prosecution witnesses. The opinion evidence proffered by the appellant encroached directly upon the jury’s exclusive province to determine from the evidence whether or not the appellant actually committed the crime, and therefore was properly excluded by the trial court.” 234 Kan. at 160-61.
On this issue, the circumstances of the present case are indistinguishable from those in Hobson. We conclude Hobson is controlling here.
Prior to oral argument, appellant’s counsel filed a notice of additional case authority. That authority was our recent opinion in State v. Greene, 272 Kan. 772, 37 P.3d 633 (2001). Counsel’s reliance on Greene is misplaced.
The issue in Greene was ineffective assistance of counsel. The admission of the psychological expert testimony was not directly at issue. It was a collateral matter bearing on the issue of ineffective assistance of counsel. In Greene, as here, mental disease or defect was not relied on as a defense. Greene’s counsel requested a jury instruction on diminished capacity based on lack of requisite intent to kill. As we pointed out in Greene, “[njeither an insanity defense nor diminished capacity, as described in Jackson, are applicable to crimes committed after January 1, 1996.” 272 Kan. at 780. Greene does not support Papen’s argument.
In addition, in this case there is reason to question whether Schulman’s opinions are solidly based on facts personally known to him, as required for the admission of expert opinions by K.S.A. 60-456(b)(1). In particular, Schulman’s opinion that neither Papen nor Dana “would have harmed the other in a premeditated way and yet each could not live with or without the other one” is suspect. Schulman laments the couple’s failure to seek counseling. He had no contact with Papen and Dana as a couple. His contact with Papen occurred after Dana was dead, and Schulman had no contact with Dana. An expert must have a factual basis for his or her opinions in order to separate them from mere speculation.
In the present case, as in Smallwood, 264 Kan. 69, appellant contends that the trial court’s ruling on the admissibility of expert testimony raises federal constitutional questions. Papen contends that exclusion of Schulman’s testimony was a violation of his Sixth Amendment right to compulsory process and a violation of his due process right to refute the premeditation element of the crime charged and to establish the heat of passion element of voluntary manslaughter. The harm Papen posits as a result of the trial court’s exclusion of Schulman’s testimony is that he was unable to fully explain the technical aspects of his defense to the jury. As already discussed, in the circumstances of this case, there were no technical aspects of the defense that were not comprehensible by the jury.
Papen next contends that the trial court abused its discretion in responding to the jury’s request regarding the testimony of a wit ness. During deliberations, the jury requested “a copy of the transcript with Mr. Mai’s testimony” in order “to verify the time frame of Mr. Mai’s errands and the time of Steve Papen’s visit.” Defense counsel asked that both direct and cross-examination of Clarence Mai be read back to the juiy. The trial court ruled that the jurors would “only get what they asked for.” The juiy returned to the courtroom where the following portion of Mai’s testimony was read to the jury:
“Q. . . . And, on August die 10th, in the afternoon, did you have an occasion to leave your home and [your wife] was there by herself?
“A. I did.
“Q. Okay.
“A. I did.
“Q. And approximately what time of day was that?
“A. Well, I run two errands. I run one about 2 o’clock and I come back, oh, approximately 3 or 3:30, and I had to run another errand after that which was —
“Q. Okay.
“A. — just about the same length of time.
“Q. Okay. So then your next errand started at what time?
“A. Approximately 4 o’clock.
“Q. Okay. And what time do you think you probably returned?
“A. Oh, I wasn’t gone more than an hour, if that long.
“Q. Okay. So probably 4 to 5 —
“A. Uh-huh.”
It is obvious that the jurors did not “get what they asked for.” They requested Mai’s testimony for the times of his errands and the time of Papen’s visit. Mai testified that after he returned from the first errand his wife told him that he had just missed Papen, who had been there and talked to her. Mai further testified that it was not until he returned home after his second errand that his wife told him what Papen had said. The omission of Mai’s testimony about the time of Papen’s visit, however, is not what Papen complains about on appeal.
Papen contends that the trial court erred by rejecting defense counsel’s request that Mai’s cross-examination testimony be included in the read-back. What Papen argues is significant about the cross-examination testimony was Mai’s agreeing that he was “guesstimating” those times.
K.S.A. 22-3420(3) provides that “[ajfter the jury has retired for deliberation, if they desire to be informed as to any . . . evidence arising in the case, they may request the officer to conduct them to the court, where . . . the evidence shall be read or exhibited to them . . . .” Applying the statute, the court has stated that the “trial court must accede to a jury’s request to read back testimony. The manner of acceding to the request is subject to trial court discretion.” State v. Myers, 255 Kan. 3, Syl. ¶ 1, 872 P.2d 236 (1994). “The trial court has the discretion to clarify and focus the jury’s inquiry when the jury has requested a read-back of testimony.” State v. Miller, 268 Kan. 517, Syl. ¶ 8, 997 P.2d 90 (2000).
In the present case, the jury wanted Mai’s testimony in order to verify when he left home and returned. The direct examination testimony that was read to the jury contained the times when Mai left home and returned.
Papen contends that the jury’s request was not satisfied because the read-back did not inform the jury that Mai’s testimony about the times of his errands was only an approximation. Papen argues that the jury should have been read Mai’s affirmative response to defense counsel’s question about “guesstimating” the times. Contrary to Papen’s position, the read-back testimony clearly and repeatedly stated that the times were approximations. Mai was asked approximately when he went on the first errand, and he responded that he left about 2 and returned at approximately 3 or 3:30. Regarding the second errand, Mai said that he left at approximately 4 and that he “wasn’t gone more than an hour, if that long.” Mai’s admission on cross-examination that he was “guesstimating” was nothing more than a slight variation on the testimony that was read back to the juiy. The read-back provided by the trial court satisfied the juiy request insofar as it involved the times of Mai’s errands. There was no abuse of discretion.
Papen next argues that the especially heinous, atrocious, or cruel manner aggravating circumstance is unconstitutionally vague. See K.S.A. 2001 Supp. 21-4636(f). Papen did not challenge the constitutionality of the especially heinous, atrocious, or cruel manner aggravating circumstance in the trial court. He urges this court to review the issue because it fits within the recognized exceptions to the general rule that constitutional issues raised for the first time on appeal are not properly before this court. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Papen urges this court to consider his newly asserted constitutional theory on the grounds that it is strictly a question of law and consideration is necessary to serve the ends of justice. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Being influenced by the recent filing of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), this court elected to address Conley s constitutional argument. There is no similar reason why this court should elect to consider Papen’s argument.
Moreover, as the State points out, the aspects of the statute complained of by Papen have no application to this case. A defendant to whom a statute may constitutionally be applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally in circumstances not before the court. State v. Neighbors, 21 Kan. App. 2d 824, 828, 908 P.2d 649 (1995).
Papen objects to those portions of the statute that eliminate any requirement that the victim be aware of his or her fate or have conscious pain and suffering before death. Papen’s position, as stated in his brief, is that this “omission has so watered down the purported aggravating circumstance that ordinaiy persons must guess as to its meaning and differ as to its application.” The evidence in the present case showed that Dana was conscious when Papen swung as hard as he could and hit her in the head with a baseball bat. She had deep bruises on her forearms that were consistent with defensive injuries, and Papen testified that she fought back. Papen estimated that he hit her 2 to 4 times with the bat. Then he choked her when she probably, but not certainly, was unconscious.
Papen also objects to subsection (7) of K.S.A. 2001 Supp. 21-4636(f), which provides that “any other conduct in the opinion of the court that is especially heinous, atrocious or cruel” may be considered sufficient to constitute an aggravating circumstance. The trial court in the present case did not rely on subsection (7) in finding that Papen lulled Dana Anderson in an especially heinous, atrocious, or cruel manner.
Papen next questions whether the evidence was sufficient to support the trial court’s determination that the murder was committed in an especially heinous, atrocious, or cruel manner. The trial court made the following findings in imposing a hard 50 sentence:
“The evidence does show that there was preparation and planning involved in this murder. The evidence does not show that planning and preparation indicated an intention that the killing was meant to be especially heinous, atrocious or cruel.
“There was infliction of mental anguish and physical abuse upon Dana Anderson before she was killed. To a certain extent, she was tortured.
“There were continuous acts of violence which begun — began and — well, there were several acts of violence which either amount to continuing before, to result in the killing or they continued after the killing.
‘Til find as a matter of law that, under the facts of this case, that wrapping a body and placing it in the trunk of a car and leaving it there does not rise to the level of desecration of a body. It cannot, as a matter of law.
"I look at the mitigation of no criminal history and I’m not persuaded by that. I look at the — whether there was extreme mental influence or not, and I’m not persuaded by Dr. Schulman’s report.
“I find that the aggravating factors outweigh the mitigating factors, and I will impose a sentence of a . . . Hard-50.”
Papen contends that there was insufficient evidence to support the trial court’s conclusion that the killing was committed in an especially heinous, atrocious, or cruel manner. Where the sufficiency of the evidence for establishing an aggravating circumstance under K.S.A. 2001 Supp. 21-4636 is challenged, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance. See State v. Spain, 263 Kan. 708, Syl. ¶ 6, 953 P.2d 1004 (1998).
K.S.A. 2001 Supp. 21-4636 identifies eight aggravating circumstances, including that the defendant committed the crime in an especially heinous, atrocious, or cruel manner. With regard to that aggravating circumstance, the legislature has provided these guidelines:
“A finding that the victim was aware of such victim’s fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant lolled the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient:
“(1) Prior stalking of or criminal threats to the victim;
“(2) preparation or planning, indicating an intention that the killing was meant to be especially heinous, atrocious or cruel;
“(3) infliction of mental anguish or physical abuse before the victim’s death;
“(4) torture of the victim;
“(5) continuous acts of violence begun before or continuing after the killing;
“(6) desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing; or
“(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.” K.S.A. 2001 Supp. 21-4636(f).
The trial court found there was an infliction of mental anguish or physical abuse before the victim’s death, torture of the victim, and continuous acts of violence begun before or continuing after the killing. See K.S.A. 2001 Supp. 21-4636(f)(3), (4), and (5).
In the statement he gave to police, Papen said that he hit Dana 2 to 4 times with the baseball bat and that later he choked her. He said that when he choked her, she probably was unconscious. He was taking out his frustrations on her. At trial, Papen testified that he swung the baseball bat and hit Dana on the side of her head. The autopsy showed hemorrhaging consistent with blunt object trauma above her ear, on her cheek, and on her collarbone, and hemorrhaging on her forearm consistent with defending herself against being struck with a blunt object. The autopsy also showed a broken hyoid bone and hemorrhaging in the muscles over her voice box consistent with strangulation. In addition, Dana’s face was wrapped with plastic wrap, and there was duct tape at the base of the wrap. The pathologist testified that the blunt force trauma probably did not kill Dana and that her death could have been due either to strangulation or to suffocation.
K.S.A. 2001 Supp. 21-4636(f) provides that any of the conduct identified in its subsections may be considered sufficient to constitute a killing done in an especially heinous, atrocious, or cruel manner. The evidence in this case supports several of the types of conduct identified in the statutory subsections. The evidence suf ficiently shows that Papen killed Dana Anderson in an especially heinous, atrocious, or cruel manner.
Finally, Papen asserts that Conley was incorrectly decided and should be reconsidered. This court recently declined a request to reconsider its result and rationale in Conley. See State v. Lessley, 271 Kan. 780, 795, 26 P.3d 620 (2001).
Affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover taxes paid under protest. The trial court sustained a demurrer to plaintiff’s petition, and it has appealed.
Briefly stated, the petition alleged that school district No. 47, otherwise known as the board of education of the city of Frontenac, a city of the second class, in Crawford county, in the year 1929, pretending to act under the authority of chapter 333 of the Laws of 1927 (R. S. 1931 Supp. 79-1932), levied a tax upon all the taxable property in the district, including plaintiff’s, of six mills on the dollar, for the purpose of paying a floating indebtedness of $10,000 or more then existing. This was in addition to a tax levied of sixteen mills on the dollar for the support of the school and of two mills on the dollar for the purchase of sites and for the construction and repair of school buildings. The petition alleged that the six-mill levy for paying the floating indebtedness produced a tax on plaintiff’s property in the district of $407.85; that this levy was unauthorized, and the tax sought to be collected thereunder was void for the rea son that the floating indebtedness of the school district at the time the statute above cited went into effect had been paid before 1929, and that any floating indebtedness existing at the time of the levy made in 1929 was created after the statute in question went into effect; that to prevent the issue of a tax warrant plaintiff paid the first half of this alleged illegal tax on December 19, 1929, and the second half on July 19, 1930, both payments being made under a protest in writing setting forth plaintiff’s contention that the tax was illegal for the reasons above stated.
We pass for the present an argument as to the validity of chapter 333 of the Laws of 1927 (R. S. 1931 Supp. 79-1932) and shall determine first the soundness of plaintiff’s contention above stated.
Chapter 333 of the Laws of 1927 (R. S. 1931 Supp. 79-1932) provides that boards of education of cities of the second class, such as Frontenac, in levying taxes shall not fix a rate for the respective purposes in excess of sixteen mills for the support of the schools of the city and of two mills for the purchase of sites and for the construction and repair of school buildings:
"Provided, That in cities of the second class in which the schools have a floating indebtedness of $10,000 or more the board of education may, in addition to said levy for the support of said schools and for building purposes and repair of school buildings, levy not in excess of six mills for the payment of said indebtedness until said indebtedness is paid.”
Appellant contends this statute applies only to floating indebtedness which existed at the time the statute was enacted and took effect, which was March 7,1927; that it authorized the levy of a tax in 1927 to pay a floating indebtedness then existing, but that it did not authorize the board of education to create a floating indebtedness at a later date for which it might levy a tax of six mills in 1929, and that to so construe the statute would tend to authorize extravagant expenditures, resulting in new and increased floating indebtedness in excess of $10,000 each year, and would amount to authorizing the board of education to levy and collect a tax of twenty-two mills on the dollar each year for general purposes instead of sixteen as limited by the statute.
It will be noted that the proviso of the statute above quoted is in the present tense. It clearly applies to a then existing floating indebtedness. It is clear the legislature did not intend that the board of education should levy twenty-two mills year after year for general school purposes. If it had so intended it would not have fixed a sixteen-mill limit for such purposes. The obvious purpose was to limit the normal levy year after year to sixteen mills, but to clean up floating indebtedness, if such indebtedness in excess of $10,000 existed; and to enable the normal levy to be used for general school purposes, the additional levy of six mills was authorized “for the payment of said indebtedness" and only “until said indebtedness is paid.” It applied only to those schools which “have a floating indebtedness of $10,000 or more,” and only until that was paid. It does not apply to schools which did not have such an indebtedness, or, having one, paid it and later created another. The contention of the appellant on that point is well taken and the reasoning is sound.
Plaintiff further alleged that in July, 1930, it presented its application to the state tax commission for relief from this tax; that such commission, after a hearing, and on October 25, 1930, held the tax of $407.85 to be illegal, and ordered the 'board of county commissioners to refund that sum to plaintiff, which order was not complied with; that thereafter plaintiff filed its written claim and demand with the board of county commissioners for a refund of the amount paid for such illegal tax, and that the claim has been denied. The demurrer to plaintiff’s petition should have been overruled.
On the hearing of the demurrer to the original petition and of a motion to make the petition more definite by attaching thereto a copy of the written protest, defendant suggested that chapter 333 of the Laws of 1927 (R. S. 1931 Supp. 79-1932) is void under the authority of Atchison, T. & S. F. Rly. Co. v. Board of Education, 123 Kan. 378, 255 Pac. 60, and School District v. Hahn, 126 Kan. 117, 267 Pac. 28. Whereupon plaintiff, with leave of court, filed an amended petition incorporating therein a paragraph alleging the invalidity of the statute, but contending that the tax sought to be recovered had been illegally levied and collected irrespective of whether the statute in question was valid.
Our constitution (art. 11, § 4) provides:
“No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.”
Chapter 333 of the Laws of 1927 (R. S. 1931 Supp. 79-1932) is the only statute which purports to authorize the board of education to levy a tax of six mills on the dollar for the paying of a floating indebtedness. If it should be held to be invalid, then there is no statute which authorizes the levy of the tax sought to be recovered in this action. Hence, a determination of the validity of that statute could not be helpful to defendants. It is therefore unnecessary to decide in this case the question of.the validity of that statute. Neither do we find it necessary to decide a number of other questions argued in the briefs.
The judgment of the court below is reversed, with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages growing out of an oil and gas lease and operations thereunder. To the petition filed the defendant demurred, for the reason that the petition did not state a cause of action. The demurrer was overruled, and the defendant appeals. The petition alleges the ownership of lands and the execution of an oil and gas lease and contains the following allegations:
“That this plaintiff has never received any proceeds from the sale of any oil or gas from said premises and no oil or gas was produced from said premises. That on the 20th day of February, 1932, a notice was served upon the defendant as required by section 55-201 of the Revised Statutes of Kansas for 1923. . . .
“That along in the fall following the execution of the lease, the exact date being unknown, this plaintiff requested of the defendant to bury his pipe lines below plow depth, which he at all times failed and neglected so to do, to the damage of plaintiff in the sum of $50. That it was stipulated in said lease that upon request by the lessors he should so bury said pipe lines. That the request above referred to was oral. . . .
“The lease further provided that no oil or residue or slush should be allowed to drain or flow into any stream of water, ruining the same for stock purposes. That a year ago last fall, the exact date being unknown, plaintiff was com pelled to haul water because oil and slush were allowed to run from the wells and tanks of the defendant contrary to the provision just hereinbefore recited.
“That the defendant failed and neglected to release the oil and gas lease in accord with the notice herein referred to, a copy of the notice being hereto attached, marked “exhibit B” and by this reference made a part hereof. That he was compelled to and did employ an attorney to negotiate with the defendant and write letters, and such attorney did prevail upon defendant on or about the 2d day of May, 1932, to cancel said lease of record. However, it was then necessary to further require of plaintiff’s attorney, at his own expense, that he cause the defendant to remove a concrete block or base for the engine and a steel tank and otherwise clean up the lease, and thereupon when required to remove these portions of his property from the lease defendant blasted the concrete out, left rocks all over the ground. Boards with nails therein were thrown over the ground, and further entreaties were required by plaintiff’s attorney to get the ground cleaned up, and in the meantime, at a time after the service of the notice aforesaid, which date is unknown, but at a time when the power house was torn down by the defendant, which time is known to him, a large rusty nail sticking through a board out in the field where the power house had been tom down was suffered to be left in the pasture where plaintiff’s mules and other stock were, and by reason of such careless and neglectful conduct of the defendant the mule of plaintiff stepped on the nail and has been useless since. That said mule was reasonably worth $125. That he is not worth to exceed $50 now.
“That on the north side of the ditch on half of this fifteen-acre piece the plaintiff was compelled to, during the spring, in order to get in oats, move the pipe and rods on the north side of the ditch and was entirely deprived of seven or eight acres on the south side of the ditch to the damage of the plaintiff for the loss of the use of said ground in the sum of $100.
“That because of hauling water a year ago last fall as herein recited plaintiff has been damaged in the sum of $60 for a tank of water hauled each day for the period of two months.
“That there were three wells drilled on this property and for the past three years defendant has permitted to accumulate around the wells salt water, oil refuse and other chemicals of like nature which exuded from the said holes around and upon the surface of the ground and which escaped upon the ground and flowed away from the immediate vicinity of such wells.
“That around each one of these wells there is a portion of ground about forty feet square which has been ruined for cultivation because of the violation of law above described, to the damage of this plaintiff in the sum of $25.
“That because of the failure of defendant to release said lease, as required by the laws of the state of Kansas above referred to, he was compelled to employ an attorney to accomplish that result in the sum of $100.
“That where the pipes were dug up and partially refilled ditches left the same has been caused to wash by failure to properly fill the same and have left ditches aero® plaintiff’s field, more particularly the 15 acres above described, to the damage of this plaintiff in the sum of $40.”
The prayer is for damages in the sum of $400.
Appellant’s brief is largely an argument that the statements of the petition refute each other and are contradictory, that certain of the matters alleged would not entitle plaintiff to recover, and that certain others pertain to matters outside the lease, and concludes :
“The petition is so badly pleaded that it would be utterly impossible to make answer thereto, even after motion to strike had there been one filed, the petition as a whole is so inconsistent that a motion to strike or make more definite and certain would leave the defendant unable to answer,” etc.
The petition can hardly be said to be a statement of the facts constituting the cause of action in ordinary and concise language and without repetition as required by the code (R. S. 60-704), but no motion was filed against it. We shall not attempt to say how many causes of action were attempted to be stated, for improper joinder of causes of action was not made part of the demurrer.
It was held in Crowther v. Elliott, 7 Kan. 235, that a petition containing the necessary allegations to advise the defendant of the claim against him and of the relief demanded was good on demurrer although stated in an awkward and unskillful manner. And it has been repeatedly held that where a demurrer is filed to a petition on the ground that it does not state a cause of action, without first presenting a motion to have the allegations of the petition made more definite and certain, the allegations of such petition will be liberally construed in favor of the pleader. (Crowther v. Elliott, supra; Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; LaHarpe v. Greer, 74 Kan. 74, 85 Pac. 1015; Johnson v. Brown, 74 Kan. 346, 86 Pac. 503; Blair v. McQuary, 100 Kan. 203, 164 Pac. 262; Bissey v. City of Marion, 104 Kan. 315, 178 Pac. 611; Balmer v. Long, 104 Kan. 408, 179 Pac. 371; Mergen v. Railroad Co., 104 Kan. 811, 180 Pac. 736; Hebrlee v. Hawley, 112 Kan. 398, 211 Pac. 129; Barner v. Lane, 126 Kan. 173, 267 Pac. 1003.) And it has likewise been held that inconsistent allegations do not make a petition demurrable. (Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Fetzer v. Williams, 80 Kan. 554,103 Pac. 77.)
Tested under the above rulings, the petition stated a cause of action — in fact, it did more; it stated several causes of action, i. e., (a) on account of failure to bury pipes, (6) on account of injury to a mule, (c) on account of salt water and oil refuse, and perhaps others.
The judgment of the lower court overruling the demurrer is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages for personal injuries sustained in falling on an icy sidewalk.
On December 14,1930, there was a snowfall, of 4.6 inches at Dodge City. On December 17, 1930, plaintiff was passing along Cedar street and in crossing the alley between First and Second avenues she fell and sustained injuries alleged to have been caused by reason of snow and ice having been permitted to remain and become roughened, ridged and uneven.
It was stipulated at the trial that Dodge City is a city of the second class and that notices as required by R. S. 12-105 and R. S. 14-441 were given.
A. A. Justice, United States weather observer at Dodge City, whose testimony is undisputed, testified that on Sunday, December 14, there was a 4.6-inch snowfall; that early that morning the temperature was 34° and dropped continuously during the day, the lowest being 27°; that on the 15th there was a .2-inch snowfall, and the highest temperature was 27° and the lowest 22°; that on the 16th there was a trace of snow, and the highest temperature was 26° and the lowest 22°, and that on the 17th there was .1-inch snowfall and the temperature was below freezing all day, and that from midnight of Saturday, the 13th, to midnight of Wednesday, the 17th, there was a total sunshine of 2.1 hours, and that sunshine would have a tendency to melt snow even though the temperature remained below freezing.
The plaintiff testified that the sidewalk on Cedar street had been cleared of snow, but-the alley (where she fell) was all snow “they had drove through it and walked through it, and all full of holes, it was in a very bad condition there to cross. It was rough — it was uneven — there were great big ridges — no place provided to walk across the alley. The snow was in ridges five or six inches high.” On cross-examination she stated that “the ridges were just ruts that cars had made . . . and there were footprints and car tracks, there was no path, it wasn’t snow, it was just frozen, didn’t sink down in it, walked on top of it, the whole alley was cut up.” The only other witnesses for plaintiff were the superintendent of streets who testified the alley was slick and frozen but he didn’t notice any ruts, just prints of a car, not more than two inches, and a woman who passed just before the accident and who stated cars had passed through and people had walked across when it was soft and it had frozen. The jury returned answers to special questions as follows:
“1. State whether or not the ice and snow was rough and; uneven at the alley crossing on Cedar street, between First avenue and Second avenue. A. Yes.
"2. Was it snow or ice? A. Both.
“3. How high were the ridges of ice? A. From two to four inches.
“4. Were there any sharp ridges? A. Yes.
“5. What obstruction in the alley did the plaintiff fall over? A. Ridges of snow and ice.
“6. Describe the obstruction. A. Ridges of snow and ice, caused by automobile and pedestrian traffic.
“7. Was it such as to be plainly visible at two o’clock in the afternoon? A. Yes. ■ ■
“8. Could it have been avoided by stepping over it or going around it? A. Not conveniently.
“9. Was it caused by automobiles going along the alley? A. Yes, in part.
'TO. Was it caused by pedestrians crossing the alley at that point? A. Yes, in part.
“11. Did the same condition as to ice and snow prevail over Dodge City generally on December 17, 1930? A. No.
“12. What, if anything, was unusual about the alley crossing involved in this case? A. The presence of ridges of snow and ice on the day of accident.”
The defendant moved to set aside the answers to questions 3, 4, 11 and 12 as contrary to law and the evidence, also for judgment notwithstanding the verdict, which motions were denied, as was a motion for a new trial.
The defendant appeals and assigns error on the court’s refusing to give requested instructions, on the giving of certain instructions and on the denial of its motions.
In so far as the motion to set aside answers to the special questions is concerned, there was evidence, which the jury evidently believed, to warrant the answers to questions Nos. 3, 4 and 12, but we are unable to find anything in the abstract which warrants the answer to question No. 11. It is true there is evidence that some sidewalks had been cleaned and that snow had been removed from the alley where the accident occurred, but there is no evidence as to snow and ice conditions at any other crosswalk or crossing.
In Evans v. Concordia, 74 Kan. 70, 85 Pac. 813, it was held that where plaintiff knew when he went on a sidewalk covered with ice and snow that the ice was smooth and slippery, and he fell by reason thereof, and no other defect was cláimed, he could not recover for his injuries. The distinction made in many cases where snow and ice has been allowed to form in ridges or uneven places is noted, as well as the effort to have the court, adopt the rule that in a mild climate the city is held to a greater degree of diligence in removing ice and snow than would obtain in a more rigorous climate. The concluding paragraph of the opinion reads:
“The court referred to the well-established doctrine that a city is not liable for injuries caused by smooth and slippery ice where it has formed generally upon the streets and walks, and where no special defect is shown, and mentioned two well-founded reasons for it: First, it is not one of the law’s reasonable requirements that a city should remove from the many miles of walks the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things; second, because when these conditions exist generally they are obvious, and every one who uses the sidewalks at such times is on his guard and is warned by the surroundings and the danger of slipping at every step. These reasons meet with our approval. To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for. This rule has reference to a general accumulation of ice or snow from natural causes, where no other defect in the walk is shown except the natural slippery condition of the ice or snow.” (p. 73.)
No other Kansas case has been cited in the briefs, nor does our own research disclose any, where the question of liability of a municipality for injuries caused by falling on snow and ice, except where coupled with defects in the street or sidewalk, has been before the court except Gorges v. State Highway Comm., which has been here twice (135 Kan. 371, 10 P. 2d 834, and 137 Kan. 340, 20 P. 2d 486). In the first appeal the petition alleged the highway was defective in that ice was permitted to accumulate on it for a distance of about 100 feet near a culvert or bridge where there were concrete posts, and that plaintiff’s automobile skidded against the posts, causing the injury. A demurrer was overruled in the trial court, and on appeal it was held the petition did not state a cause of action. The petition was then amended to show in substance that there was a low place in the highway; that discolored ice had accumulated thereon in which deep icy ruts were cut by travel over it resulting in the highway being rough and uneven. A demurrer to the amended petition was overruled and the second appeal came as a result. The liability of the state highway commission and a city are not measured by the same rule, but the following language- from the second opinion is instructive:
“Here the cause of the injury was not in any fault of the structure itself, but was caused by the action of the elements over which the commission had no control. The danger was caused by a fall of rain and snow on city streets and county highways alike, and by a process of freezing and thawing was transformed into ice, and the traffic over it caused roughness and ruts.
“Did the legislature when it enacted the statute intend to create a liability against the state for persons injured because of ice accumulated on the highway? It had already been determined that a city was not liable for damages to one injured from an icy and slippery condition of sidewalks and streets where the condition was an accumulation of ice thereon which arose from natural causes, upon the theory that the burden on the city would be so great and so impracticable, if not impossible, for the city to remove snow and ice on miles and miles of sidewalks and streets, it could not have been within the intention of the lawmakers. (Evans v. Concordia, 74 Kan. 70, 85 Pac. 813.) There it was said that the city was not required to remove snow and ice from the streets, and that, ‘to hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for.’ ” (p. 341.)
The rule that a municipality is bound to use ordinary and reasonable care to remove defects arising out of conditions occurring after snow has fallen or ice has formed has been held not to apply where the roughness or unevenness is produced by travel through snow and slush which afterward freezes, but the exception does not apply where the roughness presents no obstructive features which are not common to general snow and ice. 43 C. J. 1023. In Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239, it was said:
“A city is not liable for injuries resulting from a general condition of snow and ice ordinarily resulting from not removing fallen snow from the sidewalk, as the law deems that such requirement would be impracticable or too burdensome.” (188 S. W. 239, IT 2.)
“Snow allowed to remain on public sidewalks invariably, when subjected to alternate processes of thawing and freezing, becomes more or less rough, uneven and slippery and, of course, more or less dangerous. That, we have pointed out, is a natural and general condition for which the city cannot be held responsible.” (p. 241.)
“Unevenness and roughness produced by travel through snow and slush, which afterwards freezes and presents no obstructive or dangerous features which are not common to general snow and ice, are not to be classed as actionable defects.” (p. 240, ¶ 8.)
In a Connecticut case (Carl v. New Haven, 93 Conn. 622, 107 Atl. 502) it was said that the municipality, as regards fallen snow and formed ice, was under no obligation to make the streets and walks absolutely safe and much less to make them safe under all circumstances, and—
“What the law requires of them, and all that it requires, is the exercise of such efforts and the employment of such measures — directed to the end that their streets and walks be maintained in a reasonably safe condition, all the circumstances of the situation considered — as, in view of the circumstances and conditions, are in themselves reasonable. The circumstances to be taken into account and the considerations to be weighed in determining what is reasonable to be done, and what is a reasonable condition to be sought after and attained, if reasonably attainable, are many. Their variety is vastly greater and their relation to the decision far more interrelated and complex than in the case of structural defects. They involve as prominent elements in the decision the location, extent, and character of the use made of the street or walk, the practicability and efficiency of possible remedial measures, the size of the problem which the municipality is called upon to face in the existing emergency, the expenditure involved in dealing with that problem in the several possible ways, the physical resources that the municipality has at command which it can utilize to deal with it. . . . The accepted general rule looks constantly to the ever changing circumstances of situation, and its keynote throughout is reasonableness in view of the circumstances as they appear upon each occasion.” (pp. 625, 626.)
Notes on the general question of the city’s liability may be found in 13 A. L. R. 20, 21 L. R. A. 263, 58 L. R. A. 321 and 20 L. R. A., n. s., 656. And the rule with respect to ridges and accumulations of ice and snow is stated in 13 R. C. L. 411.
It will be observed that the injuries here complained of happened on a crossing over an alley. It was held in Ottawa v. Green, 72 Kan. 214, 217, 83 Pac. 616, that while in a notice of claim the word “walk” was used,'and in the petition the word “crosswalk” was used, there was no variance, and that they mean the sarnie thing. But in the decisions respecting liability a distinction is frequently drawn. In White on Negligence of Municipal Corporations, section 508, is the following:
“It is the conclusion of the New York courts that the duty of a municipality to keep its sidewalks free from snow and ice does not, in the absence of some express provision of statute, apply to the same extent to a crosswalk or crossing on a public street. The reason is grounded on the impracticability of performing this duty so as to accomplish its purpose. It is apparent that the work of cleaning the crosswalk would be rendered quickly ineffective by vehicles crossing the walk. Besides, in case of very deep snow, the act of cleaning would be to impede travel in the roadway proper. This rule has prompted a decision that the evidence of negligence in cases of injuries from snow and ice on a crosswalk must be extraordinarily strong to sustain a recovery for injuries thus received.”
In McQuillin on Municipal Corporations, 2d ed., section 2979, it is said that a crosswalk is separate and distinct from a sidewalk, and in section 2983 that the duty of a' municipality in regard to snow and ice on sidewalks does not apply to the same extent to crosswalks. And see, also, 13 R. C. L. 409, and Dupont v. Village of Port Arthur, 204 N. Y. 351, 97 N. E. 735, 39 L. R. A., n'. s., 1167.
An element entering into the question of the city’s liability is that of time and notice. The general rule as to liability of the city for defects in its streets was stated in Jansen v. City of Atchison, 16 Kan. 358, syl. ¶ 4, as follows:
“To make a city liable for injuries resulting from a defect in a sidewalk, it must appear, either that the city -had notice of the defect, or that it was a patent defect and had continued so long that notice might reasonably be inferred, or that the defect was one which with reasonable and proper care should have been ascertained and remedied.”
The general rule with respect to snow and ice is that municipal corporations are not held liable for injuries to persons occasioned by accumulations of snow and ice which at the time of the accident have been so recent that in the exercise of that reasonable and continuing inspection which the law requires it would not have discovered it in time to remedy it by the exercise of reasonable care. The city has a reasonable time for the removal of the snow after it has ceased to fall and may even wait for a change of temperature where the conditions are such as to render the work of removal impracticable. (See White on Negligence of Municipal Corporations, section 512. And see, also, Beirness v. City of Missouri Valley, 162 Ia. 720, 144 N. W. 628, 51 L. R. A., n. s., 218.) The second and third paragraphs of the headnote in the last citation read:
“Where, in an action against a municipality for injuries from a fall on an icy sidewalk on Wednesday morning, it is shown that, on the preceding Sunday and Monday, there had been a fall of snow, and that between Sunday and Tuesday evening there had been a slight thaw, and on Tuesday night an additional snowfall of about one-half inch, there is nothing to warrant a jury in the conclusion that a small spot of ice covered with snow on the walk had existed for such time as would charge the city with notice of it.
“When cold follows a melting of snow, causing a film of ice upon the sidewalks which it is practically impossible to remove, the municipality may, without being guilty of negligence, wait for a change of temperature to remedy the condition.” (51 L. R. A., n. s., 218, MI 2, 3.)
From the above citations of decisions and authorities it may be deduced that a city is not liable for injuries resulting solely from falls on smooth ice and snow, but that it is liable where ice and snow have been allowed to accumulate and remain and become ridged, rutted and uneven, due regard always being given to whether the city has sufficient notice and opportunity to remedy the situation by removal or other effective remedy. And in connection therewith consideration should also be given to weather conditions and to the well-recognized sudden changes in meteorological conditions which frequently occur in Kansas. 'The burden of proof is upon the claimant to show all the various elements entering into his right to recover.
In this case the evidence shows that on December 14 there was a 4.6-inch snowfall with slight falls of snow thereafter, a freezing temperature practically all of the time and little or no sun from December 14 to the time of the accident. There is evidence that the superintendent of streets passed the site of the accident frequently, and that at the time of its happening the snow had become packed and icy and rough and uneven, but there is no showing of any kind how long prior to the accident this condition obtained or that after it became in that condition the city had either notice of the condition or opportunity to remove it. The weather conditions were such from the time of the first fall of snow until the time of the accident that there could not have been any great amount of thawing and freezing, and while in a frozen condition, considering the comparatively short interval of time and the number of similar crossings in the city, it cannot be expected that the city could clean all of them and it should not be held that it was its legal duty to do so. In the very nature of things the city could not clean all of the crosswalks from one street to another and over all alley crossings with weather conditions as they concededly were, and the fact that it had cleaned some of them is not proof of notice as to others or of negligence in not removing snow and ice from them. And it may be remarked that very often in Kansas the condition is sooner remedied by change of weather than it could be by any effort of the city. And this court takes notice of the fact that not only in Dodge City, but in every other city in Kansas, with the weather conditions such as they were in this case, it would be impossible, by any 'reasonable expenditure of money, to clean all of the crosswalks and street crossings of snow and ice which may have become roughened because of passing traffic. The city is not an insurer or guarantor of the safety of its streets, crosswalks and sidewalks and is required only to use reasonable diligence that they be safe. The facts as developed on the trial and as found by the jury in answer to the special questions fail to show that the defect complained of had existed for any period of time prior to the accident, or that the city had any notice thereof or that after notice it had had a reasonable time to remedy any conditions for which, for any reason, it might be liable.
Defendant’s motion to strike the answer to special question 11 and for judgment notwithstanding the general verdict should have been sustained.
The judgment of the lower court is reversed 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
Harvey, J.:
This is a workmen’s compensation case. Claimant was employed by the city in its street department. While breaking cement in repairing a pavement a small particle of cement struck him in the eye, resulting in impaired vision. He made claim /or compensation. The commissioner of compensation heard the evidence in order to make a record which could be reviewed, but held the parties were not subject to the provisions of the workmen’s compensation act and denied compensation. Claimant appealed to the district court. The court reviewed the record, held the parties were operating under the workmen’s compensation act, and computed and allowed compensation under the evidence. The respondent has appealed.
The principal question raised by the appeal is whether the city, in performing its governmental functions, is operating under the workmen’s compensation act without having filed with the compensation commissioner its election to do so. Prior to the rewriting of our compensation act in 1927 (Laws 1927, ch. 232, R. S'. 1931 Supp. 44-501 et seq.) it had become the settled law of this state that counties and municipalities of the state, in performing their normal functions, were not engaged in “trade or business” for profit, and were not within the provisions of the workmen’s compensation act. (Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43; Griswold v. City of Wichita, 99 Kan. 502, 162 Pac. 276; Gray v. Sedgwick County, 101 Kan. 195, 196, 165 Pac. 867; Roberts v. City of Ottawa, 101 Kan. 228, 229, 165 Pac. 869; Redfern v. City of Anthony, 102 Kan. 484, 485,170 Pac. 800; Robertson v. Labette County Comm’rs, 122 Kan. 486, 252 Pac. 196.)
But if the municipality, exercising its proprietary capacity through the water and light department, produced water or electric energy which it sold to consumers, its employees in that department were within the act, for, with respect to such functions, the city was engaged in trade or business for a financial return or profit. (McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471.) In Early v. Burt, 134 Kan. 445, 453, 7 P. 2d 95, it was pointed out that these decisions were under the statute before it was changed in 1927, but it was not there held that the new act makes any change with respect to municipalities operating under the act.
It is contended by appellee here that the section of the former act (R. S. 44-505) was so amended by the later act (Laws 1927, ch. 232, § 5, R. S. 1931 Supp. 44-505) as to bring cities and other subdivisions of the state within the provisions of the act. The pertinent provisions of the .earlier act read as follows:
“That this act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain; each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employment it is deemed necessary to establish a new system of compensation for injuries to workmen.”
The later act reads:
“That this act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employments: railways, motor transportation line, factory, mine or quarry, electric, building or engineering work, laundry, natural-gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to' the life and limb of the workmen engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen.”
Under the earlier act much litigation arose over the words “on, in or about.” (See Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657; Hicks v. Swift & Co., 101 Kan. 760,168 Pac. 905; Alvarado v. Rock Crusher Co., 109 Kan. 192,197 Pac. 1091; Tierney v. Telephone Co., 114 Kan. 706, 708, 220 Pac. 190; Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332; Wise v. Central Dairy Co., 121 Kan. 258, 246 Pac. 501; Carter v. Uhrich, 122 Kan. 408, 252 Pac. 240; Strosnyder v. Strosnyder, 123 Kan. 252, 254 Pac. 1040; Iott v. Mosby, 126 Kan. 294, 268 Pac. 109; Fox v. Victory Ice Co., 129 Kan. 778, 284 Pac. 382.)
The later act took from the earlier one the words “on, in or about,” which had produced so much uncertainty in litigation, and made a few other changes in the language. However, the statute as now before us applies “only to employment in the course of the employer’s trade or business.” The common meaning of the words “trade or business” is that which one conducts for financial return or profit, and the words in the earlier act had been so construed in the cases above cited. In this case the city, of course, was not, while repairing streets, engaged in a trade or business for financial return or profit. Moreover, the earlier and later statutes apply to the employer’s trade or business in certain hazardous employments “as to each of which employment it is deemed necessary to establish a new system of compensation for injuries to workmen.” This necessarily carries the thought that there previously existed a system by which injured workmen might be compensated as the result of injuries, such as an action for damages at common law. No such cause of action existed against counties and municipalities except to the extent they were made liable by statute. If the legislature intended to create a liability against counties and municipalities where none existed, it would have done so in language so clear it could not well be misunderstood, as has been done with respect to injuries resulting from defects in county, township and state highways. (R. S. 68-301; R. S. 1931 Supp. 68-419.)
No case involving the liability of a county or municipality by reason of the changed language in the statutes above referred to has heretofore been presented to this court, but soon after chapter 232 of the- Laws of 1927 was enacted a case came before the district court of Sedgwick county (Southard, Claimant, v. Sedgwick County, Respondent) with respect to the liability of a county where substantially the same question was presented as we have here. The trial judge, Hon. J. E. Alexander, gave the question careful consideration and filed a written opinion in which it was held that, in so far as the county operating under the workmen’s compensation act is concerned, chapter 232 of the Laws of 1927 should receive the same construction given to the earlier statute (R. S. 44-505). This opinion, delivered in January, 1928, has been widely circulated throughout the state and generally regarded as a correct interpretation of the statute. It accords with our view.
Appellee cites and quotes extensively from Esque v. Huntington, 104 W. Va. 110,139 S. E. 469, in which it was held that a municipal corporation is an employer within the meaning of the workmen’s compensation law of that state, but the decision points out that the statute of that state expressly makes it so and gives the difference in statutes as the reason why the Kansas cases should not be followed. Appellee also cites several Oklahoma cases which seem to be more nearly in point, although there appears to be a lack of harmony running through them. But however those decisions might be interpreted, we are bound by our own long and consistent line of decisions to the effect that counties and municipalities, in the exercise of their normal functions, are not within the compensa t-ion act. It would not be proper for us to change that ruling unless the legislature should make it clear that it is imposing upon the counties and municipalities liabilities or obligations which previously did not exist. It is clear to 'us that the legislature has not done so by the amendment of our compensation law of 1927, relied upon by appellee.
The judgment of the court below will be reversed, with directions to enter judgment for respondent. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Tony Gorges brought this action against the state highway commission to recover damages claimed to have been sustained by reason of an alleged defect in state highway No. 54, over which plaintiff was traveling in an automobile. The action is brought under R. S. 1931 Supp. 68-419, and the defect mentioned consisted of an accumulation of natural ice on the highway, which caused plaintiff’s automobile to skid against cement posts of a guard rail of a culvert, resulting in injuries and damages for which a recovery is sought. A demurrer to plaintiff’s amended petition was overruled, and defendant appeals.
This is the second appearance of the case in this court.. (Gorges v. State Highway Comm., 135 Kan. 371,10 P. 2d 834.) The petition first filed alleged, in effect, that for a number of days the highway was defective and dangerous to public travel, in that ice was permitted to accumulate on it for a distance of about 100 feet near a culvert or bridge where .there were cement posts on each side, against which his automobile skidded, resulting in the injury alleged. On a demurrer to that petition it was held that the petition did not state a cause of action. On a review of that decision this court determined that defendant was not liable for the injuries alleged. The court after citing a number of authorities stated:
“The state, through the highway commission, has under its supervision and control 8,690 miles of road, and it would be an unreasonable burden to impose upon the state the duty of keeping highways free from the accumulation of ice during the winter months. Winter brings frequent, recurring storms of rain and snow and sudden and extreme changes in temperature which defy prevention, and usually before correction can be made by any means within the control of the state highway commission it is accomplished by sunshine. To hold that liability resulted from these actions of the elements would be an affirmance of a duty which this court is not warranted in interpreting into the statute.” (p. 373.)
After that decision the plaintiff filed an amended petition setting forth in a greater number of words and with increased emphasis, that an accumulation of ice on the highway constituted a defect that made the defendant liable for the injury and loss. Among the added averments in his pleadings the plaintiff alleged in substance that there was a low place in the highway; that discolored ice had accumulated thereon in which deep icy ruts were cut by the travel over it, resulting in the highway being rough and uneven, which constituted an obstruction and a defect in the highway. The added allegations in the amended petition do not, we think, invoke different principles than Were applied in the first appeal.
The question is, Did the accumulation of natural ice on a highway constitute a defect within the meaning of R. S'. 1931 Supp. 68-419? The highway commission is empowered to construct and maintain state highways, and the statute provides that anyone who, without contributing negligence, sustains damages by reason of defects in a bridge, culvert or state highway, may recover damages from the state upon the giving of proper notice. What constitutes a defect is not stated. It is to be noted that the so-called defect was not structural in character and in itself was not defective. If there had been a defect in construction or in the upkeep which caused the danger and loss, there would be some ground for a recovery. For instance, if there had been a plank out of the floor of a bridge or culvert, or a hole in the pavement of the highway had been cupped out, and the commission had been given adequate notice of the defect and failed to repair the same, a liability against the state might arise. (Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, and cases cited.) Here the cause of the injury was not in any fault of the structure itself, but was caused by the action of the elements over which the commission had no control. The danger was caused by a fall of rain and snow on city streets and county highways alike, and by a process of freezing and thawing was transformed into ice and the traffic over it caused roughness and ruts.
Did the legislature when it enacted the statute intend to create a liability against the state for persons injured because of ice accumulated on the highway? It had already been determined that a city is not liable for damages to one injured from an icy and slippery condition of sidewalks and streets where the condition was an accumulation of ice thereon which arose from natural causes, upon the theory that the burden on the city of removing snow and ice on miles and miles of sidewalks and streets would be so great and so impracticable, if not impossible, it could not have been within the intention of the lawmakers. (Evans v. Concordia, 74 Kan. 70, 85 Pac. 813.) There it was said that the city was not required to remove snow and ice from the streets and that, “to hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for.”
In Wesley v. City of Detroit, 117 Mich. 658, where there was an icy walk on an incline of a street and the plaintiff while passing over it slipped and was injured, the court held—
“That the walk, except for the ice and snow, was in a reasonably safe condition, and that the case was within the rule that a municipality is not liable for accidents caused by .the natural accumulation of ice and snow upon its walk.”
In Butcher v. Racine, 189 Wis. 541, in speaking of the duty of a city to keep its streets in a reasonably safe condition for public travel, and where there was a contention that it was the duty of the city to keep its streets free from danger on account of ice, it was said:
“No such, duty devolves upon those in charge of highways and streets, because it is impossible to discharge under climatic conditions that exist in Wisconsin. Streets and highways cannot be so constructed as to be reasonably safe for travel under icy conditions." (p. 546.)
Norwalk v. Tuttle, 73 Ohio St. 242, involved right to recover against the city on account of injuries sustained by plaintiff from falling upon an icy sidewalk. In its opinion the court remarked: '
“No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, but where that condition is due solely to the action of the elements. In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before' correction would be practicable by any provision which the city might, reasonably be expected to make. It is within common observation that without the presence of snow or rain, from the mere alternations of heat and cold operating upon the frozen earth beneath the walk, there result dangerous conditions of pavements which it would not be' possible to prevent or correct. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable, for a city to perform.” (p. 245.)
See, also, Rolf v. City of Greenville, 102 Mich. 544; Newton v. Worcester, 174 Mass. 181; Hutchinson v. City of Ypsilanti, 103 Mich. 12; Jefferson v. City of Sault Ste. Marie, 166 Mich. 340; Easterbrook v. State, 202 N. Y. S. 896.
The authorities justified the statement made in Gorges v. State Highway Comm., supra, that—
“The rule appears to be well established that the accumulation of ice on a highway is not a defect within the terms of the statute.” (p.-373.)
The state, as well as counties and townships, cannot be held liable for defects in the highway unless it is expressly imposed by statute. (Township of Quincy v. Sheehan, 48 Kan. 620, 29 Pac. 1084.) The statute in question, although in derogation of the common law, is not to be strictly construed, but rather is to be liberally construed to promote its object. (R. S. 77-109.) It cannot be extended and interpreted to cover duties or liabilities which are impossible of performance.
Our conclusion is that the judgment of the district court must be reversed with instruction to enter judgment sustaining the defendant’s demurrer to plaintiff’s amended petition. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages growing out of the installation of heating equipment and regulating devices. The second amended petition on which the case was tried contained allegations that the defendant is a corporation doing business in the city of Wichita and operating a gas plant, selling and installing gas appliances and fixtures and distributing gas; that about October 1, 1925, it sold to plaintiff’s husband and installed in their residence an appliance consisting of a burner, aquastat, motor valve, clock thermostat, gas piping and electric work, for the purpose of furnishing heat to the house, knowing the purpose for which the same were to be used and that they would be used and operated by the plain tiff; that the pipe and equipment were under the sole care and management of the defendant company; that on December 3, 1926, a large amount of gas had escaped from the furnace in a manner unknown to the plaintiff, and that when she lighted a match an explosion took place whereby she was injured; that during the months of November and December, 1925, and at various times during the months of January, February and March, 1926, and up until shortly before the explosion occurred plaintiff’s husband had orally notified the defendant that the appliances were not working properly and were defective in some respects, and that there was gas escaping somewhere, but he was unable to ascertain where it was; that the defendant agreed to make an inspection, but failed to do so; that the defendant, knowing of the dangerous condition of said appliances and being informed of the defect in the appliances and their condition, continued to furnish gas to be used therein and to permit and allow the appliances to be used without inspecting or remedying the defects; that the plaintiff relied upon the appliances being fit and proper for the purpose for which they were installed, and that same would be maintained in a safe condition by the defendant; that the plaintiff is unable to state the particular defects in said appliances, except that, the same were not in fit and proper condition for the purpose for which they were purchased, and for the further reason that immediately after the explosion they were wrongfully removed from the premises for the purpose of preventing the plaintiff and her husband from inspecting the same or allowing them to have inspection made of the same, and for that reason plaintiff is unable to make a more definite statement of the acts of negligence of the defendant company or the defects in the appliance that caused the explosion; that prior to the explosion the defendant negligently failed to make inspection of said appliances; that the appliances and equipment were highly complicated and dangerous instrumentalities, owing to the purpose and use for which they were installed and used, and the defendant knew or should have known by the exercise of proper care and inspection that the installation and use would result in injury, and that it was the duty of the defendant to inspect the furnace and appliances to see that same were in proper repair; that the equipment and appliance were eminently dangerous and were at all times from the installation of the same in a defective condition, the material being defective and the same not properly installed, which was unknown to plaintiff but should have been known and discovered by the defendant, and defendant owed plaintiff a duty to inspect the appliance, discover the defect and prevent injury; and that the defendant was guilty of negligence in not inspecting the furnace and appliance prior to the explosion, after being notified so to do and promising plaintiff’s husband that the appliance would be inspected; that the defendant was guilty of further negligence in that it had good reason to know that plaintiff would be compelled to operate the installed appliances in her household, knew that the plaintiff was unskilled and did not know how to operate said appliances without instructions, and failed and neglected to adequately and sufficiently instruct her with reference thereto, which it was the duty of the defendant to do. The petition also contained allegations as to the nature and extent of plaintiff’s injuries. The defendant’s verified amended answer consisted of a general denial and alleged that the appliances were installed by virtue of a written proposal executed by plaintiff as agent for her husband, a copy of which was attached -to the answer, denied that any of its agents or employees had any authority to alter the terms of the writtefi proposal or to supplement the same with any additional agreements, alleged that it furnished the material and performed the work provided in said proposal, and that no faulty workmanship or defective material in connection therewith was called to the attention of the defendant or reported to it within the six-months period following installation or at any other time, and that it had fully performed all of its agreements. The answer further alleged that if the plaintiff was injured as alleged, the explosion was the result of negligent operation of the equipment by the plaintiff and was not caused by any defects in the equipment itself, the negligence of plaintiff consisting in her attempt to light the furnace after opening the valve in the equipment and permitting the furnace to become filled with gas prior to the time a light was applied to the burner, and that such negligence was the proximate cause of the explosion and resulting injury and directly contributed to the same. The answer further alleged that the action is barred by reason of the fact that no faulty workmanship or defective material was reported within the period of six months after installation. The proposal, so far as material here, contains five paragraphs as follows:
“Description of equipment: 1 DI CE unit; 1 8 Honeywell dock thermostat; 1 Honeywell aquastat; 1 Honeywell motor valve.
“Description: Complete installation of burner, aquastat, motor valve, clock thermostat, gas piping and electrical work, ready to operate.
“Guarantees: We guarantee this equipment against faulty workmanship or defective material for a period of six months following installation providing defect is reported during that time in writing, and otherwise only in so far as the manufacturers guarantee the equipment and its performance to us in writing. No verbal guarantees shall be considered binding in any manner. See special provisions below.
“Special services: The services of our engineers and service men are available to you at any time for consultation, and supervision of the above work.
“Space for special provisions: This equipment is guaranteed to work to your satisfaction from date of installation to May 1, 1926. If not, we will remove same and refund you all money paid to us. If service pipe is not large enough we' will change with no cost to you.”
Plaintiff filed a verified reply denying the allegations of the answer in part and that the defendant ever delivered to plaintiff’s husband the-above proposal or that her husband ever entered into any written contract for the purchase and installation of the above equipment. Plaintiff further denied that she was the agent of her husband in connection with the alleged proposal.
Prior to trial defendant filed a motion for judgment on the pleadings, and at the opening of the trial objected to the introduction of evidence. The motion was denied and the objection overruled.
On trial there was evidence that the appliance was installed and operated; that on January 21, 1926, and thereafter at intervals to November 30, 1926, plaintiff’s husband called the defendant company by telephone to report that the furnace and appliance were not operating properly, and that after each call they would then operate properly for a time; that plaintiff and her husband were not at home when defendant company’s employees were there and do not know just what was done. Plaintiff testified, and it was not disputed, viz.:
“I was not at home at the time of the installation of these appliances, but came home in the afternoon, and the man who was installing the appliances had not yet left. I suppose this man was the man who installed the appliances.
“He told-us — my son was with me — 'Now I want to show you about the thermostat. In case you at any time go to light your furnace for any cause, turn the indicator on the thermostat to the left. This will shut out the gas from your furnace.’ I don’t recall the words he used, but that was the impression that it left. That if we turned the indicator to the left, we could in safety go to the basement and light the pilot. He said after turning the indicator, we should wait a little while. He may have said fifteen minutes, I don’t recall.”
She further testified that he gave her no further instructions and that he said nothing about a master valve. The furnace was used during the winter of 1925-1926 and was again put in use about November 1, 1926. On December 3, 1926, the furnace was in operation in the morning. Plaintiff was employed in her husband’s office and came home in the late afternoon and the house was cold, the thermostat was set at 70, where it was in the morning.
“I turned the indicator to the left and shut off the gas. I knew there was some difficulty somewhere or the house would be warm. I talked to the maid in the' kitchen and gave her instructions as to the dinner. ... I then went to the basement. It must have been ten or twenty minutes after I had turned the indicator on the thermostat. I opened the door of the furnace and looked in it. I didn’t see any light. Everything was dark and the fires were out. The ■ pilot light was out. I lighted a match and picked up a paper. I stepped to the front of the furnace and struck the match on the door of the furnace. There was a big explosion. ”
After the accident the defendant company removed the electric motor and replaced it with another. The removed motor had a short in it. The purpose of the motor was to turn on and shut off the gas. The effect of the short was to make the motor operate continuously and the arm operated by it would keep going round and round and open and close the gas valve. If the motor had worked properly, the arm would have stopped at every half-revolution and either turned on or shut off the gas.
The jury returned a verdict for the plaintiff and answered special questions as follows:
“1. Do you find that the explosion was directly caused by any of the equipment installed by the Wichita Gas Company being: (a) Out of repair? A. - (6) Defective? A. Yes.
“2. (a) If you answer either (a) or (b) of question 1 in the affirmative, state what appliance was defective or out of repair. A. Motor.
“(b) In what particular was such appliance defective or out of repair? A. Short in motor.
“3. (a) If you answer question 1 in the affirmative, state in what manner such defect or lack of repair caused the explosion. A. Improper operation of motor.
“(b) State how long such defect or lack of repair existed. A. Intermittently since January 21, 1926.
“4. (a) Do you find that the defendant was negligent? A. Yes.
“(b) If you answer in the affirmative, state fully of what such negligence consisted. A. Defective equipment and failure of proper instruction of operation of equipment.
“5. (a) Do you find that the plaintiff was guilty of contributory negligence?
A. No.
“(b) If you answer in the affirmative, state of what such negligence consisted. A. —■—.
“6. If you find for the plaintiff, state what amount you allow.
“7. What do you find was the approximate cause of the explosion and resulting injuries? A. Defective equipment and lack of proper instructions when equipment was installed.”
The defendant’s motions to strike answers to special questions, for judgment notwithstanding the verdict and for a new trial were denied, except that a reduction was made in the amount allowed for medical and other expenses. Judgment was rendered for plaintiff, and defendant appeals.
Appellant in its brief says that the real question involved in this appeal is the liability of a dealer to one who is injured in operating appliances sold by the dealer, and this question, with those incident to it, is fully presented.
Appellant argues as though it were engaged principally as a dealer selling appliances and ignores the fact that its principal business is the distribution of natural gas and that its sales of appliances are for the primary purpose of increasing the use of natural gas. In Hashman v. Gas Co., 83 Kan. 328, 331, 111 Pac. 468, this court said:
“Natural gas, as all know, is inflammable and explosive in a high degree — a very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in a safe condition, and to detect and repair any leaks or defects in them.”
Also, see Swayzee v. City of Augusta, 108 Kan. 785, 788, 197 Pac. 208, 210.
Our attention is directed to Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865, and to McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, pertaining to the liability of manufacturers, and also to cases pertaining to the liability of the seller of an article not manufactured by him, and to cases such as Oil Co. v. Rankin, 68 Kan. 679, 75 Pac. 1013, with reference to the rule of caveat emptor, and to still other cases pertaining to the dealer’s liability where he sells an article in common and general use, but these cases are not decisive here, for the reason that after the sale was made the seller maintained supervision of the appliances and repaired and adjusted them. It may be conceded that the appliances sold were not in and of themselves dangerous, but the defendant company, in selling and installing them, knew that they were to be used in connection with natural gas sold by it for heating purposes. The written proposal of the company recognizes this: In one part it provides that the equipment is to be installed “ready to operate,” and that “the services of our engineers and service men are available to you at any time for consultation and supervision of the above work.” For what purpose? Evidently to see that the equipment was properly installed and properly operating: And evidence, which the jury evidently credited, was that in the period of about thirteen months the company did inspect and in some manner adjust or repair the appliancé on ten different occasions. Where a company, whose principal business is distribution of natural gas for lighting and heating purposes, under contracts similar to that involved here, sells regulating appliances to be used in burning gas and thereafter supervises and repairs same, it is incumbent upon it to exercise great care that such appliances not only are ñt and proper for the purpose for which they are installed but that they are in proper working condition. It is argued that by answers to the special questions the jury found the motor was not out of repair, but was defective and that the defect was a short in the motor; that a short is not a defect, but the motor was simply out of repair. Very likely When the motor was installed it was not defective or out of repair, but the answers, taken as a whole, show that the accident occurred because the motor did not function properly. If there was any inconsistency in the answers, it was the duty of the lower court to harmonize them, if possible, and it is likewise our duty so to do. (Rockwood v. Studenhofer, 119 Kan. 307, 312, 239 Pac. 993.) We have no difficulty in so reading the answers to the special questions that it is clear from them that the explosion was caused by a motor which did not work properly because of a short in it and thereby permitted an accumulation of gas. The jury’s answer to the fourth question shows that it used “out of repair” and “defective” synonymously. The fact that on numerous occasions complaints were made to the company, and after each complaint there was improvement in performance, shows that the company recognized its obligation to repair. Shorts in motors are not uncommon, and the company must have anticipated what could or would happen where the effect was to alternately turn the gas on and off. (See Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 Pac. 164, and Atkinson v. Wichita Gas Co., 136 Kan. 854,18 P. 2d 127.)
The jury found further that lack of proper instructions when the equipment was installed was a proximate cause of the explosion.
It is urged by appellant that it was not required to give instructions. Assuming that to be true, it did give some instructions, and having done so it was its duty to go further and give instructions at least complete enough to cover the various phases of operation. The instruction with reference to shutting off gas by operation of the thermostat, without calling attention to the master valve, was likely to and did directly contribute to the explosion. (Karsteadt v. Phillip Gross H. & S. Co., 179 Wis. 110, 190 N. W. 844; Graass v. Westerlin & Campbell Co., 194 Wis. 470, 214 N. W. 161, 164.)
Although not evidence of negligence, other circumstances which the jury had a right to consider in arriving at its verdict were that after the explosion the defendant removed the motor which had the short in it and installed another motor and about a week or two after the accident the company put up written instructions as to operation of the furnace. (City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408.)
Whether the appliances were in proper condition, whether the defendant exercised the requisite degree of care required and whether the plaintiff was guilty of contributory negligence, were questions for the jury, and its findings are supported by the evidence and are conclusive here. (28 C. J. 590.)
Complaint is made as to some of the instructions, which have been examined. They correctly stated the law applicable to the issues tendered. There was no error in the lower court’s rulings upon the motion for judgment on the pleadings, on objection to introduction of testimony, on the defendant’s demurrer to the evidence and the motions after trial. The verdict and the judgment are supported by the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by a landowner against a common-law trust to which he had conveyed an undivided one-half interest in the oil, gas and mineral royalty in a quarter section of land in Ness county, Kansas, and the grantees of the common-law trust, to quiet his title against them, for the reason that the conveyance had been procured from him by misrepresentations and fraud and without consideration, and the subsequent conveyances were executed contrary to law and accepted and recorded by the grantees with full knowledge of the fraud and want of authority, and that they are void and constitute a cloud on his title.
The common-law trust did not appear or defend, but its grantees did appear and answer. Their answers are separate, but are all substantially alike, in that they deny generally and specially all the allegations of the petition and allege that they paid a valuable consideration for the portion of the royalty purchased by each of .them separately, and that they, in making the purchase, relied upon the representations of the plaintiff’s conveyance to the common-law trust, the Star Royalty Association of Oklahoma, as recorded in Ness county, Kansas, it being a general warranty deed in character and reciting a valuable consideration, and the plaintiff was thereby estopped as against these grantees, innocent purchasers for a valuable consideration without notice, to deny the validity of his conveyance.
There were a few depositions filed, but the evidence was mainly in a very lengthy stipulation setting out the history of the entire transaction, quite in detail, and facts relied upon by both parties. The pertinent parts of the stipulation are as follows:
“Third: That on or about February 19, 1929, the said plaintiffs herein, for and in consideration of thirty-two hundred beneficial units in Star Royalty Association, of Oklahoma, on which the first dividend of eighty dollars ($80) was at that time in cash paid to plaintiff, made, executed, acknowledged and delivered to Star Royalty Association of Oklahoma an instrument consisting of two pages, each page of which was so executed, the first page of which was designated memorandum, a true copy of which is attached hereto, marked ‘exhibit B-l’ and made a part hereof; the second page of which was designated ‘mineral grant,’ a true copy of which is attached hereto marked ‘exhibit' B-2’ and made a part hereof. That at the time of the execution of said pages, plaintiff believed the second sheet to be a copy of the first sheet; that the two sheets were joined together by perforation; that the original of said second sheet designated as ‘mineral grant’ was duly filed for record, and recorded in book 8, miscellaneous page 378, in the office of the register of deeds of Ness county, Kansas. That the first sheet designated as ‘memorandum’ was not recorded, and never was, within the knowledge of these stipulated defendants, until the date of the trial of this action.
“Fourth: That the plaintiff herein executed and delivered the mineral conveyance hereinbefore mentioned as exhibit B, relying upon certain false representations made to him by Star Royalty Association of Oklahoma through its trustee, as follows:
"(a) That both the trustee and Star Royalty Association of Oklahoma were authorized and empowered to transact business in the state of Kansas, and to sell shares of stock and beneficial interests therein.
"(b) That said trustee, representing said association, was forming a pool of landowners in Kansas, Oklahoma and Texas, for the purpose of owning and developing oil and gas interests in said states.
“(c) That said association was a live and g'oing concern and had sufficient assets to pay the holders of beneficial interests dividends upon the certificates issued to them in the sum of fifty cents per acre every three months for one-half of the royalty interests in each acre of land transferred to said trustee.
"(d) That the said trustee was taking pooling contracts from landowners for a period of twenty years, and that during such time the landowners transferring their royalty interests to him would receive not less than fifty cents per acre every three months for one-half of the royalty interest in each acre.
“Fifth: That thereafter, the following parties defendant for the following ' valuable consideration, relying upon the conveyance of plaintiff and plaintiff’s wife to Star Royalty Association of Oklahoma, exhibit B-2, and upon the public records of title to real property in Ness county, Kansas, which showed each of said defendants grantors, either immediate or remote, to be the owner of the interest so conveyed to said defendants, and upon verbal assurance of Stuart M. Griggs, sole trustee of Star Royalty Association of Oklahoma, that said mineral interest as evidenced by said exhibit B-2 was obtained for a cash consideration only, and said defendants 'being without any notice of any infirmities of title of Star Royalty Association of Oklahoma, are by purchase from Star Royalty Association of Oklahoma, through its sole trustee, Stuart M. Griggs, or its grantee or grantees, the record title holder thereof of the following interests in and to all of the oil, gas and other minerals lying in and under, or produced and saved from the real property hereinbefore described, to wit:” (Here follows the names of the defendant grantees of separate interests, with the amount of consideration paid by each.)
“Seventh: That this fiction was instituted in the district court of Ness county, Kansas, on the first day of September, 1930, and the service of process in said action upon defendants was the first notice to said defendants herein stipulating, of either any alleged infirmities in the title of their grantor, either immediate or remote, Star Royalty Association of Oklahoma, or that plaintiff’s conveyance to said association, exhibit B-2, was given for any other than for a money consideration.”
To the stipulation were attached a full and complete copy of the declaration of trust, with resignation of one of the two trustees named therein and the acceptance of such resignation and assuming of full responsibility by remaining trustee, filed with the register of deeds of Ness county, January 14, 1929; also, a full copy of the mineral deed from plaintiff and wife to the Star Royalty Associa tion, the common-law trust, executed and acknowledged on February 19, 1929, and filed with the register of deeds of Ness county the same day; also, a copy of the deed from the Star Royalty Association to Harry M. Crowe for an undivided three-eighths interest in this royalty, executed for the association by Stuart M. Griggs, its trustee, and filed with the register of deeds of Ness county, and a similar deed to the Sun Royalty Company of Tulsa, Okla., of a one-eighth interest; also, deeds from Crowe to other defendant grantees of undivided fractional interests of the three-eighths interest conveyed to him; also, a full copy of the memorandum contract between plaintiff and the Star Royalty Association, which was executed the same day as plaintiff’s deed was executed, but the contract was not filed until about the time of bringing this action.
The trial court found generally for the plaintiff and quieted his title to the land and barred the defendants from asserting or claiming any right, title or interest therein. From this judgment the defendants appeal, urging, first, that they are bona fide purchasers for value, without notice of any infirmities in the title of their grantors, and even if the plaintiff might have parted with his title through a fraud practiced upon him, that will not prevent innocent purchasers for value without notice of such fraud from acquiring good titles. Appellants also urge, in response to the contention of the appellee that the conveyance of the plaintiff and wife to the common-law trust was in violation of the blue-sky laws of Kansas, that if it were invalid for that reason it would only make the conveyance invalid as between the parties to the conveyance and would not extend to innocent purchasers for value without notice. The third point urged by appellants is, that from all the facts set forth in the stipulation as to the execution of the deed by plaintiff and his wife the deed is valid and not a forgery. It appears that all the facts that were before the trial court were contained in the depositions, the stipulation and the exhibits thereto attached. These three points urged by the appellants as grounds for reversal have been ably briefed by both parties.
About the time of the filing of the appellants’ brief a decision was rendered in the case of Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073, involving a state of facts almost identical with those in the case at bar and in which the law points involved were practically the same, and it was there held:
“In an action by a landowner, who had leased his land for oil and gas purposes, to cancel a conveyance whereby he pooled one-half of his royalty, it is held: (1) The conveyance was not invalid as unconscionable or intrinsically fraudulent. (2) The conveyance was invalid as between the parties, because the grantee had not procured a blue-sky permit. (3) Purchasers from the grantee for value and without notice were not required to know, at their peril, whether the grantee had a blue-sky permit, and cancellation of the conveyance as between the parties to it does not affect the title of the purchasers.” (Syl.)
The arguments made and the authorities cited in both cases are very similar, and it would not serve any good purpose to reconsider them here. We adhere to the conclusion there reached.
Appellee cites this recent decision in the conclusion of his carefully prepared brief and logically undertakes to distinguish between the two cases, calling attention in the first place to the fact that in the Moos case the conveyance was made to a regular corporation instead of a common-law trust as in this case. Both are qualified to purchase and convey real property, and several times recently the privileges and liabilities of common-law trusts and their shareholders have been considered and defined in this court. (Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601; Hamilton v. Young, 116 Kan. 128, 225 Pac. 1045; Weber Engine Co. v. Alter, 120 Kan. 557, 245 Pac. 143; Linn v. Houston,123 Kan. 409, 255 Pac. 1105; and Weber Engine Co. v. Barley, 123 Kan. 665, 256 Pac. 803.)
A copy of the deed to the corporation in the Moos case is attached to the opinion in that case as an exhibit. It contains very many provisions similar to those contained in the declaration of trust in this case, and in it are found the provisions as to the right to sell royalty interests, and matters concerning the expenses, profits and the distribution and handling of funds, which provisions were the basis for the claim in that case that the contract was unconscionable.
Appellee further distinguishes the cases by stating there is fraud in this case, but none in that one. There were claims of fraud in both cases, and appellee says the finding of the court generally for plaintiff in this case includes that allegation. • If it does, we must then read from the findings of the trial court in the other case, as quoted in the opinion, as follows:
“ ‘Such probable profits with so little outlay and no probable losses, other than their investments in promoting their plans, leads strongly to the conclusion that such contract is, in itself, a fraud upon those induced to furnish the material structure for such organization, and is absolutely void.’ ” (Moos v. Landowners Oil Ass’n, supra, p. 424.)
This quotation from the trial court’s findings itself answers the next claimed distinction between the two cases as to distribution of income. Appellee says in the Moos case the record was clear and showed nothing to cause a prudent man to investigate, while here the record was a warning. The deed itself in this case was a straight warranty deed in character and did not contain any of those matters in the Moos deed that made it appear to be an unconscionable contract.
Two other distinctions pointed out are afterthoughts or subsequent happenings, which certainly cannot count as real distinctions that would require the decision to be different in this case than in the other. They are that the Star Royalty Association has discontinued business, while the corporation in the Moos case was a going concern at the time of the trial; and that while both royalty companies transacted the business without obtaining blue-sky permits, the one in the Moos case later and during the progress of the trial obtained such permit, while the Star Royalty Association has never done so. We do not see in any or all of these claimed distinctions any reason for regarding this case as belonging in a different class from the Moos case, or as being subject to or controlled by a different line of rules and legal principles.
One of the points strongly pressed by the appellee in upholding the judgment rendered was the fact that the declaration of trust provided for two trustees, and the deeds conveying interests to these defendants were signed by only one trustee. We think full authority is given for resignation of a trustee and the assumption of responsibility by the other in the provisions of the declaration of trust found in sections 13 and 15, as follows:
“Transfers to title to mineral rights or other property of the association shall be executed in its name, signed by the trustees, or by one or more of said trustees, as shall be by them authorized. . . .
“The trustees may resign at any time, and appoint his or their successors. . . .”
The record shows that one of the trustees resigned and appointed and empowered the remaining one, Stuart M. Griggs, to carry out all the rights and privileges theretofore conferred on him, and this the remaining trustee, Griggs, formally accepted. Both papers were acknowledged and placed of record in Ness county before the deed was given bj^ the plaintiff or any deeds were executed by the Star Royalty Association to any of the defendant grantees.
Appellee urges two further reasons why the purchasers taking a trust deed cannot be innocent, viz.: because the association has no general right to either buy or sell, and because a certain percentage of the profit was set apart under the declaration as compensation for the trustees. Sections 4 and 5 of the declaration of trust fully authorize and permit the trustees to buy, sell, own, hold, mortgage, operate or lease, convert any and all property of the association into money for the purpose of reinvestment, payment of debts or distribution as profits.
Appellee cites the case of Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, where a woman was guardian for a minor and she, as guardian, with the approval of the probate court, sold and conveyed the minor’s interest in the land to her husband, and later she and her husband conveyed the land to a third party, and the court there held the third-party purchaser had full notice from the records that she, as guardian, violated her duty in conveying it to her husband and set the conveyance aside as to the third party. Other cases of a similar nature are cited, but there is no violation of a trust here in any of these conveyances or in the fact that, as a part of the declaration of trust, the compensation of the trustee is provided for and fixed. It is no more than the allowance of compensation to the guardian by the probate court for her services.
We adhere to the ruling announced in the Moos case, supra, and we observe no distinctive features or diversity of facts which would require a modification of that ruling or make it inapplicable to the facts and circumstances of this case.
The judgment is reversed, and the cause is remanded with.directions to render judgment for the defendants, other than the Star Royalties Association, which association did neither appear nor appeal.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Smith, J.:
In this case an opinion affirming the judgment of the lower court was handed down in January, 1933. The judgment of the lower court allowed compensation at the rate of $15.84 per week. The court assumed that this amount was due at the end of the first week after the injury, another $15.84 at the end of the second week and so on for each succeeding week. The judgment further provided that these sums should bear interest at 6 per cent per annum from the time each became due till the date of the hearing before the examiner.
On July 1, 1931, the examiner found that there was due claimant the sum of $1,742.40. This action was approved by the court and in its judgment the court allowed interest on this sum at 6' per cent per annum from that date to the date of judgment. Respondent assigned this allowance of interest as one of the errors- of the trial court.
The question was not dealt with in the opinion of affirmance. (See Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131.) A rehearing has been granted respondent on the question of interest alone.
There are authorities that hold that a claim under the workmen’s compensation act is a claim on a contract; that a claim on a contract draws interest from the time it is-due; that compensation is due when the injury occurs — hence an award of compensation should draw interest from the time of the injury. This is the rule as announced in Brown v. City of Pipestone, 186 Minn. 540, 245 N. W. 145; Nester v. Korn Baking Co., 194 Ia. 1270, 190 N. W. 949, and McMurray v. Peabody Coal Co., 281 Ill. 218, 118 N. E. 29. Indeed, this court has announced this to be the rule. (See Johnson, Guardian, v. Milling Co., 116 Kan. 731, 229 Pac. 359.) The trouble is, however, that the above case was written construing the compensation act as it existed in this state prior to the legislative session of 1927. (See R. S. 44-534.) That section provided for enforcing payment of the award and among other things contained the following provision:
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue.”
At the 1927 session of the legislature an act was passed which covered the whole field of workmen’s compensation. That enactment is a comprehensive one and makes careful provision for the calculation of the amount due as compensation. (See Laws of 1927, ch. 232.) This act did not include any provision for interest upon deferred payments for compensation. The act does have the following provision:
“Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule the same shall be exclusive of all other compensation, except the benefits provided in paragraph 1 of this section, and no additional compensation shall be allowable or payable for either temporary or permanent disability.” (See R. S. 1931 Supp. 44-510 [3] [21].)
Since the statute enacted in 1927 did not make any provision for interest, and while the statute as it had been in force up to that time had made such provision, we have concluded that it was the intention of the legislature not to provide that deferred payments of workmen’s compensation should draw interest.
The judgment of the trial court will be modified in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Dawson, J.:
These appeals are from judgments of the district court of Shawnee county in which certain provisions of the Kansas securities act, familiarly known as the blue-sky law, were drawn in question.
In the first case the Cities Service Company, as plaintiff, sought and obtained a temporary injunction restraining the bank commissioner from enforcing an order made by him the effect of which was to terminate any right of plaintiff, its brokers, agents and salesmen, to sell its securities in this state.
In the second case the state, as plaintiff, sought and obtained a permanent injunction restraining defendants from selling securities of the Cities Service Company without a permit issued pursuant to section 6 of the blue-sky law. (R. S. 1931 Supp. 17-1228.)
The records in these cases are long. There is a good deal of moralizing in the briefs over the frenzied financing of Kreuger, Lowenstein, Foshay and Insull which have been chronicled in the press within recent years. All this might well receive the solicitous consideration of law-making bodies; but in litigation matters of such sort hinder rather than help, since judicial tribunals are primarily concerned with the law as it stands.
The facts of present concern are mainly these:
The Cities Service Company is a Delaware corporation chartered to engage in many and varied corporate activities. Its chief corporate business appears to be that of a holding company. It claims to own and control corporate assets of more than a thousand million dollars in value. It is the principal owner of the ultimate beneficial interest in 158 corporations in the United States, Canada, Mexico, South America and elsewhere. Many of these corporations are engaged in serving the public in various capacities. Some of these subsidiary corporations whose stock and bond ownership and ultimate domination are vested in the Cities Service Company, mediately or immediately, are the local utilities which supply gas to the cities of Kansas City, Wichita, Newton and Hutchinson.
Henry L. Doherty is president of the Cities Service Company and, also, president of a number of its subsidiaries, one of which is a marketing agency designated the Cities Service Securities Company. In his individual capacity Doherty holds himself out as a trader and broker in securities of the Cities Service Company, or of the Cities Service Securities Company, or of both these companies.
For some time past Henry L. Doherty has held a broker’s license issued by the bank commissioner, under R. S. 1931 Supp. 17-1230, authorizing him to sell securities of the Cities Service Company and associated companies listed on the New York Curb Market and elsewhere. Under the same section of the blue-sky law, upon proper showing of good character and payment of the proper fee, the bank commissioner has registered some 2,000 of Doherty’s stock salesmen, all of whom are employees of some corporate subsidiary of the Cities Service Company.
On and prior to July 2, 1931, Doherty and his registered salesmen were engaged in selling various securities of the Cities Service Company listed on the Boston and Chicago Stock Exchanges and on the New York Curb Market, denominated: Preferred stock, cumulative; preference B stock, cumulative; preference B B stock, cumulative; five per cent noncumulative stock; common stock.
On July 2, 1931, the assistant bank commissioner, assigned by his superior officer to the work of supervising the business of dealing in blue-sky securities, without previous notice to Doherty or any intimation to him of any complaint concerning his work as a licensed broker or of any delinquency on the part of his registered salesmen, or of any complaint in respect to the securities being sold in Kansas under his broker’s license, telegraphed Doherty as follows:
“Topeka, Kan., July 2, 1931.
“Henry L. Doherty & Company, 60 Wall Street, New York City, N. Y.:
“By authority vested in this department under chapter one hundred and forty-two of the Session Laws of nineteen hundred thirty-one, we are withdrawing approval of all Cities Service stock listed on the New York Curb Exchange excepting first preferred stock, and after July third such security shall not be entitled to the benefit of exemption or sale in Kansas.
“Carl Newcomer,
“Special Assistant Bank Commissioner in Charge of Securities.”
At the same time the following telegram was dispatched to New York:
“Topeka, Kan., July 2, 1931.
“New York Curb Exchange, New York City, N. Y.:
“Effective July third we are withdrawing approval of all Cities Service issues listed on your exchange excepting first preferred stop this action is taken by authority given this department under chapter one hundred forty-two Session Laws of nineteen hundred thirty-one.
“Carl Newcomer,
“Special Assistant Bank Commissioner in Charge of Securities.”
These communications brought counsel for the Cities Service Company to the scene in short order; and on July 3, 1931, case No. 30,444 was begun to restrain the bank commissioner and his assistant from putting the order into effect.
Plaintiff alleged that for more than ten years, under authority of law, through brokers, agents and salesmen duly licensed therefor, its securities had been sold within this state, that such securities were listed on the Chicago Stock Exchange, the Boston Stock Exchange and the New York Curb Market; and that plaintiff’s securities thus sold were exempt from the provisions of the blue-sky law.
Plaintiff further alleged that the action of defendants on July 2, 1931, was without intimation or notice and without a hearing, that it was taken arbitrarily, capriciously and without just cause or excuse, and that it was perpetrated as a part of a plan of the governor and other public officials to coerce certain of plaintiff’s subsidiary companies doing business in Kansas to reduce their utility rates and to accede to the governor’s demand to that effect.
Plaintiff also alleged that its right to continue to sell its securities in Kansas without unreasonable interference was of substantial value, that if prevented from thus selling them plaintiff would suffer irreparable injury for which it had no adequate remedy at law; and that if any provision of the blue-sky law were construed to sanction the action of the defendants, such provision was unconstitutional and void, and that the result of defendants’ conduct constituted a taking of plaintiff’s property without due process of law and a denial to it of the equal protection of the law guaranteed by the state constitution and the fourteenth amendment.
A restraining order was issued out of hand at plaintiff’s behest, and a hearing on plaintiff’s application for a temporary injunction was held on July 3, at which time an amended petition was filed amplifying the allegations of plaintiff’s original petition and correcting certain inaccuracies therein. On July M defendants filed their answers, admitting the existence of a controversy between some of plaintiff’s subsidiaries and the public service commission respecting utilities rates, and that the governor had undertaken to negotiate a settlement of such controversy; but defendants alleged that their telegraphic communication to Doherty on July 2 had no relation thereto and was not inspired by the governor nor the public service commission—
“But the defendant believes that a large amount of stock has been sold to citizens of this state and that they have suffered very great losses through the purchase of said stocks.
“Further answering, this defendant states that for a period of at least two years complaints have been received by the banking department respecting the Cities Service Company, both with respect to the securities, sold by that company and with respect to its methods of doing business. That prior to the enactment of Session Laws of Kansas, 1931, chapter 142, what is known as the blue-sky department of the bank commissioner’s office had no control or authority over the Cities Service Company, as the laws were then interpreted, and therefore said company sold its securities without let or hindrance in so far as said department was concerned.
“But this defendant avers that upon the enactment of Session Laws of 1929, chapter 140, the department was expressly authorized, under section 8 of said law (R. S. 1931 Supp. 17-1230), to require the registration of a broker selling securities, whether exempted under section 2 of said act or not.
“In this situation correspondence and negotiation was begun about January 1, 1930, with representatives of Henry L. Doherty, doing business as Henry L. Doherty & Company, 60 Wall Street, New York, in an effort to secure from him an observance and compliance with the law. The effort proceeded slowly and unsatisfactorily. Information desired and required by the bank commissioner was not and never has been furnished. No application for registration has ever been verified by Henry L. Doherty. The whole course of the negotiation was such as to create in the mind of this defendant a doubt as to the business ethics of Henry L. Doherty and as to the reasonable safety of such securities as he might offer to the public. . . .
“In the meantime this defendant at different times was receiving complaints of Cities Service stock from various sources. This defendant talked with the securities commissioners of various other states, who expressed grave doubt respecting the safety of the securities of the Cities Service Company.”
Defendants also alleged that there appeared in a paper called the Boston Financial News, dated May 19,1931, an article entitled:
“CITIES SERV, AWASH, NEEDS TO TRIM SAIL.
“Capital Structure Inundated with Issues — No Depreciation— Stock Equities Hurt.”
In the body of this article, among other statements germane to this caption, it was said:
“Building the Tower of Babel and starting an endless chain are kindergarten pastimes compared with what the Cities Service Co. is attempting to do.”
Defendants alleged that they had been informed and believed that plaintiff had acquired the gas utilities serving the cities of Wichita, Hutchinson and Newton for prices aggregating $3,520,000 and later organized those utilities into corporate subsidiaries of plaintiff with issues of $3,300,000 of common stock, and bond and note issues of the same amount, thus capitalizing them at virtually twice their cost.
Defendant further alleged:
“This defendant states that over a period of many months unfavorable information and comment respecting Cities Service stock has reached him from so many sources that it is utterly impossible for him to give in detail a list of them. Some of the information may be incorrect. But it has all tended to influence an honest belief and conviction that all Cities Service stock listed on the New York Curb Exchange, excepting first preferred stock, is a hazardous and dangerous security for an investo'r to buy.
“This defendant specifically denies that he or the bank commissioner of Kansas acted arbitrarily, capriciously and without just cause in withdrawing the exemption provided in Laws 1931, chapter 142, section 1 (clause 5); but states that he withdrew such exemption for the sole purpose of serving the public interest.”
At the hearing on the application for a temporary injunction the evidence pro and con took a very wide range, and the construction and validity of certain provisions of the blue-sky law were sharply drawn in question. The trial judge, Hon. George H. Whitcomb, called his associate, Judge George A. Kline, to sit with him and join in the court’s deliberations. The court found the issues in favor of plaintiff and granted the temporary injunction restraining defendants from enforcing their order of July 2, 1931, and from molesting plaintiff, its brokers, agents and salesmen in the sale of plaintiff’s securities under guise of the order complained of, and from interfering with plaintiff’s business on the various stock exchanges or the New York Curb Market by circulating or publishing statements in reference to the attempted withdrawal of their approval of plaintiff’s securities, and from injuring plaintiff’s relations with the investing public as a result of defendants’ purported order of July 2,1931.
Defendants appeal from that judgment, specifying various errors, the most vital of which are:
“2. In holding invalid the provisos of subdivision 5 of section 1 of chapter 142, Laws of 1931 (R. S. 1931 Supp. 17-1224), authorizing withdrawal of the exemption therein provided.
“3. In holding the exemption provided by said subdivision 5 valid, after holding said provisos to be invalid.”
The next case, No. 31,048, was a counter attack by the state against Doherty and the Cities Service Company predicated on the fact that the securities which they were selling in this state were those of a holding company and that they had not received “registration by qualification” as provided by sections 2 and 6 of the blue-sky law. (R. S. 1931 Supp. 17-1224, 17-1228.) The state alleged that such registration was a prerequisite to their being sold or offered for sale in this state, and an injunction against defendants to put a stop to such business was prayed for.
Doherty answered alleging that he held a broker’s license issued by the state authorizing him .to sell the securities of the Cities Service Company, that all such securities were officially listed on the stock exchanges of Chicago and Boston, and dealt in on the New York Curb Market; that each and every such sale was an isolated sale of outstanding securities and not of a new issue, and that every such sale was made by him as the representative of the owner, and that each such transaction was exempt from control of the blue-sky law by the specific terms of section 3. (R. S. 1931 Supp. 17-1225.)
Defendant Doherty further alleged that—
“If said clause 4 of section 2 of said chapter 140 of the Laws of Kansas, as amended (R. S. 1931 Supp. 17-1224), be interpreted or enforced as claimed by the plaintiff, it will contravene the due-process clause and the equal-protection clause of the fourteenth amendment to the constitution of the United States, the due-process and equal-protection clauses of the constitution of the state of Kansas and the bill of rights of the state of Kansas, . . .”
The answer further alleged that the proviso in section 2 of the blue-sky law was vague and indefinite in its terms and irreconcilable with the general provisions of the act, that it was incapable of interpretation and enforcement and void for indefiniteness and un certainty. A further infirmity in the proviso alleged was that it was unreasonable, arbitrary and oppressive, and made a classification of securities not based on their character but upon their ownership, which was a matter having no relation to the purpose of the statute.
The separate answer of the Cities Service Company contained some unimportant admissions and traversed the material allegations of plaintiff’s petition. Later it filed an amended answer raising all the issues pleaded by its codefendant.
In this latter case, No. 31,048, when the state’s motion for a temporary injunction came on for hearing, documentary evidence and depositions were presented at length, and the evidence theretofore adduced in case No. 30,444 was also admitted by stipulation. The trial judge called in his associate, Judge Otis L. Hungate, to participate in the court’s deliberations, and at their conclusion the following findings were made:
“1. The position assumed by the Cities Service Company in this action regarding its character as a corporation and the sale of its stock is materially at variance with that taken in the action brought in this court by the company against the state bank commissioner, ... (No. 30,444.)
“2. The court finds that defendant Cities Service Company is a holding company within the meaning of the proviso in subdivision 4 of section 2, chapter 142, Laws of 1931, in question here.
“3. At the time of the commencement of this action, the defendants themselves, or by their agents, were engaged, directly or indirectly, in selling and offering for sale stock of the Cities Service Company, in violation of the statute.
“4. When a corporation issues, and through its agents disposes of, its own stock to others, the property in the stock passes to such other parties. While not strictly a sale, the corporation, in effect, sells, and the other parties buy, and the transaction at least approximates a sale, and it should be held to come fairly within the purpose of the blue-sky law and subject to the regulation provided for by the proviso in question.
“5. Whatever may be said of the proviso in said subdivision 4, one thing seems to be certain, that the legislature intended to require registration, by qualification, of securities sold or offered for sale by a holding company, under section 6 of the blue-sky law.
“6. The proviso in question is an independent provision, substantive in character, and a part of the act as a whole. It brings securities sold and offered for sale by a holding company specifically under the provisions of section 6 of the act.
“7. The exemption given by section 2 is a privilege given as to certain securities, and it is competent for the legislature to except those sold or offered for sale by a holding company.
“8. A holding company is not deprived of the right to sell its securities in this state by the proviso in section 2, but is only required to register them by qualification. Ample provision is made for its securing permission to sell.
“9. There is a sufficient difference between a holding company and other companies and corporations, and their methods of business, to warrant the legislature in making a distinction between the securities offered or sold by the former and those of other companies and corporations, without violating any constitutional requirement.
“10. There seems to be reasonable ground for the statement that the sale of securities of a holding company would be more likely to work fraud upon the buying public, and to lead to imposition and unfair dealing, than the sale of the securities of an ordinary public utility corporation.
“. . . Temporary injunction allowed.”
By agreement the cause was submitted for final judgment on the evidence theretofore adduced, and also upon the files, evidence and exhibits in case No. 30,444.
Judgment was rendered in favor of the state, and a permanent injunction was granted whereby defendant Henry L. Doherty, sole trader doing business as Henry L. Doherty & Company, and defendant Cities Service Company, and their officers, agents and salesmen were permanently enjoined and restrained from selling, offering for sale, or soliciting the sale of any securities of the Cities Service Company until a permit was procured through registration by qualification as provided in section 6 of the blue-sky law. (R. S. 1931 Supp. 17-1228.)
Defendants appeal, assigning error in granting the temporary and permanent injunctions, and—
“In failing and refusing to hold that the defendants, and each of them, were deprived of the equal protection of the law and of due process of the law, and in refusing to hold that the proviso contained in subdivision 4, section 1, chapter 142, of the Laws of 1931 for the state of Kansas, is void and of no effect because it contravenes the due-process clause and the equal-protection clause of the fourteenth amendment of the constitution of the United States, and the bill of rights of the state of Kansas.”
The blue-sky law (R. S. 1931 Supp. 17-1224), so far as here pertinent, reads:
“Exempt Securities. The provisions of this act, except as herein expressly provided, shall not apply to the following securities:
“(4) Any security issued or guaranteed either as to principal, interest or dividends, by a railroad or public service utility: Provided, That such corporation is subject to regulation or supervision either as to its rates and charges or as to the issue of its own securities by a public service commission, or any board, body or official having like powers, of the United States or of any state or territory or insular possession of the United States, or of the District of Columbia, or of the Dominion of Canada, and all securities senior thereto: Provided, This act shall apply to all securities sold, or offered for sale, by a holding company holding and/or owning any security of any public service utility, and in no event shall such security be sold, or offered for sale, until a permit shall have been issued as provided by section 6 of this act. . . .
“(5) Securities officially listed on the New York, Boston or Chicago stock exchanges, or on any other recognized and responsible stock exchange which has been previously approved by the bank commissioner, and/or of the New York Curb Market, and which securities have been so listed pursuant to authorization by such exchange or curb market, and also all securities senior to any security so listed or represented by subscription rights which have been so listed, or indebtedness guaranteed by companies any stock of which is so listed, such securities to be exempt only so long as such listing shall remain in effect: Provided, however, That the bank commissioner may at any time withdraw his approval of any stock exchange, including the New York, Boston or Chicago exchanges and/or the New York Curb Market. And provided further, That the bank commissioner may at any time withdraw his approval of any security listed on the New York, Boston or Chicago stock exchanges and/or the New York Curb Market, or any other approved stock exchange, and thereafter such security shall not be entitled to the benefit of this exemption except upon further order of the bank commissioner.” [Laws 1929, ch. 140, § 2; Laws 1931, ch. 142, § 1.]
R. S. 1931 Supp. 17-1226.
“Certain securities not to he sold until registered. No securities, not exempt by section 2 hereof (R. S. 1931 Supp. 17-1224), shall be sold within the state of Kansas except in a manner exempted by section 3 hereof [isolated sales, etc.], unless or until such securities have been registered as herein provided. Registration may be secured by application for registration as herein provided in section 5 hereof by notification or as provided in section 6 hereof by qualification. Such notification and qualification may be made by the issuer or any licensed broker and may pray that the registration be made for the applicant only or for the applicant and any designated licensed broker.” [Laws 1929, ch. 140, § 4.]
The provision for "registration by notification” referred to as section 5 in the section just quoted is R. S. 1931 Supp. 17-1227. It is concerned with securities entitled to registration when certain formalities are complied with. “Registration by qualification,” referred to in 17-1226, supra, as section 6, is R. S. 1931 Supp. 17-1228. It outlines in exacting procedure through which a permit to sell securities issued by a holding company (and others) may be obtained.
R. S. 1931 Supp. 17-1230 provides for the registration of brokers of securities, and requires that brokers be registered although the se curities they deal in may be wholly or partially exempt from the terms of R. S. 1931 Supp. 17-1224.
Plaintiffs, in case No. 30,444, brought their action under authority of section 26 of the act (R. S. 1931 Supp. 17-1248); and the state brought the second action, case No. 31,048, under authority of section 22 (R. S. 1931 Supp. 17-1244). If other provisions of this act need scrutiny they will be noted as we proceed.
Taking up the various points urged against these judgments in the order of their presentation, the appellant bank commissioner first contends that the Cities Service Company’s petition did not state a cause of action. Let us see about that. Appellant’s order of July 2, 1931, withdrawing approval of all Cities Service stock listed on the exchanges (except first preferred) was issued without complaint, notice or hearing. According to the allegations of the petition it came out of a clear sky, and that fact was so found by necessary implication in the trial court’s ruling on the motion for a temporary injunction. Moreover, the bank commissioner sought to justify his action without a hearing under the provisos of subsection (5) of 17-1224, quoted above, the first of which confers upon him power to withdraw his approval of any stock exchange, including those of New York, Boston, and Chicago, of whose standing and repute the statute itself took cognizance. And the second proviso confers power on the bank commissioner at any time to withdraw his approval of any stock listed on the New York, Boston or Chicago Stock Exchanges or the New York Curb Market.
The trial court held these provisos invalid. Can there be a valid grant of such unqualified power conferred upon an administrative officer under our constitutional scheme of government? No standard prescribed to which the citizen should conform. No complaint, no notice, no opportunity to be heard in one’s own defense. It simply pleased the defendant to exercise the statutory grant of power, and nothing can be done about it! Constitutional liberty has been won through the centuries along very different lines. As far back as the time of Seneca it was a cardinal prerequisite of all just government, although often disregarded in succeeding centuries, that there should be a hearing before condemnation:
“Who hath adjudged of aught, one side unheard, Just though the judgment, were himself unjust.”—
Medea, Act II, 199-200.
In the famous Chinese laundry cases, Yick Wo v. Hopkins, 118 U. S. 356, a city ordinance conferred on the board of supervisors of San Francisco the power to grant or withhold licenses to operate laundries within the city. A license was refused to Yick Wo, a China-man, and he and others likewise denied licenses were arrested for operating their laundries without a license. Habeas corpus proceedings were unsuccessfully invoked before the supreme court of California and the circuit and-district courts of the United States. The petitioners appealed to the supreme court of the United States, where these weighty observations on our governmental system were made:
“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.” (p. 369.)
Touching the city ordinances the court said:
“They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus, to require the supervisors to consider and act upon his ease, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent without reason and without responsibility. The power given to them is not confined to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint.” (p. 366.)
“No reason whatever, except the will of the supervisors, is assigned why they (the petitioners) should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. . . . The imprisonment of the petitioners is, therefore, illegal, and they must be discharged.” (p. 374.)
In our own case of Smith v. Hosford, 106 Kan. 363, 187 Pac. 685, a city ordinance which conferred upon the city commissioners the power to grant a permit to build a garage, or to refuse such a permit at will, was held to be unconstitutional and void because it assumed to clothe those officials with arbitrary power to be exercised merely at their will or caprice.
In State, ex rel. Makris, v. Superior Court, 113 Wash. 296, a city ordinance of Tacoma authorized the commissioner of public safety and the city council, according to their own notions of what constituted a menace to public morality, health, peace or good order, to grant or withhold licenses to sell soft drinks and candy within the city. The ordinance prescribed no standard to which licensees should conform. The commissioner revoked the relator’s license. The Washington supreme court, in an instructive opinion which cited the fourteenth amendment, Yick Wo v. Hopkins, supra, and other noted cases which form the basis of American law on this general subject, held the ordinance void. The syllabus reads:
"The equal protection clause of the federal constitution and the prohibition of the granting of special privileges, are violated by the provisions in Tacoma ordinance No. 7301 giving the commissioner of public safety, and the city council upon appeal, the arbitrary power, uncontrolled by any prescribed rule of action, to decide who may and may not engage in the business of selling candy and soft drinks, with discretionary power to revoke licenses for disorderly or immoral conduct or whenever the preservation of public morality, health or good order, in the judgment of the commissioner, renders it necessary.”
See comprehensive note to the same case in 12 A. L. R. 1435; and Rose’s notes to Yick Wo v. Hopkins, supra, in 30 L. Ed. 533.
In view of the precedents quoted and cited above it must be held that the provisos of subdivision (5) of R. S. 1931 Supp. 17-1224 confer arbitrary power upon the bank commissioner and his assistant, and that they violate the fourteenth amendment; and the trial court correctly ruled that they were unconstitutional and void.
Anticipating this conclusion, counsel for the bank commissioner contend that the logical corollary thereto is that a similar infirmity inheres in so much of subsection 5 of R. S. 1931 Supp. 17-1224 as declares that securities officially listed on the New York, Boston and Chicago Stock Exchanges and the New York Curb Market shall be exempt from the general provisions of the act. Manifestly the legislature deemed itself sufficiently informed of the standing and responsibility of these exchanges to relieve them of the necessity of coming hat-in-hand to an official of the Kansas blue-sky department for approval. As to “any other recognized and responsible stock exchange” the legislature decreed that its worthiness should be left to the sound discretion of the bank commissioner. The case of State v. Crawford, 104 Kan. 141,177 Pac. 360, is cited as being at variance with this view. By no means. That was a case where criminal prosecutions had been instituted for violation of certain regulations concerning electrical wiring prescribed by an association of fire underwriters. We held that the legislature could not delegate to such an unofficial organization the power to make obligatory rules concerning the care of property the breach of which would constitute a penal offense. The instant case is closer to that of Jones v. Board of Medical Examination, 111 Kan. 813, 208 Pac. 639, where it was held that the board of medical examiners might prescribe a rule that only graduates of medical colleges of the highest grade, “Class A,” according to standards of the American Medical Association, would be permitted to take the examination for licenses to practice medicine. This writer disagreed with that decision but placed his dissent, in part, upon the want of a statute conferring power on the medical board to prescribe such a standard. In the matter of admissions to the bar the legislature itself took cognizance of the standard of excellence maintained in the law department of the state university, but vested this court with power to determine whether other law schools whose graduates applied for admission maintained standards equal to that of the university. We discern no constitutional infirmity in such legislation. And by analogy we can discover no infirmity in the statutory provision which relieves the bank commissioner of any concern about the standing and responsibility of the New York, Boston and Chicago Stock Exchanges. In Stewart v. Brady, 300 Ill. 425, the Illinois blue-sky law provided that securities should be considered as to be four classes, “A,” “B,” “C,” and “D.” Securities in Class A were exempted from the general supervisory regulations of the act, to wit: securities appearing—
“In any list of securities dealt in on the New York, Chicago, Boston, Baltimore, Philadelphia, Pittsburgh, Cleveland or Detroit Stock Exchange, respectively, pursuant to official authorization by such exchanges, respectively, and securities senior to any securities so appearing.” (p. 433.)
The legality of such a classification was challenged, but the Illinois supreme court, in- an opinion which is the leading authority on the subject, held that the classification was valid. The pertinent section of the syllabus, in part, reads:
“The Illinois securities act of 1919, in making distinction between securities listed on certain stock exchanges and in newspaper market reports and those not so listed, does not establish an arbitrary or unreasonable classification nor confer any special privileges on the exchanges enumerated nor upon the issuers or dealers in the securities listed, . . .” (f 12.)
In the opinion it was said:
“The assurance of the integrity of securities listed and dealt in on the stock exchanges is impliedly recognized by the supreme court of the United States in the case of Hall v. Geiger-Jones Co., 242 U. S. 539, in considering the Ohio blue-sky law, where it is said in reference to that law: ‘It extends to the general market something of the safeguards that are given to trading upon the exchanges and stock boards of the country — safeguards that experience has adopted as advantageous.’ It was competent for the legislature to make this test, which has been justified by experience, a ground for exemption of securities in the act. In the case last cited a discrimination between securities which have and those which have not been published in regular market reports was held within the power of classification which a state has. The same court sustained a distinction in the Michigan statutes between securities which have and those which have not been listed in any standard manual of information approved by the commission. Merrick v. Halsey & Co., 242 U. S. 568.
“. . . The purpose of this paragraph and the next was to exempt securities which, by reason of their character, assured by their being listed on the stock exchange and by the public information in regard to them by reason of the publication of the market reports, were not within the evil which the legislature intended to remedy. . . . The stock exchanges in New York and Chicago are the greatest general stock markets in the country. The reports of sales on those exchanges are regularly published in newspapers of the state of Illinois and adjoining states, and this is not true of any other stock exchanges. The transactions of other exchanges are not so fully published except in the states in which they are situated. The legislature, in establishing a rule of evidence to determine the character of securities, was not obliged to include all stock exchanges and all newspapers, but might make a selection of newspapers and stock exchanges reasonably adapted' to accomplish the purpose intended. With such reasonable selection the court cannot interfere.” (pp. 440, 441, 442.)
Another point included in the specifications of error is that injunctive relief should not have been granted because the Cities Service Company was shown by the evidence to be a holding company, and in consequence it could not sell its securities in this state without compliance with the proviso of subsection 4 of R. S. 1931 Supp. 17-1224.
It would seem that if this legal point had been timely and squarely raised in this case the institution of the second case, No. 31,048, would have been unnecessary. There the vital matter involved is this precise question, and we will presently address ourselves to its solution.
The judgment in case No. 30,444 contains no error and it must be affirmed.
In the second case the state’s cause of action was predicated on the fact that the Cities Service Company was a holding company, and as such it could not sell its securities without a permit. The statute, R. S. 1931 Supp. 17-1224, provides that the act shall not apply to securities of the United States, state securities, bonds of foreign governments with whom we have diplomatic relations, national bank securities, railroad and public utility securities issued under public supervision, and some others. Then it reads:
“Provided, This act shall apply to all securities sold, or offered for sale, by a holding company holding and/or owning any security of any public service utility, and in no event shall such security be sold, or offered for sale, until a permit shall have been issued as provided by section 6 of this act.”
Section 6, just referred to, is R. S. 1931 Supp. 17-1228, which requires “registration by qualification” of all securities to which the act applies.
Counsel for defendants conceded at the trial that the Cities Service Company is a holding company. The term “holding company” is of recent origin. It is generally understood to mean a supercorporation which owns or at least controls such a dominant interest in one or more other corporations that it is enabled to dictate their policies through voting power. Bouvier’s Law Dictionary (Rawle’s 3d Rev., vol. 2, p. 1445) defines it as a corporation organized to hold the stock of other corporations. Thompson on Corporations (3d ed., vol. 5, p. 971) says:
“Such institutions are only fathered by states that have gone ‘corporation mad.’ A holding corporation, as the name indicates, is one organized for the purpose of owning and holding the stock of other corporations. Such a corporation may acquire a part or all of the capital stock of any other corporation either manufacturing or quasipublic; and it is managed by a board of directors, and as owner of a majority of the stock of any other corporation the board of directors of the latter becomes the mere instrument or pliant tool for carrying out the purposes and designs of the holding corporation; and where any one holding corporation owns all or a majority of the stock of several corporations organized for similar purposes, it can manage, control, and manipulate these as its designing directors may desire.”
In Bonbright and Means’ recent textbook, “The Holding Company,” the authors have formulated the following as their definition:
“Any company, incorporated or unincorporated, which is in a position to control, or materially to influence, the management of one or more other companies by virtue, in part at least, of its ownership of securities in the other company or companies.” (p. 10.)
The record, which includes tabulated exhibits, shows that the Cities Service Company is not only a holding company but one of stupendous size. One chart in the record lists 178 corporations and shows their relation to each other and to the Cities Service Company. The corporate activities of this colossus extend to all parts of this country and lap over into Canada, Mexico, South America, and, by inference at least, into Britain, Italy and elsewhere. The stock and bond issues of this aggregation run into astronomical figures. Cities Service Company’s consolidated assets in 1930 were calculated at $1,282,624,854. Forty per cent of its holdings are in public utility corporations and sixty per cent in oil and natural gas companies. The common stock of defendant is bought and sold on the metropolitan exchanges, and its reputed current values are reported in the daily press.
It has been authoritatively settled that the state may supervise the sale of speculative securities and forbid their sale without a license authorizing such transactions. (Hall v. Geiger-Jones Co., 242 U. S. 539; L. R. A. 1917F 514 and annotations 524 et seq.; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559; Merrick v. Halsey & Co., 242 U. S. 568.)
See, also, Anno. — Blue Sky Law, 15 A. L. R. 262; 24 A. L. R. 523; 27 A.L.R. 1169; 30 A. L. R. 1331; 40 A. L. R. 1014; 54 A. L. R. 499; 57 A. L. R. 1004.
It is contended, however, that the proviso which requires holding companies to procure a permit to sell their securities in conformity with the exacting requirements of the blue-sky act relating to “registration by qualification” while relieving other corporations of that onerous burden is unconstitutional. In support of this contention it is argued that this proviso creates an arbitrary and unreasonable classification, one that has no reasonable relation to the purposes of the statute. It is also argued that the proviso is so vague and uncertain in its terms that men of common intelligence must necessarily guess at its meaning and differ as to its application. In these two respects, the proviso is said to offend against the equal-protection and due-process clauses of the fourteenth amendment.
Answering the second of these contentions first, it does not seem to us that this proviso is vague and uncertain in its terms. The securities of a holding company cannot be sold or offered for sale in this state unless and until a permit is issued as prescribed by section 6 of the act. However potent other objections to the statute may be, the criticism as to its vagueness and uncertainty cannot be sustained.
Is the nature of a holding company’s securities so distinct from those of other corporations as to justify the extension of strict governmental surveillance of their sale while trafficking in many other securities is less strictly regulated, as by “registration by notification” (R. S. 1931 Supp. 17-1227) or altogether exempt from governmental supervision? When we consider the colossal and complicated corporate structure of a holding company, and the utter impossibility of private investors knowing anything of the soundness of its investments or of the prudence and integrity of its management, it seems reasonable that the legislature should require an exacting scrutiny to be made of its affairs before permitting its securities to be sold in this state. It also seems reasonable that until we abandon the idea of conducting a free government the legislature should declare that officialdom of the blue-sky department need not be concerned about the purchase and sale of such securities as those named in the first part of section 2. (R. S. 1931 Supp. 17-1224.)
Under the blue-sky law it is theoretically possible — however it may result in actual practice — for a holding company’s securities to be sold in Kansas through registration by qualification. (R. S. 1931 Supp. 17-1228.) This section requires a vast amount of data to be furnished to the bank commissioner and, apparently, contemplates that a thorough investigation of the fiscal, managerial and business affairs of the holding company shall be undertaken before its securities can be sold in this state. To administer the ordinary features of the blue-sky law the bank examiner is authorized to appoint a special assistant at an annual salary of $3,600, and such other “temporary assistants or clerks as he may from time to time deem necessary, and fix their compensation,” (R. S. 1931 Supp. 17-1235) which shall not exceed $15 per day and actual expenses. (R. S. 1931 Supp. 17-1234.) To examine the statements and documents of a holding company, however, if the bank commissioner deems it advisable, “he shall make or have made a detailed inspection, examination, audit and investigation of the affairs of the makers or guarantors of such securities.” To accomplish this he may appoint not exceeding three appraisers, and these three persons shall each receive a sum not to exceed $15 per day and necessary expenses. The record contains no direct evidence of the length of time it would take three appraisers to make a thorough examination of the affairs of the Cities Service Company. Counsel for the company say it would cost $18,000,000. The assets of the company are of varied and complicated character and are located throughout a good share of the habitable globe. In 1930 they were estimated to be worth $1,-282,624,854. If these three appraisers worked diligently every day of the year except Sunday and each of them appraised $100,000 of the company’s property per day, it would take them more than thirteen years to accomplish their task. If, however, the company should be dissatisfied with the results of such appraisement and the bank commissioner’s report based thereon, it could demand a hearing before the charter board; and that tribunal, composed of the attorney-general, the secretary of state and the bank commissioner, “shall have power to make an independent investigation” — a purely theoretical remedy in a case like that of the Cities Service Company, for, unlike the three appraisers who could devote all their time to the investigation, the members of the charter board have other duties to perform, and their terms of office are only of two and four years’ duration. An actual situation of this sort, not a mere theory, may arise whenever a supercorporation of the proportions of the Cities Service Company seeks a permit to sell its securities in this state. Either the blue-sky investigation will be a trifling formality designed to collect some fees and expenses from the applicant for a permit, or it will necessitate a thorough investigation of what is back of such securities to justify the confidence of the public whose investment patronage the applicant desires to obtain. If the assets of a holding company do not run far into the millions such an investigation as that contemplated by the statute can possibly be made by three $15-per-day investigators. Where, as here, the claimed assets are over a billion dollars, the statutory machinery for investigating the securities of the company is manifestly inadequate, and the examination contemplated by the statute is or may be a practical impossibility.
Such conclusion logically projects the question whether this statutory regulation, which is demonstrably inadequate and impracticable, is unconstitutional. We think not. Corporate powers of any sort cannot be exercised except pursuant to a specific grant. If the prerequisite conditions to their exercise are too onerous, the result is tantamount to a refusal to permit their exercise. The sale of speculative securities is one form of corporate activity. That activity cannot be undertaken without a grant — a permit from the state. Since it would violate no provision of fundamental law if the legislature should say that speculative securities of a holding company having a billion dollars capitalization and surplus shall not be sold in this state, we discern no constitutional infraction of defendant’s rights in the resulting situation.
Counsel for appellants invite a critical analysis of the related context to the proviso which we have been discussing. It is argued that it cannot overrule the other provisions of subdivision 5, quoted above, which exempt from registration by qualification such securities as are listed on the leading stock exchanges and the New York Curb Market. We cannot harmonize this suggested interpretation with the clear and specific language of the proviso that “in no event shall such security (of a holding company) be sold, or offered for sale, until a permit shall have been issued as provided by section 6 of this act.”
Another contention is that appellant’s securities are privileged to be sold as isolated sales under subdivision 1 of section 3 (R. S. 1931 Supp. 17-1225), which reads:
“(1) Any isolated sale of any security by the issuer or owner thereof, or by a representative for the account of such issuer or owner, such sale not being made in the course of repeated and successive sales of securities of the same issue by such issuer or owner or by such representative for the account of such issuer or owner.”
This point appears to raise a question of fact.. The evidence tended to show that Cities Service stock to the amount of $19,-000,000 has been sold to 29,000 persons in this state. Without rehearsing the other evidence that notable fact in itself is a practical refutation of the theory that appellants’ sales of these securities were and are merely isolated transactions.
Yet another contention is that the Cities Service Company is-not itself selling its securities in this state, and, therefore, the proviso does not apply to it. This contention, of course, raised a plain question of fact for the trial court to decide. This opinion has already extended beyond reasonable limits, and we will not undertake to summarize the evidence which tended to support the trial court’s finding on that issue. (Rusco v. DeGood, 127 Kan. 708, 716, 275 Pac. 201.) We do not, of course, attach much significance to the inadvertent admission in the hurriedly prepared petition in case No. 30,444. (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 57-58, 10 P. 2d 33.) On behalf of appellants it was made to appear that one of the Cities Service Company’s many subsidiaries is the Cities Service Securities Company, through which, in collaboration with Henry L. Doherty & Company, the securities of the parent company are marketed; and there was evidence of a policy — which officials high in the service of the supercorporation but dimly'understood — that the holding company should not make direct sales of its securities to the buying public. The manager of the securities department of Henry L. Doherty & Company deposed that he was a director of the Cities Service Securities Company; that all directors of the latter, except himself, were directors of the Cities Service Company, that Henry L. Doherty was president of both companies; that the treasurer of the Cities Service Company was vice president of the Cities Service Securities Company, that the first vice president of the one company held the similar position in the other, as did the secretary of each company. He further testified :
“My office is on the fifteenth floor of No. 60 Wall street, that is my office as head of the securities department of Henry L. Doherty & Company. I guess my office as vice president of Cities Service Securities Company is the same place. . . . The business of Cities Service Company and Henry L. Doherty & Company and Cities Service Securities Company is all carried on by what is known as the Cities Service organization. Cities Service Company owns all the stock of the Cities Service Securities Company except the director’s share. . . . The salaries are of the members of the securities' department of Henry L. Doherty & Company. . . .
“I get my salary checks from Henry L. Doherty & Company.
“I do not know how many employees Cities Service Securities Company has. . . . The Cities Service Securities Company have not any particular office, . . .
“Q. Then the employees of the Cities Service Securities Company, if there are any, would also be employees of some other branch of the organization? A. Possibly and possibly not. I could not say.
“Q. Do you know any that were not? A. I do not know any that are or are not. I am not familiar with the organization.
“The Cities Service Securities Company is a close corporation — it is owned practically entirely by the Cities Service Company, and its stock is not for sale.”
This court has no intention to intimate that a holding company cannot set on foot a corporate subsidiary to perform some under taking which would be impracticable or inexpedient for the parent company to do itself. (State, ex rel, v. Hutchinson Gas Co., 125 Kan. 337, 339, 264 Pac. 44; Wichita Gas Co. v. Public Service Comm., 126 Kan. 220, 229, 230, 268 Pac. 111.) But if the corporate business of the subsidiary and that of the parent company are so hazily confused that the officials themselves do not know which is which, the legal fiction of separate corporate entities evaporates, and courts will deal with the realities of the situation. (Yates v. Sugar & Land Co. et al., 117 Kan. 405, 414, 231 Pac. 1034.)
Early in January, 1933, in the United States district court for Kansas, three federal judges participating, a series of ten cases brought by as many subsidiaries of the Cities Service Company, Nos. 1637-N to 1646-N, inclusive, against the Public Service Commission of the state of Kansas, was under consideration, and in the opinion of that court, it was said:
“We are of the opinion that the facts here justify the conclusion that the Cities Service Company (and some of its distributing subsidiaries) are engaged in a common enterprise, . . . that the Cities Service Company exercises such complete dominion and control over the Cities Service Gas Company and the distributing companies that, under the general rules of agency, the Cities Service Gas Company and the distributing companies are mere agencies or instrumentalities of the Cities Service Company, and that, in substance and effect, the Cities Service Company is, through such agencies, . . . engaged in a local business.” (Wichita Gas Co. v. Public Service Com., 2 F. Supp. 792.)
The evidence was amply sufficient to prove that the Cities Service Company was engaged in selling its securities in this state, and that, too, without the requisite permit required by the blue-sky law.
The other matters urged on our attention by the litigants have been diligently perused, but nothing appears requiring further discussion.
The judgments in both cases are affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for workmen’s compensation and to set aside a release on the ground that it was fraudulently obtained. Judgment was entered refusing to set aside the release and denying compensation: The workman appeals.
Claimant was struck by a piece of lumber thrown from a saw which he was operating. This happened on March 12 or 13, 1931. He left work on March 20, 1931, saying he was sick. On March 24 he underwent an operation. He returned to work May 11, 1931. On May 12 his physician signed a report stating that in his judgment claimant would be able to resume work on May 29 and was capable of doing the same work as before the accident. On May 29, 1931, the insurance carrier paid claimant $162 compensation, and claimant executed and acknowledged a release. It is this release that claimant seeks to set aside in the present action.
The grounds upon which it is sought to set aside this release are that it was obtained by fraud and misrepresentation. On the hearing before the commissioner claimant testified that a representative of the insurance company told him that he had talked to the commissioner of workmen’s compensation and that official had said that claimant was entitled to only $162 and that he could take that or nothing. He testified that he believed the representative of the insurance company was telling the truth, and that this caused him to sign the release. The question of whether the release should be set aside is one of fact. (See Remy v. Packing Co., 90 Kan. 224, 133 Pac. 707.) All the direct evidence that was introduced at the hearing on this question was that of claimant, which has just been detailed. The argument of claimant is that because the testimony above detailed was not contradicted the release should have been set aside as a matter of course. The commissioner was not bound to believe the testimony of claimant, even though it was not contradicted. (See Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979.) There were circumstances which justified the commissioner and the court in arriving at the conclusion reached. The burden of proof rested on claimant.
“If a release has been given, the workman knows the burden rests on him to get it out of the way before he can recover compensation. ...” (Tidwell v. Schaff, 114 Kan. 255, 259, 217 Pac. 702.)
Claimant testified that no one asked whether he had recovered from his injury, and that the man who took the release from him asked whether he was able to do his work again and claimant said, “I told him I didn’t know whether I was or not.” It also appeared that claimant had been working almost three weeks before the release was executed; that he was paid for the three weeks’ work $28, $33.60 and $28 per week respectively, and that he worked for a number of weeks after his return to work. The record is that claimant talked to the insurance people in the morning, went away and then came back in the afternoon and signed the release. He was earning at that time practically as much as he had been earning before the injury. The amount paid him under the release was more than his compensation Would have amounted to had it been calculated at that time. All these circumstances were no doubt considered by the commissioner and by the court in making the findings of fact that the release was not obtained by fraud and misrepresentation. We cannot say that there was no substantial evidence upon which they were based.
Even though the commissioner reached the conclusion just discussed as to the release, he permitted the introduction of evidence on the question and considered and decided whether claimant’s disability was due to accidental injury arising out of and in the course of his employment. This question was decided against the claimant. The commissioner in making his findings stated that the contention of claimant that his disability was the result of the accidental injury was problematical and conjectural. Claimant argues that is a conclusion of law and was error. We have concluded that it was a finding of fact. It amounts to a finding that claimant had not sustained the burden of proof which the law imposes upon him.
The accident happened on March 12 or 13. Claimant did not leave work for eight days. He said, “I am just so sick I have to go home.” When he went to the hospital there was no external evidence of trauma. One doctor, who attended him, did .not know whether claimant had infection or a chancroid. Another doctor testified positively that claimant suffered from a chancroid ulcer. It is admitted that claimant had indulged in sexual intercourse about two weeks before admission to the hospital. The evidence of all the doctors was that chancroid is contracted by sexual intercourse and that one is much more apt to become infected if there has been an abrasion of the skin. All these circumstances were considered by the commissioner. The claimant himself could not testify that his condition was due to the blow he received from the stick of wood. He could not know. An examination of the record convinces us that to hold otherwise than as the commissioner held would have been engaging in speculation and conjecture.
Claimant complains , because the commissioner stated that he was of the opinion from an examination of the medical field that the history of claimant’s condition from the beginning was characteristic of chancroid infection. It is argued that this means that the commissioner considered evidence extraneous to the record. It would be strange if one whose duty it is to decide such questions would not use every means possible to equip himself to decide them intelligently.
Claimant also complains about a statement of the commissioner that the failure to secure laboratory proof of chancroid infection (bacillus ducrey) does not disprove chancroid, as this germ is frequently not demonstrated. Claimant maintains that there was no evidence whatever to justify such statement. Suffice it to say that the two doctors so testified. Other errors urged by claimant are not deemed of sufficient importance to be discussed in this opinion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the driver of an automobile for damages for personal injuries she sustained when her automobile was struck by a street car at the intersection of two city streets. The jury returned a general verdict for plaintiff. The court granted a new trial with respect to amount of damages only. Defendant appeals.
At the conclusion of plaintiff’s evidence, defendant demurred, and the demurrer was overruled. Defendant introduced no evidence, and the cause was submitted to the jury on the evidence for plaintiff. With the general verdict, the jury returned special findings of fact. Defendant moved for judgment on the special findings notwithstanding the general verdict, and the motion was denied. Defendant also filed a motion for new trial, which was granted to the limited extent indicated. Defendant assigns error with respect to the ruling on the demurrer to plaintiff’s evidence, and the ruling denying the motion for judgment notwithstanding the general verdict.
The accident occurred at the intersection of Emporia street and Boston avenue in the city of Wichita. From the intersection Em poria street extends north and south and Boston avenue extends east and west. At the west side of Emporia street is a depression called a dip. In the center of Emporia street is a street-car track. Emporia street is thirty-six feet four inches wide from curb to curb. The street-car track is four feet ten inches wide, and the distance from rail to curb on each side of the track is fifteen feet nine inches. Boston avenue is twenty-five feet four inches wide from curb to curb.
Driving a Ford sedan, plaintiff approached the intersection from the west on Boston avenue. She was familiar with the crossing- — • used it every day. A street car was approaching from the south, which plaintiff saw and the speed of which she observed. She testified she looked several times; she looked a number of times; she looked and looked; and she looked as she started to cross the street.
Plaintiff testified she was competent to judge of the rate of speed of the street car, and the street car approached the crossing at the rate of about thirty-two miles per hour. That was her judgment.
A witness who saw the accident and who had operated street cars testified for plaintiff that the street car approached at the rate of about twenty-five miles per hour. Before entering the intersection and when about fifteen feet south of the intersection, the motorman checked the speed of the car by application of the brakes. When the front wheels of the automobile were in the dip, the street car was ninety or one hundred feet south of the intersection. When the front wheels of the automobile went on the street-car track, the street car was about twenty feet away.
The street car struck the right rear wheel and fender of the automobile, and plaintiff was severely injured.
The following occurred at the trial, on cross-examination of plaintiff:
“Q. In your judgment this ear was coming at the rate of thirty-two miles an hour and it continued at that rate of speed all of the time from the time you first saw it until the time of the collision; that is correct, isn’t it? A. That is a corner there, and they usually slow up.
“(Question read.) A. The car came thirty-two miles an hour, and that is all I can say.”
There was no obstruction to the view of either automobile driver or motorman.
The special findings of the jury follow:
“1. At what rate of speed was the street oar moving immediately prior to the time it entered the intersection? A. About thirty miles per hour.
“2. At what rate of speed was the automobile moving immediately prior to the time it entered the intersection? A. About twelve miles per hour.
"3. At what rate of speed was the street car moving immediately prior to the collision? A. About twenty-eight miles per hour,
“4. At what rate of speed was the automobile moving immediately prior to the collision? A. About ten miles per hour.
“5. Did the plaintiff see the approaching street car before she entered the> intersection? A. Yes.
“6. If you answer question 5 in the affirmative, then state the location of the street car when the plaintiff first saw it. A. About 120 feet south of the intersection.
“7. Did the plaintiff look a second time for the approaching street car? A. Yes.
“8. If you answer the preceding question in the affirmative, then give the location of—
“(a) Defendant’s street car. A. About eighty-five feet south of the intersection of Boston and South Emporia avenue.
“(b) Plaintiff’s automobile. A. The front wheels were entering the dip at the west side of the intersection of Boston and South Emporia avenue.
“9. When the front wheels of plaintiff’s automobile were ten (10) feet from the west rail of the street-car tracks, what was the location of the defendant’s street car? A. About sixty-eight feet south of the center of the intersection.
“10. At what point in the intersection did the collision between the street car and automobile occur? A. About four feet six inches north of the south line of Boston avenue.
“11. Was the collision between the two vehicles the result of an unavoidable accident? A. No.
“12. In what distance could the plaintiff have stopped her automobile at the rate of speed at which she was traveling when she entered the intersection? A. Six (6) feet.
“13. What part of the automobile was struck? A. Right rear wheel and fender.
“14. Did the plaintiff take any means to stop her car before going upon the track, to speed up her car, ór any other means to avoid the collision? A. No.
“16. Was the defendant’s motorman exercising ordinary care just prior to entering the intersection? A. No.
“17. If you answer the preceding question in the negative, then state in what manner he failed to exercise ordinary care. A. Traveling at excessive speed. (2) Failure to shut off power and apply brakes soon enough.
“18. What, if any, negligence do you find as against the plaintiff? A. None.
“19. What, if any, negligence do you find against the defendant? A. The defendant’s motorman failed to exercise ordinary care and good judgment as evidenced by the fact that he was driving at an excessive rate of speed, failed to shut off power and apply brakes soon enough to avoid the accident.”
This court has descanted time and again on privilege of a traveler to cross a street-car track in front of an approaching street car. In some instances incorrect expressions have been used. Thus, in the opinion in the case of Wiley v. Interurban Railway Co., 89 Kan. 84, 130 Pac. 659, it was said:
“One who is struck by a street car while attempting to cross a track is not held guilty of negligence as a matter of law, although he entered upon the track knowing that the car was approaching, if he had reason to believe its distance and speed gave-him time to cross in safety.” (p. 87.)
There are expressions of the same kind in opinions in other cases. In the Wiley case, however, it was made clear that a person attempting to cross is required to use ordinary care. In no case has the court recognized a different standard, and ordinary care' is the care which a reasonably prudent person would exercise for his own safety under the circumstances. The correct rule was stated in the case of Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469:
“The requirement of the law that a man shall look and listen means no more than that he shall observe and estimate with reasonable accuracy his distance from the car and the speed of its oncoming. He is then to make a calculation and comparison of the time it will take the car to come and the time it will take to cross the track, and if, under the same circumstances, a reasonably prudent person would attempt to cross at a given rate of speed he will not be negligent in doing so.” (p. 428.)
The result is, plaintiff’s conduct is not to be gauged by her notion of whether she had time to cross.
Counsel for plaintiff say she was deceived by the rate of speed of the street car. She did not say that,, and she could not have been deceived by the rate of speed. The petition alleged that prior to the collision the street car was running at the rate of thirty miles per hour. At the previous trial plaintiff testified the rate was twenty-five to thirty miles per hour. At the last trial plaintiff testified that the rate was about thirty-two miles. She based her estimate of thirty-two miles per hour, as she saw it coming, on having ridden on street cars and having driven cars. That was her best judgment. She saw the street car coming and had an idea on that day that was the speed of the car. To be sure of speed she had a test made. There Was no evidence whatever that speed of the car was slackened until the motorman applied his brakes a fraction of a second before reaching the intersection. The jury found the rate was thirty miles per hour just before entering the intersection and found that speed was reduced to twenty-eight miles per hour before the automobile was struck. Whatever the rate of speed, plaintiff saw what it was, and she gave no testimony that it was ever greater than she expected it would be. Therefore there was no room for deception by rate of speed.
Plaintiff was asked a plain question concerning rate of speed and maintenance of rate of speed from the time plaintiff first observed the street car until the collision occurred. She did not answer the question. Instead of answering the question she volunteered the statement, “That is a corner there and they usually slow up.” When the question was repeated plaintiff merely said the car came at thirty-two miles an hour. Time and again plaintiff explained her conduct in driving in front of the street car. She said she knew she had time to cross. Time and again the statement, refuted by the collision, was stricken out. At no time did plaintiff testify that she drove on the track relying on the fact the street car would reduce its speed. If she did expect the street car to reduce its speed she was charged with knowledge it was not doing so, and she testified she did not believe it did do so.
Plaintiff saw the street car before she entered the intersection at all. She was then about twelve or fifteen feet back of the dip. The street car was then about 120 feet south of the intersection. It was coming at the rate of thirty miles per hour, or forty-four feet per second. At that rate it would reach the intersection in less than three seconds. When plaintiff was ten feet from the west rail of the street-car track, the street car was only fifty-five feet four inches from the south line of the intersection, and two inches short of sixty feet from the line of travel of the south side of her automobile, if she kept on. The street car had not then slackened speed, and she knew it had not slackened speed. Unless speed of the street car were instantly and greatly reduced, it would be upon her in less than a second and a half of time, if she went on. She was in a place of safety. She could stop within six feet when going at the rate of speed she was going when she entered the intersection. So she could stop and still clear the west side of the street car, which overhung the track eighteen inches. She neither stopped nor increased her speed, but she deliberately continued her course and- drove in front of the onrushing street car. Granting the motorman was negligent, it is not debatable that she was guilty of contributory negligence as a matter of law.
The court does not base its declaration that plaintiff was guilty of negligence as a matter of law on the mere fact she did not undertake to stop when she was within ten feet of the west rail of the street-car track. The findings of fact are, in part, conclusions of fact from estimates. But the findings disclose a situation which forbade plaintiff voluntarily to take undue risk. She was not acting under pressure of any emergency, and she commenced to take chances when she entered the crossing. As she proceeded, danger immediately became imminent, and when she was within ten feet of the west rail a collision was inevitable unless she stopped instantly.
Plaintiff undertakes to avoid consequences of her own negligence by charging the motorman with wantonness. Wantonness is reckless indifference to or reckless disregard of consequences under circumstances involving danger to life or safety of others. There was no evidence that the crossing was in a thickly populated district, or was much frequented by travelers on foot or in vehicles, or afforded a narrow range of view. There was no evidence that speed of the street car as it approached the crossing was regulated by ordinance, or was unusual, or was unexpected by plaintiff. There was no evidence of distance in which the street car might have been stopped after plaintiff manifested determination to cross ahead of the street car. The motorman took the only precautions which were taken to avoid the collision, and there is no basis in the evidence for a charge of wantonness on his part.
The judgment of the district court is reversed, and the cause is remanded with directions to set aside the order granting a limited new trial and to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
The defendant was tried on an information containing four counts and charging commission of offenses denounced under chapter 140 of the Laws of 1929 (R. S. 1931 Supp. 17-1223 et seq.). He was found guilty on two counts: the second charging the sale of an unregistered security, and the third charging him with having sold such security without having first obtained a broker’s license.
Appellant’s abstract does not contain any specification of errors as required by rule 5 of this court. In his brief he discusses only the sufficiency of the testimony to sustain the verdict, the concluding paragraph of the brief containing the following:
“I simply believe that this testimony fails to show a sale, and that this man’s conviction is wrongful. I could serve no purpose by citing a long line of authorities or quoting from the decisions of this court. There isn’t any law question involved in it.”
As to the conviction on the second count, an examination of the record shows that one Ella Teeters, previous to the sale complained of, owned some Cities Service Company stock which she traded for Roosevelt Chain Hotels Corporation stock and bonds; that de fendant met her, told her the Roosevelt bonds were apparently worthless, that the corporation wasn’t going ahead with the construction of the hotel; that he was interested in a corporation to be organized to be known as the Tri-State Oil and Royalty Corporation, and.he then took her Roosevelt bond and gave her in exchange a preorganization subscription receipt for 900 shares of the stock of the new corporation. A few days later, through another agent, she purchased an additional 100 shares and some time thereafter received a certificate for 1,000 shares in the North American Royalty Company, signed by Harper as president, it being explained that it was necessary to change the name of the corporation from the TriState Oil and Royalty Corporation to the North American Royalty Company. During the course of her testimony Mrs. Teeters became somewhat confused as to whether she delivered her Roosevelt bond or only the coupons from it to the defendant, but she finally testified she gave him the bond. The defendant, testifying in his own behalf, stated he didn’t think he took her bond but might have. Based on his own version of the facts, defendant says there was no sale. The jury, by its verdict, has said the defendant did take the bond. A conviction on conflicting evidence will not be disturbed, though an acquittal might well have been had upon it, as on appeal the evidence must be viewed most favorably to the state. State v. Ryan, 71 Kan. 852, 80 Pac. 588; State v. Lower, 110 Kan. 669, 205 Pac. 364. And the evidence, which by its verdict it must be concluded the jury believed, sufficiently shows a sale as defined by chapter 140 of the Laws of 1929 (§ 1, ¶2).
Complaint is made because the court permitted two witnesses to testify as to sales to them. In the instructions the jury was advised that such testimony should be considered only for the purpose of showing identity of the accused and his motive, intent, lack of mistake and his plan or system of operation, and for no other reason. It may be observed that under the provisions of R. S. 1931 Supp. 17-1225 the act does not apply to an isolated sale, and the testimony was competent to show that the sale complained of was not an isolated one. Evidence of similar offenses has been held admissible to prove intention, inclination and tendencies in many cases heretofore decided. (See State v. Ridgway, 108 Kan. 734, 197 Pac. 199; State v. King, 111 Kan. 140, 206 Pac. 883; State v. Smith, 113 Kan. 737, 216 Pac. 302; State v. Turner, 114 Kan. 721, 220 Pac. 254; State v. McReynolds, 118 Kan. 356, 234 Pac. 975; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Reuter, 126 Kan. 565, 268 Pac. 845; State v. Dunkerton, 128 Kan. 374, 278 Pac. 57, and the decisions and authorities cited therein.) Without repeating the various statements of the rule as to showing of similar offenses and the exceptions thereto, it is sufficient to say that such testimony as was admitted, considered with the instructions of the court, was not prejudicial to the defendant.
The matter of whether there was a sale or not settles also the conviction on the third count. It was admitted by the defendant that he had no broker’s license to sell securities. The evidence shows that he acted as a broker, as defined in paragraph 8 of the original act (which paragraph has been amended by ch. 143, Laws 1931, since commission of the offense) without having qualified as therein provided.
No reason appears why the defendant did not have a fair and impartial trial, there is no error in the matters complained of, and the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action plaintiffs are seeking to trace funds arising from liberty bonds which had been placed in the Commercial State Bank for safe-keeping. The bank became insolvent, and its assets had passed into the hands of a receiver. The purpose of the action is to have the court adjudge that the funds are entitled to a preference. While the state bank was solvent and a going concern several parties deposited their liberty bonds with it for safe-keeping. On September 11, 1930, the bank, being insolvent, was taken over by the state banking department, and in conformity with the law was placed in the hands of Charles W. Johnson, as general receiver, and C. E. Williamson, as assistant general receiver. When the bonds were deposited with the bank, the following receipt or certificate was given the owners by the cashier:
“Rosedale, Kan., March 4, 1921.
“This certifies that Ida M. Holsinger has deposited in this bank two thousand (par value) in U. S. fourth liberty loan 414 per cent coupon bonds, returnable to him or to his order at this bank on surrender of this certificate properly indorsed. Interest payable hereon in lieu of the interest on such bonds, according to the terms and tenor of such bonds. . . .
(Signed) E. W. Sandebs, Cashier.”
These bonds, it appears, were pledged as collateral by the bank without the knowledge or consent of the owners and were thus misappropriated and transferred to the Home Trust Company of Kansas City, Mo. Three plaintiffs, owners of the bonds, joined together in a single action, with the consent of all parties, to avoid a multiplicity of suits, and the evidence, it is said, is equally applicable to each claim of the several plaintiffs. Upon a trial the court found that the proceeds of the wrongful sale of the bonds came into the hands of the receiver and augmented the funds obtained by him from the assets of the Commercial State Bank. The court held that the plaintiffs had sufficiently traced and identified the funds, and are entitled to have them paid as preferred claims. The defendants appeal and contend that there were errors in the findings and judgment.
There was no dispute in fact but what the bonds were deposited with the Commercial State Bank, and that they had been misappropriated and transferred as collateral to its correspondent, the Home Trust Company. The right of plaintiffs to a general claim against the receiver was in fact conceded, but defendent argues that plaintiffs were not entitled to be treated as preferred creditors.
The first assignment is that there was error in denying defendants’ claim for a jury trial. It is contended that the action involved the recovery of money and damages for breach of the contract for safe-keeping of bonds, and that he was entitled to a jury trial. The primary purpose of the action was to establish the trust relation between the parties as to the deposit for safe-keeping and to enforce a trust against proceeds of the wrongful transfer of the bonds. There was no dispute as to ownership of the bonds, no dispute as to the receipt of the bonds by the bank for safe-keeping, and no question that the bank had failed to deliver the bonds to the owners. Plaintiffs were seeking to establish the fact that the bonds constituted a trust fund which had passed into the hands of the receiver and that it was so identified and traced as to entitle the plaintiffs to have the deposit taken out of the class of general claims and have it adjudged to be a preferred claim. It is manifestly a suit for equitable relief, and a party is not entitled, as a matter of right, to a jury in a suit in equity. The money asked was a mere incident of the granting of the equitable relief, and there was no error in refusing the demand for a jury trial.
It is next contended that the evidence is insufficient to prove plaintiffs’ cause of action, and that there was error in overruling defendants’ demurrer to plaintiffs’ evidence filed at the close of plaintiffs’ testimony. It is unnecessary to discuss matters not in controversy between the parties. At the trial, when the right of plaintiffs was raised, counsel for defendants stated:
“We are not contesting the fact, and it is admitted, as Mr. Mellott says, that these plaintiffs had deposited certain bonds with the Commercial State Bank of Rosedale. The receipts show that, and it is admitted that these plaintiffs are entitled to a general claim against the receiver and against the bank for the amount as shown by the receipts; so, as I see it, there is only one issue, and that is as to whether or not they are entitled to a preference.”
Nothing is in controversy, therefore, except the matter of preference. The ownership of the bonds remained in plaintiffs before and after the misappropriation of the same. It is disclosed that the bank clipped the coupons from the bonds and placed the proceeds of the same to the accounts of the several owners, but the certificates showed that the bonds as deposited were to be returned “on surrender of the certificates properly indorsed.”
The principle to be applied to special deposits, where a preference is claimed as against funds which passed into the hands of the receiver, is briefly stated in State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000, as follows:
“Before a claim can be allowed as a preferred claim against the receiver of an insolvent bank, it is necessary to establish, first, that the claim in question is a trust fund, and, second, that the fund in some form was a part of the assets of the bank which passed into the hands of the receiver.” (Syl. HI.)
These requisites were fulfilled, we think, by the plaintiffs. The fact that the bank cut the coupons from the bonds and placed the amount of the same to the credit of the owner, did not change the bailment and obligation which was that the bank should safely keep and return the bonds. (Bloomheart v. Bank Commissioner, 114 Kan. 786, 221 Pac. 279.)
The general doctrine in relation to preference was stated in Secrest v. Ladd, Receiver, 112 Kan. 23, 209 Pac. 824, a case which has some features of the present action. It was there said:
“Was the special deposit made by the plaintiff in the bank a trust fund, and if it has the trust character can it be followed and payment required out of the assets of the bank in preference and before distribution to general creditors? There can be no doubt of the fiduciary relation between the plaintiff and the bank. The fund was placed in the bank to be applied to a specified purpose for the benefit of plaintiff. It was not to go into a general account and had none of the characteristics of a general deposit. It was intrusted to the bank to be applied in payment of the shares of capital stock when the same were authorized and issued. . . . The beneficial ownership of the fund remained in the plaintiff, and the misapplication of it by the bank did not change its trust character. ... If the trust fund can be identified it may be followed through every mutation and subjected to the trust.” (p. 24.)
The evidence showed that liberty bonds were taken over by the Commercial State Bank and pledged to the correspondent bank, the Home Trust Company. No entry was made upon the blotter, but when the banking department and its receiver took over the assets of the failed bank the records showed that $3,000 in liberty bonds of customers was credited, and they listed these bonds as among the liabilities of the bank, which included the plaintiffs’ bonds to the amount of $2,300. In the books of the company containing a record of the transactions there was some confusion, but, upon a reconciliation statement, it appeared that, taking note of certain discounts, there was $4,714.37 held as an asset of the failed bank. A showing was made that there was fluctuation in the status of the accounts by reason of discounts and rediscounts, but when the receiver made an adjustment with the Home Trust Company, there was a balance of the assets of the Commercial Bank, and that the receiver had obtained $3,650.65, and included in this amount was the $2,300 represented by the proceeds of the plaintiffs’ bonds. These proceeds evidently went into the hands of the receiver, and, although there was a balancing of accounts, it was reasonably clear that the proceeds of the bonds passed to the receiver and augmented the assets of the Commercial State Bank which came into the hands of the receiver.
Under the rules stated we think the plaintiffs traced the money into the hands of the receiver, and we think it is entitled to the preference which the district court awarded. (Nelson v. Paxton, Receiver, 113 Kan. 394, 214 Pac. 784; Peoples State Bank v. Burlington State Bank, 128 Kan. 274, 277 Pac. 39.)
Some objections are made to rulings on the admission of evidence, but upon examination we found that they are not grounds for a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action upon an open account by the plaintiff lumber company against the defendant, engaged in the oil-well drilling business, for $1,325.50 with interest, for lumber sold defendant.
The defendant in his answer admitted his indebtedness to the plaintiff on account in the sum of $693.07 with interest, and offered to allow judgment to be taken against him in that sum, but denied the claim of plaintiff in every other particular. The jury returned a verdict against defendant in the sum of $699.83 without interest. To this amount the trial court, on motion of the plaintiff, added the part and portion of the admitted amount that was not involved and included in the controverted matters submitted to the jury, viz., $390.50, instead of $693.07 as actually admitted by defendant, which made a total of $1,090.33, for which judgment was rendered against defendant with interest, from which defendant appeals, having filed a motion for a new trial which was overruled.
The appellant assigns error in the court adding to the amount of the verdict a part of the amount admitted by the defendant in his answer as being due the plaintiff, which the jury was instructed to do but very apparently failed to do. The jury answered special questions as to the amount still due the plaintiff from the defendant on the accounts as to three of the five wells for which lumber had been obtained, there being no controversy as to the items charged for the other two wells, and the general verdict was exactly the total of the findings as to these three controverted lists of items, for three particular wells. There is no point raised by either party concerning the division made by the trial court of the amount admitted by the defendant in his answer, considering it as only $390.50 instead of $693.07, the remainder of the admitted part being included in controverted lists. Such division or separation during the trial in no manner affected the fact_of the actual amount admitted by defendant in his answer to be $693.07, which, together with interest admitted at the time of filing his answer, made a total of $702.31.
Appellant assigns error in the admission of testimony showing an offer by him to compromise this claim of the plaintiff immediately after this action was commenced and a garnishment run on his funds in the bank. The following is the evidence received and considered on what the appellant claims to be an offer to compromise.
“Q. You do remember authorizing me to draw an order on the Skelly? A. I remember talking to you about an order on Skelly.
“Q. I will hand you this paper and ask you if you remember that as being a copy of the order that I drew? A. It looks like the order you drew.
“Q. And you were to go to El Dorado with Mr. Hinkle at that time and get the order, which was for S900, accepted by the Skelly Oil Company, in part payment of this account? Is that not correct? A. In all payment on account, wasn’t it?
“Q. It doesn’t so state in the order, does it? A. It doesn’t say the part payment, either, does it?
“Q. And you remember we found out that there was no officer in El Dorado who could accept this order and so this order was discontinued and never used? A. I don’t remember that because they could accept it.
“Me. Kagby: Waive the identification.
“The Court: Admitted.
“(Same marked ‘exhibit D.’)
“Exhibit D is as follows:
“Order.
“To the Skelly Oil Company, a, corporation:
“Please pay to the T. M. Deal Lumber Company, or order, the sum of nine hundred dollars ($900), from the amount to become due me from you, on or about the 12th day of May, 1931, and charge such payment to my account. ---
“The above order is hereby accepted and the Skelly Oil Company, a corporation, agrees to pay the sum of nine hundred dollars ($900) to the T. M. Deal Lumber Company of Wichita, Kansas, on or about the 12th day of May, 1931.
“Dated April 23, 1931. The Skelly Oil Company,
“By-
“Witness:-.
“He remembers being in Mr. Jamison’s office one day last April and instructing him to draw a. cheek on the Skelly Oil Company for $909 in payment of the whole account.
“Redirect examination: The plaintiff sued and garnisheed his bank account.
“Q. Just tell what you said to him. A. I told him in order to release my bank account I was willing to give him an order on Skelly Oil Company for $900 for that account and he questioned whether Skelly Oil Company owed me $900 and wanted me to take it over there and have it O.Kd. by them and everything and I told him no, I wouldn’t do that; I would file a bond and try this case.
- “Q. It was an offer of compromise, was it? A. It was an offer to compromise the deal and save further trouble on it. I didn’t sign that order. I never signed that order.
, “Mr. Kagey: Now, we ask that all the testimony in reference to this be stricken out as merely an attempt to get before the jury an offer of compromise after the suit was filed.
“The Court: Overruled.
“Recross-examination:, He has no recollection of ever having signed the order, or if the order was signed then the original was never delivered because the case was never settled.”
Appellee insists that' exhibit D and the evidence concerning it does not constitute an offer to compromise, nothing of this nature appearing in the document itself; that it is nothing more nor further than .a proposed payment .on account, that not being signed it can be neither an offer of payment nor settlement, that because the defendant later admitted in his-answer an indebtedness to a certain amount; this transaction woul$ only be an admission of a larger amount of indebtedness, and that under the authority of Railroad Co. v. Stone, 78 Kan. 505, 97 Pac. 471, and 2 Wigmore on Evidence, 2d ed., § 1061, it contained an admission of fact which was of probative effect, and was therefore admissible as evidence. It is difficult to find the probative feature in exhibit D in the light of the distinctions so clearly defined in the Stone case, supra. There nothing was mentioned as to the amount involved and no offer was made, but a liability was there shown which was a probative feature proper for admission. The agent was quoted as saying that he came “to have a talk about that coal bill that the Frisco owed.” It was there held:
“. . . (3) that certain statements of the defendant’s fuel agent, objected to as being only an offer to compromise, were competent as tending to show the use of the coal by the company and its liability therefor.” (Syl.)
In the opinion the rule was said to be that offers of compromise are not admissible, unless they contain admissions of fact. This was where the railroad company had appropriated to its own use coal consigned by the plaintiff to others, and the statement above quoted contained the admission of liability for the coal.
The naming of a definite amount in the offer is not at all an admission of owing that amount, or any amount whatever. An offer of an amount to buy peace may be made when nothing is in fact owed. Exhibit D could not be termed a contract when not signed. At most it was a proposition not accepted.
A careful reading of the testimony in connection with exhibit D persuades us that the defendant was making an effort to release his bank account from garnishment, a terrible inconvenience to a business man, and made this offer to one of the attorneys for the plaintiff company to settle the matter and have his account released. To offer just the amount admitted a few days later in his answer, which was only about half the amount for which the action was brought, would under ordinary circumstances hardly bring the result desired. The verdict, with the part added by the court, was $1,090.33, while the defendant only admitted in his answer an indebtedness of $693.07, and the jury undoubtedly used the offer to compromise to make this difference and to the very evident prejudice of the defendant.
The authorities all concede that an offer to compromise is always inadmissible unless it contains an admission of fact.
“An offer to compromise a difference is not admissible in evidence in an action between the parties concerning that difference, but if the offer to compromise contains an admission of fact, that may be properly introduced in evidence.” (Kaull v. Blacker, 107 Kan. 578, syl. ¶ 1, 193 Pac. 182.)
In an automobile collision damage suit the following ruling was made:
“In support of her cause of action plaintiff offered testimony of two other passengers in the jitney who were injured in the same collision, and in direct examination brought before the jury the fact that they had sued the taxicab company and settled their causes of action. They testified they did not know that their actions were against the owners of both cars. The court permitted the testimony to stand on the theory that the taxicab owner on cross-examination showed that the witnesses had sued the owners of both cars. Held, that the error in admitting proof of the settlement over objections was not cured by what occurred in the cross-examination.” (Hanks v. Cab & Baggage Co., 112 Kan. 92, syl. ¶ 4, 209 Pac. 977.)
Wigmore on Evidence, 2d ed., section 1061, (c), asserts the following rule:
“The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered; in short, the offer implies merely a desire for peace, not a concession of wrong done.”
“The law favors the settlement of controversies out of court, for which reason a person is entitled to ‘buy his peace,’ or to endeavor to do so, without danger of being prejudiced in case his effort should fail. It is therefore well established that it is not permissible to show that one party to the litigation has offered to compromise.” (22 C. J. 308. See, also, Moore v. Connelly, 119 Kan. 35, 237 Pac. 652.)
We conclude that there was error in the admission of exhibit D and the evidence concerning it, for which the cause must be reversed and a new trial granted.
No good purpose would be served in considering the other errors assigned.
The judgment is reversed and the cause is remanded with directions to' grant a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
In these appeals a reargument was ordered on appellants’ motion to modify our opinion and judgment, filed January 7, 1933. (Putnam v. City of Salina, 136 Kan. 637, 17 P. 2d 827.)
The motion was predicated on the fact that, contrary to the opinion and judgment of the trial court, the statute, chapter 87 of the Laws of 1917, with its subsequent amendments, as it now appears in R. S. 12-635 et seq., and R. S. 1931 Supp. 12-645, is valid; and so far as the judgment of the trial court was based upon its assumption that the statute as amended was invalid, it was erroneous. But on account of other irregularities alleged in plaintiff’s petitions, which involved issues of fact and which were supported by evidence and not subject to our review because of the limited appeals the defendants chose to bring to this court, the judgment of the trial court enjoining a certain project of flood control set on foot by defendants under resolution No. 466, adopted by the city of Salina on March 18, 1929, and city ordinances Nos. 3837 and 3883, enacted pursuant thereto, was affirmed.
It is now suggested that since the statute has been held valid, this resolution and these ordinances should likewise be held valid, so that the city may go ahead with this proposed flood-control project if and when it sees fit to do so, and that this court should redraft the trial court’s decree of injunction to limit its scope accordingly. But owing to the limited record presented for appellate review, this court does not have the requisite facts before it upon which to formulate a modified injunction with justice to everybody concerned. While this court upheld the statute which the trial court regarded as invalid, it is a familiar rule of appellate courts that a judgment may be altogether correct although the reasoning processes by which it is arrived at may be more or less unsound. (State, ex rel., v. Iola Theater Corp., 136 Kan. 411, 414, 15 P. 2d 459.)
This court has no way of telling what rights of property owners have rested in the security of the trial court’s injunctive decree and which might be affected by any further modification of that injunction at this late date. We therefore conclude that if and when the city of Salina again sets about some project of flood protection under authority of this statute, it will be more just for all concerned, and less likely to involve the city in litigation over the scope of matters already adjudicated in these actions to commence anew.
Counsel criticize a remark in our opinion wherein we took notice of the legal question raised by the pleadings — whether under this project of flood control bonds could be issued for bridges without a vote of the people. Our remark is characterized as dictum. Dictum, however, in legal parlance is a statement of law in a court’s opinion which is not necessary to the decision of the matter in controversy. 'It seems to us that a careful perusal of our opinion will not justify the charge that it contains any dictum on the question of issuing bridge bonds without a vote of the people. That question was one of several included in the joinder of issues of law which the trial court did not decide because of its holding that the entire statute was unconstitutional. This court could not assume that the question of issuing bridge bonds without a vote of the people had been raised merely to annoy the defendants. And while we could not decide this question we could hardly refrain from observing that nothing was settled concerning it in this litigation.
Counsel for defendants also suggest that we should give assurance that nothing in our opinion should hereafter be construed to hold that the general mass of real and personal property within the city cannot be taxed to pay the city’s share of the benefit conferred on any public property situated within the flood-control district. It seems to us that if we should now venture on further discussion of that subject — not necessary to the decision of the matters presented for our review in these appeals — it would indeed be dictum, not binding on anybody, not even on the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.
The motion to modify the opinion is denied.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover on two contracts. Judgment was for plaintiffs. Defendant appeals.
Plaintiffs are partners. They are engaged in the business of heavy trucking. Defendant is a construction company. It had the contract to build compression stations at Liberal and Louisburg. These stations require a great deal of trucking of heavy machinery. Plaintiff made a bid for the contract of doing the hauling for the Liberal job. It was as follows:
“Lumber, $1.50 per ton; rocks and sand, $1 per ton; cement, $1.25 per ton; pipe, valves and fitting, $2 per ton; corrugated iron, $2 per ton; structural steel, $2 per ton; heavy machinery, $2.50 per ton.”
After this bid was made one of the partners met an officer of defendant at Liberal. Here it was pointed out by defendant that a switch track would be installed at Liberal. This track would have made the haul for the Liberal job only about one-fourth of a mile. After this conference the bid of plaintiffs was reduced fifty cents a ton on pipe valves and fittings; fifty cents on corrugated iron; fifty cents on structural steel; one dollar a ton on heavy machinery. An oral contract was consummated on that basis. Within a few days the work of hauling started from a town several miles away. The switch track was never built. Some days after the hauling had started plaintiffs advised defendant that they could not haul the greater distance for the price named. At this time the defendant agreed to pay plaintiffs one dollar a ton over and above the price agreed upon for all hauling done from the greater distance'. It was agreed that settlement would be made on this basis when the work was finished. It was the practice of plaintiffs to bill defendant every fifteen days for the hauling just done. Defendant would then send a check for the amount of the bill less ten per cent, which was retained. This check contained, among other things, the following statement:
“This check is in payment of items as per statement following: Indorsement of payee will constitute a receipt in full.”
Then the following:
“In full of account less 10 per cent September 15, 1930, job 500, $402.60.”
The last statement for hauling, which appears in the evidence, was a bill dated September 16 for an aggregate amount of $447.35. The check referred to was for this amount less the ten per cent.
The action was for the amount of the total tonnage hauled at one dollar a ton and for some other items. The petition alleged facts about as they have been detailed here. Defendants filed an answer in the form of a general denial and later filed a cross petition in which it claimed that plaintiff was indebted to it. At the trial of the case the court gave a directed verdict for the amount that the ten per cent amounted to and submitted the remainder to the jury. The jury returned a verdict for the entire amount claimed by plaintiffs. Judgment was entered accordingly. The court instructed the jury, among other things, as follows:
“The defendant offered in evidence a" certain check, payable to the order of plaintiffs, which recited, in substance, that the same is payment in full for plaintiff’s services, except said 10 per cent retained by defendant, and you are instructed that unless the plaintiffs accepted the same as payment in full for their services, that the statement on said check to the effect that the same is a payment in full for such services, less said 10 per cent, would not bind the plaintiffs to a final settlement with the defendants, for the plaintiffs would have the lawful right to cash said check and apply the same on any amount that was due and owing from the defendant to plaintiffs. However, if you shall find from the evidence in this case that the said plaintiffs did accept said check in full payment for their services, less the admitted 10 per cent, then they cannot later ask for any additional sum of the defendant on said contract.”
Defendant argues that this instruction was erroneous. The jury answered special questions as follows:
“1. Do you find that an honest dispute existed ... as to the amount, if any, due and owing from the defendant to the plaintiffs on September 25, 1930, not including the 10 per cent about which there is no dispute? A. Yes.
“2. Do you find that the defendant issued on September 25, 1930, a check payable to the Unger Truck Line in the sum of $402.60 which bore on its face the following language: ‘This check is payment in full as per statement following: Indorsement of payee will constitute a receipt in full’; and also the following indorsement: ‘In full of account less 10 per cent September 15, 1930, job 500?’ A. Yes.
“3. If you answer question No. 2 above in the affirmative, state whether said check was indorsed and cashed by the payee and the amount of $402.60 received and retained by the plaintiff. A. Yes.
“4. Did the plaintiff, in cashing the check for $402.60, dated September 25, 1930, intend to accept said check as full and final payment for all claims against the defendant, Fluor Corporation, Ltd., with the exception of 10 per cent withheld? A. No.”
Defendant argues that judgment should have been for it on the answer to special questions 1, 2 and 3 notwithstanding the general verdict, and that the fourth question should not have been submitted. Both of these questions may be discussed together. What the argument amounts to is that the indorsing and cashing of the check that has been described here by plaintiffs constituted an accord and satisfaction. Defendants argue that where there is a dispute between parties as to the amount owing from one to the other, the acceptance by one of a check for a lesser amount than was claimed constitutes an accord and satisfaction.
It will be seen from the instruction given and the question submitted that the court held to the theory that the acceptance of the check by the plaintiff for a lesser amount did not constitute accord and satisfaction unless the plaintiff intended to accept it as full and final payment. Under the circumstances of the present case the court was correct. The agreement with reference to the dollar a ton was that this was not to be paid till the job was finished. The record discloses that a check similar to the one discussed was paid to plaintiffs by defendant every fifteen days while the hauling was going on; each check referred to a statement which accompanied it. It was clearly for the payment of those items and only those. The dispute which existed on September 25, 1930, was not with reference to any of these items, nor did the check have any bearing on the matter which was in dispute. At the time this check was tendered and indorsed plaintiff did not know that defendant would refuse to pay the extra dollar when the hauling was completed. After an examination of the record in this case we have reached the conclusion that the acceptance and cashing of the check described did not constitute accord and satisfaction.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this action appeals from a judgment rendered against him rescinding a contract of purchase of thirty shares of stock in the Charles E. Davis Furniture Company and ordering the return to the plaintiff of the money paid and the note and mortgage assigned as the purchase price thereof. The grounds for rescission alleged by the plaintiff, and found by the court, were representations made by the defendant as to the financial condition of the company, which were later found to be incorrect and false.
The first and most serious question raised by the appellant concerns the very nature and character of the action and whether or not the pleadings present a jury issue. The appellant contends that the action was originally one in assumpsit for money had and received, being for the recovery of $3,500, the purchase price paid by plaintiff for thirty shares of corporate stock, and was later by amendment changed to an action for the recovery of personal property, $500 paid in cash and indorsement and assignment of a note and mortgage for $3,000.
The petition alleges that the plaintiff on April 6, 1929, purchased from defendant thirty shares of stock in the Charles E. Davis Furniture Company and paid for the same the agreed price of $3,500; that the defendant, at and prior to the time of purchase, made certain representations as to the financial condition of the company, of which he was a director, and referred the plaintiff to the books of the company as a verification of his statements; that an examination of the books and records of the company substantiated the statements of the defendant, but both the statements and the books were later and after the purchase found to be incorrect and false; that there were found to have been at the time of the representations bills payable and accounts payable not listed or shown in the books or records of the company in excess of $13,000; that instead of having earned a profit of $7,000 the preceding year, as the statement and the books indicated, the company had sustained a loss; that he had relied upon the representations of the defendant and the books referred to by him, in making the purchase; that immediately after learning of the falsity of the representations made to him by the defendant and of the books to which he was referred by the defendant, the plaintiff tendered to the defendant the certificate of stock so purchased and demanded repayment of the money paid by him for the same, and the defendant refused to accept the tender of the stock and repay the money; that plaintiff has at all times since kept good his tender and renewed it with his petition. The petition concluded with a prayer “that said rescission be by the court approved and confirmed and that plaintiff have judgment herein against the defendant, for the sum of $3,500. together with interest.”
The answer was a general denial and special denials to the effect that he never solicited nor in any way attempted to induce plaintiff to purchase the stock. The plaintiff was informed by defendant, and he well knew that defendant had no part in the active management of the company and had no knowledge of its affairs except as disclosed by its books and records. That on the contrary plaintiff informed defendant that he had thoroughly examined the books and records and knew its financial condition and that defendant’s stock was worth $3,500 and defendant believed plaintiff’s statement and relied upon it and sold him the stock for the amount he said it was worth. Defendant then charged plaintiff with mismanagement of the company after assuming charge thereof, and final abandonment of the property, and alleged that if the representations and books were incorrect, plaintiff could have discovered such condition by the exercise of ordinary care long before he made the tender; that he failed to make a tender within a reasonable time, and having thus elected to retain the stock, he had “estopped himself from any equitable right he might have claimed to rescind the sale of said stock.”
Appellant in a very comprehensive and learned manner distinguishes between legal rescission and equitable rescission, and quotes eminent text writers as to the restrictions on the resort to equitable proceedings, limiting them to cases where the remedy at law is inadequate, and argues that in the case at bar there are no allegations or proof that the defendant was insolvent, or a judgment for $3,500 could not be collected from him, or that a lien upon the stock would not have been effective, further emphasizing his contention by pointing to the fact shown by the pleadings and proof that the contract in question was an executed and not an executory one.
R. S. 60-201 provides that—
“The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form, of action, which shall be called a civil action. . . .”
In the case of Minch v. Winters, 122 Kan. 533, 253 Pac. 578, it was said:
“It should not be forgotten that in the simplification of our civil code and the statutory abolition of distinctions between actions at law and suits in equity (R. S. 60-201), the legislature was not engaged in curtailing the essential powers of our courts of general jurisdiction. The legislative purpose was rather to emancipate the courts from those ancient artificialities of procedure which handicapped them in dealing out whatever measure of redress, legal or equitable, justice in any case required.” (p. 539.)
In the case of Farney v. Hauser, 109 Kan. 75, 198 Pac. 178, it was held:
“In this jurisdiction, where all distinctions between forms of actions at law and of suits in equity are abolished, all matters of justiciable controversy arising between the same parties, whether legal or equitable, and whether already liquidated or merely capable of ascertainment, may be tried and adjudicated in one action.” (Syl. ¶ 5.)
It has regularly been -held in this state that the issues raised by the pleadings determine the nature of the action. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098.)' It was said in Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, that the form and the essential nature of the action characterized it as an equitable one. In the case of Investment Co. v. Burdick, 67 Kan. 329, 72 Pac. 781, it was held that the manner of enforcing a cause of action must of necessity depend upon the nature of the cause of action arising out of the state of facts pleaded. To hold that this is an action in assumpsit to recover money had and received would require the court to disregard and entirely ignore the several allegations about rescission which are found not only in the petition but also a specific denial of them in the answer.
, The nature of this action is the cancellation of the oral contract as to the sale and purchase of corporate stock, the returning of the certificate of stock and the restoration to the plaintiff of what he gave for the stock, because of misrepresentations alleged to have been made by defendant to plaintiff on which the plaintiff relied. The rights of the plaintiff under the allegations of his petition in this case are distinctly and unmistakably equitable, and the fact that he might possibly have proceeded differently along legal instead of equitable lines, does not deprive him of his right to equitable relief. (21 C. J. 107.)
A determination as to the essential nature of the action becomes necessary in this case because of the error assigned by the appellant in the denial by the trial court of the application of the appellant for a trial by jury. Where the action is grounded on equitable rights and where equitable relief is sought, as in this case, it does not present a jury issue, and the defendant is not entitled to a jury trial.
“While forms of action and the distinction between actions at law and suits in equity have been abolished, and a single remedy in the form of a civil action has been provided, by means of which any desired relief may be obtained, essential differences have not been obliterated and a jury is not demandable as a matter of right in those civil actions which are grounded on equitable rights and in which equitable relief is sought.” (Houston v. Goemann, 99 Kan. 438, 440.)
That was a case where the cancellation of a deed was sought by the plaintiff. In the case of Spena v. Goffe, 119 Kan. 831, 241 Pac. 257, which was for an accounting between stockholders of a dissolved corporation, it was held to be naturally and essentially a proceeding in equity and in which “a party is not entitled to a trial by jury as a matter of right.” In the case of Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605, which was for an accounting and to impress a lien on defendant’s property because of fraud and' misrepresentations, it was held:
“• • • that the action being essentially one for equitable relief, a jury trial was not demandable as a matter of right, notwithstanding the facts pleaded by defendant to support his setoff and counterclaim, if involved in an ordinary action at law, might have been justiciable before a jury as a matter of right.” (Syl. If 2.)
The case of Eagan v. Murray, 102 Kan. 193, 170 Pac. 389, was an action upon a note and the answer alleged rescission of the contract in connection with which the note was given and return of the property. It was held plaintiff’s cause of action was complete in itself, a single definite theory, and did not involve the question of rescission raised in the answer. (See, also, Lapham v. Oil and Gas Co., 87 Kan. 65, 123 Pac. 863; and Boam v. Cohen, 94 Kan. 42, 145 Pac. 559.)
Appellant assigns error in the trial court granting permission to plaintiff to amend his petition after the taking of the testimony to conform to the proof, mainly in alleging that the consideration for the stock which he sought to recover, instead of being $3,500 in money, was $500 in money and a note and mortgage for $3,000. This was simply to conform the pleading to the facts proved and did not change substantially the claim or defense, as is fully authorized by R. S. 60-759 and upheld by the decisions. (Tipton v. Warner, 47 Kan. 606, 28 Pac. 712; Malone v. Jones, 91 Kan. 815, 139 Pac. 387; and Stevens v. Vermillion, 102 Kan. 408, 170 Pac. 807.)
But because this amendment was made more than two years after the action was commenced, appellant insists that the action is now one for the specific recovery of personal property, and under the third subdivision of R. S. 60-306 is barred by the two-year statute of limitations. The petition has always sought to recover from the defendant the consideration given for the stock, which was at first described as $3,500 and later as $500 and a note and mortgage for $3,000. It is the same consideration, only differently described, and the defendant could not have been surprised at the change of description, and in no way does it constitute a new or different cause of action, and therefore it relates back to the commencement of the action.
“When a petition fails to state a cause of action an amendment which asserts a cause of action barred the statute of limitations does not relate back to the first petition so -as to deprive defendant of the defense of the statute.” (Powers v. Lumber Co., 75 Kan. 687, syl. ¶ 1, 90 Pac. 254. See, also, in this connection, Tipton v. Warner, supra; Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198; Malone v. Jones, supra; Stevens v. Vermillion, supra; and Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932.)
Appellant urges that no actionable misrepresentations were pleaded nor proved, that all that was expressed by him to plaintiff was intended and understood to be simply an expression of an opinion, and the reference to the books of the company furnished the purchaser all the information had by the appellant, that the statements were not made as an inducement to purchase, and when made were believed to be true. Appellant further in the same connection directs our attention to the fact that no attempt was made in the proof to show a different state of facts except as to the liabilities and insists that was not shown. Most of these claimed defenses are of no avail under the Kansas rule, expressed as follows in Bice v. Nelson, 105 Kan. 23, 178 Pac. 395;
“In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive.” (Syl. ¶ 4.)
This rule was observed and strictly followed in the case of Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067.
In this connection it will be appropriate to state that the evidence shows that the first conversation between these parties on this subject entirely concerned the purchase of stock from another party, and that between the subsequent conversations had by them the defendant sent a message to plaintiff that his own stock was for sale.
“One who has induced another to deal with a company of which he is president and has misled such other by representing that the company is the owner of certain property, is precluded from denying the truth of such statement and from setting up an ownership in himself, even if his original statement was made in good faith and without any intention to mislead or deceive.” (American Indemnity Co. v. Peak, 127 Kan. 606, syl. If 1, 274 Pac. 227.)
Affidavits from various creditors of the company were introduced in evidence by stipulation, showing the indebtedness of the company, from which the total indebtedness could be ascertained and was found and contained in the findings.
Appellant earnestly argues that plaintiff had no right to rely upon any statements made by him or his reference to the books, because the first talk was distinctly concerning the advisability of purchasing stock of Edwards, and because when the later conversations occurred, plaintiff had examined the books and was more familiar with them than the defendant himself and he had superior opportunity to investigate the matter of the assets and liabilities of the company. The evidence also shows that Edwards, the man of whom plaintiff first purchased stock, made representations, and reliance on representations would therefore not be wholly upon those of the defendant. Appellant cites Anderson v. Kirby, 105 Kan. 596, 185 Pac. 894, as authority for relieving defendant from liability for his representations because of equal opportunity. That was a matter of the size of two fields of corn and the value of the standing crops thereon, where both parties, life-long farmers, dealt at arm’s length. Here the defendant had been a director and officer in the company for a year or more, while the plaintiff is not shown ever to have been in the furniture business, and went to the defendant, an acquaintance of long standing, for information in the first place about the Edwards stock. The same information would of necessity apply to any and all other stock in the company.
Appellant insists that plaintiff has lost the right he might have had for rescission by his delay in attempting to do so, which amounted to an election to confirm the transaction, citing Sell v. Compton, 91 Kan. 151, 136 Pac. 927, and other cases which hold that the privilege of rescission must be exercised without unreasonable delay and without unnecessary change in the property in his possession. In the case cited the party put on a ten-day special price sale of the stock of merchandise and was unable to restore it substantially as received. The right to rescind is lost more by the acts showing confirmation and the inability to substantially restore the property than in the time intervening before discovery of the fraud or misrepresentations. In this case the defendant purchased the Edwards stock March 27, and the stock of the defendant April 6, and took charge about the time of the last purchase. He was elected president and his son was elected treasurer. Davis remained as manager. Discoveries were not made all at once but from time to time. Letters were written to all parties from whom purchases had recently been made. Replies showed discrepancies between them and the books. On June 1 plaintiff went to Wichita to see dealers; learned of the largest discrepancy; representative later came out; conference was held, defendant with others attending the same. On June 20 tender of stock was made to defendant and rescission asked. The court found it was after this visit to Wichita that it was learned by the plaintiff that the claim of the Innes Wholesale Furniture Company was $9,000 or $10,000 in excess of the amount shown by the company’s books. The court further found that the total excess of actual indebtedness of the company exceeded that shown on the books of the company by about $12,000. Under these circumstances we conclude that the time intervening between the discovery of the serious difference in accounts was not unreasonable when no substantial or unusual disposition of the merchandise occurred before the tender was made and rescission demanded.
Appellant complains of the refusal of the trial court to permit the defendant to cross-examine the plaintiff as to representations made to him by Edwards before concluding the purchase of the Edwards stock, the theory of the appellant being he had a right to interrogate the plaintiff as to his knowledge of the company obtained from sources other than the defendant. His counsel had not inquired of him anything as to conversations with Edwards, and the court properly held it was not proper cross-examination.
The last assignment of error is that the findings are not sustained by the evidence. The findings are extensive and we think they are each and all supported and sustained by the evidence, even the one next to the last in which the court very justly exonerated the defendant, under the evidence, from any intention to misrepresent any of the facts or mislead the plaintiff.
With these findings the trial court, we think, very properly concluded that as a matter of law the plaintiff should have a decree for rescission of the contract as set out in the petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a combined petition for rehearing and for modification of the decision in the case of Stalcup v. Stalcup, rendered March 11, 1933, and reported in 137 Kan. 141, 19 P. 2d 447. The petition for rehearing is denied.
The modification asked was so strongly urged in the appeal that the last paragraph of the opinion was devoted wholly to that question, but it concluded with the thought that while it would undoubtedly be equitable to do as requested, this court must have from the trial court a basis on which the modified judgment could rest, and that we had no such basis. It is true that the specific object of this equitable proceeding is not exactly along the line of the modification asked, but while the action was to set aside and cancel a certain deed and to declare Mattie May Stalcup, one of the defendants, to be a trustee for plaintiff’s half interest in the real property involved, yet the prayer was also for other and further relief.
The petition alleged, and the trial court found, that Mattie May Stalcup owed plaintiff $3,000, which he claimed was by her invested in this land purchased by her from her father, and plaintiff used this equitable proceeding to recover the land in which she placed the money she admitted owing him. He failed in his action because the evidence showed that her father, when he repurchased the land from his daughter, was an innocent purchaser, not knowing of the claimed interest of the plaintiff in the land.
The appellant claims that since Mattie May Stalcup owes the plaintiff $3,000 and her father, the innocent purchaser to whom she sold the land in question, admits that he still owes her .on the purchase price of the land $5,000, and he has agreed with her that he will pay the same by paying off a mortgage of that exact amount she had placed on her own land to procure money to purchase this land in the first place from her father, that equity should exact that the father be required to pay plaintiff $3,000 of the $5,000 he still owes his daughter and thus meet her obligation to the plaintiff. This is the modification desired. The following findings made by the trial court are pertinent:
“6. The court finds that Mattie May Stalcup owned in her own right the northwest quarter- of section 1, township 22, range 13, Stafford county, Kansas, and she procured the five thousand dollars she paid to her father, R. C. Gates, by mortgaging this land and the money was paid to her father, R. C. Gates.
“8. Plaintiff and Mattie May Stalcup, his sister-in-law, defendant herein, had business transactions relative to farming, and at or about the time the land was purchased from R. C. Gates by Mattie May Stalcup, plaintiff and Mattie May Stalcup figured up what was due the plaintiff, and Mattie May Stalcup told plaintiff and they agreed that plaintiff had three thousand one hundred seventy-six dollars due him from Mattie May Stalcup, and the parties had a verbal agreement or understanding that plaintiff was to own a three-thousand-dollar, or one-half, interest, in the above-described real estate, provided he paid out his share of the mortgage on the land.
“9. The land was to be kept in the name of Mattie May Stalcup, so when Mattie May Stalcup bought plaintiff out, a new deed would not have to be given.
“10. Mattie May Stalcup offered to give plaintiff a deed for a one-half interest in said real estate several times, but plaintiff said he did not desire a deed.
“16. The consideration for the sale and conveyance of the real estate from Mattie May Stalcup to R. C. Gates, her father, was that R. C. Gates pay the mortgage assessed against the above-described real estate, which was a twenty-four-thousand-dollar mortgage on a section of land which covered the land in question, and the said R. C. Gates canceled the one thousand dollars which his daughter Mattie May Stalcup owed .him; and the said R. C. Gates further orally agreed to pay the five-thousand-dollar mortgage indebtedness which the defendant Mattie May Stalcup put on her real estate at the time she purchased the land from her father and which she paid her father, R. C. Gates.
“21. The defendant R. C. Gates has already paid the twenty-four-thousand-dollar mortgage, of which the defendant Mattie May Stalcup had assumed six thousand dollars in the deed, and has canceled the one thousand dollars due him, and has agreed to pay the five-thousand-dollar mortgage indebtedness owed by Mattie May Stalcup.
“30. At the time Mattie May Stalcup had the conversation with plaintiff relative to his having a three-thousand-dollar, or one-half, interest, in the real estate, she did not personally have the three thousand one hundred seventy-six dollars which the parties agreed was due plaintiff, as she had spent it.
“32. R. C. Gates has paid interest on the five-thousand-dollar mortgage which he orally assumed.”
Upon reconsideration we think these findings furnish a sufficient basis from the trial court upon which this court can make a modification of the decision heretofore rendered, and direct the trial court to modify its judgment by following the proceeds of the land the plaintiff tried in this action to follow, and which he failed to reach simply because defendant Gates was an innocent purchaser of the land from his daughter. This is, we think, within the issues, and there can be no question of its being preeminently equitable and fair under the findings above set out, when all the parties concerned were in the case and the matter of the indebtedness of Mattie May Stalcup to the plaintiff was plainly made an issue in the case by her answer.
“The court, having held that the plaintiff was not entitled to the specific performance asked and having before it all the interested parties and all the evidence pertinent to the transaction out of which the controversy arose, was warranted in proceeding to determine the rights of the parties and to administer equity between them.” (Haston v. Citizens State Bank, 132 Kan. 767, syl. U 4, 297 Pac. 1061.)
“In a suit in equity to establish an interest in specific real property and for appropriate relief, the court, having acquired jurisdiction of the parties and of the subject matter and having found that plaintiff has a specific interest in the property, has power to so frame its decree as to meet the exigencies of the situation and to reach the ends of justice.” (Banner v. Welch, 115 Kan. 868, syl. U 2, 225 Pac. 98.)
“. . . while in the remedial exercise of its power a court of equity proceeds with a discretion which is controlled by legal principles as distinguished from arbitrary or capricious power, its power to grant relief is not circumscribed by any fast or technical rule, and the court has a broad discretion in framing its decrees in order to adapt the relief to the circumstances of particular cases. It will adjust the relief in such a way as to afford fair protection to the rights of all parties, and may grant any relief within the issues made by the pleadings. The primary object of a decree in equity is to reach the ends of justice. Equity procedure is usually elastic enough to accomplish this result, and the court shapes its decree accordingly.” (21 C. J. 660.)
The petition for rehearing is denied, and the judgment as far as title to or interest in the land in question is concerned is affirmed, but the judgment should be modified as to the proceeds from the sale of the land yet unpaid by R. C. Gates, the innocent purchaser, so that $3,000 of the $5,000 remaining unpaid shall be paid by R. C. Gates to the plaintiff herein, and the cause is remanded to the trial court with directions to render judgment against R. C. Gates in favor of the plaintiff for $3,000 with interest from date of judgment, with costs taxed to defendant Mattie May Stalcup. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note for $600. De- . fendant in his answer admitted executing the note and that it had not been paid, and by cross petition sought to recover damages in the sum of $794 for an alleged breach of contract. The trial court sustained a demurrer to his evidence. His motion for a new trial was sustained. Plaintiff has appealed from that ruling.
Briefly, the cross petition alleged that in December, 1930, the parties hereto entered into two written contracts, by one of which defendant became the exclusive dealer for plaintiff for its tractors, threshers, combines, skid engines, fuel and -water tenders and their extras and attachments, in Dodge City, Kan., territory for a term ending October 31, 1931; that by the other contract defendant became the exclusive dealer for plaintiff for its implements, hay presses, silo fillers, repairs, equipment and merchandise described in the contract, for that territory and for the same term; that he was to receive stated commission on sales made; that in pursuance of the terms of the contracts he immediately entered upon the work of advertising and selling the merchandise described therein in the territory mentioned, and that he performed all the conditions and did all the work required of him by the terms of the contracts; that about June 3, 1931, plaintiff, without any lawful reason therefor, cancelled the contracts and instructed defendant that it would no longer recognize him as its dealer, or furnish him with merchandise for which he might find sale; that in the preliminary work of carrying out the contracts it was necessary and he did expend, for purposes which were itemized, sums aggregating $794, which he alleged plaintiff owed him by reason of the wrongful termination of the contracts.
Answering this cross petition, plaintiff admitted the execution of the contracts, but denied the other allegations of the cross petition; set out the duties of defendant under the contracts; alleged that he had failed and refused to carry out and perform the provisions and agreements set forth in the contracts, and neglected the business of plaintiff; that his services were unsatisfactory and of no value, and that plaintiff was obliged and did procure and establish other representation in said territory of its products about June 1, 1931.
The evidence disclosed that by the terms of the contracts defendant agreed—
“To diligently canvass, sell and service, to thoroughly advertise Case implements in local newspapers, and in all reasonable and proper ways promote the trade and interest of the company ... to thoroughly distribute in the vicinity such catalogues, circulars, folders and other advertising matter as the company may furnish; ... to cany on a continuous sales campaign on Case machines and attachments by (a) personally canvassing five days per week, (b) having one salesman canvass five days per week and report to the Case company’s branch at the end of each week the names of the persons canvassed, and the machines sold or in which each prospect is interested. To make two demonstrations of Case tractors and tractor-drawn implements. To set up and start all machinery sold under sales contracts. ... To render any service required by users on all Case products, and for this purpose provide one competent serviceman, all necessary tools for use in both field and workshop, and an adequate space as workshop in the dealer’s place of business.”
It further provided that should defendant—
“Fail to comply with any of the terms hereof, . . . then the company shall be entitled at its option, ... to terminate this agreement.”
Defendant’s evidence disclosed that he had resided at Dodge City six years; that soon after the contracts were executed he went to work canvassing from house to house and called on farmers in practically every house south of the river within five or six miles, talked to about three hundred people, some of them more than once; that north of the river he canvassed» a part of the territory himself, and after April first employed another man, who canvassed in the territory, mostly north of the river, for about seven weeks, whose salary and expenses amounted to $225, which defendant paid; that he met a number of persons in town and showed them the machinery; that he had no other occupation, but devoted his entire time to plaintiff’s business; that he spent about $120 for advertising; that he distributed catalogues and circulars sent him by the plaintiff; that he took part in the Dodge City tractor show at an expense of about $90; that he drove his own car about six thousand miles in canvassing the territory; that he did not make weekly reports each week of the canvassing done, but did send lists several times for several weeks; that he arranged for the services of a competent service man, who had tools and equipment for that purpose, and used him as needed; that beginning April first he rented from plaintiff a room from which to conduct his business and paid rent at $50 per month; that about February 2, 1931, he had a talk at Dodge City with plaintiff’s Kansas City manager, its assistant manager and one of its factory men. At that time they talked to defendant about another kind of contract in which he was not interested. They then advised that they would go ahead with the contract for the remainder of its term, at which time the change would be made either with the defendant or someone else. There was evidence that the farmers usually buy machinery a month or two before harvest, and usually buy repairs in April or May, but bought later than usual that year because of the shortage of money. Defendant received commission on repairs sold in April about $60 and on repairs sold in May $280. Plaintiff had not at any time complained to defendant that he was not canvassing the territory or not making reports, or that in any other respect he was not complying with the provisions of the contracts. On June 1, 1931, plaintiff wrote defendant:
“We wish to advise for your information! that we are to-day canceling and terminating your contract with this company, effective June 3d, and wish you to be governed accordingly. This, for the reason that we do not feel you are fulfilling the terms of same.”
In sustaining plaintiff’s demurrer to defendant’s evidence the court expressed the view that plaintiff was justified, as a matter of law, in canceling the contracts because of defendant’s failure fully to comply with its provisions, particularly in not canvassing the territory earlier and more thoroughly and in not making reports to plaintiff each week of the names of persons canvassed and the machines in which each prospect was interested. The court granted the new trial upon the ground that the question whether plaintiff, by its course of dealing with defendant, was estopped from canceling the contracts because defendant had not strictly complied with their provisions, was a question for the jury.
Appellant first complains that the court admitted evidence of the conversation between defendant and the manager and other representatives of the plaintiff in February, 1931. Appellant filed no motion for a new trial in this case and is not in a position to raise this question. More than that, we see nothing wrong with the testimony. It had to do with the relations of the parties under the contracts here in question and was competent for that reason if for no other.
Appellant’s principal contention is that the court erred in granting a new trial for the reasons stated by the court. It argues that the testimony of the conversations between defendant and plaintiff’s manager and others, above referred to, was the only thing tending to show estoppel on the part of plaintiff to insist upon the strict compliance with its contracts. That is taking too narrow a view of the evidence. While the contracts stated several reasons which would justify plaintiff, at its option, to terminate the contracts, the one mainly relied upon here is the failure of defendant to make weekly reports of the persons canvassed, with their names, and a statement of the machinery in which they were interested. There is also a general complaint that defendant was not as active as he should have been in canvassing the territory, in advertising plaintiff’s machinery, and in conducting demonstrations. While defendant’s activities in these respects were not all they could have been, they are not so wanting as to justify the court in saying, as a matter of law, that plaintiff could terminate the contracts by reason thereof. There was, however, a substantial failure with respect to making the' weekly reports. Plaintiff could not help knowing these reports were not made weekly, yet it made no complaint to defendant of his dereliction in that regard, but permitted him to go ahead spending all his own time and, in addition thereto, several hundred dollars in cash advertising and demonstrating plaintiff’s machinery. It rented him a room in which to conduct business, for which it charged and collected $50 a month after April first, and paid him commissions on business transacted, and then, at the beginning of what was really the selling season for the year, terminated his contracts. From the very nature of things plaintiff was putting in his time and expending money for five months with the hope that his commissions during the selling season would reimburse him for his expenditures and compensate him for his services. To justify a termination of the contracts at that time there should be something more than the failure to make the weekly reports — a thing which plaintiff had known about for months and concerning which it had never previously complained. We think the court was correct in saying there was evidence from which a jury might find, from its course of dealing with defendant, plaintiff had become estopped from insisting on the literal interpretation of its contracts with respect to weekly reports, or had waived its right to cancel the contracts by reason thereof. (Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519; Harpham Brothers Co. v. Perry, 118 Kan. 457, 235 Pac. 1039; Hurlbut v. Butte-Kan. Co., 120 Kan. 205, 343 Pac. 234.)
Ordinarily we do not reverse trial courts for granting new trials. Unless the reason for granting a new trial is clearly one of law, which does not involve the discretion of the trial court or the weighing of evidence, and the trial court’s ruling on the question of law is erroneous, the order granting the new trial should not be disturbed. (Hawks v. Railway Co., 100 Kan. 529, 165 Pac. 275; Stillie v. Stillie, 115 Kan. 420, 223 Pac. 281; Armourdale State Bank v. Hoel, 120 Kan. 130, 242 Pac. 481.)
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The opinion of the court was delivered by
Smith, J.:
This was an action to collect the amount of a life insurance policy. Judgment was for plaintiff. Defendant appeals.
Mile Milinkovich carried a policy on his life in the defendant company. He died November 17, 1929. Nick Supica, his cousin, was the beneficiary. He also paid the premium. John Yuratovich, a field man for the company, did the collecting. The policy provided that the premium should be payable semiannually. One semiannual installment of $18.94 became due June 19,1929. Supica claims that he met Yuratovich in the alley on July 8, 1929, and paid him $10 to apply on this premium. The defendant denied that this payment was made on the policy in question, and claims that even if it was it did not operate to keep it in effect. The argument of defendant is that since the contract of insurance provided that the premium should be paid semiannually, to permit the payment of any less than a semiannual premium would be in effect making a new contract for the parties. The argument of the plaintiff is that when the company, through its agent, accepted and retained an amount less than that necessary to make a semiannual payment it was its duty to apply the amount received to keep the policy in effect for whatever time the amount received would pay for.
The case was tried to a jury which found that Supica paid the $10 on July 8, 1929; that he told Yuratovich to apply it on the Milinkovich policy, and that the amount necessary for a quarterly payment was $9.66. The jury answered further special questions as follows:
“6. Did M. Hetherington, clerk of defendant insurance company, in charge of addressing and mailing notices of premiums due, on August 2, 1929, duly mail on behalf of defendant company a printed notice under date of August 2, 1929, at New York to Mile Milinkovich, the person whose life was insured under the policy in suit, to the address of Mile Milinkovich, 80 North First Street, Kansas City, Kansas, that the premium thereon of $18.94, due June 19, 1929, was due and unpaid, and that defendant company intended at the expiration of thirty days from August 2, 1929, to forfeit and cancel said policy for nonpayment of said premium, subject, however, to any provisions contained in said policy which are intended under certain conditions to prevent its forfeiture and cancellation? A. Yes.
“7. Did the defendant mail Milinkovich any notice of its intention to forfeit or cancel his policy after August 2, 1929? A. No.
“8. Did Mile Milinkovich or Nick Supica or anyone for said Milinkovich, at any time pay the premium of $18.94, less a dividend of $4.42, or the sum of $14.52, due June 19, 1929, on the policy of insurance in question? A. No, but evidence showed $10 part payment.”
The general verdict and judgment was for the full amount of the policy, less a loan that had been made on it.
The defendant raised the contested point at every stage of the case and makes several assignments of error, but the only question to be answered is the one to which reference has been made.
There is no contention but that the policy provided in clear and unambiguous language that the premium should be paid semiannually. This amounts to a binding agreement on the part of the policyholder to pay semiannually. Does the receipt and retention by the company of an amount less than the semiannual premium operate to keep the policy in force for a length of time in the proportion that the amount paid bears to the amount due?
The question may be treated under the fundamental rules relating to contracts. In Richards on Insurance, 4th ed., the rule is stated as follows:
“A court must not use its discretion to modify the conditions or provisions of the contract entered into by the parties in order to effectuate what it might consider a more equitable arrangement than that resulting from an enforcement of the strict terms of the policy.” (§ 70.)
C. J. lays down the rule as follows:
“Where instead of payment of the entire premium at one time, provision is made in the contract of insurance or policy for payment in installments, annually, semiannually, quarterly, monthly, or weekly, as the case may be, each installment must be paid when it falls due according to the terms of the contract in order to keep the policy in. force, except where such payment may have been excused or waived by the company.” (32 C.- J. 1196.)
Also,' ' ' '
“In the absence of an agreement to the contrary, a partial payment of a premium due at a particular time is of no effect. So, where, under the terms of a premium note, the company is entitled to collect premiums so far as earned, the acceptance of a.payment on the note which is less than the earned premium' at the time the policy is forfeited will not keep the policy alive.” (32 C. J. 1312.)
In Willcutts v. Northwestern Mutual Life. Ins. Co., 81 Ind. 300, the court dealt with this question'. There the insured 'was paying his premium by services as an examining physician. He paid the first semiannual premium in that manner and claimed that he was entitled to a credit of $3 on the second premium. The company refused to allow the credit and forfeited the policy. The doctor argued, among other things, that payment of the $3 should have entitled the insured to a proportionate amount of insurance. The policy provided in express terms for semiannual payment of premiums. The court said:
“If it were conceded that the evidence warrants the inference that the sum of S3 due the insured for services as medical examiner was accepted in payment, it would not entitle the beneficiary to recover a proportionate share of the insurance. The rights of the parties are fixed and defined by. the written contract, and unless there is a new contract made modifying or abrogating the original, it must control. We know of no case applying -to su’ch a policy of insurance as that under construction, the rule that where services are performed under an express contract their reasonable value can be recovered under a quantum valebat although there is not a full performance.” (p. 305.)
In dealing with' a similar question, the court, in Hudson v. Knickerbocker Life Ins. Co., 28 N. J. Eq. 167, said:
“Contracts of insurance are construed and enforced in the same manner that other contracts are. There is nothing in the subject matter of such contracts relieving them from the operation of the legal principles which govern other contracts. If the parties have expressed their mutual purpose in clear and unambiguous language the court has no duty of interpretation to perform, but must then confine itself simply to the duty of carrying into effect the intention of the parties. It has no power to release them from unwise or imprudent engagements untainted by fraud, or to make new contracts for them.” (p. 168.)
The question is treated in Slocum v. New York Life Ins. Co., 228 U. S. 364. In that cáse the annual premium became due and part of it was paid in cash. The arrangement was that the balance should be paid by the giving of a note. This note was not signed when insured died. On a suit to collect the amount of the policy it was urged that the payment of part'of the policy kept the policy alive. The headnote of the case, as stated in 57 L. Ed. 879, which deals with this question, is as follows:
“1. Partial payment of a life insurance premium when not within the contemplation of the policy is not effective to keep the policy in force unless the agent, when receiving such partial payment, does something in that connection which operates as a waiver of full and timely payment.
“2. One who deals with an agent, knowing that he is clothed with a circumscribed authority, and that his act transcends his powers, cannot hold his principal; and this is true whether the agent is a general or special one, for a principal may limit the authority of one as well as of the other.”
In the case under consideration there was no evidence that the agent to whom the money was paid was anything more than a selling and collecting agent. He was not clothed with any powers of a general agency. He represented the company only for the purpose of taking applications for insurance and collecting premiums. This latter power was circumscribed by a provision in the policy of which plaintiff was bound to take notice, that payments were invalid unless made in exchange for an official home-office receipt signed by an executive officer of the company and properly countersigned. No such receipt as this was given Supica.
There is no more reason why the courts should modify a plain and unambiguous insurance contract than that they should write a new contract for any other parties. No inequity has been pointed out here. The stability of the insurance business depends on the company being able to calculate the returns from its business to a nicety. To do this it is necessary that actuaries should know that premiums will be paid promptly. Policy forms are scrutinized carefully by state agencies with the idea that inequitable provisions shall not be included. There are liberal provisions about changing the time of payment of premiums from semiannual to quarterly. In view of all these circumstances the courts should hesitate to write a new contract for parties after a loss has occurred.
An examination of the record has convinced us that the demurrer to the evidence of plaintiff should have been sustained.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel defendant to take the necessary steps to comply with a recent act of the legislature, House bill No. 745, which went into effect March 31, 1933, and is printed in the footnotes. Defendant has demurred and thereby raised questions as to the validity of the act; also, some questions are presented about its construction.
The act pertains to the indebtedness of subdivisions of the state authorized by law to raise money by taxation and to expend the money so raised in performing their respective governmental functions. Broadly speaking, it is designed to have such governmental units operate their respective functions on a cash basis — not to spend money they do not have or incur obligations they cannot meet promptly. Some of them, for one reason or another, had not been doing that, but had conducted their business somewhat on a credit basis. In some, proper books had not been kept, or sufficient publicity given, so that its citizens could know its financial status. It was thought waste, extravagance and an undue burden on taxpayers resulted from such methods of doing business, and the legislature deemed it prudent to change such practices and put all such governmental units on a cash basis. To do this it was necessary to have a starting point. So a date was named — the close of business April 30, 1933 — when each of the governmental units was required to take stock, as it were, of its financial status; determine •its then valid existing indebtedness (not counting bonds issued, indebtedness of municipally owned utilities, and unliquidated claims in tort); also, to determine moneys on hand or accruing, and estimate taxes which should be received by July 1, 1933. If it finds it does not have sufficient money available to pay its valid existing indebtedness it is authorized to issue bonds in an amount sufficient to pay such indebtedness. All of this is the exercise of valid legislative functions. It remains to be determined whether the statute is invalid for any of the reasons soon to be mentioned. Defendant contends it is invalid for the reasons:
First. That the provisions (sections 4 and 5) for the summary hearing' on the allowance of claims by the district court, without a jury, violates our constitution (bill of rights, § 5) — “The right of trial by jury shall be inviolate.” There may be several answers to this, but one good one is enough. All controversies over allowing, or refusing to allow, claims against a governmental unit “shall be docketed in one composite cause” in the district court. The real matter to be determined by the court is the amount of the valid existing indebtedness of the governmental unit on the date of April 30, 1933, in so far as any controversy respecting such indebtedness has arisen. The proceeding is equitable in its nature, much like a hearing in an insolvency proceeding. In fact, the act is predicated upon the view that some of our governmental units owe more than they can pay from their income under existing statutes, and are in a situation comparable to insolvency. Hence, a procedure of that nature was provided for the determination of their financial status, when a controversy arose concerning it. More than that, it is suggested this manner of establishing a claim is not made exclusive by the act. But we need not determine that question now. It is sufficient to hold, as we do, that the act of the legislature in question is not invalid, on the ground that it provides for the hearing of controversies over questioned claims against a governmental unit in a composite cause by the district court without a jury.
Second. That the provision (sec. 10) by which the governmental unit may pay an indebtedness by giving the one to whom it is indebted a bond for the amount of the debt is bad,’ on the ground that it violated contract obligations. Creditors of such governmental units are bound to know the statutory provision relating to their incomes, and when they exhaust their incomes and incur additional indebtedness, the legislature may in some way provide for their relief, and a common way to provide such relief is by a bond issue. Since no one is before us who had refused to take bonds in payment of an indebtedness to him, his right to so refuse cannot be determined. As a purely academic question, and as to some debts by reason of the circumstances under which they accrued or are evidenced, perhaps the statute may be said to violate his contract rights, unless the creditor consented thereto. We apprehend, however, that most of the debts to be paid by bonds, or the proceeds of bonds, are current obligations which have accrued recently, and that the question concerning them would not arise. No doubt the legislature contemplated that both the officers of the governmental unit and its creditors would cooperate in a spirit of good faith to carry out the beneficial purposes of the act. If a creditor — and perhaps there may be some — were in position to do so and were to insist on his strict legal rights, perhaps he would be entitled to payment instead of bonds, and could not be required to take bonds unless he consented thereto. The presumption is the legislature intended to pass a valid act, and if there is a reasonable way to construe it so that it is valid instead of invalid, that construction will be given it by the court. By construing the statute that the consent of the creditor to take bonds is necessary in the instances where he could, under the law, decline to take them, there is no invalidity in the statute. More than that, the entire section is optional and is only a substitute for other provisions for the issuing and sale of bonds and the payment of debts from the proceeds thereof.
Third. That the act (sec. 11) authorizes a wrongful diversion of money raised by taxation, in violation of our constitution (art. 11, §4), which provides that a tax shall be applied to the object for which it was levied. This section provides that money derived from taxes payable prior to July ], 1933, distributable to the funds against which indebtedness has been refunded, may be applied to the retirement of such bonds, or set up in the fund for which it was levied and used for current expenses thereof. It is argued that the taxes so received might not have been levied for the fund for which bonds were issued and if applied to retire bonds would be a wrongful diversion. That would be a strained construction of the statute, and obviously one not contemplated by the legislature. As we construe it the section simply means that if taxes, say from the general fund, were received from April 30 to July 1, they might be set up in that fund and used for current expenses, or if bonds had been issued for debts owing from the general fund, the money so received, or a part of it, could be applied on retiring such bonds. If no bonds had been issued because of debts in the general fund the_ money could not be applied to retire such bonds.
Fourth. R. S. 72-1705 provides a limit on the amount of bonds issued under the authority of the 'vote of the people in certain governmental units to three per cent of the value of the taxable property. It is argued this act may authorize bonds to be issued in such an amount that, together with bonds now outstanding, the total will exceed three per cent of the taxable property in the governmental unit, and this will affect the value of bonds already issued. The point lacks substantial merit, for the reason that a limitation on the amount of bonds a governmental unit may issue is a statutory limitation, not a constitutional one. The legislature may change it. The holders of bonds previously issued are bound to know that. Again, it is purely speculative that it would have the effect contended. Again, this act specifically provides (sec. 8): “None of the debt or bond limitations provided by law shall apply to bonds issued under this act.”
Fifth. Statute of limitations. It is argued the act has unreasonably reduced the statute of limitations for establishing claims. It provides they should be presented by May 15. This is about forty-five days after the statute became effective, March 31. This question is quite academic, particularly in view of the fact that no one is here complaining that he did not have time to present his claim. As previously noted, most of these claims will be for current expenses, which normally could be presented promptly. It is conceded that the legislature may change the statute of limitations without destroying property rights, if the period provided is not unreasonably short. It is suggested that certain counties have a county auditor, and the statutes relating to them provide that claims against the county shall be audited. We do not determine the question whether an audit is essential under this act, but if it is, that would not prevent a creditor from filing, his claim. Nothing is presented to us now that would justify us in holding the act to be invalid for this reason. If in the future some creditor should contend that his property rights had been infringed by the shortness of time for presenting his claim, the validity of this provision, as it affects him, may be determined.
Sixth. That the title to the act violates our constitution (art. 2, §16) in that it contains two or more subjects. We think it is not open to that objection. All provisions of the act relate to indebtedness of governmental units.
Seventh. That there is a wrongful delegation of legislative authority to the state tax commission (sec. 16) by reason of which the act does not have uniform operation throughout the state'. The fact that the state tax commission is given some administrative duties with respect to the act does not prevent it from having uniform operation throughout the state. It is argued the state tax commission is without a guide for its action, hence that it may act capriciously or arbitrarily; that it might use one basis for action in one case and another in another. But this cannot reasonably be said. The act provides that any municipality which “shall become unable to go upon or continue to operate” under the act may make application to the state tax commission, “setting forth all the facts,” and the state tax commission shall promptly hear the matter and grant or deny temporary exemption from compliance with the act, but shall make “findings of fact in detail showing all the conditions, facts and circumstances” upon which the application is based and upon which its ruling is founded. The guide set forth in the statute is the inability of the municipality to function under the act. Because of varied facts which might create such an inability the legislature wisely did not undertake to enumerate them, but required them to be set out and specifically found. We see nothing seriously wrong with this provision. As tending to support this view, see Barber County v. Bank Commissioner, 113 Kan. 180, 213 Pac. 1054.
Eighth. Date of the bond. The act does not specifically provide the date of the issue of the bonds.' They are made, of course, to take up indebtedness accrued April 30, but under the act they might be issued of the date of July 1. The act is not invalid by reason of not fixing the specific date. Whether they are predated or postdated does not seriously affect their validity, the only point being that they should be handled so that there is not a duplication of interest computation.
Ninth. Current expenses to July 1. A query is presented as to contracts of employment for a term extending after April 30, whether the amount of the bonds should include compensation for services after that date. The act seems to make it clear that the computation should be only “for services rendered and material furnished prior to the close of business on the last day of April, 1933.” The act as a whole contemplates something in the nature of striking of a balance as of that date, and either the paying of indebtedness then due and payable or funding the same. The same thing would apply to expenses of complying with the act, such as issuing bonds and the like. If services had been performed and material furnished and claims therefor were due and payable on April 30, they should be taken into account, otherwise not.
A number of other questions are propounded to us which may or may not arise in the carrying out of the .statute. Interested parties may consult their attorneys about those. If an actual controversy arises between parties directly affected by any of such questions, they will find a way to present it for decision.
The act is not void for any reason suggested. The writ prayed for will issue, on prsecipe therefor.
Providing for the Funding of Indebtedness of Cities, Counties, Townships, School Districts and Drainage Districts.
(House Bill No. 745.)
An Act in reference to indebtedness of cities, counties, townships, boards of education, municipal universities, school districts, high-school districts, drainage districts, and other municipalities, and providing for the funding of the same, and prohibiting the drawing of warrants or making of contracts under certain circumstances, and providing penalties for the violation of this act.
Be it enacted by the Legislature of the State of Kansas:
Section 1. The following words, terms and phrases, when used in this act, shall, for the purpose of this act, have the meanings respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning: (a) “Municipality” shall be construed and held to mean county, township, city, board of education, municipal university, school district, high-school district, drainage district, and any other similar political subdivision or taxing district of the state, (b) The words “governing body” shall be construed and held to mean board of county commissioners of any county, township board of any township, mayor and councilmen or board of commissioners of any city, board of education of any city, school board of any school district, board of trustees of any high school, board of regents of any municipal university, board of directors of any drainage district, board of park commissioners of any city, and any other governing body or board of a municipality having authority under the laws of this state to create indebtedness against the municipality, (c) The word “person” shall be construed and held to mean persons, partnerships, associations and corporations. (d) The word “claim” shall be construed and held to mean any claim arising on contract express or implied, or a claim determined by final judgment, but shall not include claims arising from alleged tort or negligence on the part of the municipal^.
Sec. 2. All municipalities are required to pay or refinance their valid indebtedness as in this act provided, in the manner and at the times herein set forth, and to contract no indebtedness after May 1, 1933, except as herein provided. It is hereby declared that the purpose of this act is to provide for the funding and payment of all legal debts and obligations except present bonded indebtedness of all municipalities and for the future conduct of the financial affairs of such municipality upon a cash basis.
Sec. 3. On or before the first day of May, 1933, the governing body of any municipality having outstanding indebtedness other than bonded indebtedness, shall make and compile or cause to be made and compiled a full, complete and detailed financial statement containing at least the following information as to the financial condition of the municipality as of April 30„ 1933:
(A) Amount of registered warrants and accrued interest thereon classified by funds and years of issue.
(B) Amount of overdrawn funds other than bond funds for which a tax levy was made for the current tax year, showing each fund and the amount of its overdraft separately.
(C) Amount of overdrawn bond funds, and funds which should later be transferred to bond funds listed in such a manner that the net overdraft of all such funds is shown.
(D) Amount of all overdrawn funds for which no tax levy was made for the current year, showing each fund and the amount of its overdraft separately.
(E) Amounts collected by tax levy for sinking funds but which were expended for purposes other than that for which the tax was levied.
(F) Amounts of all valid claims against the municipality for services rendered or material furnished prior to the close of business on the last day of April, 1933, for which no warrant, check, or other form of payment of indebtedness has been issued, showing each separately, giving date, name of creditor, nature of claim and amount.
(G) Amounts of all other indebtedness of such municipality not secured by bonds and not enumerated above which were valid obligations of the municipality at the close of business on the last day of April, 1933, giving date, the name of the creditor, a short statement of what the indebtedness is for and the amount of each such indebtedness.
In addition to the foregoing statement of debits, a statement of all moneys on liando where and how kept and of all moneys accruing or which shall accrue tó the municipality from any source whatsoever (except taxation) before JuU 1, 1933, and an estimate showing the amount of taxes uncollected, delinquent and in process of collection which should be paid before July 1, 1933. The clerk and treasurer respectively of each municipality and any other officer of such municipality of whom the governing body shall request any information shall promptly and accurately supply the same to the governing body, all excuses and delays set aside, over their signature and oath, so that such statement may be prepared, posted and published on the first day of May, 1933, as herein provided.
Sec. 4. The governing body of any municipality having any of the items of outstanding indebtedness mentioned in section 3 hereof shall, on or before May 5, 1933, post a notice in as many and at the same places within its territory as were used for voting places at the last general election, and at the office of its treasurer and clerk and at each schoolhouse and make publication of a similar notice in a newspaper inside the county, qualified to print legal publications, for three consecutive weeks, the first publication being in the first issue for legal publications of said paper subsequent to May 1, 1933. Such notice so posted and published shall contain not only the complete financial statement herein required, with full and complete totals and additions of the several items, but shall state that on or before the third Monday in June, 1933, a resolution will be duly passed and proceedings instituted for the issuance and sale of refunding bonds of such municipality to the amount necessary to retire and discharge such indebtedness existing on April 30, 1933, with interest to July 1, 1933, where interest is payable, said bonds to be issued and sold in the same manner as now provided by law for the issue and sale of municipal bonds. Said notice shall likewise contain the statement that any person claiming to be a creditor of such municipality whose claim or demand is not shown upon such posted or published statement must present to the governing body a duly verified voucher covering the said claim or demand on or before May 15, 1933, and such governing body shall upon said date assemble for the purpose of passing upon all claims so presented and shall either allow or disallow the same. If allowed, such claims shall thereupon be added to the list of indebtedness to be liquidated and refunded; if dis allowed the claimant shall have the right to appeal to the district court of the county by filing with the clerk of the governing body a notice of appeal within five days from the date of such disallowance and thereupon said claim and all papers, records, and other matters pertaining thereto shall forthwith be certified by the clerk of the governing body to the clerk of the district court of the county where the same shall be docketed in one composite cause for all appeals from said municipality and the district court without a jury, shall thereafter and between the 1st and 15th days of June, 1933, summarily hear and determine all such appeals and render judgment thereon which judgment shall be by the clerk of the district court duly certified back to the clerk of such municipality and the financial statement so posted and published corrected and amended accordingly. All claims not presented as above provided (except unliquidated claims for damages) shall be barred and shall no longer constitute a valid and existing indebtedness of the municipality.
Sec. 5. No claims shall be listed upon or included in said statement or posted or published notice nor added thereto as amendments nor. included in the final completed statement for payment and liquidation except valid legal claims against the municipality for which it is legally liable. If any claims shall be included in said statement or shall be allowed by the governing body which are not valid and legal claims and which are objected to by any person, such objections shall likewise be presented to the governing body at the meeting which is hereby required to be held and on that date such objections shall be presented and decided by the governing body; and from such decision any ten (10) taxpayers may appeal to the district court in the same manner as appeals are provided in the case of claims and demands and shall be by the district clerk docketed in the same composite cause as claims and demands are docketed against any municipality, and shall be presented to and heard by the district court without a jury and decided and the judgment certified back to the clerk of the municipality as in the case of claims and demands.
Sec. 6. All matters appealed to the district court must be decided by June 15, 1933, and the decision certified to the governing body on or before the 17th day of June, 1933, and on the 19th day of June, 1933, said governing body shall meet and shall amend and rectify such financial statement in accordance with any judgment or judgments of the district court and shall make and post, as in the case of the first statement, amended copies thereof and cause the same to be printed in one issue of the same newspaper in which the original published notice was printed. An appeal may be taken from the decision of the district court in the same manner as appeals in civil cases, and in the event any appeal is taken the claim or claims involved in such appeal shall not be included in the amount of indebtedness for which bonds are to be issued, but no injunction or other proceedings shall be had to stay the issuance of such bonds pending the determination of said appeal; and if, upon final determination of said appeal, the claim or claims against the municipality shall be allowed, such municipality shall, and it is hereby authorized, to issue additional bonds under the provisions of this act to fund the claim or claims so allowed.
Sec. 7. Any municipality which has complied with all the provisions of this act is hereby authorized to fund such indebtedness (viz., the indebtedness as shown on the final published statement of the municipality), including the accrued interest thereon, if any, to July 1, 1933, and to issue bonds of the municipality for the purpose of paying or refinancing said indebtedness.
Sec. 8. All bonds issued under the provisions of this act shall bear interest at the rate of not more than five per centum per annum, and shall be issued in denominations of fifty dollars ($50) or more and shall run for not less than two nor more than fifteen years, and shall mature serially in annual installments of approximately equal amounts. Such bonds shall be issued and sold in the same manner as provided by law for other municipal bonds (except that it shall not be necessary to offer said bonds for sale to the state school-fund commissioners); or the governing body of the municipality may use said bonds without sale, in payment of any of the indebtedness for which the same were issued or hereinafter provided. None of the debt or bond limitations provided by law shall apply to bonds issued under this act.
Sec. 9. Immediately upon the sale of such bonds and the receipt by the treasurer of the municipality of the proceeds thereof, the governing body shall proceed forthwith to pay off and discharge all of the indebtedness of such municipality as shown upon its final published statement, to the end that such municipality may, after May 1, 1933, operate on a cash basis, without other indebtedness or liabilities, except that covered by bonds previously issued or issued under the provisions of this act and this act shall be liberally construed for the achievement of said objectives. The proceeds of the sale of such bonds shall be used for the sole purpose of paying off and discharging the indebtedness of the municipality as shown upon its final published statement, and any balance remaining in the hands of the treasurer of the municipality after paying off and discharging such indebtedness shall be applied to the payment or retirement of said bonds and interest.
Sec. 10. If the governing body of any municipality shall desire to use said bonds directly in payment of all or any part of the indebtedness to pay and retire which the same were issued, instead of selling the same and paying the said indebtedness in cash, it may proceed to do so in the following manner. A resolution shall be adopted by the governing body and spread at length upon its journal, which resolution shall show its determination to pay debts by bonds instead of cash, the name of the creditor or creditors to be so paid, with the amount of their respective claims; and any numbers or other identifications thereof; the amount in bonds to be issued to each of said creditors, together with the numbers, dates, maturities and denomination of the bonds to be delivered to each of said creditors. Said bonds for the purpose of paying debts shall bear interest at the rate of not more than five per centum per annum and shall be computed at their present worth at date of delivery, which shall be the par value thereof, plus accrued interest, and the same may be exchanged in payment and liquidation of indebtedness, dollar for dollar and not otherwise, unless by separate agreement the creditor shall be willing to take less in payment of his claim and debt than the face value thereof. Any bonds used or disposed of in payment of debts shall be noted upon the bond register of the municipality, of the county clerk, and a minute thereof sent to the state auditor for notation on his register, showing the serial numbers of said bonds, the name of the creditor to whom delivered, and the amount of his claim thus paid. Where bonds are thus delivered to any creditor in discharge of debt, which is evidenced by any writing such as warrants, accounts or contracts of the municipality, all such warrants, contracts or writings shall be surrendered to the governing body simultaneously with the delivery of such bonds in payment thereof, duly marked canceled and paid, and such cancellation and payment shall be noted upon all other records of the municipality concerning the same. If such bonds are delivered in payment of indebtedness not evidenced by any writing except the voucher and/or claim of the creditor, such voucher and claim shall be marked paid in full by the creditor and proper notations thereof made on all records of the municipality concerning the same.
Sec. 11. The governing body of any municipality which issues any bonds under the provisions of this act is hereby authorized to make the necessary tax levies on all the property in such municipality which is taxable under the laws of this state, to pay such bonds and the interest thereon: Provided, That any money derived from taxes payable prior to July 1, 1933, distributable to the funds against which indebtedness has been refunded, may be applied to the payment or retirement of said bonds and interest or may be set up in the same fund for which it was originally levied and used for the current expenses thereof. Such funds so set up shall become and constitute operating funds to which shall be added all income for said funds after July 1, 1933, and from which all legal charges against said respective funds shall thereafter be made; and such funds shall not be construed as constituting “surplus funds” in determining the amount to be levied in any succeeding year.
Sec. 12. Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for the governing body of any municipality to create any indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose, or to authorize the issuance of any order, warrant, or check, or other evidence of such indebtedness of such municipality in excess of the funds actually on hand in the treasury of such municipality at the time for such purpose.
S'ec. 13. Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for any member of any governing body of any municipality to knowingly vote for or in any manner aid or promote the passage or adoption of any order, motion, ordinance, resolution, legislation or other act of said governing body, creating an indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose, or to knowingly vote for the drawing of any order, warrant or check, or other evidence of such indebtedness on the treasury of said municipality, in payment of any such indebtedness, in excess of the amount of funds actually on hand in the treasury at the time for such purpose.
Sec. 14. Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for the clerk or secretary of any governing body of any municipality to knowingly issue, attest, sign or countersign any order, warrant, check or other evidence of indebtedness, on the treasury of the municipality, in payment of any indebtedness of such municipality created by the governing body of such municipality in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose.
Sec. 15. Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for the treasurer of any municipality to knowingly pay any order, warrant, check or other evidence of indebtedness out of the treasury of such municipality in excess of the amount of funds actually on hand in the treasury at the time for such purpose.
Sec. 16. The provisions of this act shall not apply to contracts and indebtedness created, the payment for which has been authorized by a vote of the electors of the municipality, or where provision has been made for payment by the issuance of bonds as provided by law. The provisions of this act shall not apply to expenditures made for municipal-owned and operated utilities. The provisions of this act shall not apply to expenditures made in cases of extraordinary emergencies such as relief to the poor, the relief of destitution occasioned by famines, floods, fires, pestilence and vis major, in which case temporary emergency expenditures in excess of current revenue may be made in accordance with provisions of sections 79-1940 and 79-1941 of the Revised Statutes of Kansas of 1923. The board of education of any city, the board of regents of any municipal university, the school board of any school district, and the board of trustees of any high school may enter into contracts for teachers and other necessary employees, and continuing operating expenses in excess of the amount of funds actually on hand for that purpose: Provided, The total amount payable under all such contracts in force shall never exceed the amount actually expended for school purposes for the last preceding fiscal year during which school was conducted. It shall be unlawful for any member of any board of education of any city, school board of any school district, or board of trustees of any high school to knowingly vote for or in any manner aid or promote the entering into of any contract in violation of the provisions of this section: Provided further, That any municipality which, prior to January 1, 1934, shall become unable to go upon or continue to operate upon a cash basis as herein provided because of its inability to obtain operating funds, may make written application to the state tax commission setting forth all the facts 'and may be granted a special dispensation by the state tax commission temporarily exempting it from compliance with the provisions of sections 12 to 20, both inclusive of this act, and permitting such municipality to issue its warrants under the provisions of existing statutes under such limitations and restrictions as the tax commission shall. impose. Such application when made shall be signed by each member of the governing body of said municipality, shall be verified by one of them, and when filed, the tax commission shall set a date for a hearing thereon and cause notice of such hearing to be given by publication in a newspaper qualified to print legal publication for such municipality, which notice shall also be posted in at least five conspicuous places in such municipality, and on the date set for such hearing all parties interested for or against the application shall be heard by the commission. The commission shall promptly pass upon said application and either deny or grant the same in whole or in part and shall make findings of facts in detail showing alNof the conditions, facts and circumstances upon which such application is based, and upon which its ruling is founded and such findings shall be made a matter of record in the office of the tax commission and copied at full length in the journal of the municipality. No exemption hereunder shall extend beyond January 1, 1935, and all indebtedness created under this exception shall be paid from the first collection and distribution of taxes after said date and all indebtedness thus created shall be included in the next legal levy.
Sec. 17. It shall be the duty of the clerk or secretary of every governing body of every municipality to keep a record of the amount of money in the treasury and the particular fund in which such money is deposited and to keep a record of all. contracts creating a liability against the municipality, and a record of all indebtedness created by the governing body, in which record there shall be shown the date of the making of the contract or the creation of the debt, the amount of the contract or debt, the time payable, and the particular fund from which said payment is to be made, and the said clerk or secretary shall, upon the request of any member of the governing body of which he is clerk or secretary, or at the request of any taxpayer of such municipality or of any person desiring to enter into any contract with the municipality or who has any claim against the municipality, exhibit such records to such person, and any member of the governing body, and any person contracting with the said municipality shall be chargeable with knowledge of what said records contain.
Seo. 18. It shall be the duty of the treasurer of every municipality to keep a record of the amount of money on hand in the treasury, which record shall show at all times the amount of money in each particular fund, and each order, warrant, check or other evidence of indebtedness, drawn on the treasury and paid, giving the date of payment, and said treasurer shall, upon the request of any member of the governing body of such municipality or at the request of any taxpayer of such municipality or at the request of any person desiring to contract with such municipality or who has a claim against such municipality, exhibit such record to such person or give such person a statement in writing, showing the balances on hand in each of the funds of said municipality, and each member of the governing body and every person contracting with said municipality shall be chargeable with knowledge of what said records contain.
Sec. 19. Any contract entered into between the governing body of any municipality and any person, which violates the provisions of this act, shall be void, and any order, warrant, check or other evidence of indebtedness drawn on the treasurer of any municipality in violation of the provisions of this act shall be void.
Sec. 19a. The levying of a tax by any municipality which raises more money than is used or needed for the tax year shall not be the basis of a protest by any taxpayer and all such protests shall be of no force or effect.
Sec. 20. Any member of any governing body of any municipality or any clerk or secretary or treasurer of any governing body of any such municipality' who shall knowingly violate any of the provisions of this act shall be guilty of malfeasance in office and shall by such violation, be subject to be removed from office and in addition any member of such governing body or clerk or secretary or treasurer of such municipality who shall violate any of the provisions of this act, or neglect or refuse to perform any duty herein imposed, shall be deemed guilty of a misdemeanor, and upon conviction thereof in a court of competent jurisdiction shall be subject to a fine of not less than $10 nor more than $1,000.
Sec. 21. Should the courts declare any section, clause or provision of this act unconstitutional, the decision shall affect only the section, clause or provision so declared to be unconstitutional, and shall not affect any other section, clause or provision of this act.
Sec. 22. That this act shall take effect and be in force from and after its publication in the official state paper. | [
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The opinion of the court was delivered by
Dawson, J.:
These two actions, consolidated for trial, were brought to set aside deeds to certain lands and city property which a mother had conveyed to her daughters some six years before her death and which were not recorded during the mother’s lifetime.
The motive which prompted the actions was to uncover enough property in the mother’s otherwise insolvent estate to satisfy the debt of one of her sons, for which she had been accepted as coobligor on her repeated representations that she owned these properties and was collecting the rents therefrom.
Among the least controverted and pertinent facts of present concern were these:
In 1910 Thomas Martin, of Saline county, died intestate seized of 1,037 acres of land. He was survived by his widow, Julia Martin, and by seven sons and four daughters, some of whom were then under age. As the years went by deeds passed between these children and their mother, so that eventually she became sole owner of 640 acres of the lands of her deceased husband. At various times Julia mortgaged these lands, presumably to raise money to buy the interests of some of her children, and possibly to buy or build the residence in Salina in which she made her home for the last ten years preceding her death, which occurred in June, 1930.
In August, 1924, Julia made a deed to her daughter, Anna E. Martin, defendant in case No. 31,190, conveying 320 acres of land, valued by witnesses at $17,600 to $20,800, but subject to mortgages amounting to $7,000. The stated consideration was “one dollar, love and affection.” Anna, the grantee, who was then about 33 years of age, was an office woman and employed at intervals in Wilson, Salina and Kansas City. At the same time Julia made a deed to her daughter, Julia Florence Martin, defendant in case No. 31,191, conveying a quarter section and two eighty-acre tracts of land, and the city residence in Salina, valued by witnesses at $18,800 to $21,-700, but subject to mortgages aggregating $10,050. The stated consideration was “one dollar, love and affection.” Julia Florence, the grantee, was then 25 years of age. She lived with her mother and was employed in a business house in Salina.
These deeds were kept off the record until five days after the mother’s death.
During the interval between the execution of the deeds in 1924 until their recording on July 5, 1930, there was no apparent change in the dominion and control the mother had theretofore exercised over the properties. From time to time thereafter some of the mortgages covering these properties had to be renewed or substituted, and these the mother executed, representing herself as sole owner.
For a number of years she had repeatedly joined one of her sons in the execution of a note to the Fanners National Bank of Salina for borrowed money, and on its periodical renewals she made written and oral statements to the bank as a basis for such credit. Typical of these was one dated and signed by her on December 10, 1928, in which she listed her real estate (the 640 acres and the town residence involved in these actions) and answered questions thus:
“In whose name is title to above real estate recorded? Mine.
“Is real estate held in fee simple or leasehold? Fee simple.”
On another occasion, about 1926, she similarly listed her assets and liabilities to the same bank, in part thus:
“Assets.
“Bills (notes) receivable (all good)................................ $3,369
Growing crops:
Vs int. in 1401 acres of wheat.................................. 420
Vs int. in 40 acres oats and barley............................. 120
Household goods ................................................ 500
640 acres in Saline county at..................................... 45,000
House and lot in Salina, Kansas.................................. 8,000
Total assets ...........................................'....... $57,409
“Liabilities.
Borrowed money ................................................ $3,821
Notes indorsed for friends........................................ 1,072
Encumbrances on real estate...................................... 16,500
Total liabilities ............................................... $21,393
Net worth ...................................................... 36,016
Total ....................................................... $57,409”
Just what disposition was made of the deeds of 1924 to these defendants after their execution was one of the controverted questions of this lawsuit. Plaintiff had alternative theories, one that the deeds were never delivered by the grantor to the grantee during her life time, and the other theory that they were executed as a part of a scheme to defraud the creditors of Julia. Incidental to the latter theory was plaintiff’s contention that whether so intended or not, the conduct of the parties concerned in respect to the deeds operated to defraud the creditors of Julia who had extended credit to her on the faith of her representations (and of the record titles) that she did own the properties.
The notary who took the acknowledgment of the two deeds also served as scrivener. He testified that he supposed he handed them back to the grantor. The defendant, Julia Florence Martin, testified that her mother had a safety-deposit box in the Farmers National Bank in Salina to which she had access; that the deeds were kept in it until November, 1926, at which time she took out the one drawn in her favor and put it in the safe of her employer, the Salina Plumbing Company. She also testified that in 1928 she (defendant) gave the deed drawn in favor of her sister Anna to her and she took it to Kansas City.
There was, however, some testimony that the mother had informed certain members of the family about these conveyances to the defendants. A neighbor, Ryan, also testified that he had heard her tell his mother that “the McAuliffe place” belonged to Anna.
“I could not give her exact Words. I can give a kind of idea. Miss Anna Martin was present and she was working in Kansas City and Mrs. Martin was kind of teasing Anna about going back to Kansas City, said she ought to get a job and work here. She said if she cannot get a job she can move up here on her farm. She owns the McAuliffe place now, that is as near as I can recall the words. She said she owned it now, that is what she told me. I thought of this conversation some time last winter or last spring when one of the boys brought up the conversation. She did not say anything about the south half of section 7 [the land conveyed to Anna] that I recall, and I did not ask her anything about it.”
There was testimony which went into much detail touching various conveyances which passed between mother and children, whereby some of the latter obtained title to independent interests in the lands of Thomas, and showing how Julia, the mother, obtained the entire fee of the lands involved in these actions.
The trial court held that both deeds were invalid and ineffectual as against píaintiff and the creditors of the estate of Julia Martin, deceased, and judgment was entered accordingly.
Defendants appeal, urging certain errors:
1. The authority of plaintiff to bring the action was challenged below and is still challenged because when he was appointed administrator he did not give the statutory bond. It is not clear that this fact was squarely brought into the record below. Counsel for appellant stoutly assert that it was. Counsel for the appellee cite us to the transcript which shows that the files of the probate court which would show that fact were merely identified but never introduced. The transcript reads:
[Counsel for Defendants] : “Your honor please, we are objecting to the consideration or the introduction of the evidence as a whole for the purpose of establishing and the right to maintain this suit. I am referring to the papers of the case of Stanley, administrator of the estate of Julia Martin, deceased.
[Counsel for Plaintiff] : “Yes, but the pleadings admit the appointment, and that is the due appointment of the administrator.
“The Court : That was admitted in the answer.
[Counsel for Plaintiff] : “It is alleged and not denied under oath.
[Counsel for Defendants] : “We don’t have to deny it when the papers they introduce show he had no right to act. They have introduced those papers, which is the journal entry and they show, and we have a right to raise that under the face of the papers.
[Counsel for Plaintiff] : “I merely identified the papers. They weren’t introduced.
[Counsel for Defendants] : “They were all introduced.
“The Court: The record doesn’t show they were introduced at all.”
Probably this excerpt from the transcript is sufficient to dispose of this point; but it can be quite as effectively dealt with if we assume that the matter is regularly within the record. The order of the probate court, in part, read:
“In the Probate Court of Saline County, Kansas. In the Matter of the Estate of Julia Martin, Deceased.
“It is therefore by the court ordered that the said E. P. Stanley be and he is hereby appointed administrator of the estate of Julia Martin, deceased, and it appearing to the court that there are no cash assets or personal property in said estate, the said E. P. Stanley is not required to give bond until further orders of the court, but that he shall take his oath of office as required by law.”
This order was not subject to collateral attack. It is not like a case where the probate court lacks jurisdiction, as where the deceased intestate was not a resident of the county. A probate court— any court — does not deprive itself of jurisdiction by merely making an erroneous order. Assuming that so much of this order as attempted to excuse the named administrator from giving bond was erroneous, the proper way to set aside or correct such irregularity was by motion or other pertinent challenge in the probate court. Failing there, an appeal could be taken; but such appointment was quite invulnerable to collateral attack. (Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, syl. ¶ 1; Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 543-545, 117 Pac. 1028; Beresford v. Am. Coal Co., 124 Ia. 34, 70 L. R. A. 256; 23 C. J. 1077.) In 11 R. C. L. 57, 58, it is said:
“In most jurisdictions the failure of a person appointed administrator to give a bond does not render the letters of administration void. _ They are, for such reason, only irregular and voidable, and therefore are not subject to collateral attack, but merely give ground for an appeal. Hence the general rule is that a defect in the bond of an administrator does not vitiate his appointment nor invalidate his acts, and the omission of a surety from an administrator’s bond does not make void the grant of letters.”
2. Error is also assigned on the admission in evidence of oral and written statements of Julia Martin made long after the execution of the deeds in controversy. One objection urged against this evidence is that defendants were not bound by the declarations of their mother after the execution of these deeds. If by “execution” appellants mean signature and delivery (as in I Bouv. 3d rev., 1112) this contention begs the question of delivery, which was a controverted matter in this lawsuit. The evidence concerning the mother’s oral and written statements was competent on the question whether in fact the deeds had been delivered by her to her daughters in her lifetime. This evidence was also competent on the question of fraud involved in the mother’s procurement of credit upon the representations that she owned the properties. (Lumber Co. v. Cox, 94 Kan. 563, 147 Pac. 67.) There was no request that the probative significance of this evidence should be limited. (Sherman Co. Bank v. McDonald, 57 Kan. 358, 46 Pac. 703.) But even assuming that the mother made an unqualified delivery of the deeds to her defendant daughters, their withholding of them from record until after the mother’s death, their silence while she was executing new or renewal mortgages on these properties, or on some of them, which mortgages were recorded with the legal consequence that defendants had constructive notice of the mother’s continued assertion of title and exercise of dominion over' the properties — these considerations tended strongly to establish defendants’ passive assent to the fraud, whether designed or not, thus perpetrated on the mother’s creditors. These deeds, if effective from their dates in 1924, stripped the mother of virtually all her considerable property, leaving her nothing on which to live and pay her debts except a nominal amount of personalty and a small government pension.
In the early case of Hildreth v. Sands, 2 Johns. Ch. 35, 47, Chancellor Kent referred approvingly to an old English casé in'which it had been held that a deed not at first fraudulent may become so by being concealed so that creditors are thereby deluded -into lending their money.
Our own cases hold that an intent to defraud is not essential to the establishment of a cause of action attacking a conveyance which places property beyond the reach of creditors. (Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; Jennings & Sons Tire & Accessory Co. v. Farmer, 127 Kan. 164, 272 Pac. 167.) In Morehead v. Martin, 123 Kan. 612, 256 Pac. 995, the action was to restrain the sheriff from selling a quarter section of land which Martin’s judgment debtor had conveyed to her sister. The deed was kept off the record for four years. In affirming a judgment denying the relief sought, this court said:
“The circumstances of the execution of the deed — its being kept off the record, the want of any disclosed exercise of dominion over the property by plaintiff such as is usual in bona fide ownership, the want of any binding consideration for the conveyance — these and other incidental circumstances tended persuasively to convince the trial court that the conveyance was not genuine or indefeasible so far as concerned Mrs. Peintner’s judgment creditors. The court discerns no error in this case so far as the judgment rests on this conclusion of fact.” (p. 614.)
See, also, Wafer v. Harvey County Bank, 46 Kan. 597, 26 Pac. 1032; Bump on Fraudulent Conveyances, 4th ed., § 52 and citations; Glenn on Creditors’ Rights and Remedies, §§ 215, 216, and citations.
Counsel for defendants urge us to examine with care the annotation on the admissibility of statements derogatory to title after a grantor has parted therewith, in 1 A. L. R. 1240. This we have done, and also in Anno., Fraud on Creditors, Vendor’s Declarations, 64 A. L. R. 797-830; and in Anno., Fraudulent Conveyances, Voluntary, 17 A. L. R. 728-743; and we must hold that the mother’s declarations were competent on the theory of constructive or mutual fraud on creditors which flowed from the active and passive conduct of grantor and grantees in the circumstances narrated above. Those statements were' also competent on the theory that the deeds were not delivered in the mother’s lifetime. That there was some evidence of delivery is immaterial, as the trial court may not have be lieved it. Counsel refrained from asking the trial court for a specific finding on that highly important issue of fact.
3. Error is also urged on the overruling of the demurrer to the evidence. We fail to discern any error in such ruling. Counsel cite evidence which might have justified a different result from the one arrived at, if the trial court had given it generous credence. But that is of no consequence in this appeal. (Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883.) It is suggested that there was no evidence to show that Julia had made any property statement when she first j oined her son on his obligation to the bank in 1922 prior to the making of deeds in 1924. But that obligation was renewed from time to time, long after the deeds of 1924 were made or executed; and the inference is clear that Julia’s property statements were made to advise the bank whether it would be prudent to renew the loan to her son with herself as coobligor. Touching the matter of the burden of proof resting on plaintiff to show nondelivery, we think plaintiff did sustain it, or at least the trial -court was justified in that view. Moreover, it was fairer to defendants for the trial court to hold that the deeds were invalid as to creditors of Julia only. The court did not find it necessary to rule absolutely that there had not been delivery. That result is a point upon which defendants may felicitate themselves. It certainly leaves them nothing to complain about.
As part of the argument of counsel against the ruling on the demurrer, it is also argued that the fraud alleged was not proved. We cannot assent to that contention, but it is needless to repeat the facts and circumstances which constituted or resulted in the fraud. Another point is essayed, based on the want of evidence to show that Julia’s son could not pay his own debt to the bank. Julia, however, was more than a mere surety; she was a comaker with her son of the note which was the basis of the bank’s claim against her estate.
The other objections to the judgments in these cases have been duly considered, but we must hold them unavailing and calling for no further discussion.
Both judgments are affirmed. | [
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The opinion of the court was delivered by
Bxjrch, J.:
The action was one by plaintiff for damages for death of his son resulting from injuries received in a collision of automobiles. The verdict was for defendants, and plaintiff appeals.
On the night of August 8, 1931, Paul Wade was driving eastward in a Ford touring car on highway No. 160, west of Wellington. John Heasty was with Wade. As they approached rising ground, spoken of as a hill, south of Mayfield, they saw a Ford coupé in the road, headed toward the west, and recognized Floyd Anderson, who was changing a tire on the left rear wheel of the coupé. Wade and Heasty drove by, turned around, drove back, and parked their car behind Floyd’s car so the lights of their car would illuminate the rear end of his car.
On August 8 defendánt U. L. Thompson went in his automobile from his home in Medicine Lodge to Wellington to meet his daughter Mildred. With him was his daughter Lavon, who is also a defendant. About eleven o’clock at night they left Wellington for home. Lavon was driving the car, and her father was in the back seat. As they 'proceeded westward on No. 160 at a speed of thirty to thirty-five miles per hour, they came over the brow of the hill south of Mayfield and saw in the distance west of them the tail light of an automobile. Presently a car approached from the west with bright lights, which gradually blinded Lavon. She reduced the speed of her car to about twenty to twenty-five miles per hour, but kept it in motion forward. When the bright lights had passed by she saw a standing car ahead of her and about twenty feet away. She immediately applied the brakes and turned to the left, but was unsuccessful in avoiding a collision. Her car struck the Wade car, which in turn struck the Anderson car, and Floyd Anderson sustained injuries which caused his death.
The jury was not required to make special findings of fact. The evidence was irreconcilably conflicting with respect to important details of the accident, and under the well-understood rule regarding appellate review, the general verdict must be regarded as based on the evidence most favorable to defendants, and the inferences most favorable to defendants derivable from thé evidence.
Plaintiff requested an instruction to the jury that it was the duty of the driver of the Thompson car to stop when vision was inhibited by blinding lights of the car approaching from the west. If this were the peremptory rule governing night automobile driving, a person obliged to leave Topeka after dark to make a trip to Kansas City on highway U. S. No. 40 might not reach his destination much before morning. Clearly such a rule should not be applied to a driver who, notwithstanding the blinding lights, could know to a certainty there was no obstruction immediately beyond the point of relief from the dazzling lights. If a vigilant driver, proceeding at a moderate rate of speed, should be reasonably sure he might safely go forward without stopping, he would not necessarily be negligent in doing so. Therefore the question ultimately resolves itself into one of reasonable care under all the circumstances. In this instance the subject was fairly covered by an instruction to the jury that a motorist driving at night, unable to see bécause of bright lights of an approaching car, should correlate speed and ability to stop with ability to see.
The driver of the Thompson car saw the tail light of an automobile in the distance down the road ahead of her. She testified she was not able to determine definitely whether the light was stationary or was moving, but under the circumstances she described she believed the light was moving. There is room for the inference she saw the tail light of the Wade car as it moved in behind the Anderson car. Then the bright lights of the approaching car rendered her unable to see, and she reduced speed. When the bright lights passed by she was immediately confronted with obstruction to her progress. Her rate of speed, although reduced, had brought her unexpectedly to the Wade car. The jury and the district court were of the opinion she was not guilty of actionable negligence. While she did not exercise the highest vigilance, it is not easy to say there was no room for difference of opinion and the court should have taken the case from the jury on the ground she was guilty of negligence as a matter of law.
Leaving the subject of negligence on the part of defendants at one side, there was evidence warranting the jury in finding the accident would not have occurred but for the negligence of Floyd Anderson.
As indicated, John Heasty was in the Wade car, which approached the Anderson car from the west, passed by, turned around, and went back to the Anderson car. There was testimony that the highway was thirty-four feet wide, with ditches on each side. The Anderson car had a flat tire, and Floyd was changing the tire. Heasty testified as follows:
“We parked our car back of Floyd’s car with our lights on his left hind tire; our purpose in doing this was to give Floyd our lights.
“Q. When you pulled in behind him, how far to the west was his car from you? A. I should say about ten or fifteen feet.
“Q. Did you have any trouble going around Floyd’s car? A. Yes, sir.
“Q. Was his car obstructing the road? A. You had to turn out around it.”
The Wade car, whose tail light Lovan Thompson saw, was headed slightly toward the south. She was driving north of the center of the road about the same distance from the center as the Wade car, and she gave it as her judgment the south wheels of the Wade car were within two or three feet of the center of the road.
The court instructed the jury as follows:
“You are further instructed that the owner or operator of a motor vehicle upon a public highway has the right tó stop his vehicle in such highway, and where a motor vehicle is in need of examination or repairs and is able to proceed safely under its own power to the side of the highway, the operator in making a stop for repairs is under a duty to see that he selects a suitable place where his vehicle will not constitute an obstruction of the highway, or a source of danger to other users of the highway, and to exercise the caution, care and prudence that an ordinarily reasonable and prudent person would, or should, exercise in this respect, and the usual place for stopping or parking is at the side of the highway, on the right-hand side in the direction in which the automobile has been traveling, and as much out of the line of travel as possible, and off the main-traveled portion of the highway, when this may be done. The failure of one who stops his car for repairs to perform this duty in a reasonably careful and prudent manner would constitute negligence on his part and prevent a recovery for any injuries or loss which he might have sustained.”
Plaintiff does not complain of this instruction and could not well do so. The right front wheel of the Thompson car struck the left rear wheel of the Wade car, and it is a fair and reasonable inference that if the Anderson car had been at the side of the road where it should have been, the Thompson car would have passed safely by.
Plaintiff contends the court erred in giving an instruction to the jury on the subject of sudden emergency. Plaintiff requested instructions on the subjects of unavoidable accident and sudden emergency. The court gave admirable instructions on both subjects, and plaintiff is not now in position to complain.
In the instruction relating to sudden «emergency the court said a motorist should exercise every reasonable precaution to insure safety of others traveling on the highway, but the motorist may assume others using the highway will exercise ordinary care and will always be alert to avoid collision. Plaintiff complains of the latter part of this portion of the instruction.
In the opinion in the case of Ratcliffe v. Speith, 95 Kan. 823, 149 Pac. 740, this court said:
“It is true, also, that motorists may ordinarily assume that pedestrians or others using the street will exercise ordinary care. They have no right, however, to assume that the way will always be clear and travelers will always be alert to avoid collision. On the other hand, it is their duty to be vigilant and careful to avoid injuring those who are sharing the use of the streets with them.” (p. 825.)
That was said with respect to the conduct of a motorist who injured one of a group of children playing in the street on the way home from school. The syllabus of the decision reads:
“Ordinarily it is the duty of a person operating an automobile in a street in which there is a group of children playing not only to bring his automobile under control, but to give warning of approach and to manage his car with reference to the risk that children may not exercise the care for their own protection that adults are expected to exercise.” (Syl. j[ 1.)
Contributory negligence on the part of Floyd Anderson prevents recovery by his father, and for present purposes the action may be regarded as one by Floyd Anderson. Manifestly one chargeable with the duties and responsibilities of operator of a motor vehicle on a highway may not, in his own action against another motorist, relieve himself of the consequences of contributory negligence on the ground the defendant ought to have anticipated the plaintiff would be guilty of negligence contributing to his injury.
Plaintiff contends a new trial should have been granted because of prejudice and misconduct on the part of some of the jurors. Two or three of the jurors said they would not sign a verdict of guilty because plaintiff’s attorney had the case on a percentage basis and they would not give him a dime.
Public policy forbids that after the jury has tried the case the court shall, on motion for new trial, proceed to try the jury. A verdict may not be impeached by an inquiry which reaches a juror’s views or the reasons for those views (L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588), or which reaches what influenced those views (Matthews v. Langhofer, 110 Kan. 36, 202 Pac. 634; Jones v. Webber, 111 Kan. 650, 207 Pac. 837; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312). Besides that, the jury being what it is, jurors will act like human beings in the jury room, and will indulge in bluster and hyperbole and animated irrelevancies. Not only does the law presume a juror respects the obligation of his oath and votes his convictions, but generally he in fact does so; and due allowance must be made for some exuberance in jury-room discussion or the court must keep on granting new trials in important cases until a perfectly spiritless jury can be secured. In this instance there was some evidence that at no time did the jury regard Lavon Thompson as to blame for the accident. The district court doubtless knew its jury. In denying the motion for new trial the court said it was satisfied the verdict was correct and was the true verdict of the jury; and in the face of this finding this court cannot say plaintiff suffered prejudice to his substantial rights.
There is nothing else in the case of sufficient importance to require discussion.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a balance of money alleged to be due on oil royalties.
The defense included some special pleading, an accounting of the oil production and its proceeds, and an allegation that the actual amount due plaintiff had been tendered and declined.
On issues joined the controlling facts were developed without serious dispute. It appears that plaintiff had an interest in a tract of land in the southern part of McPherson county. Defendant held the lease thereof and had developed two producing oil wells thereon. For some time this oil was delivered and sold to the Prairie Pipe Line Company, which had gathering lines in the vicinity. Other lessees had producing wells thereabout, and several other pipe-line companies were receiving and buying oil in the same locality. There was a custom of “posting” the price which these buying and trans porting pipe-line companies would pay, and that posted price was generally regarded as the market price for oil in that area.
Prior to December 1,1930, when defendant turned its oil into the lines of the pipe-line company, the latter paid for it on division orders, and plaintiff regularly received his royalty share, which was one sixty-fourth of the total production from the lease of present concern. About that date difficulties of production control, falling prices, and shrinking markets began to affect the McPherson county oil field. The Prairie Pipe Line Company quit buying, and for some time defendant found it impossible to secure a buyer for its oil. It was further embarrassed by the necessity of pumping its oil wells to prevent their destruction. Eventually defendant negotiated arrangements with the Skelly Oil Company, which had a pipe line from the McPherson field to Valley Center, and with the Empire Pipe Line Company, which had a pipe line from Valley Center to El Dorado, whereby the transportation facilities of these companies could be had so that defendant could reach a market for its oil at El Dorado. For these services a charge of twelve and one-half cents per barrel was exacted (seven and one-half to Valley Center, and five cents to El Dorado). Division checks were made and tendered to plaintiff for his net share of the selling price, which was the posted price in the McPherson field less transportation charges to El Dorado. Plaintiff declined to accept the amount of royalties due him computed on that basis, insisting that he was entitled to one sixty-fourth of the proceeds of sales based on the posted price in the oil field without deduction for transportation charges to the El Dorado market.
This lawsuit followed. A jury was waived, the evidence adduced, the trial court made findings of fact and conclusions of law in favor of defendant and gave judgment accordingly.
Plaintiff appeals, urging various matters which will be noted as presented. He first calls attention to the lease, which contained the usual terms, including the recital that it was granted—
“For the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, towers, stations and structures thereon to produce, save and take care of said products, ...”
In consideration for the granting of the lease, the lessee agreed—
“1st. To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced • and saved from the leased premises.
"3d. . . . When requested by lessor, lessee shall bury his pipe lines below, plow depth.
“Lessee shall pay for damages caused by its operations to growing crops on said land.”
From these terms appellant argues that if and when it became impossible to find a buyer for the oil in the McPherson county field, it became defendant’s duty to build sufficient tanks on the leasehold to save and care for all the oil being produced thereon. According to this theory, so far as the exigencies of the situation required, the leased premises should have been turned into a “tank farm” for the storage of the oil. We think not. The lease contract was manifestly formulated on the assumption of both lessor and lessee that pipe-line facilities would be available in the vicinity to which wells developed on the premises could be connected. Sale and division of the proceeds of the oil runs were contemplated. Indeed, the lease contract fairly indicated the intention of the parties that the use of the land for farming purposes should not be materially affected. The pipe lines were to be buried below plow depth at the lessor’s request; and it was contemplated that crops were to be grown on the land, and any damages thereto were to be paid for. But of greater interpretative significance, we think, is the fact that in such oil and gas leases as the one before us, which was the familiar producer’s form which has been the subject of numberless lawsuits in this jurisdiction, the lessee’s duty to save and care for the oil and to deliver the lessor’s shares free of cost in the pipe line to which the lessor should connect his lines has never been construed to mean that the lessee should be bound to. construct an indefinite number of tanks on the leased premises for the storage of oil when the pipe-line carriers and oil-buyers went out of business. On this point we agree with the trial court’s conclusion, which reads:
“Such a construction, of the lease contracts would be eminently unfair . . and certainly was not within the contemplation of the parties when the lease was made.”
In the analogous case of Scott v. Steinberger, 113 Kan. 67, 213 Pac. 646, the lessee could find no buyer for the gas it had developed nor any pipe line in which to transport it, so it built a pipe line from the production field to certain markets where the gas was sold at fifteen cents per thousand cubic feet. It was shown that a proper charge for transporting the gas was seven cents per thousand, and that eight cents per thousand was a fair price at the point of production. The trial court held that the lessor was entitled to his royalty share of the selling price at the market, but this court ruled otherwise. The chief justice said:
“We think the parties contemplated, and the provision should be construed, that gas, if produced, should be measured and the price determined at the place where the wells were connected with pipe lines, and not at some distant market that might be found at the end of a pipe line remote from the field and where the cost of transportation might equal or exceed the value of the gas produced. If the pipe line had been built by defendants to Kansas City or Chicago, and the gas transported and marketed there at four or five times its value at the place of production, would it be contended that the price received at either of these distant markets should be the measure of defendant’s liability? • • • The lessor was entitled to one-eighth of all that was placed in the pipe lines for transportation purposes. Owing to its nature his share could not be set apart in kind and delivered to him. It could only be measured by a meter as it passed through a pipe which connected with the wells. . . . The place of measurement and for fixing the lessor’s share was at the connection with the pipe line. If there was a market price at the point of delivery, that would control, but if there was no market price there, then the lessor would be entitled to the reasonable value thereof, to be ascertained upon competent evidence.” (p. 69.)
Counsel for appellant press on our attention the case of Clark v. Slick Oil Co., 88 Okla. 55, where it was held that the expense of providing tanks, where oil in its natural state had to be treated in order to make it marketable and acceptable in the pipe liné, was chargeable to the lessee. We think our own precedent, Scott v. Steinberger, supra, has a much closer analogy to the one at bar than this Oklahoma case.
While it was not raised in the pleadings, the logical implication of appellant’s argument is that defendant’s liability is substantially the same as if it had been guilty of downright conversion of plaintiff’s share of the oil. He argues, “the measure of damages in this case, we think, is the value of the posted or market price of the oil taken by appellee in the Voshell field in McPherson county at the time it was so taken.” It is, of course, the rule in conversion that the wrongdoer is liable for the value of the property at the time and place of its conversion. (Gentry v. Kelly, 49 Kan. 82, 87, 88, 30 Pac. 186; 38 Cyc. 2092-2094.) So, if the disposition of plaintiff’s royalty oil which defendant made should be regarded as conversion, the measure of damages would be what it was worth at the. time defendant turned it into the Skelly Oil Company’s pipe line to be transported for sale in El Dorado. Just what was plaintiff’s oil worth in the Voshell field at that time? It could not be sold at all. Appellant argues that the “posted price” should be regarded as the market price. While ordinarily these prices would be the same, a market price presupposes the existence of a market. But there was no market. At the time defendant perfected arrangements to pipe the oil to El Dorado, nobody was paying the “posted price” except the limited few who were fortunate enough to have pipe-line connections in the field.
Witness Sleppy testified:
“Q. Did your company have a market for the oil jmu produced in the Voshell pool a year ago?
“A. We did not.
“Q. Did you have a market for a portion of your oil? A. Yes, sir, for a part of it.
“Q. Did you try, in your capacity as a representative of your company, to find a market for the sale of your oil over and above what the Shell took? A. I did.
“Q. Was the condition there that you could get any pipe-line company to connect with new customers?
“A. You could get nobody to connect.
“A. We tried all other companies and was unsuccessful in selling any, and that was our last resort.
“There was a market price on the amount that you could sell, but the amount produced over what you could sell, there was no market price for.”
Witness Hume testified:
“A. In my opinion there was no market or market price for the oil which did not have a pipe-line market outlet on connections prior to the Prairie’s withdrawal as a purchaser from the field.”
Witness Pickrell testified:
“Q. Were there any pipe lines purchasing oil in that territory .in that field besides the Prairie at the time it discontinued?
“A. The Derby Oil Company, the Sinclair Oil & Gas Company, the Stanolind Oil & Gas Company, the Shell Petroleum Corporation and the Skelly Oil Company.
“Q. Did they purchase any oil other than their own leases? A. They did not.
“Q. That wouldn’t signify a market for the other companies? A. No, sir.”
From this and much similar evidence the trial court correctly concluded that there was no market in the Voshell field for the oil in which these litigants were interested, and, therefore, the value of plaintiff’s royalty oil at the time and place it was turned into the pipe line was not shown, and, in consequence, plaintiff failed to show any damage in excess of the amount tendered him — the selling price at El Dorado less the cost of transportation.
There is nothing further in this appeal which needs discussion. Substantial justice was done, and no prejudicial error was committed. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding for a writ of habeas corpus, and to obtain petitioner’s release from the sheriff of Shawnee county, who holds him following a trial and conviction of a felony.
The offenses of which petitioner was convicted were alleged to have occurred August 20, 1932. On August 24, 1932, the petitioner, under proceedings had in the probate court of Shawnee county, was found to be a person of feeble mind and was committed to the state training school at Winfield. On January 25, 1933, an information was filed in the district court of Shawnee county charging petitioner with two felonies, i. e., forging a bank check, and thereafter uttering said forged check. On February 10, 1933, under proceedings had in the probate court of Shawnee county, the petitioner was found to be a person of sound mind. On April 20,1933, he was tried in the district court on the above information. At the trial the petitioner entered a plea of not guilty and was regularly tried, the defense being that petitioner was insane at the time of the alleged commission of the offense. The court submitted two forms of verdict, one being so formed that by filling in the word “not” in an appropriate blank, it would return a verdict of not guilty, or if said blank was not so filled it would return a verdict of guilty. The other form of verdict, and which is the one returned by the jury is, omitting formal parts, as follows:
“We, the jury inpaneled and sworn in the above entitled ease, do, upon our oaths, find the defendant, Frank Hodison, not guilty of the offense of forgery in the second degree, as charged in the first count of the information, but we further find that at the time of the alleged commission of the offense therein charged, the defendant, Frank Hodison, was a person of unsound mind.
“And we do further find the defendant, Frank Hodison, not guilty of the offense of forgery in the second degree, as charged in the second count of the information, but we further find that at the time of the commission of the offense therein charged the defendant, Frank Hodison, was a person of unsound mind.”
On April 22, 1933, the court ordered the defendant committed to the asylum for the dangerous insane at the state penitentiary at Lansing until discharged according to law.
After the trial court had instructed the jury — -and there is no complaint as to the instructions — the petitioner requested that three separate forms of verdict be submitted, and complaint is made because a form was used which permitted the jury to fill in the word “not” if a verdict of not guilty was to be returned, or to be omitted if a verdict of guilty was to be returned. We have examined the form and the instructions of the court and conclude that the defendant was not prejudiced in any manner on account of the forms submitted.
It is further contended that the verdict as returned is a verdict of not guilty, and that the statement, twice repeated, “We further find that at the time of the alleged commission of the offense therein charged, the defendant, Frank Hodison, was a person of unsound mind” is surplusage and should be. disregarded; that the entire verdict is not a finding that defendant was acquitted on the ground that at the time of the commission of the alleged offense he was a person of unsound mind, under R. S. 62-1532; that, under the rule laid down in State v. Reddick, 7 Kan. 143, the court cannot look outside the verdict to ascertain what the jury intended by the verdict, and, therefore, the writ should be allowed. However, in In re Mooney, 89 Kan. 690, 132 Pac. 217, it was said:
“Where the verdict in a criminal case is ambiguous, reference may be had for its interpretation to the instructions and to other forms of verdict prepared by the trial judge, which after submission to the jury were filed with the clerk; and where in view of the light so afforded it is clear that the verdict was intended as one of guilty, it will be so treated.” (Syl. 111.)
“In an early case this court held that the interpretation of the verdict in a criminal case cannot be aided by reference to the instructions. (The State v. Reddick, 7 Kan. 143, 155.) But this rule was applied in a capital case, upon a direct attack, and only with respect to the statutory requirement that, where there may be a conviction of different degrees of an offense, a verdict of guilty must specify the degree. (Crim. Code, II 239.) It has been well said that the doctrine of that decision ought not to be extended. (The State v. Jennings, 24 Kan. 642, 661.) There is no reason in the nature of the matter why in interpreting the verdict in a criminal case, a court should not make use of anything in the proceedings that serves to show with certainty what the jury intended. And that course finds approval in the authorities. (In re McLean, 84 Kan. 852, 115 Pac. 647, 35 L. R. A., n. s., 653.)” (p. 692.)
State v. Wolkow, 110 Kan. 722, 205 Pac. 639, cited by petitioner, is not in point. While the court, in preparing the form of verdict, might well have followed the statute more closely than it did, we think it quite apparent that the verdict was one of not guilty on the ground of insanity.
It is further contended that the petitioner, having been declared sane under the proceedings had in the probate court, cannot now be committed to the asylum for the criminal insane. Under R. S. 62-1532 it is provided that where a defendant is acquitted on the ground that he was insane at the time of the commission of the alleged offense, he shall be committed to the state asylum for the dangerous insane and “No such person shall be liberated from such institution except in pursuance to an order made by the state board of administration after a full hearing and a finding and determination by said board that such person is wholly recovered and restored to his or her right mind and that no person will be endangered by his or her discharge, and upon such finding and determination such person shall be entitled to immediate discharge.” The statute has been held constitutional. See In re Timm, 129 Kan. 126, 281 Pac. 863. It contemplates a situation such as we have here, except that in the case at bar the defendant, since commission of the offense, has’ been declared sane in a probate court inquiry. Under the terms of the statute, however, it requires more than a restoration to entitle the defendant to his liberty. The statute specifies the body which shall determine not only whether the defendant is wholly recovered and restored to his right mind but, also, that no person will be endangered by his or her discharge.
The petitioner calls our attention to In re Clark, 86 Kan. 539, 121 Pac. 492, and especially to the concurring opinion of Johnston, C. J. (p. 553), contending that under the opinion and concurring opinion a person found sane cannot be committed to the asylum for the criminal insane, and to In re Beebe, 92 Kan. 1026, 142 Pac. 269, which it is contended is to the same effect. In In re Ostatter, Petitioner, 103 Kan. 487, 175 Pac. 377, the question was again before the court. Ostatter was charged with murder. Before his trial, under appropriate proceedings, he was found to be insane and committed to the asylum for the dangerous insane; later the superintendent of the hospital certified that Ostatter had greatly improved and in his opinion had wholly recovered his sanity and that no person would be in danger by his liberation and discharge from the asylum, and he was thereupon returned to Reno county and tried on the murder charge, the jury returning a verdict acquitting him on the ground he was insane when he committed the offense. He was again committed to the asylum. Thereafter he prosecuted an application for a writ of habeas corpus, but not invoking the statute in question here. In disposing of his contentions, however, this court, speaking through Mr. Chief Justice Johnston, said:
“The petitioner secured an acquittal of the crime of murder on the ground that he was insane when the offense was committed. That verdict established his status, and under the law he is to be regarded as insane and dangerous until a showing has been made as the law provides, that he has been restored to his right mind, and that no one would be in danger by reason of his being at large. ... It has also been decided that one acquitted of murder on the ground that he was insane when he killed the deceased, is deemed to be insane and unsafe to be at large, and that he must remain in custody until it is shown in the way prescribed by statute that he is restored to sanity and is no longer dangerous. (In re Beebe, 92 Kan. 1026, 142 Pac. 269.)” (pp. 489, 490.)
In In re Wadleigh, 108 Kan. 682, 683, 197 Pac. 217, cited by petitioner, this court said:
“The probate court does not have jurisdiction to consider an application to discharge a lunatic whose lunacy has been adjudged as a pertinent incident to a criminal prosecution and who is incarcerated in the state asylum for the dangerous insane by virtue of such judgment. The statute reads [quoting statute now appearing as R. S. 62-1532], But .the petitioner was not committed to the state asylum for the dangerous insane under the section of statute just quoted. If he had been so committed, then he could only be discharged, as the state contends, by order of the state board of corrections (or its legal successor) after full hearing and determination of the propriety of his release.” (p. 683.)
The specific, point raised in the case at bar has not been before the court, but it logically follows from what has been said in the cases to which reference has been made that the defendant, having procured an acquittal on the ground that he was insane at the time of the commission of the offense, can only procure his release under the terms of the statute by which he secured such acquittal, and that he must be committed to the state asylum for the dangerous insane until, after a full hearing by the board of administration a finding is made that he is wholly recovered and restored to his right mind and that no person will be endangered by his discharge.
The application for the writ of habeas corpus is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money on a written contract. Judgment was for defendant. Plaintiff appeals.
The facts may be briefly stated. The Dennis Gas Company entered into a contract in 1916 with John M. Landon, the receiver for the Kansas Natural Gas Company. The part of the contract which it is necessary for us to examine is as follows:
“That, whereas, The Dennis Gas Company is a corporation organized for the purpose of buying and selling natural gas, and in such capacity has entered into contracts for the purchase of large quantities of gas in what is known as the ‘Dennis Gas Field,’ in Labette county, Kansas, and may from 'time to time enter .into other contracts for the purchase of gas, and the said corporation is desirous of finding a market for said gas; and
“Whereas, the said vendee desires to purchase the gas .which said vendor has contracted for in the said Dennis gas field, and such gas as the vendor may hereafter purchase or control:
“Second: The vendor agrees to sell to the vendee and deliver into vendee’s line, and at the price and upon the terms and conditions herein specified, during the life of this contract, all of the gas which if may purchase or control.
“Fifth: The vendee agrees that he will from and after the completion of the vendor’s line and the setting of the said meter or meters, purchase from the vendor and receive into his said line all the dry, merchantable gas which the vendor can deliver into his said line, but all the gas shall be delivered into his said line against the pressure of the gas therein. The vendee shall not at any time be required to purchase or receive into his said line any gas under pressure greater than shall be consistent with the safe operation of said line; nor shall said vendee be required at any time to reduce the pressure in his said line in order to receive gas under this contract; but in the event that said vendee shall for any period of time be unable to purchase and receive into his said line the entire quantity of gas which said vendor may be able to furnish or deliver under this contract, then, and during such period of time, said vendee will purchase and receive from said vendor a quantity of gas which shall for each period of one month average not less than 2,600,000 cubic feet per day, always provided, however, that said vendor is able to deliver said quantity of gas against the pressure in vendee’s line.” (Italics ours.)
The Labette Petroleum Company is the successor to the Dennis Gas Company, and the Cities Service Company is the successor to the receiver of the Kansas Natural Gas Company. All parties lived up to the terms of this contract until May, 1931, when defendant gave notice to plaintiff that it would terminate the contract on June 22, 1931. This suit followed. The judgment from which the appeal is taken is an order striking certain matter from the petition. There are two petitions brought here for examination; the original petition and the amended petition. It will be noted that the contract sued on did not have any term designated for its duration. It is the contention of plaintiff that the term of the contract was the duration of the life of the Dennis gas field. Acting under this theory, plaintiff pleaded in the petition certain facts and circumstances leading up to and attending the execution of the contract, the relation and condition of the parties, the purpose of making the contract and other facts and circumstances that plaintiff thought should aid the court in getting at the interest in the contract. These allegations were all stricken from the original petition. Plaintiff assigns this as error. The record discloses that the amended petition was filed and the allegations just referred to were omitted. Plaintiff asks this court to hold that this can be repleaded. This cannot be done. In Garanflo v. Cooley, 33 Kan. 137, 5 Pac. 766, this court held:
“Where plaintiff in an action asks and obtains leave to file an amended petition it becomes and must be treated as the original pleading, and he thereby waives any irregularity or error there may have been in the proceedings prior to the filing of the same.” (Syl. HI.)
See, also, Ott v. Elmore, 67 Kan. 853, 73 Pac. 898; also, Cornelssen v. Harman, 103 Kan. 624, 176 Pac. 141. When plaintiff saw fit to file an amended petition it waived any error that might have been made by this ruling of the court on the original petition.
It will be noted that the contract speaks of “the gas which said vendor has contracted for in.the said Dennis gas field, and such gas as the vendor may hereafter purchase or control.” The Dennis Gas Company, at the time the contract sued oh was executed, was the owner of certain gas leases which it had developed in the vicinity of Dennis, Kan., the gas from which it had connected in its pipe-line system for delivery to defendant. There were also many leases in the field which were not owned by the Dennis Gas Company at that time. Some of these had not yet been drilled. At the time the notice of the Cities Service Company that it intended to terminate the contract was served, the Labette Gas Company did not have under its control a large amount of gas which the field was capable of producing. .
The petition is based on the theory that plaintiff can recover damages for the refusal of defendant to take and pay for the gas which plaintiff already has connected in its mains ready for delivery to defendant and also for the refusal of defendant to take gas which defendant did not have connected in its mains, but which it pleaded it had contracted for or was about to contract for. The trial court struck from the amended petition' all reference to any gas that the plaintiff did not have connected with its mains at the time the notice was served.
The theory upon which defendant urged that this allegation be stricken was that the damages claimed were conjectural and speculative and impossible of ascertainment.
The position of plaintiff is that since gas is a commodity which may be exhausted from the ground, and since defendant is the only available market, the proper measure of damages is the contract price of the gas less the expense of connecting the well with the pipe line.
This court considered this question in Ely v. Gas Co., 99 Kan. 236, 161 Pac. 649. There the question was whether a contract by which a pipe-line company agreed to accept a minimum of 5 million cubic feet of gas from the owners of a number of gas leases and producing wells was a contract whereby the title to the gas passed, or an executory contract passing title to the gas only as delivery was made. The court held that it was an executory contract. In the opinion it was said:
“The plaintiffs contend that by providing a number of wells sufficient to produce the flow (30,000,000 cubic feet) necessary under the contract to entitle them to require the company to take the 5,000,000 feet daily minimum, they had in effect reduced the gas to possession — converted it into personal property ready for delivery, and that the situation was brought within the rule by which, under a contract for the sale of goods not in existence but to be produced by the seller, the title is ordinarily deemed to pass as soon as the contract comes to relate to specific ascertained goods. (Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181.) The rule referred to is not absolute, being merely a guide to assist in ascertaining the real intention of the parties, which is the controlling element. (Note to case last cited, 50 L. R. A., n.s., 111.) We do not think the bringing in of any number of wells, whatever their production, can be regarded as reducing to possession all the gas within a designated area, or as converting it into personalty, or into specific ascertained property. The quantity cannot be definitely determined, and there is always the possibility of its escaping or being diverted through wells drilled on other land. (See citations collected in Kansas Natural Gas Co. v. Haskell, 172 Fed. 545, 563; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; Thornton, The Law Relating to Oil and Gas, 2d ed., secs. 21, 22.) Decisions are cited in behalf of the plaintiffs to support the proposition that oil and gas become personal property ‘when discovered and reduced to possession either in the wells or in pipes or tanks.’ None of them, however, extends the principle to gas in place, although an outlet through wells has been provided.” (p.-242.)
In Gas Co. v. Glass Co., 56 Kan. 614, 44 Pac. 621, the gas company breached a contract to supply sufficient gas to run the glass plant during a ten months’ period, and the court held that prevented profits were too speculative to consider.
To the same effect is Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861, and Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717.
In this case we have concluded that the damages sought to be recovered on account of the gas that was alleged to be available to plaintiff from leases other than those connected with the pipe lines of defendant are too remote, speculative ánd uncertain to be the subject of a lawsuit.
Appellee devotes part of its brief to an attack upon the validity of the contract as a whole, but since this contract was sustained by the court in refusing to strike parts of the petition, and no cross appeal was filed, that point cannot be raised here.
The judgment of the trial court is affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injury to person and property sustained by the driver of an automobile when the automobile collided, at the intersection of two city streets, with a motor truck driven by an employee of defendant. The jury returned a general verdict for defendant. The jury also returned special findings of fact, which are appended to this opinion. Judgment was entered for defendant, and plaintiff appeals.
The accident occurred at the intersection of Armstrong avenue and Thirteenth street in the city of Kansas City. From the intersection Armstrong avenue extends east and west and is thirty feet wide from curb to curb. From the intersection Thirteenth street extends north and south and is forty feet wide from curb to curb. In the center of Thirteenth street is a double-track street railway. Each track is five feet two inches wide, and the space between the inside rails of the two tracks is five feet three inches wide. South of Armstrong avenue is Ann avenue, an east-and-west thoroughfare, twenty-six feet wide, crossing Thirteenth street. The distance from the center of Ann avenue to the center of Armstrong is 344 feet.
The truck entered Thirteenth street from Ann avenue and proceeded northward to the point of collision. From Ann avenue to Armstrong avenue and beyond, it is 6% per cent down grade. The automobile approached Thirteenth street from the west on Armstrong avenue, and proceeded east to the point of collision. Approaching Thirteenth street from the west on Armstrong avenue, it is 2.7 per cent up grade. The collision occurred about twenty-two feet seven inches east and about ten or twelve feet north of the southwest corner of the intersection of Thirteenth street and Armstrong avenue.
Plaintiff's petition alleged the truck was driven down grade at the rate of fifty miles per hour, on the west side of Thirteenth street; that the truck entered the intersection after plaintiff had entered the intersection and while plaintiff was in full view of the truck driver; that the truck driver attempted to turn the truck farther toward the west; that the truck was not under control of the driver; and gen erally, that the truck was driven without care or caution. Defendant’s answer contained three defenses, separately stated and1 numbered: First, a general denial; second, a general plea of contributory negligence on the part of plaintiff; and third, violation by plaintiff of pleaded city ordinances. One ordinance required plaintiff to stop before she entered Thirteenth street, and another ordinance gave the truck right of way if the truck and automobile reached the intersection at the same time.
The truck driver testified he turned into Thirteenth street from Ann avenue and headed north at a rate of speed of about fifteen miles per hour. From the time he headed north until the collision, his truck was astride the west rail of the east street-car track. As he proceeded northward, he attained a speed of approximately twenty-five miles per hour. When he got toward the intersection, he approached it at a rate of about twenty miles per hour. He entered the intersection at the rate of about fifteen miles per hour. The jury found he entered the intersection at the rate of fifteen to twenty miles per hour. As the truck driver approached the intersection, he looked to the west, the direction from which plaintiff came, and did not see the automobile. He then looked toward the east. He then looked again to the west, and saw plaintiff’s automobile rapidly approaching. There is no finding of rate of speed of the automobile as it approached Thirteenth street. Whatever the previous rate of speed, plaintiff entered the intersection at the rate of four or five miles per hour, and the truck driver testified plaintiff “was just entering the intersection about the same time I was.” Plaintiff did not stop as the city ordinance required her to do, but drove on. The truck driver testified he jammed down his clutch and brake, turned to the right to avoid a collision, and skidded to about the center of the street. Plaintiff turned slightly to the left, and the right side of her car and left side of the truck came together. There was testimony that the shortest distance within which the truck could be stopped, when going down a 6 per cent grade on concrete pavement at the rate of fifteen miles per hour, was twenty feet.
None of the foregoing testimony is opposed to the physical facts of the accident, and all of it must be taken a's true so far as reconcilablé with the special findings.
Plaintiff’s account of the accident was quite different from that of the truck driver, and the jury did not believe the greater portion of her testimony. She said she came to a dead stop before entering the intersection. The jury found to the contrary. She said that, seeing the truck at the alley between Ann and Armstrong avenues, she speeded up to avoid a collision. The jury found to the contrary. The jury did find that at the instant of the collision the automobile was going five or six miles per hour, a slight increase at the instant over the rate at which plaintiff entered the intersection. She said the truck came down Thirteenth street east of the street-car tracks, or perhaps astride the east rail of the east track. The jury found to the contrary. Plaintiff illustrated the movement .of the truck just before the accident by means of a miniature motor car. She swerved the truck over into the space between the two street-car tracks to a point touching and covering the east rail of the west track. The truck was then going northwesterly with the left front wheel over the east rail of the west track and the left rear wheel about the center of the space between the two tracks. The jury found to the contrary.
The truck driver did not testify that both vehicles entered the intersection at the same time. He said “about” the same time. The jury found the front wheels of plaintiff’s automobile were nineteen or twenty feet in the intersection when the front wheels of the truck entered the intersection. So plaintiff in fact entered the intersection first, and the front wheels of her automobile were approximately half way across Thirteenth street when the truck entered the intersection. The jury found the truck was going at the rate of about fifteen or twenty miles per hour when it entered the intersection, or from twenty-two to twenty-nine feet per second. The truck, astride the west rail of the east street-car track, was only ten or twelve feet south of the automobile’s course of travel when the front wheels of the automobile were still in the west part of the space between the two street-car tracks. Assuming the truck driver was negligent, the foregoing facts demonstrate that if when plaintiff reáched the intersection she had taken the time necessary to stop and then put her car in motion, the truck would have passed safely in front of her. In any event, it would have been manifestly foolhardy for plaintiff to drive on. Therefore, plaintiff was guilty of negligence contributing to the collision, as a matter of law.
Plaintiff undertakes to relieve herself from consequences of negligence contributing to the accident by an argument which may be summarized as follows: When plaintiff entered the intersection the truck was 329 feet south of the center of the intersection and 326 feet south of the point of collision. So the truck traveled about eleven times faster than plaintiff traveled. While plaintiff proceeded two feet to the intersection and twenty feet into the intersection, the truck traveled 242 feet. After traveling that distance the truck was still eighty-four feet from the point of collision. The truck driver could stop, when going fifteen miles per hour, within twenty feet. Therefore he could stop, when going sixty miles per hour, within eighty feet. This being true, he could have stopped, with four feet to spare, before the truck struck the automobile. The conclusion is, plaintiff’s failure to stop before entering the intersection did not contribute to the accident.
Plaintiff’s action is based on the fact there was a collision between her automobile and the truck. Plaintiff entered' the intersection without stopping as the law required. A stop of one second of time before entering the intersection would have prevented the two vehicles from coming together. However negligent the truck driver may have been, plaintiff’s negligence was a direct, immediate and substantial cause of the collision.
Plaintiff’s contention involves absurdity. If the truck was eighty-four feet away when the automobile was twenty feet into the intersection and two feet seven inches from the point of collision, it would have been necessary for the truck to move at the rate of sixty miles an hour in order to participate in the collision. The truck driver said his truck would not do better than fifty. However modest he might be, the jury found the truck entered the intersection at the rate of fifteen or twenty miles per hour. Some time and distance were necessary to enable the truck to reduce speed to fifteen or twenty miles per hour, and on plaintiff’s theory the truck must have developed amazing speed in order to be on time for the collision. The mathematical formula for computing stopping distance is equally visionary. When speed of an automobile equipped with four-wheel brakes is doubled, stopping distance is quadrupled.
Plaintiff's contention is based on the first three findings of fact returned by the jury. The contention is not based, however, on facts found by the jury or established by the evidence.
Plaintiff testified that when she approached the intersection she came to a dead stop two feet from the intersection. She looked south and saw the truck at the top of the hill south of Ann avenue. The truck driver described his course to Thirteenth street. He testified he turned into Thirteenth street from Ann avenue and so never was south of Ann avenue on Thirteenth street. As indicated above, the truck driver testified he turned into Thirteenth street and headed north, traveling about fifteen miles per hour, and as he proceeded gained a speed of about twenty-five miles per hour. As he neared the intersection of Armstrong avenue, he saw plaintiff approaching rapidly — at the rate of about twenty-five miles per hour. A pedestrian who saw both vehicles approach the intersection and saw the collision testified as follows:
“Q. Why did you stop? A. Well, this truck was coming down Thirteenth street, and this big car coming along on Armstrong. . . .
“Q. Now, then, just tell the court and jury how the big car was coming. A. It was coming, and it seemed that it was about — it wasn’t quite a half block from my sister’s house when I saw it coming. It was coming pretty briefly.
“Q. It was coming what? A. It was coming pretty fast. Pretty briefly, this big car was.
“Q. Why did you stand there? A. Well, this big car was coming so fast, and in the meantime this truck was almost ready to cross the street toó. And I wouldn’t attempt to cross, and so I stood there and waited.”
The testimony of these two witnesses was incompatible with plaintiff’s testimony, so much of which, with respect to other matters, the jury disbelieved.
The jury were not asked to find whére the truck was when plaintiff first saw it, and the jury made no finding on the subject. The result is the phrases appearing in the first three findings, "at or south of the intersection of Thirteenth and Ann” and “at or beyond the intersection of Thirteenth and Ann,” did not embody either a fact found or a fact proved! As indicated above, if when plaintiff was at the intersection of Armstrong avenue and Thirteenth street, the truck was at or south of Ann avenue, the truck could not have gotten to the point of collision by the time plaintiff got there.
The substance of the first special question was where plaintiff was when she first saw the truck. The substance of the second question was whether there was obstruction to plaintiff’s view. The substance of the third question was the rate of speed of the truck when plaintiff first saw it. The first question amounted to no more than if it read as follows:
How many feet west of the curb line of Thirteenth street was the front end of plaintiff’s sedan when she saw defendant’s truck approaching north, as she testified, at or south of the intersection of Thirteenth and Ann?
Therefore, the phrase “at or south of the intersection of Thirteenth and Ann” may be disregarded, and this court disregards it, as the jury plainly did. The same is true of the second and third questions.
The track driver testified he approached the intersection with the wheels of the truck astride the west rail of the east street-car track, and the jury found the front wheels of the truck were astride the west rail of the east track when the truck entered the intersection. The truck driver testified that when collision was imminent, he turned the track to the right — toward the east. Plaintiff testified he turned toward the west. The thirteenth finding was that at the instant of the collision the front wheels of the truck were still astride the west rail of the east track, but were closer to the west rail. Both front wheels could not be closer to the rail, whether the truck were turned toward the east or toward the west. One front wheel would be nearer the rail and one farther away, and the finding means the truck wheels west of the rail were nearer the rail at the instant of the collision than they were before.
As interpreted above, the findings are perfectly consistent with themselves and with the general verdict, and plaintiff’s motion for judgment in her favor on the special findings was properly denied.
Plaintiff requested the court to give the following instruction:
“You are instructed that although the ordinance gave preference to defendant’s motor truck which was coming from the south, in the matter of right of way, if you find that defendant’s motor truck was coming so rapidly that plaintiff, in the exercise of. due diligence in that regard underestimated its speed and that she reasonably believed that she had abundant time to cross ahead of it until it was too late for her to do anything to avoid the collision, then you will find that such action on plaintiff’s part did not constitute negligence.”
The jury found plaintiff entered the intersection first and the ordinance relating to right of way became of no importance. So far as the instruction dealt with privilege of plaintiff to cross in front of an approaching vehicle, it could not apply to plaintiff unless she first obeyed the ordinance requiring her to stop, and she did not stop. The result is the motion for new trial was properly denied.
The judgment of the district court is affirmed.
SPECIAL FINDINGS.
Q. 1. How manjr feet west of the west curb line of Thirteenth street was the front end of plaintiff’s- sedan when she saw defendant’s truck approaching north at or south of the intersection of Thirteenth and Ann? A. Approximately two feet west.
Q. 2. From the instant plaintiff saw the defendant’s truck approaching north at or south of the intersection of Thirteenth street and Ann avenue, to the instant of the collision, was there any period of time she did not or could not, had she looked, have a full view of the defendant’s truck as it approached the point of the collision? A. No.
Q. 3. At the time plaintiff saw defendant’s truck approaching north at or beyond the intersection of Thirteenth and Ann, at what rate of speed in miles per hour was the truck running? A. Twenty or twenty-five miles.
Q. 4. As plaintiff’s sedan approached and entered the intersection of Armstrong and Thirteenth street, how many feet north of the south curb of Armstrong avenue was the right-hand side of plaintiff’s motor car? A. Ten or twelve feet.
Q. 5. Did plaintiff’s sedan come to a stop just before entering the intersection of Thirteenth street? A. No.
Q. 6. At the instant the front wheels of plaintiff’s sedan entered the intersection of Thirteenth street, meaning crossing the west curb line of Thirteenth street if it were extended north, what rate of speed in miles per hour was her car going? A. Four or five miles per hour.
■Q. 7. At what rate of speed, in miles per hour, was defendant’s truck going north at the instant the front wheels of plaintiff’s sedan entered the intersection of Thirteehth street? A. Twenty or twenty-five miles per hour.
Q. 8. Where, with reference to the rails of the street-car track, was defendant’s truck when approaching north at the instant plaintiff’s sedan entered the intersection of Thirteenth street? A. Astride the west rail of northbound track.
Q. 9. How many feet east of the west curb line of Thirteenth street were the front wheels of plaintiff’s sedan immediately before the collision? A. About twenty-eight feet east.
Q. 10. (a) At what rate of speed, in miles per hour, did plaintiff enter the intersection of Thirteenth street? (b) How many feet did the front wheels of her car go into the intersection of Thirteenth street at the rate of speed called for in (a) of this question? A. (a) Four or five miles per hour. '(b) Twenty-eight feet.
Q. 11. If you find that plaintiff increased her rate of speed in crossing the intersection, above that called for in the last question, then state: (a) To what rate of speed, in miles per hour, did she increase it? And (b) How many feet did she travel at the increased rate of speed before the collision? A. (a) We do not find she increased her speed.
Q. 12. (a) Where were the front wheels of plaintiff’s sedan with reference to the west curb of Thirteenth street at the time the front wheels of defendant’s truck entered the Armstrong street intersection, meaning thereby the south curb line of Armstrong street if it were extended west? (b) At what rate of speed, in miles per hour, was th? truck going when it entered the intersection of Armstrong avenue? (c) Where were the front wheels of the truck with reference to the west rail of the northbound track at the time it entered the intersection of Armstrong avenue? A. (a) Nineteen or twenty feet, (b) About fifteen or twenty miles per hour, (c) Astride the west rail of northbound tracks.
Q. 13. At the instant of the collision, where were the front wheels of the defendant's truck with reference to the west rail of the northbound track? A. Still astride west rail of northbound track, but closer to west rail.
Q. 14. How many feet east and how many feet north of the junction of the curb line at the southwest corner of the intersection of Thirteenth and Armstrong did the collision of the truck and the sedan occur? A. About twenty-two feet seven inches east and about ten or twelve feet north.
■Q. 15. (a) At what rate of speed in miles per hour was defendant’s truck going at the instant of the collision? (b) At what rate of speed, in miles per hour, was plaintiff’s sedan going at the instant of the collision? A. (a) Fifteen or twenty miles per hour. (b) Five or six miles. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to compel payment of compensation to plaintiff as a Kansas soldier during the world war.
The compensation board rejected plaintiff’s claim, and on appeal the trial court sustained its ruling, predicated on the following finding of fact:
“The plaintiff, Phillip S. Knight; was bom in Leavenworth, Kan., about 1887, and lived with his mother in Leavenworth, Kan., until about August, 1914, when he went to Kansas City, Mo., where he lived until he entered the service in May, 1917.
“The plaintiff enlisted in the army of the United States at Kansas City, Mo., on May 17, 1917, and was honorably discharged therefrom on May 16, 1919, at Camp Funston, Kansas, and drew travel pay to Kansas City, Mo., on his discharge.
“The plaintiff last voted in Missouri prior to his enlisting in the army.
“He applied for a bonus to the state of Missouri and received a bonus from the state of Missouri for his services in the world war.
“His claim for a bonus from Missouri was supported by his affidavit in which he stated that he had been a resident of the state of Missouri since August, 1914, and also by affidavits of other persons who stated that he had been a resident of the state of Missouri for more than one year prior to April 6, 1917.
“From these facts I find that the plaintiff, Phillip S. Knight, was not a resident of Kansas at the time he entered the service on May 17, 1917, and therefore he is not entitled to the bonus granted by the state of Kansas, and that plaintiff pay the costs of this action.”
Plaintiff assigns error, and to establish it he adduces some evidence, which if given generous credence and if his enlistment record as a Missouri volunteer and other evidential circumstances were ignored, would have supported a finding that he was a resident citizen of Kansas at the time he entered the service, and that he so remained until his discharge from the army.
There was substantial evidence, however, to support the trial court’s findings that plaintiff became a resident of Missouri in 1914. His occupation or profession was that of a boxer, which took him occasionally to St. Louis, Memphis, and elsewhere. In so far as he had a residence anywhere it appears to have been at 4032 Paseo, Kansas City, Mo., until he enlisted as a volunteer. On May 17, 1917, he enlisted in Kansas City, Mo. At that time he was directed to await for three or four weeks before proceeding to St. Louis to be assigned to active duty as a private in the 12th regiment of engineers. While awaiting that call he was registered in the draft in Leaven worth and gave his birthplace and residence as 818 Osage street, in that city. There was evidence to show that the last vote he cast as an elector was in Missouri, but there was also evidence that on March 12, 1917, he had registered as a voter in Leavenworth. What must have shaken any credence the trial court might otherwise have given to plaintiff’s claim was the verified recitals of fact he gave in his application for a soldier’s bonus under Missouri law, some excerpts of which read:
“1. Name of applicant in full: Knight, Phillip S.
“2. Your address at time of enlistment, induction or commission: 4032 Paseo, Kansas City, Mo.
“5. Place of enlistment, induction or commission: Kansas City, Mo.
“(a) If in draft, place of registration: No.
“(b) When were you enlisted, inducted or commissioned? May 17, 1917.
“6. If you enlisted or registered in another state, give reason for so doing: No.
“7. Date of reporting for duty: July 5, 1917.
“11. Name and address of mother at time of enlistment, induction or commission: Mrs. Mary Knight, Leavenworth, Kan.
“13. Where did you last vote before entering service? Kansas City, Mo.
“19. Were you absent from Missouri during any part of the year immediately before April 6, 1917? No.
“(a) If so, for what purpose? None.
“21. How long before April 6, 1917, had you been in Missouri? Two years. (Aug., 1914.)
“22. If you came to Missouri from another state, what business did you enter when you came to Missouri? Switchman. To what point did you receive travel pay when discharged? Kansas City.
“27. Give address to which correspondence in reference to your claim should be sent: 4032 Paseo, Kansas City, Mo.
“28. Remarks: Copy from your discharge all items mentioned under ‘Remarks’: No AWOL; no absence under GO 45-14 or 31-12; on foreign service from July 25, 1917, to April 2, 1919; reduced R. R. fare to Kansas City, Mo.”
Plaintiff gave testimony in his own behalf. His cross-examination, in part, reads:
“I received $220 from the state of Missouri. At the time I enlisted I did not live at 4032 Paseo, Kansas City, Mo. I never lived there. I got a brother that lives out there.
“Q. You furnished affidavits to the state of Missouri showing you resided at 4032 Paseo, Kansas City, Mo. A. No, sir, I did not. . . . Maybe I did give my residence as 4032 Paseo, Kansas City, Mo.
“Redirect examination:
“The affidavit I made for the state of Missouri was false. I was just dropping in there, in and out of there (Kansas City), you know. I never did stay out to my brother’s house. I stayed downtown always.”
The context makes it clear that “downtown” in this testimony of plaintiff meant downtown in Kansas City, Mo.
This case is not at all like Parrish v. Soldiers’ Compensation Board, 117 Kan. 301, 231 Pac. 332, nor like Knuth v. Kansas Compensation Board, ante, p. 392, 20 P. 2d 471, where this court, on controlling and undisputed facts, held that claimant was a resident citizen of Kansas at the time he entered the army for service in the world war, notwithstanding he had received a bonus from another state for the same services. The present case is on all fours with Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, 230 Pac. 82; Doniphan v. Davis, 116 Kan. 601, 603, 227 Pac. 1117; 116 Kan. 677, 680, 229 Pac. 355; and it is therefore subject to the familiar rule that a trial court’s judgment based upon competent but conflicting evidence cannot be disturbed.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order authorizing a trustee under a trust deed, or in legal effect a mortgage, to bid at foreclosure sale.
Claude E. Neil and wife executed and delivered to the First National Bank in Wichita an instrument denominated “deed of trust” whereby they conveyed real estate in trust for the purpose of securing payment of “first deed of trust bonds,” the form of which is set out in the instrument. Default was made, and under the provisions of the deed of trust the trustee filed his petition for foreclosure, and thereafter a judgment was rendered finding the amount due, declaring it to be a first lien and ordering the property sold. An order of sale was issued, but when the property was offered for sale by the sheriff there were no bidders. Thereafter the trustee filed its motion for instructions and authority to bid. Upon this motion being filed the defendant, Josephine M. Kohr, filed her motion objecting to the court’s authorizing the trustee to bid. After hearing, the court made its order authorizing the trustee to bid an amount not exceeding its judgment and the interest thereon, plus costs and unpaid taxes. The objecting defendant, appellant here, filed a motion for a new trial and she appeals, the question on appeal being whether the court erred in authorizing the trustee to bid in the property for the benefit of bondholders owning the bonds merged in the judgment.
The deed of trust, in so far as is necessary here, may be summarized as follows: The grantors “in consideration of one dollar to them in hand paid . . . and to secure the equal and ratable payment of the principal and interest of” 138 bonds of $100 and $500 denominations, convey to the trustee certain real estate and improvements “but in trust, nevertheless, upon, under and subject to the conditions, covenants, agreements and provisions hereinafter set forth, and for the equal and ratable benefit and security of the holders of said bonds and interest, without preference, limitations or distinction as to lien or otherwise of any one of said bonds over any other by reason of priority in date of issue or maturity or any other cause.” The bonds are described as to tenor and the form is included, the form containing an appropriate statement that the notes are issued in pursuance, etc., of the deed of trust.
The sixth paragraph of the deed of trust recites:
“Sixth: All of the bonds issued hereunder shall be equally and ratably secured under this deed of trust without preference, priority or distinction of one bond over another as to lien, payment or otherwise on account of the time or times of the actual issuance and delivery or maturity of the said bonds or any of them.”
The twelfth paragraph provides that, if default is made, the trustee shall have power to declare all of the bonds due and bring foreclosure proceedings and “may proceed to protect and enforce the rights of the trustee and of the bondholders hereunder by suit or suits for the enforcement of any remedy which the trustee, being advised by counsel, shall deem effectual or desirable to protect and enforce the rights aforesaid.”
“Thirteenth: All of the remedies, provided herein to be enjoyed and exercised by the trustee in case of default hereunder, shall be cumulative and in addition to all of the rights and remedies provided by law.
“Fourteenth: The trustee may proceed at any time upon default as herein provided in any manner authorized hereby without the authority or direction of the bondholder but shall so proceed upon the request in writing of the owners of a majority in amount of the bonds then outstanding hereunder.
“Sixteenth: The purchase money, proceeds and avails of any sale hereunder, together with any other money which may be held by the trustee hereunder, shall be applied to the payment of—
“(a) Costs and expenses.
“(b) Advancements.
“(c) Past due interest.
“(d) The principal of said bonds with interest: Provided, however,
That if the proceeds of any such sale shall not be sufficient to pay in full the principal of said bonds, then without preference or priority such proceeds shall be applied ratably to the payment of all of the bonds secured hereby.”
“Seventeenth: In case of sale hereunder, any purchaser shall be entitled to apply any bond issued hereunder and any unpaid coupons affixed thereto upon such purchase price by presenting same for credit thereon of the appropriate amount of such purchase price applicable to the payment of said bond or bonds out of the net proceeds of such sale.”
The twentieth section provides that no holder of a bond shall institute any proceedings to foreclose, etc., unless the trustee shall refuse, the conditions being set out in detail, the section concluding:
“It being the intention hereof that no holder or holders of bonds or coupons issued or secured hereby shall have any right in any manner whatever by his or their action to affect, disturb, or prejudice the lien of this indenture, or to enforce any rights hereunder except in the manner herein provided, and that all proceedings hereunder or at law or in equity shall be instituted, had and maintained in the manner herein provided for the equal benefit of all of the holders of the outstanding bonds and coupons secured hereby.”
The trustee’s motion for instructions and authority to bid, among other matters, recited the twelfth paragraph of the deed of trust, informed the court there was no specific authority to the trustee to bid; that in the judgment of the trustee an alias order of sale should issue; “That plaintiff believes it should be permitted to bid the said property in at such sheriff’s sale in the event there are no other satisfactory bidders therefor, at an amount not greater than the amount of said judgment, costs and interest, and the unpaid taxes on said property, for the benefit of the holders of said bonds for which judgment was rendered in this action”; that owing to the eighteen-months period of redemption allowed by statute there are rarely any competitive bidders at foreclosure sales, and it is usually necessary that the judgment creditor bid in the property; that in the trustee’s judgment when the property is again offered for sale there will be no bidders unless the trustee is authorized as trustee to bid the property in for the benefit of the holders of the bonds; that the trustee is uncertain as to whether or not it has authority to bid said property in for the benefit of the holders of said bonds, either as implied by the terms of said deed of trust or under authority implied by law, and prayed the court to inform and instruct it as to its rights and duties under said trust deed and under the law, that it be instructed to have an alias order of sale issue, and that it be authorized and permitted within its discretion to bid the property in for the benefit of bondholders at a sum not greater than the amount of the judgment and interest, costs and unpaid taxes.
The motion of defendant Kohr, among other recitals, states:
“This applicant further informs the court that she is opposed to the granting of said motion for the reason that plaintiff, as trustee, is not authorized to bid the said property in at such sheriff’s sale for the benefit of the bondholders by the terms of said deed of trust, nor by authority of law; that if said plaintiff bids said property in for the benefit of the bondholders that the said property will have to be partitioned among the bondholders or again be resold by plaintiff, and that the interest of this bondholder will be endangered by authorizing such purchase and resale of said property; that this applicant does not desire to participate as a beneficiary in the purchase of said property, but desires to have said property sold and to receive her proportionate amount from the proceeds of such sale in satisfaction of her bond, and in order that this applicant may appear in this action and be heard as to her interests, she desires to be made a party defendant herein for herself and in behalf of any other bondholders similarly situated holding bonds secured by said deed of trust and supplemental deed of trust who may desire to take advantage of such defense.”
The two motions were heard and evidence was offered, and the court found that the mortgaged real estate had been regularly offered for sale but there were no bidders; that “during the last two years there have been approximately 890 foreclosure sales had in Sedgwick county, Kansas, and in approximately ninety-six per cent of said foreclosure sales no competitive bidders were present and no competitive bids were offered, and the property was bid in by the judgment creditor, and that seldom is there a competitive bid at a foreclosure sale in Kansas, except occasionally by junior lienholders, and the court finds that for the protection of the bondholders holding bonds merged in the judgment in this action, that the trustee should be authorized to bid the said property in at such subsequent foreclosure sale at a sum not greater than the amount of the judgment, costs and past due taxes against said property”; that defendant Kohr is one of the holders of the bonds merged in judgment and objects to the trustee being authorized to bid the property in for the benefit of the bondholders; that “said deed of trust and supple ment thereto do not specifically authorize the trustee to bid the property in at foreclosure sale, but . . . it is necessary for the interest of all of the bondholders that the trustee be authorized to bid at such sale, and that the said deed of trust, having been made with reference to the laws of the state of Kansas, that the trustee has the power implied by law to bid the property in at such foreclosure sale for the benefit of all of the bondholders,” and it ordered the plaintiff as trustee to cause an alias order of sale to issue, and “that the trustee should be, and it is hereby authorized to bid the said property in at such sheriff’s sale, if in its judgment it deems best under the circumstances then existing, at an amount not greater than” the judgment and interest, costs and unpaid taxes “for the benefit of the bondholders owning the bonds merged in the judgment rendered in this action.”
The question presented is new in Kansas, and has not received much attention in other jurisdictions. Two distinct lines of authority are to be found, and both have been well presented in the briefs.
In Nay Aug L. Co. v. Scranton Tr. Co., 240 Pa. St. 500, 87 A. 843, Ann. Cas. 1915A 235, decided in 1913, a mortgage was given to secure payment of bonds. The mortgage was foreclosed and the property was bid in by the trustee. Its right to do so was questioned, and the court in treating the matter says:
“It is difficult to see any good reason why a trustee should not be permitted to bid at a foreclosure sale, if it be necessary to protect the interests of the bondholders. But little authority upon the question can be found, probably for the reason that corporation mortgages usually provide specifically for the purchase, at foreclosure sales, of mortgaged premises by the trustee, in the interest of the bondholders, and for the purpose of reorganization. Where such power is not explicitly given, it may very well be implied. This doctrine is recognized by the textbook writers. In 3 Thompson on Corporations, 2d ed., paragraph 2678, it is said: ‘It seems clear that the trustee has implied power to purchase for the benefit of the bondholders. At least he has such implied power to bid in their behalf to an amount equal to the principal and interest due on the mortgage ... It has been said that the duty of the trustee does not end with the institution and prosecution of the foreclosure suit; but his duty requires him to attend the sale and protect the rights of the bondholders, and if necessary bid in the property; and this right, it seems, exists independently of the terms of the mortgage.- Thus, where the court directed the trustee to bid to a certain amount, for the benefit of all bondholders, this was held not to prevent him from bidding a larger amount, although not requested to do so by a majority of the bondholders. The court’s order was construed as fixing only a minimum bid, or rather as naming a minimum sum below which he should not permit the property to be sacrificed. (James v. Cowing, 82 N. Y. 449.)’
“In 3 Cook on Corporations, 6th ed., paragraph 885, it is said: ‘It seems that a trustee has implied power at the foreclosure sale to bid for the property in behalf of the bondholders, up to a figure equal to the principal and interest due upon the mortgage debt.’ In Jones on Corporate Bonds and Mortgages (1907), paragraph 289, it is said: ‘It is the duty of a mortgage trustee to protect the security he has taken for the bondholders to the utmost of his ability.’ And paragraph 290: ‘It is the duty pf trustees intrusted with the sale of lands for the benefit of the bondholders to make the sales as available as possible for the extinction of the debt for the security of which they hold the land.’ In Com. v. Susq. & Del. R. R. Co., 122 Pa. 306, Mr. Justice Williams said (p. 319): ‘When a default occurs, the duties of the trustee (in a corporation mortgage) become active and important. He represents all the bondholders and is under obligation to protect them so far as the property in his hands in trust for them will enable him to do so.’ The trustee was bound, in the exercise of the discretion left to it, to use the same diligence and care in protecting the interests of the bondholders that a prudent man would use in protecting his own interests. Certainly any prudent man would bid up to the amount of the debt and interest at a foreclosure sale under his control, provided the property was worth that much or more. Under the circumstances shown, the court below would have authorized the trustee to bid, had an application been made to it, before the sale, and ‘The mile has been adopted in equity that a trustee has the power to do that, without a special order, which the court under proper proceedings would order.’ (28 A. & E. Encyc. of L.)” (p. 504.)
The question was again presented in Equitable Trust Co. v. United States Oil & Refining Co., 35 F. 2d 508, decided in 1928. The plaintiff, as trustee under a trust deed, brought suit to foreclose, and a decree was rendered and a sale was had, which was set aside because of erroneous description of the property. A bondholders’ committee appeared with plaintiff and joined- in a request to the court for an order permitting the plaintiff, as trustee for all of the bondholders, to bid at a new sale. The order was ex parte so far as the minority bondholders were concerned. The trust deed lacked any provision by which, under its terms, the trustee was authorized to become a bidder on behalf of the bondholders. The court in disposing of the matter said in part:
“By this outline of the facts the question is fairly raised as to whether or not the court may authorize, lacking a provision in the trust deed, a trustee to become a bidder for all the bondholders at a sale of the property and to offer, as a portion of said bid in consideration of the sale price, the debt secured by the trust deed in lieu of cash. Briefs have been presented, and it seems that the research of counsel furnishes an economy of decisions upon the point involved. A decision of one state court, Nay Aug Dumber Co. v. Scranton Trust Co., 240 Pa. 500, 87 A. 843, Ann. Cas. 1915A, 235, seems to sustain the conclusion contended for by the bondholders’ committee, to the effect that a trustee, under the circumstances, may be authorized to bid at such a sale, using the debt represented by the bonds in payment of the price bid, in which transaction the trustee then becomes the purchaser of the property, still holding it, however, for future disposition as such representative of all the bondholders. In subsequent litigation, however, it appears that this plan worked out rather disastrously, as upon a subsequent sale of the property a loss was experienced inasmuch as the property did not bring within a third of the amount of a cash bid received upon the first sale. I am unable to bring myself into accord with the reasoning of the court in the case cited. As it appears to me, the purchaser and holder of bonds had the right and reason to expect that, if there were a default in the payment of bonds under the trust deed, in case of foreclosure the property .covered would be sold, and that he would receive his proportionate amount which the property realized in cash, and, moreover, I believe that this should be his right. If the proposed plan is adopted, he becomes unwillingly bound to cast his fortunes with the majority of the bondholders and to be subjected to the subsequent hazards of a greater loss than he would sustain by a sale in regular course for cash.” (p. 509.)
An appeal was taken to the circuit court of appeals, and in its decision (Werner, Harris & Buck v. Equitable Trust Co., 35 F. 2d 513) the court, speaking through McDermott, C. J., said:
“These motions were argued and briefed. Upon due consideration of the matter, the trial court correctly came to the conclusion that there was no power in the court to compel the holder of a single bond to participate in a bid for the property, if he did not wish to do so; that the rights of bondholders were measured by their bonds and the trust deed securing the same, and, absent any provision therein authorizing the trustee to bid for and on behalf of the bondholders, there was no power in the courts to confer such authority upon the trustee. We think there can be no doubt as to the correctness of this conclusion. Each bondholder has the absolute right to determine for himself, in case of default, whether he shall take his loss and quit, or continue to gamble; if the property is sold at public sale, he has a right to take his proportion of the best bid that can be secured in cash, and cannot be compelled to become an owner of an undivided interest in the property.” (p. 514.)
In 1929 the question came up in Silver v. Wickfield Farms, 209 Ia. 856, 227 N. W. 97. Wickñeld Farms executed a trust deed to Artz, trustee, to secure bonds, some of which were delivered to Baker Ice Machine Company as collateral security. The mortgage or trust deed was foreclosed, as was a chattel mortgage. In discussing the power of the trustee the court said:
“The trustee had the right, and in this instance that right was granted to the trustee by the decree, ‘to bid upon said property such an amount as he may deem just and fair to properly protect the interests of the bondholders.’ In this connection it may be said that where such power is not expressly given, it may very well be implied. It is the duty of the trustee to bid in the property at foreclosure sale, if necessary to protect the interests of the bondholders. 3 Fletcher’s Cyclopedia of Corporations, section 1437; Nay Aug Lbr. Co. v. Scranton Tr. Co., 240 Pa. St. 500 (87 Atl. 843).” (p. 859.)
The question was presented in Trust Co. v. Stormfeltz-Loveley Co., 257 Mich. 655, 242 N. W. 227, decided in 1932, which involved, in addition to the present question, the effect of a statute for the administration of mortgage trusts where the consummation of the objects and purposes thereof in manner and form as intended by the mortgage indenture shall be found not capable of accomplishment, and the effect under that statute of failure to give notice to minority bondholders. In so far as the present question is concerned, the court said:
“We believe that the correct and reasonable rule in mortgage foreclosures is stated in Werner, Harris & Buck v. Equitable Trust Co., (C. C. A.) 35 F. 2d 513, 514; in the absence of any provision therein in the trust agreement ‘authorizing the trustee to bid for and on behalf of the bondholders, there was no power in the courts to confer such authority upon the trustee. . . . Each bondholder has the absolute right to determine for himself, in case of default, whether he shall take his loss and quit, or continue to gamble; if the property is sold at public sale, he has a right to take his proportion of the best bid that can be secured in cash, and cannot be compelled to become an owner of an undivided interest in the property.’ To like effect are James v. Cowing, 82 N. Y. 449; Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782; Beckman v. Emery-Thompson Mach. & Supply Co., 9 Ohio App. 275.
“We are not in accord with the decision in Nay Aug Lumber Co. v. Scranton Trust Co., 240 Pac. 500, 87 A. 843, [Ann. Cas. 1915A, 235] which fully supports plaintiff’s contentions. In Werner, Harris & Buck v. Equitable Trust Co., supra, the reasoning of Nay Aug Lumber Co. v. Scranton Trust Co., supra, is held untenable. . . .
“The bondholders are entitled to receive what their contract provided for, and cannot be compelled to take in lieu thereof a beneficial interest in a trust uncertain as to time and outcome, and not contemplated by the indenture.” (pp. 665, 666.)
In 42 C. J. 206 it is stated:
“The trustee in a deed of trust in the nature of a mortgage may purchase at the foreclosure sale when this is done in the discharge of his duties as trustee; and where authority to purchase is not explicity conferred in the instrument it may very well be implied.”
And Nay Aug L. Co. v. Scranton Tr. Co., supra, is cited in support.
Other citations might be given in which the matter of who might purchase at foreclosure sale is discussed, but some of them depend upon construction of a granted power, and others upon the right of a trustee to purchase from himself under circumstances materially different from those in this case.
Notwithstanding the designation of the instrument as a deed of trust, it is a mortgage in which the designated trustee acts for all persons interested. By its terms the rights and duties of the trustee are to be determined.
In Jamison, Trustee, v. Bancroft, 20 Kan. 169, 183, appears the following:
“The trust, although conditional, is an express one, as the property, persons, and the purposes of the trust are specifically pointed out. In dealing with trusts of this character, courts will not allow the trust to fail or to be defeated by the refusal or neglect of the trustee to execute the same; nor for any act or omission of the trustee; nor even for want of a trustee. If the trustee dies, or refuses to accept the trust, or is incapable of performing it, a court of equity will give to the cestui que trust the proper relief, either by executing it or appointing a trustee for that purpose. Trust deeds for the payment of debts have always been favorably regarded in equity, and they will be supported, if possible, notwithstanding any informality which might have invalidated them at law. As far as possible the intention of the parties is to be pursued, and the general object and purpose of the trust will be carried out.”
In Trees v. Johnson, Receiver, etc., 130 Kan. 681, 684, 288 Pac. 587, this court said:
“The bank had authority to take mortgages on real estate (ft. S. 9-101) and to deal in notes. The indebtedness was substantial in amount. The bank took a series of notes secured by the one mortgage. It sold these notes to various purchasers, retaining the mortgage as security for all of them, and thus became a trustee for the holders of the notes. As such trustee it was bound to the utmost good faith (Morrow v. Comm’rs of Saline Co., 21 Kan. 484) to keep the mortgaged security intact, and is liable in damages for its failure to do so. (7 C. J. 597; Bank v. Bank, 106 Kan. 303, 187 Pac. 697; Stone v. Bank, 107 Kan. 332, 190 Pac. 1094; Fulton v. Farmers Nat’l Bank, 122 Kan. 400, 252 Pac. 242, 123 Kan. 1, 253 Pac. 561; Bock v. First Nat’l Bank, 123 Kan. 304, 255 Pac. 68.)”
While the deed of trust herein is in legal effect a mortgage, that does not mean that the trustee thereunder was a mortgagee ánd nothing more. As such trustee it was its duty to see that, so far as possible, the terms, conditions and limitations of the trust were carried out and performed. It is clear from repeated statements in the deed that one of its purposes was to secure the equal and ratable payment of the principal and interest to the bondholders, without preference, limitation or distinction, and in event of foreclosure “if the proceeds of any such sale shall not be sufficient to pay in full the principal of said bonds, then without preference or priority such proceeds shall be applied ratably to the payment of all of the bonds secured hereby.” And, to see that each bondholder was treated ratably with the others, it was provided that the trustee “may proceed to protect and enforce the rights of the'trustee and of the bondholders hereunder by suit or suits for the enforcement of any remedy which the trustee, being advised by counsel, shall deem effectual or desirable to protect and enforce the rights aforesaid,” and “All of the remedies provided herein to be enjoyed and exercised by the trustee in case of default hereunder shall be cumulative and in addition to all of the rights and remedies provided by law.” What are the rights of an individual mortgagee in event of default? To bring foreclosure proceedings, have sale of the mortgaged property and to be a bidder if he choose. What is his remedy? An action in foreclosure. The above quoted words meant something. They cannot be passed off as surplusage; and, in our opinion, they may well be construed to imply that the trustee has power to do whatever in its judgment is advisable to be done, not for the interest of one bondholder, but for the best interest of all bondholders ratably. Pomeroy’s Equity Jurisprudence, 4th ed., § 1062:
“Trustees, in carrying the trust into execution, are not confined to the very letter of the provisions. They have authority to adopt measures and to do acts which though not specified in the instrument, are implied in its general directions, and are reasonable and proper means for making them effectual. This implied discretion in the choice of measures and acts is subject to the control of a court of equity, and must be exercised in a reasonable manner.” (And see Grossenbacher v. Spring, 108 Kan. 397, 399, 195 Pac. 884, and 21 C. J. 116.)
Under the deed of trust it was the duty of the trustee, not to protect one bondholder at the expense of another, but to so conduct its administration of the trust that, so far as possible to accomplish the result, all of the bondholders would be protected to the best possible advantage and ratably among themselves.
Default was made by the mortgagor, and in performance of its duty the trustee brought foreclosure proceedings, and a sale was had at which no bidders appeared at any price, adequate or otherwise. The question of its further duty then confronted the trustee, which had doubt of the extent of its powers, and it filed its motion with the court for instructions and authority, not only as it had a right to do, but as was its duty. (Old Colony Trust Co. v. City of Wichita, 123 Fed. 762, 767; 21 C. J. 129; 39 Cyc. 317; 26 R. C. L. 1372 et seq.; Pomeroy’s Eq. Jur., 4th ed., § 1064.) The motion informed the court as to the lack of specific authority for it to bid for the benefit of all the bondholders; that in the judgment of the trustee another sale should be ordered, and that at such sale “in the event there are no other satisfactory bidders therefor,” it should be permitted to bid an amount not greater than its judgment and interest, plus costs and unpaid taxes; it also presented the matter of the period of redemption and the effect thereof on the bidding, and that in the.opinion of the trustee it would be “next to impossible to secure an adequate bid”; and that it was uncertain as to whether or not it had authority to bid for the benefit of the bondholders. These were proper matters for consideration by the court, and its order shows it did consider them.
What were the rights of a minority bondholder as opposed to the remaining bondholders? While his rights are not in any sense to be ignored, overlooked or frittered away, can he determine the course of action the remainder must pursue? When he purchased, he did so with notice of the recitals of the deed of trust and knew that he was to share ratably with the other bondholders in payment, either by act of the makers of the bonds or as a result of sale in foreclosure proceedings, or otherwise.
We are not convinced by the reasoning of Equitable Trust Co. v. United States Oil & Refining Co. and Werner, Harris & Buck v. Equitable Trust Co., supra, that at least under the deed of trust under consideration, the holder of the $100 bond or of eleven $100 bonds can say that he may gamble as he will with his bonds and be the sole judge of whether the trustee can bid for him or not, and that the court cannot say under all the equities of the case that the trustee shall bid on behalf of all the bondholders.
We are persuaded the holding of the Pennsylvania court in Nay Aug L. Co. v. Scranton Tr. Co., supra, that there is no good reason why a trustee should not be' permitted to bid at a foreclosure sale, if it be necessary to protect the interest of- bondholders, is more reasonable and equitable and should be followed.
A positive and definite rule cannot be laid down as to when the court should make an order permitting the trustee, under a deed of trust where specific authority is lacking, to bid on behalf of bondholders under terms and conditions the court may fix, as such an order must necessarily depend on the existing facts and circumstances; but, on the showing here and in view of the fact that the property was once offered for sale and there were no bidders, it cannot be said that the court exceeded its jurisdiction or abused its discretion.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff as executrix of the estate of her deceased husband, Columbus Brown, to recover damages for his, death wrongfully caused by defendant. Plaintiff recovered, and defendant appeals.
On the evening of Saturday, November 16,1930, Columbus Brown was struck by defendant’s automobile at the intersection of Minnesota avenue and Twelfth street, in Kansas City, Kan. As a result of the accident, Brown died of traumatic pneumonia.
The evening was dark, and it was raining. Defendant was driving westward near the center of the street. With him in his automobile were his wife, Lillie A. Meyer, and his son, Carl J. Meyer. After striking Brown, defendant drove over to the curb, and he and his son went back to the place where the accident occurred. Brown had been knocked down. • He got up by himself, but could not stand upright, and either defendant or his son said, “Let’s take him to a doctor.” Defendant took Brown in the automobile to Doctor Barney’s house, but Doctor Barney was not at home. From Doctor Barney’s house defendant took Brown to John A. Anderson’s place of business. Brown was an employee of Anderson. At Anderson’s place of business defendant introduced himself, said he had struck Brown on Minnesota avenue, and said Brown wanted to tell Anderson he would not be at work Monday morning. Defendant then took Brown to Doctor Barney’s office. Defendant told Doctor Barney defendant did not know he had struck Brown, but from defendant’s conclusion that must have been the way it occurred. Based on what defendant and Brown told him, Doctor Barney examined Brown for injuries resulting from being struck by an automobile. Doctor Barney was employed that night by defendant, but Doctor Barney was paid by Frank M. Wisdom, who represented the insurance company which had insured defendant.
Defendant took Brown home, introduced himself to Mrs. Brown, told Mrs. Brown he ran into her husband, and gave an account of the accident. He said the cause of the accident was, he was pulling around another car, which caused him to strike Brown. He did not see Brown before striking him. His wife said he hit somebody. He said, “No, I didn’t,” and his boy said, “Yes, you did, papa.” Then he halted his car.
As soon as Mrs. Brown could undress her husband and get him to bed, she called Doctor Blount, who found wounds and bruises, on Brown’s chest. Brown was suffering severely, and was expectorating blood.
Defendant visited Brown several times before Brown’s death, and telephoned Mrs. Brown several times. On one occasion, just after defendant concluded a telephone conversation, Wisdom came to Brown’s house. On one occasion, when defendant was at Brown’s house, defendant gave an account of the accident to a visitor who called to see Brown. On an occasion Harry Bell was at defendant’s place of business, and defendant told Bell he hit a darkey at Twelfth and Minnesota; his wife and son were with him and it was dark and raining.
Several doctors were called, and examined Brown before his death. After his death, an autopsy was held. Doctor Barney was present, paid by Wisdom. Doctor Nesselrode arranged for the autopsy, and made a report to Wisdom, who was investigating the case, and who stated to the doctor that Brown was struck by an automobile.
The result of the foregoing is, there was no room for doubt that defendant’s automobile struck Brown and injured him, and the testimony left no room for doubt that the injury caused Brown’s death.
Defendant contends some testimony was improperly admitted. The proceedings under review are those of a second trial. At the first trial, a verdict was returned for defendant. Afterwards a new trial was granted, and the contention makes it necessary to review the proceedings antedating admission of the testimony.
At the first trial, Joseph H. Brady conducted the defense in a perfectly honorable manner, and he is blameless for what occurred. At the hearing on the motion for new trial it was made to appear that Mr. Brady was not employed by Meyer. He was employed by representatives of the General Indemnity Corporation of Rochester, N. Y.’ That corporation is an insurance company which had issued to Meyer an automobile insurance policy in which the company agreed to pay damages, costs and expenses on account of accident, and to defend any suit brought against Meyer on account of accident which Meyer might have while operating his automobile. Frank M. Wisdom, some of whose activities with respect to the accident which did happen have been alluded to, was an investigator or claim agent of the company, and Wisdom made an investigation of the accident. None of these facts were contested at the hearing on the motion for new trial.
At the first trial, Wisdom assisted Mr. Brady — testified he was helping Mr. Brady the best he knew how. Because Wisdom had investigated the accident, he was called as a witness by plaintiff. He admitted talking to Meyer, and testified as follows:
“Q. Will you state to the jury exactly what Mr. Meyer said to you with reference to said accident? A. He told me -he didn’t have an accident at Twelfth and Minnesota avenue, or his car ever hitting or striking some one.”
Wisdom also testified Meyer’s statement was not reduced to writing, and testified further as follows:
“Q. Did you ever see a written statement signed by Henry C. Meyer? A. I told you, Mr. Koehler, I don’t remember. I do not remember ever seeing a written statement signed by Mr. Meyer.”
It was a little queer Meyer should tell Wisdom he had no accident, when he was acting as if he might have struck Brown, and was freely telling others besides Wisdom he did strike Brown. It was also a little queer that with Meyer acting and talking as he did, Wisdom did not, for the information and protection of his company, commit Meyer to the truth by signed written statement. This court knows from reading many, many records that claim agents do that as a part of the routine of accident investigation.
After the first trial, the attorneys for plaintiff made some investigation. They applied to the insurance commissioner of this state, who applied to the insurance commissioner of New York, who applied to the insurance company for its files relating to the Brown accident. The result was, there was delivered to plaintiff’s attorneys a copy, of a written statement concerning the accident, signed by Meyer, in the presence of a witness, and initialed “F. M. W.,” who was Frank M. Wisdom. A part of the statement reads:
“Just after I crossed Twelfth str.eet, I struck a negro who was crossing Minnesota avenue. I did not see him at all, but my wife told me that I struck a man, so I pulled over to the north curbing and stopped. This negro was crossing Minnesota avenue, at an angle. He was about twenty feet west of the curb line of Twelfth street, and in the center of the two car tracks, when I struck him.”
There was also delivered to plaintiff’s attorneys a copy of a written statement concerning the accident, signed by Mrs. Meyer, in the presence of a witness, and initialed “F. M. W.” A portion of that statement reads:
“On November 15, 1930, about 6 p. m., I was in a Buick sedan with Mr. Meyer when an accident happened at Twelfth and Minnesota avenue. I'was seated in the front seat. My son Carl was in the back seat. ... I did not see this colored man before the accident, but did see him just as the left front bumper struck him. He at that time was near the south rail of the west-bound street-car track. I do not know if he was standing or walking; he was carrying an umbrella. I felt a slight jar of our car, and then told Mr. Meyer that the car had struck a man. He pulled to the north or right side of the street, and stopped. He and my son went back and got the colored man and put him in the back seat, and we took him to the doctor. He told us he wanted to go to Dr. Barney’s office.”
By the same means, plaintiff’s attorneys procured a copy of a statement concerning the accident by Carl Meyer, and copies of medical reports by Doctor Barney, Doctor Nesselrode, and two other doctors. The motion for new trial contained the following grounds:
“Misconduct of the prevailing party.
“Newly discovered evidence materially affecting said plaintiff, which she could not with reasonable diligence have discovered and produced at the trial.
“Verdict was produced by corruption of the prevailing party.”
Of course, the motion was allowed.
Mr. Brady did not conduct the defense at the second trial. The record does not disclose that Wisdom was present assisting the attorney who did conduct the defense at the second trial, and he was not a witness at the second trial. Likewise, neither Meyer nor Mrs. Meyer were witnesses for the defense at the second trial.
At the second trial, Meyer was called as a witness by plaintiff, and was confronted with the copy of his statement. He said, “I do not remember any such statement.” When pressed, he denied making any such statement, testified he never made any statement, and then fell back on what in many cases is pusillanimous evasion, “I cannot remember of my signing the statement.”
Mrs. Meyer was called as a witness by plaintiff. When confronted with her statement, she testified:
“Q. You never made any such statement, orally or in writing, or which you have signed; is that right? A. You asked me if I made that statement to Mr. Wisdom.
“Q. Well, cut out Mr. Wisdom. Did you or did you not make any such statement as that, in substance or language? A. No, sir.
“Q. Did you make that statement or sign that statement to anybody? A. No, sir, not anybody.
“Q. On that day or at any other time? A. No, sir.”
Copies of the statements of Meyer and Mrs. Meyer were admitted in evidence and, as indicated, defendant complains.
After the new trial was granted, plaintiff served a written request, addressed “To Henry C. Mejmr or J. H. Brady, his attorney of record,” to which copies of the statements of Meyer, Mrs. Meyer and Carl Meyer were attached, reading as follows:
“These statements the plaintiff desires to use as evidence in the trial of the above action, the originals of which statements are now in possession of your client, Henry C. Meyer, or the General Indemnity Corporation of Rochester, N. Y., which said General Indemnity Corporation of Rochester, N. Y., through you, is defending the said Henry C. Meyer in the above-entitled action by reason of a policy of insurance which was in full force and effect at the time of the accident, which policy of insurance contains the conditions that said insurance company will defend said action and protect the said Henry C. Meyer, and defend any litigation that might be brought against him on account of any accident that he might have while operating his automobile.
“The originals of these statements are in your possession or under your control, and the plaintiff, through her attorneys, requests that you admit the genuineness of said statements or produce the originals within four days from this date. In the event of your failure to admit the genuineness of these copies within four days from this date, the plaintiff will apply to the court to use said copies as evidence in said cause.”
The request was ignored. Plaintiff then made a motion, the prayer of which follows:
“Wherefore, plaintiff prays the court to make an order directing the production of said original statements as described herein before a fixed time, and in the event of the defendant’s refusal to do so, that said copies attached hereto be used as evidence in the trial of said cause, the same as if they were the originals.”
The motion itself contained the following:
“This request is made for the reason that the same are material evidence relating to the merits of this action and which the defendant has heretofore refused after due notice. That said original statements are necessary and material evidence in the trial of the above-entitled action, and that said defendant has refused to produce the same, although said defendant has the same in his possession or under his control, and is able to produce them as the same are in possession of the General Indemnity Corporation of Rochester, N. Y., whose agents, attorneys and representatives are defending said defendant in the above-entitled action, due to the fact that said defendant has an insurance policy containing the condition that said insurance company will indemnify and protect the said Henry C. Meyer and defend any litigation that might be brought against him on account of any accident that he might have while operating his car.”
A hearing was had on this motion. Plaintiff supported the motion by affidavit of her attorney, and the court made the following order:
“Now, on this 10th day of March, 1932, comes on to be heard the above-entitled cause upon the motion of the plaintiff to produce original documents at trial, and all parties appearing, and the court being well and fully advised, finds that said motion should be sustained.
“It is therefore ordered, adjudged and decreed that the defendant herein or his attorneys and representatives are hereby ordered and directed to produce and to have at the trial of this case the following original documents and statements: Statement of Henry C. Meyer, dated November 17, 1930; statement of Carl L. Meyer, dated November 28, 1930, and statement of Mrs. Lillie A. Meyer, dated November 28, 1930. True copies of which statements have been filed and served upon the defendant’s attorneys and are a part of the record in this case.
“It is further ordered that in the event said original statements are not produced at the trial of this cause, or that said defendant or his representatives or his attorneys refuse to produce the same at said time, then the said plaintiff may use in lieu of said original statements, copies of said statements in evidence in so far as said statements may be competent evidence at the trial of this cause.”
When the case was called for trial, plaintiff requested production of the original statements, pursuant to the order, and the attorney then conducting the defense stated the originals could not be produced. At the trial the copies were admitted in evidence.
The code of civil procedure contains the following sections relating to documentary evidence:
“Either party may exhibit to the other or to his attorney, at any time before the trial, any paper or document material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission in writing within four days after the re-: quest, and if the party exhibiting the paper or document be afterward put to any costs or expense to prove its genuineness, and the same be finally proved or admitted on the trial, such costs and expenses to be ascertained at the trial shall be paid by the party refusing to make the admission, unless it shall appear to the satisfaction of the court that there were good reasons for the refusal.” (R. S. 60-2849.)
“Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under his control containing evidence relating to the merits of the action, or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it; and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give to the other within a specified time an inspection and copy or permission to take a copy of such book, paper or document; and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.” (R. S. 60-2850.)
“Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused. This section shall not apply to any paper a copy of which is filed with a pleading.” (R. S. 60-2851.)
Defendant contends the first quoted section applies to original documents, and the penalty for noncompliance with the section is an allowance for costs and expenses in making proof. The second section relates to obtaining copy of an original and, if the taking of a copy is refused, the original shall be regarded as what the party applying for a copy alleges it to be. The last section applies to refusal to furnish copy of an original material to the case, and the penalty for refusal is exclusion of the original from evidence. In this instance, plaintiff had what she asserted were copies of originals, and defendant contends the court had no power, by virtue of the statute, to make the order which it did make. Defendant also contends the statute applies only to a party to the action, and the insurance company was a stranger to the record.
The fact that, so far as conduct of the case was concerned, Meyer was a figurehead and the insurance company was the real party, was brought to the attention of the attorney in charge of the defense, and of the court, at the hearing on the motion for new trial, when relation of the insurance company to the case was very important. The same subject was brought to the attention of the attorney in charge of the defense, and of the court, at the hearing on the motion for production of the original documents, when the relation of the insurance company to the case was very important. In both instances the attorney in charge of the defense appeared. In both instances the relation asserted by plaintiff was proved by affidavit of her attorney. In both instances the relation asserted and proved was not denied. No objection was made to sufficiency of the evidence to prove the relation and, on the face of this record, it stands confessed that the insurance company was conducting the defense to the action. The result is, we are here concerned with procedure for obtaining benefit of existing documents in the possession of an adversary standing in the shoes of the record defendant.
When we consider the character of the papers received by plaintiff’s attorneys purporting to be copies of statements relating to the Brown accident, made by Meyer and Mrs. Meyer, the circumstances under which the papers were procured, and other circumstances disclosed by the evidence, there could be no doubt anywhere, unless in a “court of justice,” that the papers were in fact copies of written statements signed by Meyer and Mrs. Meyer, initialed by Wisdom, and forwarded by Wisdom to the insurance company as the result of Wisdom’s investigation for the insurance company of the Brown accident. Whether the statute relating to documentary evidence was sufficient to enable plaintiff to obtain the benefit of this most important evidence, is not material. The statute establishes a procedure ordinarily adequate to the needs of litigants. When that procedure becomes inadequate, there remains inherent power in the court to get the truth. A court will exercise a sound discretion in exercise of the power, but will not hesitate when the circumstances demand exercise of the power; and in this instance the order that the original Meyer statements be produced or that plaintiff be allowed to use the copies with the evidentiary effect of the originals, was abundantly justified.
Besides what has been said, it was agreed before the jury was called that the copies might be used.' The order relating to production of the originals was read, and the following occurred:
“Mr. Berger: We are demanding that they produce these original statements at the trial, so that if they do not produce them, we can use the copies.
“Mr. A. J. Stanley: That order, as we understand it, is in the alternative, either that they be produced or the copies could be admitted as far as competent; and the defendant does not have in court the original statement, and therefore it cannot be produced.
“Mr. Berger: I suppose by this we use the copies?
“The Court: All right.
“Mr. Stanley, Jr.: So far as competent.
“Mr. Berger: Sure.”
Now, this court does not propose to indulge in any refinement respecting the meaning of the word “competent” as here used. The originals not being available, the copies were to be used, subject to whatever objection might be made to the originals.
Complaint is made that plaintiff was permitted to cross-examine and to impeach her own witnesses. It is asserted and not denied that Meyer and Mrs. Meyer did not testify at the first trial. However that may be, at the second trial plaintiff called them as witnesses, as plaintiff was privileged to do. Presumably they knew material facts of the accident, and presumably they would not trifle with their oaths. Plaintiff was privileged to conduct the examination in the light of the information afforded by the written statement. When the testimony commenced to depart from the statements, it was proper to inquire about the previous account of the accident. Indeed, such inquiry might be for the benefit of a truthful witness. When the previous account was denied, plaintiff was privileged, with consent of the court, to cross-examine, and then, if the interest of truth and justice required, to impeach. In such cases, it is the effect the testimony of the witness is likely to have on the jury that is important, and. not the surprise or shock to the attorney conducting the examination. In this instance, the discretion of the court in permitting cross-examination and impeachment was righteously exercised.
The answer was a general denial. Contributory negligence of Brown was not pleaded. Accepting the evidence favorable to plaintiff, and indulging the inferences favorable to plaintiff warranted by the evidence, negligence of defendant was sufficiently established. Therefore, defendant’s demurrer to plaintiff’s evidence was properly overruled, and defendant’s motion for an instructed verdict was properly denied. Defendant’s motion for new trial was properly denied.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced by Bluff City, a city of the third class, against the Western Light and Power Corporation to set aside and hold for naught ordinances of that city, Nos. 104 and 105 — the former being one purporting to authorize the sale of the electric light plant of the city, consisting mainly of a transmission line from Anthony to Bluff City and the distributing system in Bluff City, and the latter granting to the defendant a franchise to use and operate said system in Bluff City — because the ordinances are voidable and void and their passage and the transfer of the plant were procured by fraud on the part of the defendant, and for a rescission of the transfer under ordinance No. 104 and a reconveyance by defendant to plaintiff city of the electric plant and for an accounting of all profits from the operation of the plant since defendant acquired possession thereof. To the amended petition was attached as exhibits copies of the ordinances in question, the minutes of the meetings at which they were passed and of other meetings in connection with the transfer of the plant.
The answer was a general denial and a number of special denials and a plea of the two-year statute of limitations as to the specific recovery of personal property and as to an action for relief on the ground of fraud. The Central Republic Bank and Trust Company and Arthur T. Leonard, trustee, were permitted, as mortgagees of the property of the defendant company, to intervene and file an answer as to their rights. Replies were filed by plaintiff to the answers of the defendant and the interveners, which replies were general and special denials and included some allegations of fraud in addition to those in the amended petition.
The allegations of fraud were in substance as follows: That the defendant knew or should have known it had no right to purchase such plant; that the law theretofore permitting it to be done had been repealed and no legal proceedings had been instituted to effect or make such purchase; that defendant knew that the consideration of $6,000 was but a small part of the value of the plant, that it was in fact no consideration for the plant or the franchise; that defendant knew the consideration was not cash but bonds, and that the city had no right to purchase or accept bonds and the defendant had no right to deliver them; that the consideration was not paid in cash, because, when the balance of cash, $5,400, was paid by check, defendant demanded of the city a warrant for $6,000, and bonds for that amount were delivered by defendant to the city; that defendant’s agents represented to the city that it was not paying for the current it was using, that the city was operating at a loss and large bills were accumulating against it and the city would be liable for large damage suits on that account unless the city sold the plant to defendant; that such agents represented to the public service commission that defendant was the highest and best bidder for the plant and it had agreed to pay $6,000 in cash for it, which was a fair and reasonable price; that it would furnish current to consumers of the city and vicinity for a price less than then prevailing, and failed to tell the commission that the plant was earning six per cent on $30,000; and that none of such fraud had been discovered by the plaintiff until December, 1931, a month before the filing of this action.
The essential dates for a due consideration of the questions here involved, as they were contained in the pleadings, are as follows: Both ordinances were passed February 20, 1929, published in the official paper March 7, 14 and 21, 1929, ordinance No. 104 to take effect after first publication; law under which ordinance No. 104 was enacted was repealed and amended by the legislature of 1929, becoming effective March 8, 1929; the hearing concerning the sale of the plant before the public service commission, May 15, 1929; sale approved by commission May 17, 1929; transfer concluded by plaintiff signing sale agreement and receiving draft for balance of $5,400 and exchanging $6,000 warrant for $6,000 bonds May 31, 1929; possession taken by defendant May 31,1929; this action commenced January 7, 1932.
After the opening statement by counsel for all parties an objection was made by both defendants to the introduction of any testimony, for the reason that the amended petition and opening statement of counsel for plaintiff show affirmatively that the cause of action, if any ever existed, is barred by the two-year statute of limitations and fail to disclose any claim of any facts that would toll the runing of the statute. The trial court sustained the objection. Plaintiff also made an offer of proof, which, on objection of defendants, was denied, and plaintiff’s motion for new trial was overruled and judgment was rendered for defendants for costs, from all of which rulings and orders the plaintiff appeals.
The first and most important question involved in this controversy is the application of the two-year statute of limitations (R. S. 60-306, subdiv. 3) which is pleaded by the defendants both as to the specific recovery of personal property and relief on the ground of fraud. The undoubted purpose of the entire action is the recovery of personal property, namely, the electric plant and the profits from the use of it since possession was acquired by the defendant power company. One of the necessary steps to accomplish that end is to set aside the ordinance authorizing its sale to the defendant. It might be the duty of city officials to institute a proceeding to set aside any ordinance when it develops that the ordinance was void or voidable or its passage induced by fraud, but no one can read the amended petition in this case without concluding that the purpose of this action is to obtain restitution of the specific property, and the setting aside of the ordinance is only a means to that end.
Appellant cites many decisions of this and other courts holding that statutes of limitations are not ordinarily applicable to cities, and that rights, duties and privileges conferred and imposed upon municipal corporations exclusively for the public benefit cannot ordinarily be lost through nonuse, laches or estoppel. Among such from this state are Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610; State v. School District, 34 Kan. 237, 8 Pac. 208; In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073; State v. Dixon, 90 Kan. 594,135 Pac. 568; and City of Winfield v. Water Co., 51 Kan. 70, 32 Pac. 663. Most of these rulings were in cases where the state or municipal corporations were exercising governmental functions, and two of them show the court retained jurisdiction in actions by the city to set aside contracts made many years prior to the bringing of the actions. If the gist of the action now under consideration was simply to set aside the ordinance for the benefit of the city and would stop there, these rulings might apply to both ordinances.
In this state we have long recognized the fact that a city enjoys two very distinct lines of official duties — governmental functions and proprietary right. It was said in the case of City of Wichita v. Railroad & Light Co., 96 Kan. 606,152 Pac. 768:
“It is well recognized that every municipal corporation exercises dual functions: one in its capacity as a governmental body; the other in its proprietary capacity. Plaintiff’s right under the ordinance and laws to be paid a percentage of defendant’s receipts is a proprietary right and not one inhering in the exercise of governmental power. In this respect its rights are governed by the same rules that apply to contracts made by an individual or a private corporation.” (p. 608.)
Ordinance No. 104, authorizing the sale of the plant, is in the nature of a contract, and this action is to set that contract aside. In the case of City of Eureka v. Kansas Electric Power Co., 133 Kan. 238, 299 Pac. 938, the city sought to enforce a contract made by ordinance concerning a commission due the city under a franchise ordinance, and the court held that it was an action to enforce the contract and was governed by the law relating to contracts generally, and that the trial court properly held the statute of limitations applicable. (See, also, Municipal Power Transmission Co. v. City of Lyndon, 127 Kan. 59, 272 Pac. 158.)
Appellant concedes the rule stated in City of Coffeyville v. Met- calf, 134 Kan. 361, 5 P. 2d 807, City of Topeka v. Ritchie, 102 Kan. 384, 170 Pac. 1003, and other city cases cited by appellee in this connection to show the statute of limitations is applicable to a city where it seeks to enforce a contract, but insists it is here not recognizing any contract but saying the purported ordinance and contract are void and have been so from the very beginning. The very fact that it is a purported contract gives it the standing of a contract for the time being and makes it subject to the treatment applicable to a contract in the proceedings to set it aside.
Ordinance No. 104, authorizing the sale of the plant, passed February 20,1929, published March 7, 1929, to take effect after first publication, approved by Public Service Commission, May 17, 1929, and sale consummated May 31, 1929, was in the nature of a contract, and proceedings for its enforcement, annulment or rescission are to be governed by the rules applicable to contracts between individuals, including the statute of limitations (R. S. 60-306, subdiv. 3). This action not being commenced for two years and seven months after the consummation of the purported contract, it was barred as the trial court held.
We have purposely limited our comment to ordinance No. 104, because, as stated above, an action of the city for no other purpose than to correct a wrong for public benefit without involving any proprietary rights might be regarded as the exercise of a governmental function and not be subjected to the statute of limitations. Without deciding that the action to set aside ordinance No. 105 is of that class, it can be definitely said that the only purpose the plaintiff could have in this action to recover the specific property would be to afford a clear field for the plaintiff to exercise the use of the plant if it should recover the property in this action. To set the franchise ordinance No. 105 aside without restitution of the property to the plaintiff would not naturally and reasonably be within the purview and prayer of the amended petition, so we will, for the time being, defer consideration of ordinance No. 105 until we have concluded the matters involving ordinance No. 104.
Appellant insists it was entitled to introduce the evidence it proffered and have it go to the jury, particularly upon the question of fraud, and especially when, under the objection to the introduction of evidence, it was entitled to have all the averments of the amended petition considered as true the same as upon the hearing of a demurrer to a petition, and then, applying that to 'the averments of fraud and the recent discovery of the fraud, it insists the trial court unquestionably erred in sustaining the objection to the introduction of eyidence. Conceding the claim of appellant that it is entitled to have its averments of fraud and the time of discovery of the fraud considered as true, that does not entitle appellant to have the proof of those averments go to the jury or the demurrer to such petition overruled unless those averments of fraud constitute a fraud upon the rights of the plaintiff as a matter of law, and the same as to the recent discovery of the fraud. It is not difficult to say with reference to the items of fraud alleged and enumerated in this action, as set out above, that practically all of them concerned matters which were within easy reach of the officers of plaintiff city and they, as such officers, had constructive notice thereof. The real facts in many of the items above enumerated were peculiarly accessible to the officers; for instance, the income or profit from the plant, that it was being operated at a loss and not paying its bills for the current it was using, and that they were selling the plant for only a small part of its value. Their records showed its original cost and how long it had been used. More than two months elapsed between the enacting of the ordinance authorizing the sale and the consummation thereof. In the face of these facts shown by the amended petition, including the allegations of recent discovery, as a matter of law, like a conclusion of law upon findings of fact, the holding must be that the plaintiff had constructive notice of the matters so alleged as being fraudulent, and by the exercise of reasonable diligence might and reasonably could have discovered the fraud promptly in the items so alleged as fraudulent.
“When the means of discovery of a fraud lie in the public records required by law to be kept, which involve the very transaction in hand and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set in motion the statute of limitations — following Black v. Black, 64 Kan. 689, 704, 68 Pac. 662; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416.” (Smith v. Rector, 135 Kan. 326, syl. ¶ 2, 10 P. 2d 1077.)
It was said in the City of Coffeyville case, supra, that the shortages of the collector in his accounts “were revealed by the simplest process imaginable” and that “It is idle to debate whether the fraud was discovered within the purview of the two-year statute of limitations.” (pp. 368, 369.)
“The fraud is deemed to have been discovered whenever in the exercise of reasonable diligence it might have been discovered, and in such a case reasonable diligence required an examination of the record, which would necessarily have disclosed the fraud alleged.” (Donaldson v. Jacobitz, 67 Kan. 244, syl., 72 Pac. 846. See, also, Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611.)
» The holding of the trial court that the action of the plaintiff was barred by the two-year statute of limitations (R. S. 60-306, sub-div. 3) will cover and include the allegations of the amended petition that the ordinances Nos. 104 and 105 were voidable, but would not necessarily include the allegation that they are absolutely void. There are two reasons assigned-by appellant why they should be held void, viz., because they were not enacted at legal meetings of the city council, and because the statute under which ordinance No. 104 was enacted (R. S. 15-809) was repealed before the ordinance could be made effective. They were enacted at a special meeting of the council on February 20, 1929, at which the mayor, the clerk and all the members of the council were present and participating, but they were assembled without any formality as to written request or call.
R. S. 15-106, after prescribing the rule for regular meetings of the council of cities of the third class, continues as follows:
“Special meetings may be called by the mayor or acting mayor, on written request of any three members of the council, specifying the object and purpose of such meeting, which request shall be read at the meeting and entered at length on the journal. In all cases it shall require a majority of the councilmen elect to constitute a quorum to do business.”
Appellant insists that a written request specifying the object and purpose of the meeting is a necessary preliminary step without which no special meeting could be legal. It cites a number of cases from this court and the courts of other states where special meetings were held to be illegal when attended by less than the entire membership, although a quorum was present, but in none of them from this state was it said or hinted that the formality of the written request was necessary to the legality of the meeting, if all the members had been present.
In the case of Botts v. City of Valley Center, 124 Kan. 9, 257 Pac. 226, the written request was made, and the real question involved was whether the members present should have waited longer for an absent member who could have attended the meeting an hour or two later.
In the case of Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49, no session at all was .held, but two members of the city council at different times and places authorized the work to be done and recognized the obligation, which, of course, was not sufficient.
Appellant cites 43 C. J. 500, where the necessity of preliminary notice to members of the council is emphasized, but ample exception is therein made for the modification outlined in subsequent sections. One is where the giving of notice is impracticable, and another is where the members are all present, the latter being on page 501, and is as follows:
“Although there is contrary authority, it is very generally held that in the absence of statute providing otherwise, where all the members of a council are in attendance at a special meeting and participate therein, the absence of a call for such meeting or the failure to give notice of the meeting to all or any of the members will not render invalid the meeting or action taken thereat where the meeting is otherwise regular. Under these circumstances call and notice are considered to have been waived. Also, written notice required by statute is dispensed with where all the members had actual notice and attended and participated in the business of the meeting.”
The only case noted under the “contrary authority,” mentioned in the first sentence of the last quotation, is Forry v. Ridge, 56 Mo. App. 615, where the language of the charter of Kansas City provided as follows:
“ ‘The common council shall hold a meeting on the third Monday in April in each year and thereafter on the first Monday of every month, but not oftener, unless especially convened by the mayor in pursuance of law.’ ” (p. 619.)
The statute on the subject of calling such special session was as follows:
“ ‘The mayor shall call special sessions of the common council by proclamation, which shall be published as may be provided by ordinance.’ ” (p. 619.)
The opinion states that no ordinance was ever enacted as to such proclamations, and that the third word in the statute, “shall,” had been recently substituted for the word “may.” So there are two .special restrictions in this case that are quite different from our statute on the subject: first, the charter provision limiting meetings of the council to one each month “unless especially convened by the mayor in pursuance of law,” and second, the statute prescribing that the mayor shall call special meetings in a certain specified way. No such limitations or restrictions are necessary under our stat ute, and all courts readily recognize the wide difference in the use of the word “may” instead of “shall.”
The statute in New Mexico as to special meetings of city council (Annotated Statutes 1915, § 3601) is as follows: “The mayor and any three members may call special meetings by notice to each of the members of the council, personally served or left at his usual place of residence. . . and it was held in the case of Schwartz et al. v. Town of Gallup et al., 22 N. M. 521:
“Notice of a special meeting of a city council or board of trustees of a town may be dispensed with, or its necessity waived, by the presence and consent of every one of those entitled to notice.” (Syl. ff 1.)
The language of the statute on this subject in Arkansas is “the mayor or any three aldermen may call special meetings in such manner as may be provided by ordinance,” and in Harrison v. Campbell, 160 Ark. 88 (1923) it was held:
“An ordinance passed at a special meeting of the council of an incorporated town is valid if all members of the council were voluntarily present at the meeting and participated in the proceedings.” (Sid. ¶ 1.)
In the state of Louisiana the statute on this subject is very much like our own, that the mayor or any other aldermen may, by written notice, call a special meeting of the mayor and board of aldermen for the transaction of important business, and in the case of Town of Jonesboro v. Gentrey, 165 La. 1003, it was held:
“Where minutes of town council show that mayor and councilmen were present at meeting called specially to enact ordinance regulating operation of pool and billiard halls, ordinance unanimously adopted by yea and nay vote was not unconstitutional and illegal because it was passed at special meeting of town council, minutes of which did not show that written notices were issued and served on council members as required by Act No. 136 of 1898, § 22.” (Syl.)
Section 8026 of Annotated Statutes of Nebraska (1903) is as follows: “The mayor and any three councilmen shall have the power to call special meetings of the council, the object of which shall be submitted to the council in writing and the call and object and return thereon shall be entered on the journal by the clerk;” and it was held in Nelson v. City of South Omaha, 84 Neb. 434:
“A meeting of a city council held on a day other than that fixed for its regular meetings, although no call for a special meeting has been made, is a valid special meeting if all the members of the council are present and consent to such meeting.” (Syl. If 1.)
We conclude, as was done in most of the cases above cited, and many others, that the formal requirement of the statute is waived by the presence of all the members and their participating in all the business coming before the council, as is shown by the minutes that all members were present and the vote on every proposition was unanimous. This applies to the passage of both ordinances and the transaction of the concluding business of the sale at the council meeting on May 31, 1929.
Was ordinance No. 104 void because of the repeal of R. S. 15-809 the day after the ordinance took effect? The ordinance itself said it would take effect upon its first publication, which was March 7, 1929. The ordinance was the agreement or contract between the parties made at the special meeting of the council on February 20, 1929, at which time $600 was paid in cash on the purchase price of the electric plant and received by the city. The new law, chapter 135 of the Laws of 1929, amending and repealing the old law, R. S. 15-809, was published and took effect March 8, 1929. Under the old law the city council was authorized to sell and dispose of its municipal electrical plant and system, while the amendment required that such proposition should be submitted to a vote of the qualified electors of the city for their decision.
As was said earlier in this decision, the enactment of ordinance No. 104 authorizing the sale of the electric plant was the exercise of a proprietary right of the city. It was the making of a contract and receiving a consideration for some personal property, and it is governed and controlled by the same rules and regulations as those which govern when contracts exist between individuals, firms or corporations. The purchaser has a vested right in the contract so made and cannot be deprived of that right by a subsequent change in the law which limits the right of the seller. There was, of course, no vested right in the law itself by anyone so that a claim could be made of being deprived of a right by the repeal and amendment of the law. But because the defendant here had contracted for the purchase of this property and partly paid therefor in cash while the city had full legal right and statutory authority to sell the same without submitting the matter to the voters, it was an enforceable and binding contract, notwithstanding the law was repealed and amended the following day.
“The repeal of a statute does not operate to impair or otherwise affect rights that have been vested or accrued while the statute was in force. This rule is applicable alike to rights acquired under contracts and to rights of action to recover damages for torts.” (59 C. J. 1187.)
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed.” (Douglas County v. Woodward, 73 Kan. 238, syl. ¶ 1, 84 Pac. 1028.)
We do not think the resolution or motion adopted at the same meeting directing that the ordinances be published in three issues of the paper change the law or the provision of ordinance No. 104 that it take effect after the first publication.
' Appellant cites Roberts v. M. K. & T. Rly. Co., 43 Kan. 102, 22 Pac. 1006, to show that the repeal of a law may cancel the privileges under it as it formerly existed, but we do not find this to be applicable to the situation here. In that case the government gave a right of way over Osage ceded lands to a railroad company on which to construct its line of road, and afterwards and before the location and construction of the railroad the act was repealed. It was held that the railroad company had secured no right of way by construction of its road, and the opinion shows that it did not attempt to avail itself of this right until about two years after the law was repealed.
A similar situation existed in Kansas a few years ago when the majority of females was changed from eighteen to twenty-one years, and it has been held that rights acquired under the existing law while one was eighteen years of age were not lost by the repeal and amendment of the law. (See Smith v. Smith, 104 Kan. 629, 180 Pac. 231.)
Appellant has subdivided these general topics here considered and has exhaustively treated and briefed them. They have been examined and fully considered in the light and from the angle viewed by the appellant, but we do not find that they modify or in any way change the conclusions herein reached in approving the rulings of the trial court on the general propositions as herein outlined and discussed.
There seems to be no need of further considering the possible invalidity of ordinance No. 105 along lines wherein it may not be subject to exactly the same rules as are applicable to ordinance No. 104, because a finding of a distinct difference in the result as to it would not avail the appellant anything within the prayer of its petition.
The judgment is affirmed.
Harvey, J., dissenting.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Cortland E. Berry, of Newton, an attorney admitted to the practice of law in Kansas.
Complaints filed against the respondent alleged that the respondent violated KRPC 1.1 (2001 Kan. Ct. Annot. 312) (competence); KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); KRPC 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); KRPC 3.1 (2001 Kan. Ct. R. Annot. 397) (meritorious claims and contentions); KRPC 3.2 (2001 Kan. Ct. R. Annot. 398) (expediting litigation); KRPC 3.4 (2001 Kan. Ct. R. Annot. 406) (fairness to opposing party and counsel); KRPC 3.5 (2001 Kan. Ct. R. Annot. 409) (impartiality and decorum of tribunal); and KRPC 8.4 (2001 Kan. Ct. R. Annot. 437) (misconduct).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and through counsel, Richard Jones, and the Disciplinary Administrator appeared by and through Alexander M. Walczak, Deputy Disciplinary Administrator.
Based upon clear and convincing evidence, a unanimous panel made the following findings of facts and conclusions of law.
“Findings of Fact
“1. Cortland E. Berxy is an attorney at law. . . .
“Myers Complaint
“2. In 1990 or 1991, James Hilliard approached the Respondent and asked that he assist him with some difficulties he was having with the city of Peabody, Kansas. Complaint regarding Mr. Hilliard’s properties located in the city had been lodged, and the city was preparing to take action against Mr. Hilliard. The Respondent agreed to represent Mr. Hilliard and filed suit against the city in the United States District Court for the District of Kansas. Mr. Hilliard’s federal case was later dismissed based upon the ‘abstention doctrine.’
“3. In 1991, the city of Peabody, Kansas, commenced administrative proceedings against Mr. Hilliard for the abatement of nuisances and the repair or removal of unsafe or dangerous structures. While Mr. Hilliard appeared at one administrative hearing, Mr. Hilliard failed to appear at subsequent administrative hearings. Consequently, the city issued abatement orders. Mr. Hilliard did not appeal the administrative abatement orders.
“4. Thereafter, on December 3, 1991, the city, seeking to enforce the administrative orders previously issued, filed a petition in the District Court of Marion County, Kansas. On January 3, 1992, the Respondent filed an answer and counterclaim on behalf of Mr. Hilliard. The counterclaims included allegations of harassment, racial discrimination, defamation, and fraudulent misrepresentation. However, tire Respondent failed to plead those claims with particularity.
“5. The city filed a timely motion to dismiss the counterclaims. The Respondent failed to respond to the city’s motion to dismiss.
“6. On February 17, 1992, the city provided discovery requests to the Respondent. Initially, the Respondent failed to respond to the requests for discovery. As a result, counsel for the city filed a motion to compel discovery. The court scheduled a hearing on the motion to compel for November 3, 1992, by telephone conference call. The Respondent faded to participate in the conference call. Consequently, the court granted the city’s motion to compel. Ultimately, it took the Respondent more than nine months to adequately respond to the city’s requests for discovery. In the discovery provided, the Respondent made it known that Mr. Hilliard abandoned the claims of defamation and fraudulent misrepresentation.
“7. On April 16, 1993, the city filed a motion for summary judgment. While the Respondent provided a response to the motion for summary judgment, he failed to comply with Kan. Sup. Ct. R. 114 regarding references to the evidentiary record. The motion for summary judgment was set for hearing by mutual agreement of the parties. The Respondent failed to appear at the hearing. Judgment was entered in the city’s favor and the Respondent appealed. There was no evidence presented to indicate that any stay of the judgment was requested or granted pending the appeal.
“8. On May 16, 1994, the case was scheduled for an evidentiary hearing to determine whether Mr. Hilliard’s properties remained in violation of the cleanup orders. On the morning of May 16, 1994, the Respondent filed a motion to dismiss for lack of jurisdiction. The court went forward with the evidentiary hear ing, and found that the properties were in violation of the applicable ordinances. Because the appeal from the order for summary judgment was still pending in the Court of Appeals, the court provided Mr. Hilliard with additional time to clean up the properties. The deadline for compliance was set for sixty days following the issuance of a final ruling on the appeal.
“9. Regarding the Respondent’s motion to dismiss, the court ordered the Respondent to file a brief in support of the motion within thirty days, if the Respondent desired to have a ruling on his motion. The Respondent failed to file a brief in support of his motion.
“10. On November 23, 1994, the Kansas Court of Appeals affirmed the judgment of the district court. Thereafter, on February 7, 1995, the Kansas Supreme Court denied the Respondent’s petition for review.
“11. In accordance with the district court’s previous ruling, Mr. Hilliard had until April 8, 1995, to comply with the clean-up orders. No action was taken in this case until, on April 15,1996, the city filed a ‘Motion for an Order Permitting Abatement Actions to be Taken by City.’ The motion was scheduled for an evidentiary hearing on April 29, 1996.
“12. On April 20, 1996, the Respondent filed a motion for continuance of the hearing. The court denied the Respondent’s motion. Then, on April 26,1996, the Respondent filed an ‘Objection and a Motion to Set Aside Judgment.’ In the motion, the Respondent reasserted claims and defenses that had previously been disposed of by the trial court and by the Court of Appeals. On the morning of April 29, 1996, the Respondent filed a ‘Motion to Void Judgment’ and a ‘Motion for Change of Judge.’ By filing the ‘Motion for Change of Judge,’ the Respondent achieved a postponement of the evidentiary hearing.
“13. Eventually, the ‘Motion for Change of Judge’ was denied by the Honorable David R. Platt. In denying tire Respondent’s motion, Judge Platt found that, ‘no reasonable person, much less a licensed attorney, would truly believe that [the facts alleged in the affidavit] form a legally sufficient basis to question the impartiality of the Judge.’
“14. In 1996, the Respondent filed a lawsuit in behalf of Mr. Hilliard against the city of Peabody, the city clerk, and the mayor, again challenging the city’s actions in regard to Mr. Hilliard’s property. The defendants requested that Mr. Hilliard provide certain discovery. When the discovery was not forthcoming, the defendant’s filed a motion to compel and a request for sanctions. Because the Respondent failed to timely comply with the defendants’ requests for discovery, the court ordered that the Respondent pay attorney fees in the amount of $300.00, by October 6, 1997. The Respondent failed to comply with the court’s order. Thereafter, tire Respondent provided counsel for the city with a check for $150.00. However, when the Respondent’s bank was contacted, counsel for the city was informed that the check would not clear. The Respondent testified that he eventually paid the sanctions assessed.
“15. On September 26, 1997, the court concluded an evidentiary hearing on all pending motions in the city’s case against Mr. Hilliard. During the course of that hearing, the Respondent alleged that the city ‘perpetrated a fraud upon the court.’ The court found no evidence to support such a contention. In dismissing all of the Respondent’s pending motions, the court stated: ‘Again, all of these matters represent issues that were not raised by the defendants in the summary judgement proceedings herein, or were decided and foreclosed by the decision; and, accordingly, all such matters are now precluded by this Court’s prior rulings.’
“The court ordered that Mr. Hilliard clean up the properties before the next hearing, scheduled for November 21, 1997.
“16. Prior to the hearing on November 21,1997, the Respondent filed a notice of appeal. Even though the Respondent filed the notice of appeal, the district court held the hearing. At the conclusion of the hearing, the court found that Mr. Hilliard’s properties remained in violation of the ordinances, 31 months after the court’s deadline to clean up the property and six and one-half years after the city issued its clean-up orders. Accordingly, the court entered an order authorizing the city to abate the nuisances and remove the dangerous structures. The court ordered that the city begin the clean-up on February 1, 1998, providing Mr. Hilliard with another opportunity to clean-up the property.
“17. On Januaiy 2,1998, the city filed a motion for sanctions. Thereafter, Judge Johnson indicated on the record that he was inclined to impose sanctions, and requested that the ciiy provide an itemized statement of attorney fees. Shortly thereafter, Mr. Hilliard died. After Mr. Hilliard’s death, the city was able to resolve the nuisance and dangerous structures issues with Mr. Hilliard’s widow. Because the city was able to resolve the nuisance and dangerous structures with Mr. Hilliard, the city did not pursue tire sanction of payment of attorney fees.
“18. In 1996, the city of Newton commenced an injunctive action against Samuel and Blanche Froelich. The suit was brought pursuant to the nuisance and dangerous structures ordinances.
“19. During the pendency of tire action against the Froelichs, the Respondent filed frivolous and repetitive claims and motions.
“20. The city made requests for discovery, including requests for inspections. The Respondent never timely complied with a request for discovery. The Respondent refused to comply with the requests for inspections. As a result, the court held hearings on whether the city should be allowed to conduct inspections of the properties. The court ordered Mr. and Mrs. Froelich to allow the inspections.
“21. During the same time period, the Respondent filed two suits in behalf of Mr. and Mrs. Froelich. The first case was filed in Marion County District Court. The Respondent named the city of Newton, the city commissioners, and the members of the city’s Beautification Advisory Board. Eventually, the Respondent dismissed the state court action. Thereafter, the Respondent filed a second case in behalf of Mr. and Mrs. Froelich in the United States District Court for the District of Kansas, alleging violations of constitutional and civil rights. In that case, judgment was entered in favor of the city following a motion for summary judgment.
“22. The city’s case against Mr. and Mrs. Froelich was pending from 1996 to 1999.
“Wheeler Complaint
“23. The Lyon County District Court appointed the Respondent to represent an indigent criminal defendant by the name of David Bourassa before the Honorable Merlin G. Wheeler. Mr. Bourassa was charged with aggravated robbery, aggravated burglary, and theft.
“24. Corey McPhail was charged with having committed criminal offenses arising out of the same incident. Steve Atherton was appointed to represent Mr. McPhail. Mr. McPhail entered a plea and, as a result, was incarcerated.
“25. While preparing for Mr. Bourassa’s trial, the Respondent contacted Mr. Atherton to secure an interview of Mr. McPhail. Mr. Atherton agreed to allow the Respondent to interview Mr. McPhail. Mr. McPhail refused to meet with the Respondent.
“26. The state of Kansas subpoenaed Mr. McPhail and transported him from prison to testify at Mr. Bourassa’s trial. However, the state elected not to call Mr. McPhail at tire trial of Mr. Bourassa. During the trial, after the state made it known that it was not going to be calling Mr. McPhail as a witness, Judge Wheeler recessed the trial to allow the Respondent to interview Mr. McPhail. The Respondent failed to attempt to interview Mr. McPhail during the recess.
“27. The jury found Mr. Bourassa guilty of the crime of aggravated robbery. The jury acquitted Mr. Bourassa of the remaining charges.
“28. After Mr. Bourassa’s trial was concluded, the Respondent met with Mr. McPhail. Mr. McPhail requested that the Respondent enter his appearance in Mr. McPhail’s case. After consulting with and receiving the consent of Mr. Bourassa, the Respondent entered his appearance in Mr. McPhail’s case.
“29. The Respondent appeared before Judge Wheeler in behalf of Mr. Bourassa and Mr. McPhail in separate proceedings. In Judge Wheeler’s opinion, the Respondent’s position in Mr. McPhail’s case was in conflict with the Respondent’s position in Mr. Bourassa’s case. Judge Wheeler appointed independent counsel for Mr. Bourassa and Mr. McPhail to determine whether a legal conflict existed. The counsel appointed was unable to conclude that a conflict existed.
“30. Later, at a post-trial hearing, Judge Wheeler held the Respondent in contempt of court for the Respondent’s reaction to the court’s statement that the Respondent may have been ineffective. The exchange between Judge Wheeler and the Respondent is as follows:
‘THE COURT: ... I will inform counsel that it is a distinct possibility that this Court will on its own motion grant a new trial due to the ineffective assistance of counsel and failure to consider ....
‘MR. BERRY: You better hold on. I don’t care if you’re a Judge or not, that is totally improper what you are doing here. And you got to know that. I just want it on the record. You just want to say things one way straight and don’t listen to my position. Well, I’m going to get on the record whether you listen or not.
‘THE COURT: Be seated or you’ll be in contempt.
‘MR. BERRY: I’m waiting to be in contempt because what you’re doing is contemptuous.
‘THE COURT: Mr. Berry, you have reached a point that I am going to hold you in contempt for your conduct. I’ll deal with my sanctions in a moment.
‘THE COURT: Now, Mr. Berry, I had informed you that I wish to take up the matter of sanctions for your conduct today in Court. I have made a determination in this case that I am extremely concerned about pretrial preparation for this matter and the handling of the case through the course of the trial. You have a track record before this Court of disregard of deadlines, failure to appear on time; in fact, you missed yesterday’s hearing, we continued it over to this morning. That’s an inconvenience to everyone else, not the least of which was that we were scheduled to start a jury trial this morning. The sanction will be in this case that you will be removed from the Court appointment list for this judicial district. I will not tolerate ....
‘MR. BERRY: That’s what you were planning to do when you put me on the list. I want you to sanction me and I’ll appeal it to a higher Court than you because your track record is also traceable and your racial bias is pretty clear, too.
‘THE COURT: Mr. Berry, I have been accused racially biased too many times from you.
‘MR. BERRY: Well, you’ve done your damage and I’ll go on with my appeal.
‘THE COURT: Mr. Berry, your appeals are filed across the hall in the clerk’s office.
‘MR. BERRY: They’ll be there.
‘THE COURT: You will be removed from the appointment list in this judicial district and that will be the sanction that is imposed for this hearing.
‘MR. BERRY: That sanction is way out of line. It’s way out of line and you know that, Your Honor.
‘THE COURT: Mr. Berry, if you interrupt me one more time the sanction’s going to be worse.
‘MR. BERRY: Well, then impose the worst sanction because what you’re doing is totally ridiculous.
‘THE COURT: Are you inviting this Court to sanction you in a more decisive manner?
‘MR. BERRY: Is there a more decisive manner, your Honor?
‘THE COURT: If you consider your personal liberty to be important, I would say yes.
‘MR. BERRY: Well, if you would go so far after doing the ultimate sanction to doing something like that, I guess you would stop at nothing.
‘THE COURT: Mr. Berry, I have imposed only a sanction that says that you will not be appointed by this Court. I have not prevented you from practicing law in this Court or receiving clients on your own. Now in my mind that is — I don’t know exactly what the impact of that financially is on you, but I do understand that it is an important sanction, but in my mind it is a very minor sanction considering your conduct here and your accusations with regard to this Court accusing the Court of being racist when, in fact, I have bent over backwards on many occasions to protect your interests or protect those of your clients is, in my opinion, a personal affront and a personal attack that is unwarranted.
‘MR. BERRY: And what you’re doing is a personal attack on me and everything and not letting me speak, not letting'me address why I was late yesterday when even Judge Royce understood. I guess I’ll have to have her call you and have some other people call you. There are reasons for things when something is inexcusable, but you don’t dump all apples into one basket and every incident you can think of to build your case and that’s what you are attempting to do.
‘THE COURT: I did not sanction you today for not appearing yesterday. I sanctioned you for your conduct today and based upon the fact that my observations in court including this case do not warrant, in my opinion, your being appointed to represent indigent defendants in this judicial district.
“31. Judge Wheeler removed die Respondent’s name from the appointment list in Lyon County District Court. The Respondent did not appeal Judge Wheeler’s order.
“Hebert Complaint and Minor Complaint
“32. In October, 1998, Mario A. Minor was charged with criminal drug offenses in Saline County, Kansas. After the charges were filed, the District Court appointed die Public Defender’s office to represent Mr. Minor. Specifically, Ralph DeZago was assigned to represent Mr. Minor.
“33. After being charged, but before trial, Mr. Minor approached the Respondent seeking private representation. Mr. Minor and die Respondent met for 10 to 15 minutes regarding the merits of Mr. Minor’s case. The Respondent informed Mr. Minor diat Mr. DeZago would be able to ‘get him off.’ Based upon the assurances of the Respondent, Mr. Minor testified diat he proceeded to trial with Mr. DeZago as counsel. The Respondent testified that he informed Mr. Minor that in order to represent him at trial, the fee would be $1,500. Mr. Minor was unable to pay the Respondent $1,500. In either event, Mr. Minor proceeded to trial witii Mr. DeZago as counsel.
“34. After the conclusion of a jury trial, Mr. Minor was convicted. Within two weeks of the conviction, Mr. Minor again contacted die Respondent at the Respondent’s office. Mr. Minor and the Respondent met for approximately five to ten minutes. The Respondent agreed to represent Mr. Minor at the sentencing hearing, post-trial motions hearing, and a potential probation violation hearing. The Respondent agreed to prepare Mr. Minor for sentencing. Sentencing was scheduled for March 15, 1999. The Respondent accepted $275 for die representation.
“35. On Februaiy 3, 1999, the Respondent entered a formal entry of appearance and filed a motion for new trial in behalf of Mr. Minor.
“36. On Friday, March 12, 1999, the Respondent personally obtained a copy of the presentence investigation report regarding Mr. Minor. At the time that the Respondent obtained a copy of the report, the Respondent disclosed that he had not yet had the occasion to meet with Mr. Minor to prepare for sentencing.
“37. On Monday, March 15, 1999, the Respondent contacted the court, explaining that his wife was ill, that he would be late for court, and that he would prefer that the sentencing hearing be rescheduled. Judge Hebert agreed to reschedule the sentencing hearing. The sentencing was rescheduled for Tuesday, March 23, 1999, at 10:00 a.m.
“38. On March 23,1999, at 8:45 a.m., the Respondent contacted the court and left a voice mail message. In the message, the Respondent indicted that he ‘had some hearing’ at 9:00 a.m., that he had overslept, and that he would not be able to attend the scheduled hearing. At 10:00 a.m., the Respondent failed to appear at the scheduled sentencing hearing. Judge Hebert rescheduled the sentencing hearing for March 24, 1999, at 9:00 a.m.
“39. The Respondent traveled to Salma and met with Mr. Minor on March 23, 1999. The Respondent visited with Mr. Minor for a few minutes. The Respondent explained to Mr. Minor that he did not have time to meet with him, because he needed to go see the judge. Judge Hebert was not available when the Respondent arrived, but the Respondent did contact Judge Hebert’s administrative assistant. The Respondent was told that the sentencing hearing had been rescheduled for the following day March 24, 1999, at 9:00 a.m., and that his appearance was required.
“40. On March 24, 1999, the court held Mr. Minor’s sentencing hearing. The Respondent arrived late for the sentencing hearing. The following exchange occurred at the outset of Mr. Minor’s sentencing hearing:
‘THE COURT: . . . This matter was originally scheduled for March 15th at 1:30. On the late request from attorney Cortland Berry, the matter was continued until March 23rd at ten a.m. For the record March 23 at ten a.m. Attorney Berry failed to appear. His appearance was not excused. Due to that failure to appear the court was required to continue the proceedings so that Mr. Minor could have legal representation. As of 1:30 yesterday afternoon the court had not been contacted by Mr. Beriy. He apparently showed up in our offices sometime thereafter and was advised the proceedings would be conducted at 9:00 this morning. Nine o’clock this morning the only person in the courtroom was Assistant County Attorney Thomas Stanton who had made special arrangements with his docket to appear on short notice. Mr. Berry then arrives approximately 9:06 to the courtroom.
‘Mr. Berry, in fifteen years of law practice and fifteen years on the bench I recall one other instance in which an attorney simply failed to appear for a serious proceeding. Mr. Minor advised the court both on the 15th of March and again yesterday that he’d had no contact with you with regard to these matters. Following your failure to appear yesterday, Mr. Berry, the court announced on the record that your failure to appear constituted and was adjudged and found to be in direct contempt of this court. I’m going to call upon you at this time to show, if any you have to show, why sanctions should not be imposed for that direct contempt of this court.
‘MR. BERRY: Your Honor, this court is empowered to render justice and of course has the authority to do whatever it feels advisable. All I can do is tell the court about my situation as I indicated yesterday. I called. I overslept and it doesn’t happen often but it does happen sometimes when you only have a couple of hours of sleep.
‘THE COURT: Well, I’m sorry, Mr. Berry, but I do consider it an extremely serious dereliction of your duties both to your client and to your obligations as an officer of the court. The address which was given tire court on your entry of appearance showed a Newton address, which is an easy hour drive on the Interstate from here, and no — but in any event — there was no problem expressed when the matter was rescheduled at your request until 10:00 yesterday morning. It’s a grave inconvenience, both to the docket of die court, to Mr. Stanton’s schedule. He’s an extremely busy man. He works long hours everyday, but it is always prompt in his appearance before tire court. I guess one of the hazards of attempting to practice long-distance law and be all things to all people is that there are many inconveniences involved with the travel. It’s your responsibility when you take on the representation of a person and you’re entrusted with that person’s life, liberty, that you fulfill your obligations both to that client and to the court.
‘The court has heard an explanation but has not heard a reasonable excuse or a reasonable purge of the order of contempt. I have a serious question here at the commencement of tírese proceedings. . . .
“Well, I’m going to order that Mr. Berry purge himself of contempt of this court by performing twenty hours of community service and to provide written verification of that to this court at nine o’clock on Monday, April 26th, personal appearance at that time.
‘MR. STANTON: I’m sorry, what was that date again, Judge?
‘THE COURT: I believe it’s a Monday, April 26th, at nine o’clock. Personal appearance will be required with written verification that twenty hours of community service have been performed.
‘MR. BERRY: Your Honor, I want the order to be severed order if possible from today’s proceedings as I intend to appeal the order.
“41. The Respondent never prepared Mr. Minor for sentencing.
“42. On March 31, 1999, Judge Hebert filed a complaint with the Disciplinary Administrator regarding the Respondent’s conduct in the representation of Mr. Minor.
“43. Following sentencing, Mr. Minor continued to try to contact the Respondent. Because Mr. Minor was incarcerated, he was allowed to place only collect calls. The Respondent accepted two collect telephone calls. During those telephone calls, the Respondent told Mr. Minor that he would no longer be accepting collect telephone calls from him. Mr. Minor attempted to contact the Respondent by letter and by sending messages through his wife. The Respondent did not respond to the requests for information.
“44. On approximately April 6, 1999, the Respondent filed a notice of appeal in behalf of Mr. Minor. The Respondent failed to timely docket Mr. Minor s appeal.
“45. The Respondent never formally withdrew from the representation of Mr. Minor.
“46. On May 14, 1999, Mr. Minor wrote to Judge Hebert complaining of the lack of communication with the Respondent.
“47. While incarcerated, a fellow inmate informed Mr. Minor of the complaint process with the Disciplinary Administrator s office. Thereafter, in May, 1999, Mr. Minor prepared a letter of complaint to the Disciplinary Administrator, and forwarded it to Judge Hebert. Judge Hebert forwarded it to the Disciplinary Administrator.
“48. Again, on May 27,1999, Mr. Minor wrote to Judge Hebert informing him that the Respondent continued to fail to communicate with him.
“49. Because the Respondent failed to communicate with his client, Judge Hebert appointed the Appellate Defender’s office to represent Mr. Minor in his appeal.
“50. At the hearing on this matter, Judge Hebert testified that the Respondent’s representation of Mr. Minor at the sentencing hearing, ‘was the most totally deficient performance [he had] ever seen by an attorney.’ Judge Hebert went on to say that it appeared that the Respondent had done nothing for Mr. Minor.
“51. The Respondent never appealed the court’s citation in contempt. To date, the Respondent has failed to perform the twenty hours of community service work, and therefore, remains in contempt of court.”
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
“1. Myers Complaint
a. KRPC 3.1 prohibits attorneys from bringing or defending a proceeding, or asserting or controverting ‘an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.’ In this case, tire Respondent lacked a good faith basis when he filed repetitive and frivolous motions in the Hilliard and Froelich cases. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.1.
b. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with tire interests of his client. Because the Respondent failed to attend [the] hearing and failed to file appropriate pleadings in the Hilliard case, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
c. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically,
‘[a] lawyer shall not . . . in pretrial procedure ... fail to malee [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’
In this case, the Respondent repeatedly failed to provide responses to discovery in the Hilliard case and the Froelich case. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
d. It is professional misconduct for a lawyer to violate the Kansas Rules of Professional Conduct. Because the Respondent violated KRPC 3.1,3.2, and 3.4(d) with regard to the complaint lodged by Mr. Myers, the Hearing Panel concludes that the Respondent also violated KRPC 8.4(a).
“2. Wheeler Complaint
a. The Kansas Rules of Professional Conduct regulate and limit a lawyer’s First Amendment freedom of speech. See In re Johnson, 240 Kan. 334, 335, 729 P.2d 1175 (1986) and In re Wilkinson, 251 Kan. 546, 555, 834 P.2d 1356 (1992). Specifically, lawyers must temper their statements to judges and adjudicatory officers.
‘A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.’/ohnson, 240 Kan. at 336.
KRPC 3.5(d) provides that ‘[a] lawyer shall not . . . engage in undignified or discourteous conduct degrading to a tribunal.’ In this case, the Respondent made ‘unrestrained and intemperate’ statements regarding Judge Wheeler and those statements amounted to undignified and discourteous conduct that was degrading to the tribunal. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.5(d).
b. Because the Respondent violated KRPC 3.5(d) with regard to Judge Wheeler’s complaint, the Hearing Panel concludes that the Respondent also violated KRPC 8.4(a).
“3. Hebert Complaint and Minor Complaint
a. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Hearing Panel concludes that the Respondent failed to competently represent Mr. Minor when he failed to obtain necessary information in order to file a motion for new trial, in violation of KRPC 1.1.
b. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to act with reasonable dili gence and promptness in representing Mr. Minor when he failed to determine appropriate issues for a motion for new trial, when he failed to timely file a Motion for Durational Departure, when he failed to meet with his client, and when he failed to appear at the scheduled sentencing hearing. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
c. KRPC 1.4 provides:
‘(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
‘(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’
The Respondent failed to return telephone calls and respond to letters from Mr. Minor. Because the Respondent failed to even attempt to keep Mr. Minor informed about the status of his case, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). Further, the substance of the communications failed to adequately inform Mr. Minor of his rights. This violated KRPC 1.4(b).
d. Finally, because Respondent violated KRPC 1.1, KRPC 1.3, and KRPC 1.4(a) in his representation of Mr. Minor, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a).”
The panel recommended that the respondent be suspended from the practice of law for 18 months. The rationale for its recommendation follows:
“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 client to provide competent representation, diligent representation, and adequate communication. In addition, the Respondent violated his duty to the legal system to comply with court orders. Finally, the Respondent violated his duty to the public and the legal profession to maintain personal integrity.
“Mental State. The Respondent intentionally violated his duties.
“Injury. As a direct result [of] the Respondent’s misconduct, the legal profession suffered actual injury. In addition, Mr. Minor suffered at least potential injury.
“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:
“Prior Disciplinary Offenses. The Respondent has previously been disciplined on four (4) separate occasions. First, on July 9, 1991, the Disciplinary Adminis trator informally admonished the Respondent for having violated KRPC 8.4(d). See Disciplinary Administrator’s Exhibit S. Then on September 24, 1992, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.1. See Disciplinary Administrator’s Exhibit R. On November 21, 1994, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 8.4(d) See Disciplinary Administrator’s Exhibit Q. Finally, after a hearing on a Formal Complaint in DA7356, a Hearing Panel directed that the Respondent be informally admonished for having violated KRPC 1.4 and KRPC 8.4(g). See Disciplinary Administrator’s Exhibit P.
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct in the Peabody and Newton nuisance cases. The Respondent repeatedly caused delays of those matters.
“Multiple Offenses. The Hearing Panel concluded that die Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.1, KRPC 3.2, KRPC 3.4, KRPC 3.5, and KRPC 8.4. As such, die Hearing Panel concludes that the Respondent engaged in multiple offenses.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent begrudgingly attempted to acknowledge the wrongful nature of [his] conduct. The Respondent’s attorney provided an opportunity to the Respondent to acknowledge his misconduct:
‘Q. [By Mr. Jones] Okay. Did — did you — did you speak in a way — or use language in a way that you would not — would not have normally used it in talking to Judge Wheeler that day?
‘A. [By the Respondent] I probably — I had never talked to Judge Wheeler like that. Of course, I had never become unglued like that, you know. I could see it coming because the judge had just told me several weeks before that it was a one-way street. And I beg your pardon, he is — he is a judge but it’s not a one-way street. That’s not fair. It doesn’t all go from the judge to you. And he didn’t give me a chance to respond, he didn’t listen to me, he just made his ruling showing me what [his] power is.’
“The Respondent continues to be in violation of Judge Hebert’s order assessing 20 hours of community service work. The Respondent testified about when it is appropriate to violate court orders:
‘Q. [By Mr. Walczak] . . . Will you admit that you willfully and deliberately today are in defiance of that court order?
'A. [By the Respondent] I guess I am, but he has not attempted to enforce it and I don’t think he will.
‘Q. And, in fact, you state on page eight of your answer that the Respondent refuses — refused and still refüses. And you have no intention to comply with that.
‘A. I will disobey what I feel is — if it reaches a point that it’s really — and it’s really unlawful — unlawful order, because I subscribe to the dictates of — of my conscience.
“Later, during questioning by Hearing Panel Member Wynn, the following exchange regarding the same subject occurred:
‘Q. [By Mr. Wynn] . . . Did you intend to convey to the Panel that you think it’s okay for — to disobey orders of the court when you disagree with them as a matter of conscience?
‘A. [By the Respondent] As a matter of conscience. That’s — that would have to be a very special situation, because I spent all my life obeying court orders.
‘Q. So why didn’t you perform the 20 hours of community service?
‘A. Now that, I felt that that was totally improper. I didn’t think that was a proper sanction for me. I didn’t think that I should have been — I should have been sanctioned at all for that. That was something beyond my control, and I just didn’t understand where that — where that was coming from.
Finally, the Respondent testified that he ‘would not like to apologize’ to Judge Wheeler, but would if the Hearing Panel directed him to do so.
“As depicted above, the Respondent had refused to acknowledge the wrongful nature of his conduct.
“Deceptive Practices During the Disciplinary Proceeding. During the hearing on this matter, the Respondent’s testimony was often at odds. For example, during direct examination by his attorney regarding the federal lawsuit filed in behalf of Mr. Hilliard, the following exchange occurred:
‘Q. [By Mr. Jones] When you filed this lawsuit, did you feel that there was a basis in law for — for what you were doing or at least a basis in law to try to— to push the envelope or change things?
‘A. [By the Respondent] The basis was good enough that they couldn’t get summary judgement on it. We were set to go to trial, in fact. We were on the trial docket in federal court on the racial discrimination claim.
‘Q. Was there a — a summary judgment motion filed?
‘A. I believe that they went past the time to file any summary judgment.
“MR. WYNN: So summary judgment wasn’t denied, they just didn’t pursue it, is that your testimony?
‘THE WITNESS: Right, that would be correct. I don’t recall — I looked in the file and I couldn’t find a Motion for Summary Judgment, so I assumed they didn’t file one or I would have had a copy. I would have filed a response to it.’
Again, during direct examination by Mr. Jones, the Respondent testified that referring to the record of a state court action regarding Mr. Hilliard, that he ‘was surprised that the judge said [that the file was] voluminous.’ Then, shortly thereafter, the Respondent testified that he reviewed the ‘whole court file, which was two volumes.’
“The Respondent’s testimony regarding his claims of racial bias was inconsistent, as follows:
‘Q. [By Mr. Jones] And have you accused the judges in any of those counties other than — tiran—than—than Judge Wheeler of having any kind of racial animus against you?
‘A. [By the Respondent] No. There’s very few judges that I dislike. And Wheeler, we don’t get along. That’s just a fact. I don’t get along with Judge Wheeler.’
Then, when questioned by the Deputy Disciplinary Administrator, tire Respondent provided testimony that was at odds with other statements:
‘Q. [By Mr. Walczak] You make a claim that Judge Johnson was racially biased, correct?
‘A. [By the Respondent] Let me see. Yes, this is tire one we filed. . . .
‘Q. Okay, specifically in paragraph — your paragraph 20 on your page nine where you say, quote, “Respondent has his suspicions about Judge Hebert’s attitude towards race.”
‘A. Yes, I am suspicious because of — of—of the actions that — that he took that day, that morning.’
“Throughout his testimony on direct examination, cross-examination, and during examination by the Hearing Panel members, tire Respondent often failed to directly answer the questions posed. Accordingly, tire Hearing Panel concludes that the Respondent engaged in deceptive practices during the hearing.
“Vulnerability of Victim. In this case, Mr. Minor was a vulnerable victim of the Respondent’s misconduct. Mr. Minor was incarcerated while he awaited sentencing. However, the Respondent never prepared Mr. Minor for sentencing,
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1975. The misconduct found in regard to Mr. Myers began in 1992. With respect to Judge Wheeler’s complaint, Judge Hebert’s complaint, and Mr. Minor’s complaint, tire Respondent’s actions occurred in 1999. Accordingly, the Hearing Panel concludes that at the time of the misconduct, the Respondent had substantial experience in the practice of law.
“After a careful review of the factors in mitigation recognized by the Kansas Supreme Court, the Hearing Panel found a lack of mitigating circumstances.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42, Standard 6.22, and Standard 6.32. That standard provides, in pertinent part:
‘Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’ Standard 6.22.
‘Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.’ Standard 6.32.
“In July, 1999, a Hearing Panel held a hearing on other disciplinary complaints regarding this Respondent. As indicated . . . above, that Hearing Panel recommended that the Respondent be informally admonished for violating KRPC 1.4 and KRPC 8.4(g). In making its recommendation, the Hearing Panel stated:
‘According to Respondent he is a “crusader” who does not always cross his “t’s” and dot his “i’s.” The Panel hopes that the Respondent will take this opportunity to reassess his practice and develop a plan that will aid him in providing the attention to detail that is required when engaging in the private practice of law. Respondent ought to consider hiring someone to assist him, instead of relying on an answering machine that frequently does not work.’
The Hearing Panel is troubled that the Respondent failed to heed the advice of the earlier Hearing Panel.
“Based upon the above findings of fact, conclusions of law, aggravating factors, and standards, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law for a period of eighteen months. Additionally, the Hearing Panel recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kansas Supreme Court Rule 219. At the reinstatement hearing, the Respondent should be required to establish that he has formulated and implemented a plan that will prevent a repeat of the misconduct present in this case. The Respondent’s plan should include an effective system of time management which will ensure that the Respondent timely files appropriate pleadings and that the Respondent timely appears in court. Additionally, the Respondent should provide verification that he has purged himself of contempt and apologized to Judge Wheeler and Judge Hebert.”
The respondent filed exceptions to the final hearing report. His exceptions are more in the nature of explanations for his activity rather than a denial that violations occurred. Ultimately, the respondent contends that even assuming all violations are found to be established based on the evidence, public censure or probation, rather than suspension, would be the more appropriate sanction. The Disciplinary Administrator s office argues that the respondent’s violations warrant disbarment.
Our standard of review in disciplinary cases was set forth in In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993):
“In State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered/ In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given the s'ame dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony/ See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).”
Myers Complaint
The respondent denies he violated KRPC 3.1 (2001 Kan. Ct. R. Annot. 397) and KRPC 3.4 (2001 Kan. Ct. R. Annot. 406) with regard to the Froelich cases. Robert D. Myers, the attorney who represented the City of Peabody against Hilliard and the City of Newton against the Froelichs, testified that each of the federal and state lawsuits filed by the Hilliards and the Froelichs resulted in summary judgment for the cities. The legal expenses for the City of Newton exceeded $100,000. Myers testified as follows:
“Q. Regarding the discovery interrogatory actions in the state and federal court proceedings of Peabody as well as Newton, did the Respondent ever provide any specifics in response to your request?
“A. No. They simple — and we deposed their clients, we deposed Mrs. Froelich probably three different times. We deposed Mr. Martel at least twice. They were never able to put forward any evidence in support of their claims. They were never able to put forward any evidence in support of their damages. We never— I can say this, that we never once got a timely request to a discovery — response to a discovery request. Not once.”
The court concluded that the respondent’s performance was based primarily on the respondent’s discoveiy delays. We conclude the record supports the panel’s conclusions regarding KRPC 3.1 and KRPC 3.4.
Wheeler Complaint
The respondent denies that he violated KRPC 3.5(d) (2001 Kan. Ct. R. Annot. 409) and KRPC 8.4 (2001 Kan. Ct. R. Annot. 437). According to the respondent, Judge Wheeler provoked his verbal eruptions and his comments were justified. However, there simply is no evidence of record supporting the respondent’s contention. On the contrary, the record supports the conclusion that Judge Wheeler, based upon the exchange set forth above, acted in a reasonable and dignified manner providing no basis for the undignified conduct of the respondent. We conclude that the conduct of the respondent was degrading to the tribunal and amply supports the panel’s conclusion that the respondent violated the provisions KRPC 3.5(d) and KRPC 8.4.
Hebert Complaint and Minor Complaint
The respondent denies he violated KRPC 1.1 (2001 Kan. Ct. R. Annot. 312) and KRPC 1.4 (2001 Kan. Ct. R. Annot. 334). We have again considered the respondent’s arguments regarding the Hebert and Minor complaints and conclude that there is ample evidence to support the respondent’s violation of KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 8.4(a). The respondent’s own testimony demonstrates that he spent little, if any, time with Minor in preparation for post-trial criminal proceedings. This is confirmed by Judge Hebert as well as testimony from Minor. It must also be observed that the respondent did not represent Minor in his criminal trial but nevertheless attempted to represent Minor in his motion for a new trial without the benefit of a client conference and without the benefit of a transcript of the trial proceeding. In addition, there is no dispute that the respondent failed to appear for the hearing on Minor’s motion for new trial before Judge Hebert.
Appropriate Discipline
The ultimate goal of disciplinary proceedings is to protect the public. See In re Jones, 252 Kan. 236, 239, 843 P.2d 709 (1992). Disciplinary proceedings also give the public confidence that attorneys who violate the KRPC are disciplined in a manner which is appropriate, given the specific circumstances of the case. In re Bailey, 268 Kan. 63, 65, 986 P.2d 1077 (1999).
The hearing panel’s recommendations of sanctions in a given case are “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Rule 212(f) (2001 Kan. Ct. R. Annot. 265). In determining the appropriate discipline to be imposed for a violation of disciplinary rules, we consider the facts surrounding the violation as well as any aggravating or mitigating circumstances. State v. Stakes, 227 Kan. 711, 720, 608 P.2d 997 (1980).
In arriving at its recommendation, the panel relied on four factors to determine the appropriate sanctions in this case: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the iawyers misconduct; and (d) the existence of aggravating or mitigating circumstances. The respondent fails to cite to the record in support of his contentions that the proposed recommendation by the hearing panel is too harsh. Nevertheless, we examined the four factors reviewed by the hearing panel.
(a) Duty violated. The hearing panel found the respondent violated his duty to provide competent representation, diligent representation, and to provide adequate communication. The hearing panel also found that the respondent violated his duty to the legal system by failing to comply with court orders. Finally, the hearing found the respondent violated his duty to the public and legal profession by failing to maintain personal integrity. The respondent admits he violated his duty to the legal system and failed to comply with court orders. However, the respondent denies that he violated his duty to the public and to the legal profession in failing to maintain personal integrity.
The record supports the panel’s findings and conclusions. Two examples serve to highlight the respondent’s violation of his duty to the public and to the legal profession in failing to maintain personal integrity. First, in the Hilliard case, the respondent sought a continuance of the city’s motion for an order permitting abatement actions to be taken by the city set for April 29, 1996. Proceeding his motion for continuance were numerous delays occasioned by the respondent’s discovery delays as well as the reassertion of claims that had been previously ruled upon by the court. Once all avenues for a continuance were exhausted, the respondent, on the day set for the hearing, filed a motion for change of judge. The motion was later denied as one having no merit. This forced a continuance with a frivolous motion. Second, as mentioned above, the respondent attempted to represent Minor in his motion for new trial without communicating with Minor and without a transcript of trial court proceedings. These examples bear directly upon the personal integrity of the respondent.
(b) Mental state. The hearing panel also concluded that the respondent acted intentionally. The respondent contends that he was, perhaps, negligent but his actions were not intentional. His contention lacks merit. The evidence with regard to the Myers complaint supports the conclusion that the respondent’s tactics were aimed at tiring the opposition rather than pursuing matters based on the merits of his client’s case. Moreover, the respondent admitted that he intentionally defied Judge Hebert’s orders. The conclusion that the respondent’s actions were intentional is amply supported by evidence of record.
(c) Injury. The hearing panel concluded that the legal profession suffered actual injury and Minor, the respondent’s client, suffered potential injuiy. The respondent agrees that Minor suffered potential injuiy, but disputes that the legal profession suffered any injury. However, the record supports the conclusion that the legal profession suffered injury by reason of the respondent’s delaying tactics in the Myers complaint as well as his failure to comply with reasonable court orders in the Hebert complaint. The respondent’s actions before Judge Wheeler must also be characterized as actual injury to the legal profession.
(d) Aggravating or mitigating factors. The hearing panel made a number of findings regarding aggravating factors but found no mitigating factors to exist.
Prior disciplinary offenses. The hearing panel noted as aggravating factors four occasions of prior discipline. First, the Disciplinary Administrator informally admonished the respondent on July 9, 1991, for a violation of KRPC 8.4(d). Second, the respondent was informally admonished for a violation of KRPC 1.1 on September 24, 1992. Third, the Disciplinary Administrator informally admonished the respondent on November 21, 1994, for a violation of KRPC 8.4(d). Fourth, a hearing panel found the respondent violated KRPC 1.4 and KRPC 8.4(d) on August 16, 1999.
The respondent argues that the earlier occasions of misconduct are remote and are not related to the present. However, we note that it has only been 2 years since the respondent’s last informal admonition was administered. The 1999 determination involved the respondent having filed a lawsuit on someone’s behalf without informing that person. The 1994 informal admonition involved Judge John Pearson’s complaint that the respondent had filed frivolous pleadings which caused unnecessary delay and a needless increase in the cost of litigation. The Myers’ complaint in the case we now consider involved frivolous claims on matters that had been previously ruled on by the court. Judge Hebert testified before the hearing panel that the respondent made a generalized claim of racial bias against the prosecutor who handled the Minor case. This claim, according to Judge Hebert’s testimony, was without factual basis.
The respondent further argues that he did not cause delay in the Hilliard and Froelich cases. However, the evidence of record establishes that the respondent failed to respond on numerous occasions to discovery requests. In almost every instance, the respondent had to be compelled to respond to discovery requests.
The 1991 determination involved the respondent’s arguments with Judge Francis Towle. The complaint involved the respondent’s having argued angrily with Judge Towle in court. Thus, the 1991 complaint is consistent with the type of misconduct demonstrated by the respondent before Judge Wheeler.
Multiple offenses. The hearing panel noted the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 3.4, KRPC 3.5, and KRPC 8.4 and that these violations amount to multiple offenses. The respondent implicitly admits he committed multiple offenses.
Refusal to acknowledge wrongful nature of conduct. The hearing panel found that the respondent refused to acknowledge the wrongful nature of his conduct. While the respondent argues that he has no reason to apologize to Judge Wheeler, the record supports a contrary conclusion bearing directly upon the panel’s conclusion that the respondent refuses to acknowledge the wrongful nature of his conduct. Characteristically, the respondent maintains that Judge Hebert erred in entering the contempt order providing further support for the panel’s determination.
Deceptive practices during the disciplinary proceeding. The hearing panel found the respondent was deceptive in the hearing. The respondent argues his inconsistent statements can be blamed on faulty memory. While the panel’s conclusion of deceptiveness is based upon sharply conflicting testimony of the respondent and other evidence of record, the panel’s conclusion is not against the clear weight of the evidence. Consistent with our standard of review, we conclude that the record amply supports the panel’s conclusion.
Vulnerability of the victim. The hearing panel found Minor was a vulnerable victim because he was incarcerated and awaiting sentencing. Remarkably, the respondent disputes that Minor, “having been found guilty of committing serious crimes,” was not a vulnerable victim.
Substantial experience in the practice of law. The hearing panel found the respondent had been practicing law in Kansas since 1975 and that the misconduct did not begin until 7 years later.
Personal or emotional problems. The respondent told the hearing panel he hurt his back in 1997 and had the flu twice from October 1997 until February 1998. Judge Powers recalled the respondent might have been suffering from back problems. The respondent mentioned that his medical problems caused a financial strain.
Character or reputation. The respondent argues that “[p]rior to 1997,” he “enjoyed the respect of his peers and generally possessed a good character and reputation” and that he was “regaining that respect in the Wichita area.” However, the record tends to support a contrary conclusion based upon the violations set forth above.
The findings and conclusions of the hearing panel are supported by clear and convincing evidence. We adopt the findings and conclusions and agree with that part of the panel’s recommendation that the respondent be suspended from the practice of law in this state. We believe the sanction imposed by this court is sufficient to address the respondent’s violations. The recommended apologies and the purging of contempt are matters the respondent must resolve.
It Is Therefore Ordered that Cortland E. Beriy be and he is hereby suspended from the practice of law for 18 months in the state of Kansas commencing on the date of this opinion.
It Is Further Ordered that the respondent undergo a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285).
It Is Further Ordered that the respondent shall comply with the provisions of Kansas 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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The opinion of the court was delivered by
Lockett, J.:
Appellant Thomas R. Winston, M.D., appeals the district court’s order affirming the final administrative order of the Kansas Department of Social and Rehabilitation Services’ (SRS) State Appeals Committee which affirmed the SRS presiding officer’s order finding that appellant physically abused his son and emotionally abused his son and daughter. Appellant claims (1) SRS failed to follow prescribed procedures; (2) the procedures employed by SRS created an unconstitutional condition upon his due process right to be heard; (3) he was deprived of due process; (4) the doctrine of res judicata barred subsequent proceedings; (5) the testimony of unsubstantiated allegations was improperly admitted into evidence; (6) the findings of physical and emotional abuse were not supported by substantial evidence; and, (7) the presiding officer’s rulings were arbitrary and capricious.
Thomas Winston’s twin children, D.W. and M.W., were bom May 19, 1989. Winston is a cardiothoracic surgeon. Winston and his wife Julia separated in March 1998. When Julia filed for divorce, she alleged incompatibility and requested that she be given custody subject to reasonable visitation rights. The divorce was finalized in August 1999.
In August 1998, SRS received a confidential report alleging that Winston had physically abused D.W. SRS, along with the Overland Park Police Department, began an investigation of the allegation. The specific incident being investigated occurred the weekend of August 23, 1998, while the children were visiting their father at his apartment. D.W. reported that while trying to remove a paper containing his mother’s phone number from Winston’s hand, Winston picked him up by the neck and pushed his face into the comer. D.W. stated that he had a hard time breathing. Winston also hit D.W. several times with his hand and a tennis shoe. M.W. was present at the time. After this incident, Julia obtained a restraining order against Winston. Winston violated the order by continuing to contact Juba by telephone.
M.W. told Detective Barbara Hohnholt and SRS social worker Sarah Byall on August 26, 1998, that her father hits both her and D.W., but that he mainly hits D.W. hard. M.W. has also observed her father sit on D.W., strangle him, and put a pillow on his face. Separately, M.W. and Julia described the events of this most recent incident of alleged abuse the same as D.W. Julia also reported that Winston had frequently beaten her and had started physically abusing the children when drey were in kindergarten. She stated that Winston, in an apparent attempt to intimidate her and the children, had purchased a 2-foot African flesh-eating fish, then threatened to cut up Julia and the children and feed them to the fish. Winston had also said things to D.W. like, “I’m going to make you disappear by cutting you up into a thousand pieces,” “you’re no good,” “your mom and I don’t love you.”
Julia had previously reported to police that on or about March 4, 1998, Winston had told the children that she would disappear one night and that when they woke up, she would be gone. About a week later, Winston told the children he wished Julia would drop dead. Winston has also threatened to kill Julia in front of the children. These comments obviously upset the children. Julia reported to Detective Hohnholt and Sarah Byall that on March 15, 1998, Winston was so frustrated that he threw D.W. across the room and caused D.W. to hit his head. Julia ordered Winston to leave the house and filed for divorce the next day.
On or about September 29, 1998, SRS notified Winston that he had been substantiated for abuse of D.W. See K.A.R. 30-46-10(d) and (e). Winston requested a fair hearing on October 9,1998. One month later, SRS notified Winston that it had also validated him for abuse of D.W. The validation was for physical and emotional abuse. See K.A.R. 30-46-10(f). Winston was validated so his name could be placed in the Kansas Child Abuse and Neglect Central Registry. The Kansas Child Abuse and Neglect Central Registry is a confidential listing of individuals who are not permitted to be employed, reside, or volunteer in Kansas child care facilities. It must be noted that, at this same time, Winston was involved in a possible criminal action arising from the alleged acts, as well as a civil divorce action.
During 5 months of not seeing his children, Winston met with the SRS case manager, and he and the children separately attended therapy. A supervised visit was finally arranged for the evening of January 12, 1999, at the Johnson County Courthouse. In addition to Winston, D.W., and M.W., Dr. Jeff Montolio, a psychologist, Roxie O’Brien, a CASA volunteer, and Greg Rainbolt, a deputy with the Johnson County Sheriff s Department, were also present. Dr. Montolio and Deputy Rainbolt were present because D.W. was afraid of Winston and had only agreed to enter the visitation room if they were present to protect him. When D.W. entered the room, he did not greet his father. D.W. sat on the opposite end of the table, diagonally, from Winston. D.W. later told Sarah Byall that “ ‘the police had to be there so he would not hurt us,’ ” that he is “ Very afraid’ ” of his father, and that his father “ ‘violates [the] restraining order.’ ” D.W. also stated that Winston drives by their house, which makes him feel unsafe.
When M.W. entered the visitation room, she was hesitant, tense, and a bit apprehensive. Winston hugged M.W. and placed her on his leg, with her legs dangling between his. Winston continued to hug M.W. while she was on his lap. Her thigh was right next to Winston’s crotch. Julia stated that M.W. freaked out while they were driving home after the visit. M.W. was frantic and crying and told Julia that it was “ ‘hard and sticking up’ ” and that “ ‘he was pushing [her] up against it.’ ” After arriving home, M.W. went to the bathroom, took off her clothes, and asked Julia to wash the clothes. She then took a bath, went to bed, and pulled the blankets over her head. M.W. cried, curled up in a ball, did not sleep, and refused to eat or drink that night. The next morning, M.W. did not want to go to school. When Juba drove her to school, M.W. refused to go inside.
School counselor Janice Mueber finahy convinced M.W. to come inside the school. M.W. was visibly upset. M.W. drew a picture of herself sitting on Winston’s lap. She drew his erection and his weird smile. According to Mueller, the penis was a focal point for M.W. because she kept drawing it over and over again with the marker. M.W. told Mueber that whenever she or D.W. see this particular smbe on their father, they know that he will hurt them in some way or that something bad is going to happen. M.W. also told Mueber that she was upset being on her father’s lap. She felt something was happening, did not bke it, and wanted to get off his lap.
On January 14,1999, SRS received a confidential report alleging Winston had sexually abused M.W. during the supervised visitation. On January 15,1999, M.W. was interviewed by Jorie Siegwald at Sunflower House. During the interview, M.W. disclosed that while she was sitting on her father s lap at the visitation 3 days earlier, “his thing-a-ma-bobber grew,” that his “weiner” grew and that she felt his weiner on her leg. M.W. said that her father kept pulling her closer to him and would not let her go. M.W. stated that she left her father s lap after Dr. Montolio asked her if she would be more comfortable in a chair. During the interview, M.W. drew a picture of herself sitting on Winston’s lap. The drawing appears to depict an erect penis. M.W. also reported that her father had hit her and her brother and had left hand prints and bruises on them. M.W. stated that once her father threw a sack of dog food at her mother and that on other occasions Winston had hit her mother. M.W. has also written about the abuse in her journal at school.
On March 29,1999, Detective Ed McGillivray interviewed Winston regarding the incident with M.W. Winston denied having an erection during the visit and suggested that his daughter may have mistook his wallet and car keys, which he keeps in his front pocket, for his penis. Winston suggested that M.W. made these statements because she was being coached by Julia.
On April 2,1999, SRS notified Winston that it had substantiated and validated him for tire abuse of M.W. On April 25,1999, it was determined that there was insufficient evidence to establish a criminal charge against Winston for the alleged sexual abuse of M.W.
On May 18, 1999, SRS notified Stephen E. Good, the presiding officer assigned to the appeal in the D.W. case, that it was withdrawing its finding of validation on the child abuse of D.W. and was preparing an amended finding of unsubstantiated abuse. Presiding Officer Good notified Winston of the withdrawal of the finding and informed him that his appeal would be dismissed as moot. On May 28, 1999, Winston withdrew his appeal.
On May 20, 1999, Winston filed an untimely request for a fair hearing on the allegations relating to M.W. SRS opposed the fair hearing because it was untimely requested. The presiding officer in that case was also Stephen E. Good. Good denied SRS’s motion to dismiss the appeal.
On or about August 3, 1999, SRS sent a notice of substantiation and validation to Winston regarding the physical and emotional abuse of D.W. and an amended notice of substantiation and validation regarding the sexual and emotional abuse of M.W. Winston appealed, requesting a fair hearing in both cases. The appeals were consolidated.
Winston then filed a motion to dismiss the findings regarding D.W., claiming that refiling of these charges was arbitrary and capricious. The motion was denied. An administrative hearing was conducted on February 15, 16, and 18, 2000. At the hearing, evidence was presented that D.W. and M.W. attended a weeldy divorce support group in fourth grade facilitated by Janice Mueller. D.W. shared with the group that his dad hit him and threatened to kill him and the rest of his family. Mueller observed that D.W. had fear in his face when he said this. According to Mueller, D.W.’s comments were spontaneous and did not appear to be coached. Mueller observed that since Winston moved out of the home, the children have “come out of their shells.”
Sharon Cohen, a friend of Winston and Julia, testified that in September 1996, she received a frantic telephone call from Julia that Winston was choking and throwing D.W. against the wall. Cohen spoke with Winston. Winston complained about what D.W. had done. Cohen testified that she reminded Winston that D.W. was a child and that he was an adult, then told him he was out of control, and suggested that he needed to leave the house and obtain counseling.
Winston testified that he had told Cohen that D.W. had hit his head on the card table while the two of them had been wrestling for fun. He denied ever telling Cohen that he had hit D.W. or that he (Winston) was out of control. He testified that Cohen lied because she was a good friend of Julia and Julia’s lawyer, and because after his separation from Julia he had cancelled an insurance policy he had purchased from Cohen’s husband.
Winston testified that the March 1998 incident, which led to his separation from Julia, occurred differently than Julia reported. D.W. has attention deficient hyperactivity disorder (ADHD) and oppositional behavior. On that day, D.W.’s medication had worn off. D.W. refused to allow Winston to enter the kitchen of the home and was very distraught over the result of a basketball game. Winston had been paged by the hospital. After spending. 20 minutes trying to calm down D.W., Winston stepped over D.W., who had been blocking the doorway by sitting in it, and went to the phone. Winston testified that D.W. began pushing Winston and at some point D.W. fell when his feet slid from underneath him on the wooden floor. D.W. then ran to Julia, who accused Winston of throwing D.W. against the wall and ordered Winston to leave.
Winston denied abusing D.W. during the visitation at his apartment. Winston testified that when he picked up the children, he noticed that D.W. was “coming off’ his medication. Winston testified that Julia did not regularly administer D.W’s medication. At the apartment, D.W. became upset that M.W. had given Winston Julia’s cell phone number. D.W. took the piece of paper on which the number was written and played “keep-away” for 15 minutes. Winston needed to contact Julia so that he could drop the children off and answer his page to go the hospital. Winston finally recovered the piece of paper, and while dialing the number, D.W. jumped on his back and fell to the floor. Winston testified he knelt down, put his hand on D.W.’s chest, and told D.W. to settle down. Winston stated he then took the children back to Julia’s. Julia did not mention this alleged incident at a court hearing for maintenance on the following Monday. Julia’s request for maintenance was denied. Neither Sarah Byall nor Detective Hohnholt observed bruises on D.W. as a result of this incident.
As for the allegation relating to the supervised visitation, Winston continued to deny it. Winston admitted that M.W. sat on his lap during the visitation, but denied that he was sexually stimulated or had an erection. None of the individuals in the room at the time of the visitation saw Winston exhibit any inappropriate behavior toward M.W.
In his March 8, 2000, initial order, Presiding Officer Good affirmed SRS’s substantiation and validation of Winston regarding the physical abuse of D.W. and the emotional abuse of D.W. and M.W. Good reversed the substantiation and validation of Winston for the sexual abuse of M.W. Winston appealed and SRS cross-appealed tire presiding officer’s findings to the State Appeals Committee. See K.A.R. 30-7-78.
In a final order issued September 21, 2000, the State Appeals Committee restated the findings of fact as stated in the initial order and adopted the presiding officer’s conclusions of law.
Winston filed a petition for review in Johnson County District Court on October 12, 2000. The district court upheld the findings of the presiding officer and the State Appeals Committee. Winston filed a timely notice of appeal. This court has jurisdiction over this case by transfer on its own motion pursuant to K.S.A. 20-3018(c).
DEFICIENCIES IN SRS PROCEDURES
Winston contends there were statutory and constitutional deficiencies in the procedures used by SRS in substantiating and validating him for emotional and physical abuse of D.W. Winston alleges: (1) SRS failed to follow prescribed procedures; (2) the procedures employed by SRS created an unconstitutional condition upon Winston’s due process right to be heard; (3) Winston was deprived of due process because SRS failed to follow its internal procedures and because SRS made its initial findings of abuse against D.W. before Winston was given notice that civil proceedings had been instituted against him or given an opportunity to be heard; (4) the doctrine of res judicata bars the subsequent proceedings against D.W.; and (5) the testimony of unsubstantiated allegations was improperly admitted into evidence.
This appeal is pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., which allows the district court to grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the 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 the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons talcing 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 the agency, that is not supported by evidence that is substantial when viewed in light of the 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) tire agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
The party asserting the agency’s action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(l).
An appellate court, in reviewing an agency action, is limited to ascertaining from the record whether there is substantial competent evidence to support the agency findings. Sokol v. Kansas Dept. of SRS, 267 Kan. 740, Syl. ¶ 3, 981 P.2d 1172 (1999). “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved.” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, Syl. ¶ 2, 16 P.3d 962 (2001). This court reviews an appeal from an agency’s action under the KJRA as though the appeal had been made directly to this court and is subject to the same limitations of review as the district court. Sokol, 267 Kan. at 746; U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 81, 966 P.2d 68 (1998). If the issue is a question of law, this court has unlimited review. Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).
Failure to Follow Prescribed Procedures
Pursuant to K.S.A. 77-621(c)(5), an agency’s failure to follow prescribed procedures is a ground for granting relief under the KJRA. Winston contends SRS failed to follow a prescribed procedure in not providing Winston with an opportunity to be interviewed prior to being substantiated and validated for abuse of D.W. K.A.R. 30-46-13(a) provides that “[ejach alleged perpetrator shall have an opportunity to be interviewed before a finding is issued validating a perpetrator.”
Appellate courts shall give deference to an agency’s interpretation of its own regulation. Reed v. Kansas Racing Com’n, 253 Kan. 602, 610, 860 P.2d 684 (1993). “An agency’s interpretation of its own regulation will not be disturbed unless the interpretation is clearly erroneous or inconsistent with the regulation.” Murphy, 260 Kan. at 595. The appellate court will not, however, abdicate its responsibility of judicial oversight in reviewing agency actions as a result of this deference. Bruns v. Kansas State Bd. of Technical Professions, 255 Kan. 728, 729, 877 P.2d 391 (1994).
After the confidential report of abuse to D.W. was received by SRS, SRS jointly investigated the allegation with the Overland Park Police Department. Both Detective Hohnholt and Sarah Byall interviewed D.W., M.W., and Julia. Detective Hohnholt attempted to contact Winston by phone and was unable to reach him. Winston did, however, return Detective Hohnholt’s calls. After Detective Hohnholt left a message that she was trying to contact Winston about the allegation of abuse, Winston’s attorney, Jim O’Hara, called Detective Hohnholt. A meeting was set up for September 2,1998, but Winston was unable to keep the appointment. O’Hara then referred Detective Hohnholt to Tom Erker. Erker advised Detective Hohnholt that he was not currently representing Winston but that he probably would be soon. Erker later contacted Detective Hohnholt indicating that he was representing Winston and that he would like to set up an appointment; however, Erker did not follow through and schedule an appointment. Detective Hohnholt never informed Winston, O’Hara, or Erker that the results of the investigation would be used by SRS. Winston testified that he had no reason to believe that Detective Hohnholt was gathering information for SRS.
On or about September 29, 1998, SRS notified Winston that he had been substantiated for abuse of D.W. On October 8, 1998, Winston left a message for Sarah Byall, stating that he had not been interviewed, that he was going to fight her and the allegation of abuse “110%” of the way, and that his attorney was “ ‘going to sue the pants off ” Byall because he had been substantiated without being interviewed. On October 9, 1998, Winston again called Byall and left a message stating, “ 1 demand that you call me back before 10 a.m. this morning . . . [Y]ou have no idea who you are dealing with . . . [Y]ou are on quicksand young lady and you better watch out because I intend to fight this every inch of the way.’ ” Winston testified that these messages were his request for an interview. Byall did not return Winston’s calls because she believed the messages were threatening. Byall’s supervisor informed her that she need not respond to threatening calls.
On October 9, 1998, Winston requested a fair hearing. In his request, Winston acknowledged that the district attorney was investigating the allegations and requested a stay of the proceedings in the SRS case because of his Fifth Amendment privilege against self-incrimination.
In his March 8,2000, initial order, Presiding Officer Good found that Winston had been provided an opportunity to be interviewed by Detective Hohnholt. To support his decision that Detective Hohnholt was a proper person to provide the opportunity for an interview, the presiding officer relied upon K.A.R. 30-46-13(a), noting that the regulation does not mandate that the opportunity to be interviewed be provided by an SRS employee. The presiding officer also relied upon Section 2323 of the Children and Family Services Policy and Procedure Manual (PPM). Section 2323 provides: “A perpetrator cannot be substantiated unless that person has been afforded an opportunity to be interviewed by SRS, a law enforcement officer or a duly appointed member of a multidisciplinary child protection team.” (Emphasis added.) The State Appeals Committee adopted this finding.
The district court ruled that an alleged perpetrator’s opportunity to be interviewed may also be provided by law enforcement. In making this ruling, the district court relied upon K.A.R. 30-46-13(a) and K.S.A. 38-1523(b), which provide that law enforcement and SRS shall conduct a joint investigation of child abuse and neglect reports and that the information obtained should be freely exchanged between the two agencies. The court reasoned that K.A.R. 30-46-13(a) and K.S.A. 38-1523(b) together supported SRS’s position that the opportunity for an interview can be afforded to an alleged perpetrator by law enforcement.
A joint investigation is only authorized under K.S.A. 38-1523(b) when the report of child abuse or neglect indicates that there is serious physical injury, serious deterioration, or sexual abuse to the child and that action may be required to protect the child. Winston asserts a joint investigation was not authorized in this case because there was no evidence that D.W. suffered any physical injury. We disagree. The confidential report indicated that D.W. had been “thrown across the room by his father, hit 10 or more times and grabbed around the throat.” Although the caller did not know whether D.W. had any marks or bruises from the incident, the report indicated that serious physical injury was possible, if not probable. This report sparked the joint investigation and a joint investigation was authorized under these facts.
Winston argues the interview could not be delegated to law enforcement because it is not provided for in the statutes or regulations. Furthermore, Winston asserts that even if SRS had the authority to delegate this task to law enforcement, the delegation would be unconstitutional as a violation of separation of powers.
Winston cites to Section 2311 of the PPM in support of his contention that law enforcement cannot provide an opportunity to be interviewed. Section 2311 lists the reasons for not interviewing a relevant party, such as the alleged perpetrator. One reason for not conducting an interview is if the party refused to talk with the worker. Winston argues that this section of the PPM demonstrates that an SRS worker has the sole authority to conduct the interview. This reasoning is flawed. The list is not all-inclusive and does not conflict with Section 2323, which provides that a perpetrator cannot be substantiated unless he or she has been given an opportunity to be interviewed by SRS, a law enforcement officer, or a duly appointed member of a multidisciplinary child protection team. Allowing law enforcement officers to interview an alleged perpetrator is not against SRS’s prescribed procedures.
Winston also notes that the presiding officer held that the police officers were not agents of SRS and refused to admit the deposition testimony of the officers into evidence at the hearing. Winston contends it is illogical that the officers were agents of SRS for the purpose of conducting an interview but could not testily about that interview. Sarah Byall testified that in a joint investigation, if the interview had been successfully scheduled she would have been present.
When Winston requested the fair hearing, the police were investigating the incident. Winston implied that he intended to invoke his Fifth Amendment privilege to avoid self-incrimination. SRS’s practice of allowing the police to interview alleged perpetrators is logical. First, it avoids interference with the criminal investigation. Secondly, an SRS interview would not accomplish more, because the alleged perpetrator could still invoke his Fifth Amendment right. An individual’s Fifth Amendment right to avoid self-incrimination may be invoked in any proceeding, including civil or administrative. In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 474, 932 P.2d 1023 (1997). Thus, it was not illogical for the presiding officer to find the officers were not agents of SRS when admitting their depositions, but allowing SRS to rely upon law enforcement to provide Winston an opportunity to be interviewed. SRS did not fail to follow prescribed procedures, nor are its procedures in violation of Kansas law.
Unconstitutional Condition
Winston contends SRS’s procedure of relying upon law enforcement to schedule or conduct an interview violates his due process rights because it requires him to relinquish his Fifth Amendment privilege to avoid self-incrimination.
As noted previously, the Fifth Amendment privilege to avoid self-incrimination can be invoked in civil and administrative proceedings. 23 Kan. App. 2d at 474. Thus, Winston’s contention that if SRS were required to provide the opportunity to be interviewed his right to be heard would not be conditioned upon the relinquishment of his Fifth Amendment right is erroneous. Any information obtained during an interview with SRS could be used in any criminal charge arising out of the incident. If SRS had requested an interview, Winston could still have argued that his right to be heard was conditioned upon relinquishment of his Fifth Amendment right.
We previously recognized in determining when a stay in a civil proceeding should be issued, that a defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his or her Fifth Amendment right. See State ex rel. Stovall v. Meneley, 271 Kan. 355, Syl. ¶ 4, 22 P.3d 124 (2001). The same reasoning applies here. SRS is only mandated to provide the alleged perpetrator an opportunity to be interviewed. Winston’s contention that relying upon law enforcement to provide an opportunity to be interviewed results in an unconstitutional condition is erroneous.
Violation of Due Process Rights
Winston also alleges his due process rights were violated. Relief for this allegation is provided pursuant to K.S.A. 77-621(c)(l). Winston first alleges that SRS’s failure to follow its own internal procedures deprived him of his right to due process. We need not address this argument because we have determined that SRS followed its prescribed procedures.
Secondly, Winston contends his due process rights were violated when he did not receive notice that civil proceedings had been instituted against him and was not given an opportunity to be heard prior to SRS rendering its findings of substantiation and validation for the alleged abuse of D.W.
This court has set forth the standard for evaluating a procedural due process claim on numerous occasions:
“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Kennedy v. Board of Shawnee County Comm’rs, 264 Kan. 776, 797-98, 958 P.2d 637 (1998). In reviewing a procedural due process claim tire court must first determine whether a protected liberty or property interest is involved and, if it is, the court must then determine the nature and extent of the process which is due. [Murphy, 260 Kan. at 598.] A due process violation can be established only if the claimant is able to establish that he or she was denied a specific procedural protection to which he or she is entitled. The question of the procedural protection that must accompany a deprivation of a particular property right or liberty interest is resolved by a balancing test, weighing (1) the individual interest at stake, (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and (3) the State’s interest in the procedures used, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Murphy, 260 Kan. at 598-99. The question of what process is due in a given case is a question of law. 260 Kan. 589, Syl. ¶ 2.” State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1 (2000).
SRS contends Winston did not have a protected property interest, i.e., Winston’s medical practice as a cardiothoracic surgeon would not be affected by a validation, although it recognized he may have had a protected liberty interest. SRS asserts, however, that after balancing the interests involved, Winston received the level of due process to which he was entitled.
In order to determine whether the substantiation and validation by SRS deprived Winston of a particular property right or liberty interest, a definition of the terms involved is necessary. An incident of abuse or neglect is “substantiated” if there is enough evidence that a reasonable person could conclude that an alleged incident of child abuse or neglect occurred, using the “more likely than not” standard. See K.A.R. 30-46-10(d). A person is “substantiated” as a perpetrator of child abuse or neglect if a report of abuse or neglect is substantiated and there is enough evidence, using the “more likely than not” standard, that a reasonable person could conclude who was responsible. See K.A.R. 30-46-10(e).
“(f) “Validated’ means a determination by the department of social and rehabilitation services that a substantiated perpetrator poses a danger to children and should not be permitted to operate, reside in, be employed by, or volunteer in a home or facility for the care of children licensed under provisions of article 5 of chapter 65 of the Kansas statutes annotated.” K.A.R. 30-46-10(f).
SRS has established criteria for validating perpetrators. A person who meets these criteria is validated and his or her name is entered into the Kansas Child Abuse and Neglect Central Registry. PPM Section 2324. The definitions of these terms accompany the notice sent to confirmed perpetrators.
Winston alleges he was deprived of a protected liberty interest. He appears to contend that his protected liberty interest is his ability to freely maintain or work in a child care facility and to avoid the stigma which would accompany his name erroneously being placed on the statewide registry. This court has recognized that a liberty interest may be deprived without due process if the person’s standing in the community is damaged, if his or her reputation, honor, or integrity are called into question, or if a stigma or other disability attaches that infringes upon his freedom to obtain employment. Kansas Racing Management, Inc. v. Kansas Racing Commn, 244 Kan. 343, 356, 770 P.2d 423 (1989); Sinclair v. Schroeder, 225 Kan. 3, 9, 586 P.2d 683 (1978). Because validation involves listing an individual on the Kansas Child Abuse and Neglect Central Registry and prohibits him or her from being employed, operating, residing, or volunteering in a child care facility, a protected liberty interest is involved.
Thus, this court must determine whether the process afforded Winston was sufficient to comply with due process of law. K.S.A. 2001 Supp. 75-3306 provides any interested party a method of appealing decisions and final actions of SRS agents and employees. SRS has further set forth the procedures for appeal in K.A.R. 30-7-64 et seq.
SRS regulations do not specifically provide that an alleged perpetrator must be given notice prior to substantiation or validation. The regulations only require that an alleged perpetrator be provided an opportunity to be interviewed before being validated. See K.A.R. 30-46-13. Notice is only required when SRS renders a decision to validate a perpetrator. K.A.R. 30-46-15. The notice must be in writing, include the reasons for the finding, and inform the confirmed perpetrator of his or her right to appeal the decision. K.A.R. 30-46-15. Thus, under SRS regulations, notice is not specifically mandated prior to validation.
The district court held that Winston received due process under the procedures employed. The district judge reasoned that the action which could cause damage to Winston’s reputation, being listed in the registry, would not occur until Winston exhausted his appeals or failed to exercise his right to take part in the appeals process. See K.A.R. 30-46-16. He noted that Winston had full disclosure of the SRS investigative file, had subpoena power, conducted discovery, and had a full evidentiary hearing. This reasoning is logical.
This is not, as Winston seems to contend, a case in which the later proceedings are being evaluated to determine whether Win ston received due process overall. Instead, this is a case in which the deprivation of the liberty interest did not occur until Winston exhausted his appeals or failed to appeal SRS’s finding. Until there is interference with a liberty interest, there is no guarantee of due process. See Murphy, 260 Kan. at 598. As long as Winston was provided notice and an opportunity to be heard at a meaningful time and in a meaningful manner before his liberty interest was abridged, due process requirements have been met.
Winston was given ample notice of his right to appeal SRS’s decision and ample opportunity to tell his side of the events and to put forth witnesses in his favor. Placement on the Child Abuse and Neglect Central Registry would not occur until Winston had been provided notice and an opportunity to be heard. K.A.R. 30-46-16. Compare Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975) (10 day suspension of students without a hearing violated due process).
In terms of the balancing test, the individual interest at stake prior to being listed in the Kansas Child Abuse and Neglect Central Registry is arguably little. The validation and substantiation of Winston does not infringe upon his liberty interest until he has exhausted his appeals. If he had not appealed, his liberty interest would not have been infringed until he failed to exercise his right to appeal. The risk of erroneous deprivation of the interest is also minimal because SRS is required to use the “more likely than not” standard in determining whether an individual should be substantiated, and there is little interest at stake regarding a substantiation. The State’s interest, however, is great in terms of its need to address the issue quickly and efficiently. Therefore, Winston’s due process rights have not been violated.
Res Tudicata
Winston contends the doctrine of res judicata barred the proceedings concerning D.W. because SRS had previously withdrawn its finding of validation on D.W. and amended its finding to unsubstantiated. SRS contends res judicata does not bar the proceedings because SRS reinstated the findings of abuse without there having been any prior judicial determination.
Res judicata (claim preclusion) prevents relitigation of previously litigated claims and consist of the following four elements: (1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits. Neunzig v. Seaman U.S.D. 345, 239 Kan. 654, Syl. ¶ 1, 722 P.2d 569 (1986); In re Tax Protests & Grievances of Curtis Machine Co., 26 Kan. App. 2d 395, 397, 985 P.2d 725, rev. denied 268 Kan. 847(1999). “Res judicata precludes a second administrative proceeding when the first administrative proceeding provides the procedural protections similar to court proceedings when an agency is acting in a judicial capacity.” Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 686, 778 P.2d 390, rev. denied 245 Kan. 785 (1989). See Neunzig, 239 Kan. at 660.
SRS withdrew its finding of validation for abuse of D.W. prior to a hearing and amended its finding to unsubstantiated. It appears from the record that the reason for the withdrawal was that SRS believed it had already validated Winston for the abuse of M.W. because Winston had not requested a fair hearing in M.W.’s case and the time for doing so had expired. When the presiding officer allowed Winston’s untimely request for a fair hearing to stand in M.W.’s case, SRS refiled against Winston, once again substantiating and validating him for the abuse of D.W.
Regardless of the reason for the withdrawal and reinstatement of this finding, however, the proceedings up to that point had not provided the similar due process protections as those afforded by the judicial process. See Dallinga v. Center Township, 19 Kan. App. 2d 482, 483-84, 871 P.2d 1293, rev. denied 255 Kan. 1000 (1994) (administrative action is res judicata only when proceeding affords type of due process protections found in judicial process). At the time SRS withdrew its finding of validation, Winston had not yet been afforded the fundamental elements of due process, notice, and a meaningful opportunity to be heard. Thus, res judicata does not apply in this case.
Winston asserts that SRS cannot have it both ways and that if due process were afforded Winston as required, res judicata must apply. We disagree with this assertion. Winston was afforded the required level of process when he was given notice of SRS’s finding and had the opportunity to appeal the decision and have a full hearing conducted.
Testimony of Unsubstantiated Allegations
Winston contends the presiding officer erroneously admitted and considered evidence of events other than the event that allegedly occurred on the weekend of August 23,1998, in affirming the substantiation and validation of Winston for the emotional and physical abuse of D.W. Winston relies upon Section 2324 of the PPM in making this claim. Section 2324 provides:
“To validate an adult for inclusion in the child abuse and neglect central registiy, the person must:
(A) Have been substantiated as a perpetrator using the preponderance of the evidence standard, ‘more likely than not’;
(B) Have committed one of more of the following qualifying acts:
Any non-accidental or intentional act or failure to act toward a child which:
4. Results in serious or permanent impairment of the child’s emotional, intellectual or social development or functioning.
5. Results in the child experiencing terror or intense dread.
8. Would likely have resulted in any of the outcomes in T through ‘7’ above except discoveiy or intervention or accidental circumstances intervened.
9. Exhibits a pattern of continuing, repeated, or progressively more severe abuse or neglect. For purposes of determining whether a pattern exists, prior substantiations may include substantiation by Kansas or any other state, federal enclave or Native American tribe or association using the standards of that state or entity. Verified evidence of a prior conviction of a crime against a child may be counted as a prior substantiation of child abuse or neglect.
(C) Have been given notice of the department’s decision to validate the person for the purpose of placing their name in the child abuse and neglect central registiy, and
the perpetrator has not timely appealed the decision, OR die perpetrator has appealed the decision and was not sustained by the highest level to which the decision was appealed.”
Winston argues that Section 2324 limits SRS to considering only prior convictions and prior substantiations as being competent evidence in establishing a pattern of abuse. He contends that in order to protect the accused from allegations that are not supported by substantial evidence, other allegations are not allowed to be considered. This claim is grounded upon the theory that it was arbitrary and capricious for the presiding officer to admit and rely upon these unsubstantiated allegations, a ground for relief under K.S.A. 77-621(c)(8).
SRS asserts that it is not precluded from using evidence that is obtained during the investigation of an alleged incident of abuse in determining whether there is evidence to support substantiation. As SRS points out, if Winston’s argument were adopted, SRS would be required to ignore any evidence discovered during the investigation that related to prior unsubstantiated or even unreported allegations of abuse. This would be an illogical result. Section 2324 of the PPM does not prohibit SRS from using things discovered during investigation of a specific incident. Winston had access to SRS investigative files. Sarah Byall testified in her deposition that Winston was validated because he satisfied all the above quoted bases for validating a perpetrator under Section 2324 of the PPM. There is no indication that any of the evidence presented at the hearing was a surprise. Thus, there is nothing that would preclude this information from being used to substantiate and validate a perpetrator where the alleged perpetrator had notice of the information.
SUBSTANTIAL EVIDENCE OF ABUSE
Winston contends there was not substantial evidence to support the findings that he physically abused D.W. and emotionally abused D.W. and M.W. SRS asserts to the contrary, contending there was substantial evidence to support these findings.
As stated above, substantial evidence is such legal and relevant evidence as a reasonable person would consider sufficient to support a conclusion. See Sokol, 267 Kan. at 746. In determining whether there is sufficient evidence, the appellate court may not reweigh the facts or substitute its judgment for that of the agency. 267 Kan. at 746. An agency decision that is not supported by substantial evidence is a ground for relief under the KJRA, pursuant to K.S.A. 77-621(c)(7).
Physical Abuse
Winston contends there was not substantial evidence to support the finding of physical abuse against D.W. because there was not substantial evidence establishing that any physical abuse occurred during the visitation at his apartment in August 1998. Specifically, Winston cites to the fact there was no bruising or marks that were observed as a result of the alleged abuse, that Winston’s version of events is credible because D.W. has ADHD, and that Julia, who provided the majority of the background information fhat led to die finding, had the most to gain from providing this harmful testimony.
K.A.R. 30-46-10(j) defines physical abuse as “non-accidental or intentional action or inaction that results in bodily injuiy or that presents a likelihood of death or of bodily injury.” Thus, the fact no marks or bruises were observed on D.W. is not conclusive in determining whether he was physically abused. D.W. told Detective Hohnholt and Sarah Byall that Winston picked him up by the neck, pushed his face into the corner, which caused him to have difficulty breathing, and hit him several times with his (Winston’s) fists and with a tennis shoe. M.W. reported diat Winston had picked D.W. up by the neck and pushed him face-first into the wall, and that Winston had hit D.W. so hard that day that Winston left a handprint. Julia reported that both M.W. and D.W. had told her the same about the incident. In addition to the prior abuse which Julia told Detective Hohnholt and Sarah Byall about, M.W. and D.W. also indicated that Winston had physically abused D.W. on prior occasions, stating that he would sometimes sit on D.W., strangle him, and put a pillow over his face so he could not breathe.
There is no doubt that these facts constitute substantial evidence that supports a finding that Winston physically abused D.W.
Emotional Abuse
Winston also contends there was not substantial evidence to support the finding that he emotionally abused M.W. and D.W.
“ ‘Mental or emotional abuse’ means acts or omissions that impair a child’s social, emotional, or intellectual functioning or present a likelihood of such impairment. Emotional abuse shall include the following:
“(1) Terrorizing a child, by creating a climate of fear or engaging in violent or threatening behavior toward the child or toward others in the child’s presence that demonstrates a flagrant disregard for the child”; K.A.R. 30-46-10(g).
There was substantial evidence to support the finding that Winston emotionally abused both D.W. and M.W. D.W. was so terrified of his father that he refused to enter the same room during the supervised visitation in January 1999 without police protection. D.W. also reported to Sarah Byall that he was “ Very afraid’ ” of his father. D.W.’s fear of his father was apparent to Janice Mueller during the divorce counseling group discussions. M.W.’s reaction to the visitation, as well as her journal entries, constitute substantial evidence that Winston abused M.W. As the presiding officer noted, the evidence is overwhelming that Winston emotionally abused both children.
Mueller testified that after Julia and Winston separated she observed a change in M.W.’s and D.W.’s behavior in that they opened up to others. Winston contends that Mueller’s testimony diminishes the claim that he has somehow interfered with the children’s social and emotional functioning. Winston, however, misconstrues the testimony. The testimony supports the finding that Winston has impaired their social and emotional functioning. It was only after Winston was no longer a constant in the children’s lives that they began to open up to others and participate.
Winston also contends that evidence supporting the finding of emotional abuse of M.W. was based on events other than the courthouse visitation and, thus, any decision that he emotionally abused M.W. was rendered without jurisdiction. This argument has already been addressed previously. During the investigation of the alleged incident of sexual abuse, evidence was discovered that would support the finding of emotional abuse. The reversal of SRS’s validation of Winston for sexual abuse does not undermine the fact that evidence of emotional abuse remained. Winston was aware that SRS was validating him for the emotional abuse of M.W. Thus, it was not beyond the jurisdiction of SRS to render a finding of emotional abuse under the circumstances.
PRESIDING OFFICER’S ALLEGED ERROR
Winston contends the presiding officer’s evidentiary decisions and other rulings were arbitrary and capricious and favored SRS. A ruling that is arbitraiy and capricious is a ground for relief under the KJRA pursuant to K.S.A. 77-621(c)(8). Winston cites to specific instances in his brief, which he contends demonstrate that the presiding officer acted more favorably toward SRS.
After reviewing the entire record of the hearing, there is no evidence of favoritism toward SRS or bias against Winston. The presiding officer took an open approach to the admission of evidence and applied this approach equally to both sides. Winston points out only those instances in which a ruling did not go in his favor and neglects to point out the numerous instances in which the presiding officer allowed questioning and evidence over SRS’s objection.
Winston also contends in his brief that the admission of Julia’s statements through the testimony of Sarah Byall and Detective Hohnholt was arbitrary and capricious. Julia did not testify at the hearing; however, Julia’s statements were admitted into evidence through the reports created during the investigation and through testimony of other witnesses. The basis for Winston’s objection to the admission of the evidence is that Julia refused to cooperate during her deposition and that he was deprived of an opportunity to cross-examine her because she did not testify. We find nothing in the record that indicates Winston did anything to compel Julia to submit to further questioning. The only action documented in the record was Winston’s motion in limine to exclude all of Julia’s testimony.
In administrative proceedings conducted under the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., the presiding officer is not bound by the technical rules of evidence and evidence need not be excluded solely because it is hearsay. K.S.A. 77-524(a). Thus, the fact the presiding officer allowed Julia’s statements to be admitted into evidence through reports and testimony of others was not arbitrary and capricious. As for the fact Winston was not able to cross-examine Julia on those statements, Winston could have called Julia as a witness or obtained an order requiring Julia to comply with the discovery request and submit to a subsequent deposition. See K.S.A. 77-522. It must be noted that Julia’s failure to cooperate in the deposition was the result of her and her own attorney, not as the result of action by SRS.
The presiding officer overruled Winston s objection to the admission of Julia’s statements in the reports on the grounds that Winston had statutory remedies available to him, such as going to district court, as the result of Julia’s failure to fully submit to examination in her deposition. The presiding officer held that it was Winston’s duty to pursue those remedies.
We note that when Winston’s counsel brought Julia’s actions to the attention of the presiding officer, die presiding officer informed him that he would not compel Julia to respond. The presiding officer stated at the hearing that he meant to inform Winston’s counsel that he, himself, did not have the physical ability to pry open Julia’s mouth and make her talk and did not mean to mislead counsel about available remedies. The presiding officer also noted that Winston’s counsel could have read the statutes and determined what remedies were available.
The district court, in affirming the decision and finding that Winston’s due process rights had not been violated, noted that the presiding officer acted within his authority in admitting the hearsay statements of Julia and that although this procedure resulted in Winston having the burden to produce Julia as his witness in order to examine her and test her credibility, there was no indication that Winston could not have done so. The presiding officer’s rulings on the admission of evidence were not arbitraiy and capricious.
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The opinion of the court was delivered by
Lockett, J.:
This case comes before the court on a petition for review pursuant to K.S.A. 20-3018(c). Based upon the terms of the journal entry of divorce, the district court awarded ex-wife 50 percent of the military severance pay received by her ex-husband, plus prejudgment interest. Ex-husband appealed, contending the military severance pay was a disability benefit, not a retirement benefit subject to division. Ex-wife asserted the district court was correct in finding she (1) was entitled to 50 percent of the military severance pay; (2) was entitled to prejudgment interest; and (3) was entitled to relief under K.S.A. 60-260(b)(6). The Court of Appeals determined the severance pay was an indivisible disability benefit and reversed the district court.
In 1976, appellant Wesley Wherrell enlisted in the United States Navy. Appellee Deborah Wherrell and Wesley were married in October of 1976. In July 1994, Wesley was found fit for only limited duty as a result of interstitial pneumonitis (a respiratory disease), which was directly related to his military service. After a review by the Record Review Panel of the Navy Physical Evaluation Board in March 1995, Wesley was placed on the “Temporary Disability Retired List” (TDRL). Wesley had been diagnosed with desquamative interstitial pneumonitis and given a 30 percent disability rating. In July 1995 and in response to Wesleys compensation claim, the Department of Veterans’ Affairs (VA) assigned Wesley a 10 percent disability rating because of his condition. The VA informed Wesley that he was entitled to $89 per month as compensation for his disability.
After nearly 22 years of marriage, Deborah filed for divorce in May 1998. The divorce was finalized on August 18, 1998. The agreed-upon journal entry of divorce contained the following provision regarding Wesley’s military retirement:
“6. That petitioner [Deborah] should be awarded fifty percent (50%) of the disposable retired or retainer pay otherwise payable to respondent due to his military service; and that a qualified domestic relations order should be issued to the payor of such retired or retainer pay pursuant to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. [§1401 et seq.], as amended, to effect such award.”
The journal entry of divorce also provided that Deborah waived any potential right to maintenance. The waiver of maintenance was the result of Wesley agreeing to give Deborah 50 percent of his retirement or retainer pay. From the record, it appears that at the time of the divorce Wesley was receiving $795.51 per month in militaiy retirement and $94 per month in disability. From August 1998 until October 1999, Wesley paid Deborah 50 percent of his retirement pay.
By letter dated October 12, 1999, Wesley was notified that he had been removed from the TDRL and “discharged from the naval service by reason of physical disability with severance pay effective 28 September 1999.” Wesley then informed Deborah that she would not receive additional payments because he was no longer receiving military retirement pay.
In August 2000, Deborah discovered a 1099-R addressed to Wesley from the Defense Finance and Accounting Center dated December 16, 1999. The 1099-R reported a gross distribution of $60,910.15. Federal income tax withheld was reported $15,100.39. as
as
On August 25, 2001, Deborah filed a motion to enforce paragraph six of the journal entry of divorce. Deborah alleged she was entitled to 50 percent of the $60,910.15. Wesley responded, contending Deborah was not entitled to this money because it was indivisible disability severance pay.
After a hearing, the district court found that Wesley had received a lump sum retirement benefit totaling $57,000 rather than $60,910.15 as Deborah alleged. The district court awarded Deborah $21,435 plus prejudgment interest at 10 percent per annum from November 1999.
Wesley filed a motion for amendment of the judgment or for additional findings and amendment of the judgment, contending the district court’s award of prejudgment interest was erroneous and that the specific grounds for awarding prejudgment interest were required to be stated. The district court denied the motion. Wesley filed a timely notice of appeal. Deborah did not file a cross-appeal; therefore, the district court’s determination as to the amount of the lump sum stands.
The Court of Appeals found that because Wesley was not eligible to retire from the Navy, the district court had incorrectly decided that the lump sum received by Wesley was a divisible military retirement benefit. It then determined that the payment was a disability severance benefit and reversed the district court. In the Matter of the Marriage of Wherrell, 30 Kan. App. 2d 166, 38 P.3d 753 (2002). This court granted Deborah’s petition for review.
We note that the district court is vested with broad discretion in adjusting the property rights of parties involved in divorce actions and that the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. In re Marriage of Sadecki, 250 Kan. 5, 8, 825 P.2d 108 (1992); Powell v. Powell, 231 Kan. 456, 459, 648 P.2d 218 (1982). The Court of Appeals cited and used this standard in reviewing the district court’s decision. Wherrell, 30 Kan. App. 2d at 167.
The question of whether the lump sum payment to Wesley was divisible military retirement or indivisible military disability determines whether the district court had jurisdiction to order the division of the payment pursuant to the journal entry of divorce. The existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Thus, the answer involves a mixed question of law and fact. Where a court reviews a mixed question of law and fact, it applies the substantial competent evidence test to the factual findings and determines by unlimited review whether the findings support the legal conclusions. State Bd. of Nursing v. Ruebke, 259 Kan. 599, 611, 913 P.2d 142 (1996).
In 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. §1408 (2000). The USFSPA was enacted in response to the decision in McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981), in which the United States Supreme Court precluded state courts from ordering the distribution of any military retirement pay to a former spouse. Mansell v. Mansell, 490 U.S. 581, 584, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989). The USFSPA authorizes state courts to treat “disposable retired” or “retainer” pay as either the sole property of the member or former member of the armed forces or the joint property of the member and his spouse in accordance with the law of the jurisdiction. See 10 U.S.C. § 1408(a)(7) and (c)(1).
In Mansell, the United States Supreme Court was faced with determining whether the state courts had the authority under the USFSPA to divide up total military retired pay when the retiree waived a portion of the retired pay in order to receive veterans’ disability benefits. The Court decided in the negative, relying upon the USFSPA’s specific exemption of amounts deducted from retired pay in order to receive compensation under Title 38 of the United States Code (Veterans’ Benefits) from the definition of “disposable retired pay.” 490 U.S. at 589.
In arriving at its decision, the Mansell Court noted that for the purpose of avoiding double payment, a military retiree is required to waive a corresponding amount of his or her military retirement in order to receive veterans’ disability benefits. 490 U.S. at 583. See 38 U.S.C. § 5305 (2000) (previously 38 U.S.C. § 3105). Because disability benefits are exempt from taxation resulting in higher after-tax income for retirees, the Court also noted that waivers are common. 490 U.S. at 583-84. See 38 U.S.C. § 5301(a) (2000) (previously 38 U.S.C. § 3101[a]).
Our Court of Appeals addressed a similar issue in In the Matter of the Marriage of Pierce, 26 Kan. App. 2d 236, 982 P.2d 995, rev. denied 268 Kan. 887 (1999). The Pierce court was faced with determining whether the petitioner was entitled to a share of her ex-husband’s military retirement benefits under a divorce settlement agreement when the benefits were subsequently converted into disability benefits. The petitioner requested that the district court either compel her ex-husband to reinstate his militaiy retirement or order him to pay the amount she would have received if the benefits were still classified as retirement benefits. The district court refused to grant the petitioner’s request. The ex-wife appealed.
The Pierce court, relying upon the United States Supreme Court’s decision in Mansell, held:
“Mansell malees it perfectly clear that the state trial courts have no jurisdiction over disability benefits received by a veteran. The trial court in this case cannot order [respondent] to change the payments back to retirement benefits, and it cannot order him to pay his disability benefits to [petitioner]. We conclude the court may not do indirectly what it cannot do directly.” 26 Kan. App. 2d at 240.
In this action, the district court noted In re Marriage of Pierce and determined that Pierce did not apply because Pierce involved the division of veterans’ disability benefits and Wesley had not received veterans’ disability benefits. The district court concluded:
“In this instance, Mr. Wherrell has not waived military retirement pay in order to receive veterans disability benefits. He received severance pay relating to his separation from naval service. As he was initially informed when placed on TDRL, this severance pay was available because of his eligibility under idle Temporary Early Retirement Authority. The nature of the benefits paid were defined by the terms of his placement on the Temporary Early Retired List (sic) on March 29, 1995 and the election he made when faced with returning to active service or retiring with separation severance pay. . . .”
“[I]t is clear that based upon initial placement on TDRL status that Mr. Wherrell would have certain options if he were subsequently removed from the TDRL and separated from service. In this regard, he elected separation severance pay.”
The district court found that the lump sum was a divisible military retirement benefit and that Deborah was entitled to 50 percent of the lump sum payment.
The Court of Appeals found the district court’s decision unreasonable and reversed the district court. In reaching its decision, the court noted that Congress specifically excluded disability benefits deducted from the retired member’s pay from inclusion in the definition of “disposable retired pay,” citing 10 U.S.C. § 1408(a)(2)(C) as authority for this exclusion. In re Marriage of Wherrell, 30 Kan. App. 2d at 168. It is important to note that the provision referred to is included in the definition of what constitutes a “court order” but does not define what is excluded from “disposable retired pay.” The Court of Appeals appears to have been referring to 10 U.S.C. § 1408(a)(4)(C), later set forth in this opinion. The Court of Appeals further found that Wesley had not met the requirements for retirement because he did not have either 20 years in the service or a 30 percent disability rating. Relying upon 10 U.S.C. § 1201 (2000), the panel concluded that Wesley received an indivisible disability benefit under 10 U.S.C. § 1203 (2000). In re Marriage of Wherrell, 30 Kan. App. 2d at 170.
Judge Knudson dissented, noting that Mansell dealt only with the waiver of veterans’ disability benefits under Title 38 of the United States Code, Wesley’s lump sum payment was not a veterans’ disability benefit under Title 38, and Wesley did not waive a portion of his retirement pay. Relying upon the fact Wesley received a 1099-R form indicating the distribution was not tax exempt, Judge Knudson found the district court’s opinion to be well-reasoned and opined that he would have affirmed the district court and addressed the remaining issues on their merits. In re Marriage of Wherrell, 30 Kan. App. 2d at 171.
As he did before the Court of Appeals, Wesley asserts tire district court erred in finding that In re Marriage of Pierce did not control; therefore, he contends the district court’s award of 50 percent of the lump sum to Deborah was clearly erroneous. To support his assertion, Wesley points out that the USFSPA excludes Chapter 61, 10 U.S.C. § 1201 et seq., disability benefits from “disposable retired pay,” under 10 U.S.C. § 1408(a)(4)(C).
Deborah argues that the district court correctly distinguished In re Marriage of Pierce from this case. To support her argument that the Court of Appeals erred in finding that the district judge abused his discretion in determining the benefits were divisible, and to demonstrate that Wesley’s benefits were divisible retirement benefits, Deborah relies upon the evidence before the district court and the statutes governing retirement and separation for physical disability, 10 U.S.C. § 1201 et seq.
The USFSPA defines disposable retired pay:
“The term ‘disposable retired’ pay means the total monthly retired pay to which a member is entitled less amounts which—
(B) are deducted from the retired pay of such member ... as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;
(C) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was place on the temporary disability retired list).” 10 U.S.C. § 1408(a)(4).
As provided in the notice to Wesley, the TDRL was to be administered in accordance with 10 U.S.C. § 1210 (2000). This section provides for a physical examination to be administered every 18 months and for a final determination to be made in the case of each member on the list after the passage of 5 years. See 10 U.S.C. § 1210(a) and (b). If the disability still exists at the expiration of the 5 years, as it did in this case, the disability is considered permanent and stable. See 10 U.S.C. § 1210(b). If the member’s permanent disability is less than 30 percent, as it was in this case, or if the member has less than 20 years of service, the member s name is removed from the list and the member is “separated” under either § 1203 or § 1206. See 10 U.S.C. § 1210(e). If the member has at least 30 percent disability or 20 years of service, his or her name is removed from the list and he or she is retired under either § 1201 or § 1204. See 10 U.S.C. § 1210(c) and (d). In applying 10 U.S.C. § 1210(c), (d), and (e), the Court of Appeals’ reversal of the district court was controlled by its belief that Wesley was ineligible to retire because he had not served 20 years in the Navy.
Neither party briefed the issue of whether Wesley was eligible for retirement. Although the fact Wesley did not serve 20 years might be relevant to the determination of whether the benefits are retirement or disability, it is not controlling. The appropriateness of the Navy granting Wesley retirement is not an issue. Rather, the issue is whether the benefits received by Wesley constituted retirement or disability benefits.
We further note that the Court of Appeals’ finding that Wesley was ineligible for retirement may also have been inaccurate. Wesley was advised by the Department of the Navy that he was placed on the TDRL during a period in which he “may have been eligible to request retirement under the Temporary Early Retirement Authority (TERA).” The TERA was also referred to in a handwritten note on a form that accompanied notification of Wesley’s placement on the TDRL.
The TERA was enacted in 1992 for the purpose of providing “the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces during the active force drawdown period.” National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484 § 4403(a) (codified at note to 10 U.S.C. § 1293). The TERA, among other things, gave the Secretaries of the military branches the authority to lower the number of years of service required for retirement in certain circumstances to 15 rather than 20 years. See Pub. L. No. 102-484 § 4403(b); Clary v. United States, 52 Fed. Cl. 390, 393 (2002). The “active force drawdown period” was in effect from the Act’s enactment until December 31, 2001. See Departments of Defense and Energy Appropriations, Pub. L. No. 106-398 § 571(a) (codified at note 10 U.S.C. § 1293).
Neither party nor the Court of Appeals addressed the possibility of Wesley’s eligibility for retirement under the TERA. The district court referred to the TERA, noting that Wesley was placed on the TDRL because of his “eligibility” under the TERA. The record does not support a finding that Wesley was eligible for retirement under the TERA; however, it infers that he might have been. We note that the provisions of the TERA cast doubt upon the Court of Appeals’ decision that Wesley was not eligible for retirement benefits because he had not served 20 years in the Navy. Because there are not sufficient facts in the record, we cannot determine whether Wesley was retired or eligible for retirement under the TERA. We can determine, however, that the Court of Appeals erred in relying upon this fact in reversing the district court.
Wesley was notified that while he was on the TDRL he “shall be accorded disability benefits in a temporary retired status as prescribed in 10 U.S.C. 1202 or 1205, as appropriate.” Those sections provide:
“Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title.” (Emphasis added.) 10 U.S.C. § 1202 (2000).
“Upon a determination by the Secretary concerned that a member of the armed forces not covered by section 1201, 1202, or 1203 of this title would be qualified for retirement under section 1204 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title.” (Emphasis added.) 10 U.S.C. § 1205 (2000).
From the plain language of the provisions, it appears that Wesley was on the TDRL and receiving “retirement pay.” It also appears that the only method of being placed on the TDRL is through either § 1202 or § 1205, both of which require that the member be eligible for retirement under § 1201 or § 1204. This conclusion is reasonable, due to the fact that the list is entitled the “Temporary Disability Retired List.” (Emphasis added.)
Deborah testified that when Wesley informed her that he would no longer be receiving retirement benefits, Wesley also stated that he had the choice to either serve the final 2 years of service that he had left remaining or to receive a settlement. Wesley testified that he had no choice and that the Navy had made the choice for him. He also testified that he did not intend to file a claim for veterans’ benefits because the amount of his severance pay would be offset by the amount of veterans’ benefits he was entitled to receive upon application to the VA for such benefits. See 38 U.S.C. § 5305 (2000).
Wesley’s notification of his honorable discharge and removal from the TDRL stated that he was being “discharged from the naval service by reason of physical disability with severance pay.” Included with this notification was an enclosure entitled “INFORMATION SHEET — SEPARATION FROM TDRL.” The enclosure contained the following provisions of interest:
“1. The following information is intended to help you understand the preliminary finding of the Physical Evaluation Board (PEB) and to assist you with your decision whether to accept the finding.
“2. The PEB made a preliminary finding that you remain unfit for military service pay by reason of physical disability. Because your combined percentage of disability is not less than 30%, you are ineligible to remain on the TDRL and are to be separated and paid disability.
(2) You will receive a disability severance check from the Defense Finance and Accounting Center AFTER YOU ARE DISCHARGED. Severance pay is TWO MONTHS BASE PAY MULTIPLIED BY YEARS OF TOTAL ACTIVE SERVICE. NOT TO EXTEND 12 YEARS [sic] an individual with less than six months creditable active service is not eligible for severance pay.
“3. If you have not already done so, you may apply to the Department of Veterans’Affairs (VA) for disability benefits. Any VA eligibility already established or which may be established will not be affected by the disposition of your case by the Navy. HOWEVER, SEVERANCE PAY WILL BE DEDUCTED FROM ANY VA COMPENSATION FOR WHICH YOU MIGHT BE ELIGIBLE.”
The formula set forth for computing Wesley s severance pay is similar to the formula set forth in 10 U.S.C. § 1212 (2000). Pursuant to 10 U.S.C. § 1210(c),(d) and (e), payment received after removal from the TDRL is only computed under § 1212 (disability severance pay) if the disability is determined to be less than 30 percent and the years of service are less than 20. See 10 U.S.C. §§ 1203 and 1206. If Wesley would have had a 30 percent or greater disability or been in the service for at least 20 years, his payment should have been calculated under 10 U.S.C. § 1401 (2000) (computation of retired pay). See 10 U.S.C. §§ 1201,1204, and 1210(c) and (d). This evidence points toward the lump sum payment constituting disability rather than retirement pay.
The inclusion of the lump sum payment on Wesley’s 1099-R form may be dispositive. A 1099-R form is the Internal Revenue Service form upon which distributions from pensions, annuities, retirement or profit-sharing plans, IRAs, insurance contracts, etc., are reported. The instructions for filing a 1099-R form specify that amounts that are totally exempt from tax, such as workers compensation and VA benefits, should not be reported on the form. However, payments to military retirees are to be reported on the form. The instructions also indicate that if part of a distribution is taxable and part is tax exempt, the entire distribution should be reported on the 1099-R. See 2001 Instructions for Forms 1099-R and 5498. Military disability benefits are tax exempt pursuant to 26 U.S.C. § 104(a)(4) (2000).
At the hearing before the district court, Wesley stated that he planned to challenge the withholding of federal taxes as indicated on his 1099-R form, relying upon the holding in St. Clair v. United States, 778 F. Supp. 894 (E.D. Va. 1991). The result of Wesley’s challenge, if any, to the tax withheld is unknown. In St. Clair, the plaintiff was discharged with disability severance pay under 10 U.S.C. §§ 1203,1208, and 1212. The plaintiff received a lump sum disability severance payment upon his discharge under § 1212. Subsequently, the plaintiff applied for VA benefits. The VA determined that the plaintiff was 10 percent disabled and deducted the amount of disability severance pay from future VA benefits. The St. Clair Court was faced with determining whether the entire lump sum amount should be included in the plaintiff s gross income for the year. The court noted that documentation of the plaintiffs discharge from tire Air Force clearly indicated that the plaintiff was discharged due to physical disability and that the resulting severance payment was for the purpose of compensating the plaintiff for that disability. Thus, the court held that the entire lump sum should have been excluded from the plaintiffs gross income because under 26 U.S.C. § 104(a)(4), amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces are excluded from gross income. 778 F. Supp. 896. Compare Russell v. Russell, 520 So. 2d 435, 438 (La. App. 1987), cert. denied 490 U.S. 1097 (1989) (“Therefore, because part of the payments defendant received were treated as taxable income by the federal government, it is unlikely that the entire amount paid to defendant consisted of disability retirement pay.”).
Prior to 1986, Congress completely excluded any retired pay of a member retired for disability under Chapter 61 of Title 10 to the United States Code from being considered “disposable retired pay.” See 10 U.S.C. § 1408(a)(4) (1982). The present definition of “disposable retired pay,” however, seems to consider Chapter 61 benefits received-by those members eligible for retirement as potentially including both disability and retirement benefits, while only recognizing the disability portion of the benefit to be excluded from “disposable retired pay.” See 10 U.S.C. § 1408(a)(4)(C). Thus, it is easily inferred that all benefits received pursuant to Chapter 61 are not necessarily disability benefits and that some, if not all benefits, received pursuant to Chapter 61 are capable of being considered “disposable retired pay.”
In Bullis v. Bullis, 22 Va. App. 24, 36, 467 S.E.2d 830 (1996), the Virginia Court of Appeals, sitting en banc, applied the current definition of “disposable retired pay” to determine that of all the military benefits received under Chapter 61, the only benefits that are excluded from the definition of “disposable retired pay” are the benefits which correspond to the retiree’s disability percentage at the time of retirement. This result seems reasonable under the plain language of 10 U.S.C. § 1408(a)(4)(C). If the member is not entitled to retired pay, however, it would not be appropriate to allow only a portion of his severance pay to be excluded from division under USFSPA. Under that circumstance, the entire Chapter 61 benefit would be excluded from the definition of “disposable retired pay.”
Furthermore, Wesley contends that Deborah should have been aware something was not right in terms of the journal entry of divorce when her attempt to set up a qualified domestic relations order (QDRO), as provided for under the USFSPA, failed. See 10 U.S.C. § 1408(d). Deborah testified that her request for the establishment of the QDRO had been denied by the military because Wesley was not permanently retired at the time of the request.
Unfortunately, there are serious factual issues that remain. The district court correctly recognized that the resolution of this issue depends upon whether the benefits were retirement or disability. The district court erred, however, in relying solely upon the fact that these benefits were not veterans’ disability benefits in finding that the benefits were divisible retirement benefits. The district court failed to recognize the existence of 10 U.S.C. § 1408(a)(4)(C), which applies to this distribution. It is not surprising the district court did not address 10 U.S.C. § 1408(a)(4)(C) in rendering its finding, because the arguments before the district court did not include specific references to the applicable statutes. It was not until his appeal that Wesley referred specifically to 10 U.S.C. § 1408(a)(4)(C).
The district court’s decision that the benefits constituted retirement and not disability was erroneous because the court applied the wrong statutoiy provision in evaluating the benefits, 10 U.S.C. § 1408(a)(4)(B) instead of 10 U.S.C. § 1408(a)(4)(C). Therefore, we remand the case to the district court. On remand, the district court should examine the facts and the statutory provisions applicable to the lump sum payment Wesley received as military severance pay. The outcome of Wesley’s challenge to the withholding of federal taxes on the lump sum, if actually pursued, determines the nature of the benefit received. In the absence of such challenge, Wesley has the burden to come forward with evidence estabhshing that the lump sum was disability rather than retirement pay. The 1099-R form introduced in the district court demonstrated that at least a portion of the lump sum was believed to be taxable. Under the circumstances, Deborah has met her initial burden of proof.
Although the district court briefly addressed Deborah’s contention that she was also entitled to relief under K.S.A. 60-260(b)(6) and seemed to agree that relief would also be available to Deborah under this provision, the district court did not set aside the judgment under K.S.A. 60-260(b)(6), specifically noting that its decision was based upon construction of the journal entry of divorce and other instruments and not upon setting aside the judgment. Therefore, we decline to address the issue. We also decline to address whether the district court erred in awarding prejudgment interest.
The Court of Appeals’ decision reversing the district court is reversed. The judgment of the district court is also reversed and the case is remanded for further proceedings.
Larson, S.J., assigned. | [
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Per Curiam:
This was a suit to enjoin and set aside a special assessment made by the city of Leavenworth to pay for repaving Olive street. Two lots belonging to defendant in error were charged with a part of the cost. The suit was also brought to restrain the collection of special assessments for the cost of a sidewalk laid along the street on one side of said lots. The plaintiff had judgment, and the city brings error. * ■
The ordinance determining the amount of the assess ment for paving was published, and went into effect, on September 1, 1899. This suit was begun on the 2d day of October, 1899, the 1st day of October being Sunday. It is contended that the proceedings to set aside the assessment for paving were brought in time, for the reason that, the last day being Sunday, it should be excluded in computing the thirty days allowed by the statute to begin the suit, and that the first day, that is, the day on which the ordinance was published, should also be excluded. This court, in the late case of Kansas City v. Gibson, 66 Kan. 501, 504, 72 Pac. 222, 223, said:
“The statute limits the time within which attacks may be made on special assessments to á period of thirty days from the time the assessment is ascertained, and the neglect of the property-owner to bring a proceeding either to set aside the assessment or to enjoin the making of the same, within the statutory time, is a bar to these remedies.”
It was expressly decided in the case quoted from that the day on which the cost of the improvement is ascertained and the ordinance passed is to be counted, in computing the thirty days allowed to begin the suit. That case is decisive of the present controversy except that part of it relating to the sidewalk. Section 722 of the code (Gen. Stat. 1901, §5218) is not applicable to the case. (Hagerman et al. v. Ohio Building and Savings Association et al.. 25 Ohio St. 186; Croco v. Hille, 66 Kan. 512, 72 Pac. 208; Coal Co. v. Barber, 47 id. 29, 27 Pac. 114.)
The sidewalk was laid and the cost assessed pursuant to section 12 of chapter 37, Laws of 1881 (Gen. Stat. 1901, §728). It is urged that the city should have proceeded under chapter 38 of the Laws of 1881 (Gen. Stat. 1901, §§ 876-889), and that this act repealed the act of 1881, This claim is untenable. Section 14 of chapter 38, supra, provides :
“Nothing in this act contained shall be construed to repeal or impair any power or authority of any city of the first class may have in referring [reference] to the building or repairing of sidewalks, but it may be discretionary with the mayor and council whether they desire to proceed under this act or under the power and authority they now have, or may have, under any general laws governing cities of the first class.”
The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinion. | [
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Per Curiam:
The court below, in decreeing the parti- - tion in this case, proceeded upon the theory that a divorced husband is not cut off from his right of inheritance in the wife’s estate by a decree of divorce rendered under the statute of Kansas, as it now stands, until after the expiration of six months from the date of such decree. This was aii erroneous view of the law. (Durland v. Durland, 67 Kan. 734, 74 Pac. 274, 63 L. R. A. 959.)
The judgment is reversed and the case remanded. | [
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Per Curiam:
This proceeding is brought to obtain the-custody of a child two and one-half years old. The testimony shows that the best interests of the child will besubserved by leaving her with the respondents, and judgment is rendered accordingly, with costs.
The petition is denied. | [
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Per Curiam:
This action was brought to recover commission for selling real estate. The oause was tried by the court and jury, and their verdict and.judgment were for plaintiff. The errors assigned and argued by the plaintiff in error are that the court erred in overruling the demurrer to the plaintiff’s evidence, and misconduct of the attorney for plaintiff in arguing the case to the jury. The record' discloses that there wás sufficient competent evidence introduced by the plaintiff to justify the court’s overruling the demurrer. There was no misconduct on the part of counsel, which is discoverable from the record.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
The Coffeyville Vitrified Brick and Tile Company is a corporation engaged in manufacturing brick. T. P. Perry, one of its employees, was discharged, from its service and he brought this action to recover damages therefor, alleging discharge because he was a member of a labor association, The plaintiff recovered judgment, and the defendant prosecutes this proceeding in error.
The plaintiff based his right of action upon chapter 120, Laws of 1897 (Gen. Stat. 1901, §§ 2425/2426), which reads :
“Section 1. That it shall be unlawful for any person, company, or corporation, or agent, officer, manager, superintendent, master mechanic, or foreman of any person, company, or corporation, to prevent employees from joining and belonging to anylabor organization, and any such person, company,‘or corporation, or any agent, manager, superintendent, master mechanic or other officer of any person, company or corporation that coerces or attempts to coerce employees by discharging or threatening to discharge said employees because of their connection with such labor organization, shall be deemed guilty of misdemeanor, and upon conviction thereof shall be fined in any sum not less than fifty dollars nor more than five hundred dollars.
“S.ec. 2. That any person; company or corporation doing any of the acts prohibited by section 1 of this act, shall be liable to the person injured, in exemplary or punitive damages not to exceed two thousand dollars, to be recovered by civil action, and in addition thereto a reasonable attorney fee to be recovered in said civil action for damages.”
The defense was that this act, in so far as it undertakes to interfere with the right of an employer to discharge his employee, is a violation of that portion of section 1 of the fourteenth amendment to the constitution of the United States which reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, n'or deny to any person within its jurisdiction the equal protection of.the laws.”
It was also claimed that it violates section 1 of the bill of rights, which provides that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The question thus presented is important, and we regret that the defendant in error has not favored us with briefs presenting his contention.
Before approaching a discussion of the question let us exclude any notion that the ac.t in question is a police regulation. It will be observed that- it does not affect the public welfare, health, safety or morals of the community, or prevent the commission of any •offense or other manifest evil. Where the object of the act cannot be traced to the accomplishment of ■some one of these purposes it is not a police regulation. Besides, the legislature has no power to impair or limit the reasonable and lawful exercise of a right guaranteed by the constitution, under the guise of a police regulation. It must also be remembered that the right which the .plaintiff claimed was violated did hot •originate in contract, but was purely statutory ; therefore, the determination of the question whether he has any remedy depends entirely upon the validity of this statute.
The right to follow any lawful vocation and to make contracts is as completely within the protection of the constitution as the right to hold property free from unwarranted seizure, or the liberty to go when and where one will. One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the legislature without violating the letter and spirit of the constitution. Every citizen is protected in Ms right to work where and for whom he will. He may select not only his employer but also his associates. He is at liberty to refuse to continue to serve one who has in his employ a person, or an association of persons, objectionable to-him. In this respect the rights of the employer and employee are equal. Any act of the legislature that would undertake to impose on an employer the obligation of keeping in his service one whom, for any reason, he should not desire would be a denial of his constitutional right to make and terminate contracts and to acquire and hold property. Equally so would be an act the provisions of which should be intended to require one to remain in the service of one whom he should not desire to serve.
In Doremus v. Hennessy, 176 Ill. 608, 615, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203, where the employer refused to abide by the prices prescribed by a laundry union, and the members of the union refused to work for her, the court sustained them in so doing and said: “Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor or capital according to his own will.”
Also, in the case of Arthur v. Oakes, 11 C. C. A. 209, 216, 217, 63 Fed. 310, 25 L. R. A. 414, wherein the circuit court, during the labor troubles of 1894, enjoined certain employees from ‘ ‘ so quitting as to cripple the property or prevent or hinder the operation of the railroad,” the court of appeals, speaking by Harlan, J., held that it was erroneous, as invading the natural rights of men. He said :
“It would be an invasion of one’s natural liberty to compel him to work for or to remain in the personal service of another.
“The rule, we think, is without exception that equity will not compel the actual affirmative performance by an employee of merely personal services, any more than it will compel an employer to retain in his personal service one who, no matter for what cause, is not acceptable to him for service of that character.”
Judge Cooley, in his work on Torts, first edition, page 278, says:
“It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice.”
Mr. Tiedeman, in section 204 of volume 2 of his work on State and Federal Control of Persons and Property, says :
“Every man has a natural right to hire his services to any one he pleases, or refrain from such hiring; and so, likewise, it is the right of every one to determine whose services he will hire. . . . Government, therefore, cannot exert any restraint upon the actions of. the parties. ...”
The business conducted by the defendant was its property, and in the exercise of this ownership it is protected by the constitution. It could abandon or discontinue its operation at pleasure. It had the right, beyond the possibility of legislative interference, to make any contract with reference thereto not in violation of law. In the operation of its property it may employ such persons as are desirable, and discharge, without reason,, those who are undesirable. It is at liberty to contract for the services of persons in any manner that is satisfactory to both. No legislative restrictions can be imposed upon the lawful exercise of these rights. .
Within the past two decades there has been an epi demic of this class of legislation. New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Missouri, Wisconsin, Colorado and California have similar statutory provisions, and in such states, -where' the constitutionality of these statutes has been before the courts, the law has been universally held to be a denial of rights guaranteed by the provisions of the national and state constitutions'. The first case which arose was State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443, and was a criminal prosecution to convict the manager of a shoe factory for discharging an employee because he refused, at the request of such manager, to withdraw his membership-from the Lasters’ Protective Association of America, a lawful labor-union. In the opinion, at page 175, the court said :
“Here, the law under review declares that to be a. crime, which consists alone in the exercise of a constitutional right, to wit, that of terminating a contract, one of the essential attributes of property, indeed property itself, under preceding definitions. Brought to the bar of a court on such charge, the accused would have, been prejudged in so far as the criminality of the act charged is concerned ; no question could there be'made or admitted as to the quality of the act; that would have been settled by the previous legislative declaration, and it would only remain to find the fact as .charged, in order to declare the guilt as charged. But the fact as charged, as already seen, is not a crime, and will not be a crime so long as constitutional guaranties and constitutional prohibitions are-respected and enforced.
“If an owner, etc., obeys the law on which this-prosecution rests, he is thereby deprived of a right and a liberty to contract or terminate a contract as all others may; if he disobeys it, then he is punished for the performance of an act wholly innocent, unless, indeed, the doing of such act guaranteed by the organic law, the exercise of a right of which the legislature is forbidden to deprive him can, by that body, be conclusively pronounced criminal. We deny the power of the legislature to do this; to brand as an offense that which the constitution designates and declares to be a right, and therefore an innocent act, and consequently we hold that the statute which professes to exert such a power is nothing more nor less than a ‘legislative judgment,’ and an attempt to deprive all who are included within its terms of a constitutional right without due process of law.”
The case of Gillespie v. The People, 188 Ill. 176, 182, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176, was a prosecution under a statute similar to ours for discharging an employee for joining a labor-union. The court, in referring to the constitution, said:
“The terms ‘life,’ ‘liberty’ and ‘property’ are representative terms, and intended to cover every right to which a member of the body politic is entitled under the law. These terms include the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right freely to buy and sell as others may. Indeed, they may embrace all our liberties, personal, civil, and political, including the rights to labor, to contract, to terminate contracts, and to acquire property. None of these liberties and rights can be taken away, except by due process of law. (2 Story, Const., 5th ed., sec. 1950.) . . . The rights of liberty and of property include the right to acquire property by labor and by contract. (Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315.) If an owner cannot be deprived of his property without due process of law, he cannot be deprived of any of'the essential attributes which belong to the right of property without due process of law. Labor is property. The laborer has the same right to sell his labor and to contract with reference thereto as any other property-owner. The right of property involves, as-one of its essential attributes, the right not only to con tract but also to terminate contracts. ... In view of what has been said, it cannot be doubted that the plaintiff in error, Charles Gillespie, had a right to terminate his contract, if he had one, with Reuben Gibbons, subject to civil liability for any termination which should be unwarranted. One citizen ' cannot be compelled to give employment to another citizen, nor can any one be compelled to be employed against his will. The act of 1893, now under consideration, deprives the employer of the right to terminate his contract with his employee. The right to terminate such a contract is guaranteed by the organic law of the state. The legislature is forbidden to deprive the employer or employee of the exercise of that right. The legislature has no authority to pronounce the performance of an innocent act criminal, when the public health, safety, comfort or welfare is not interfered with. The statute in question says that, if a man exercises his constitutional right to terminate a contract with his employee, he shall, without a hearing, be punished as for the commission of a crime.”
Still a later case is that of The State, ex rel. Zillmer, v. Kreutzberg, 114 Wis. 530, 545, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934. The defendant was charged with having unlawfully discharged an employee because he was a member of a labor organization. The court said:
“Confining ourselves, then, to the act so charged and the statutory prohibition involved, is it within the legislative power to make criminal the refusal to contract with another for his labor for any reason which the employer deems cogent ? We speak of refusal to contract, for, while the act mentioned only discharge, it is in no wise limited to situations where there is any contract or other right to continuance of employment, and is obviously intended by the framers to apply generally to the relation of employer and employee, where, as common knowledge assures us, there is usually no term of employment and each day constitutes a new contract.' As each morning comes, the employee is free to decide not to work, the employer to decide not to receive him, but for this statute. That the act in question invades the liberty of the employer in an extreme degree, and in a respect entitled to be held sacred, except for the most cogent and urgent countervailing considerations, we have pointed out. Hardly any of the personal civil rights is higher than that of free will in forming and continuing the relation of master and servant. If that may be denied by law the result is legalized thraldom, not liberty—certainly not to the laboring men of the country. This aspect of the subject is too clear to warrant further discussion. Is there any conceivable reason to warrant such extreme invasion of individual liberty ? Can it be necessary to the reasonable liberty of others under the law ? The act here charged as criminal clearly does not deprive any other person of any private or civil right. Its utmost effect is to deny privilege of contract, but no right exists to enter into contract with another against his will.”
For the reasons given, we are of the opinion that the statute in question is unconstitutional. The judgment is therefore reversed, with directions to set aside the judgment rendered and enter judgment for the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered'by
Johnston, C. J.:
The board of county commissioners of Russell county directed the county attorney to institute proceedings under section 7718 of the General Statutes of 1901 to have delinquent taxes on lands which were bid in by the county declared liens thereon,. and the lands sold in satisfaction thereof. Included in the list of lands so in default were several tracts of school-land which had been sold by the state on deferred payments. After the sale of the school-lands, and while they were held under contracts of purchase, taxes were levied against them which were not paid, and at tax sales the county bid in the tracts in question. After these tax proceedings the purchasers of the school-lands defaulted in the payment of the an nual interest and the balance of the purchase-price of the lands, and in accordance with statutory directions forfeitures of‘the rights of purchasers were declared. Later, the lands were reappraised and sold substantially as if there had been no previous sale. In this iproceeding the second purchasers are resisting the 'enforcement of the collection of the delinquent taxes 'which were levied before the forfeiture of the first «contracts of purchase. The trial court in effect held that the tax liens fell with the forfeitures, and that the purchasers at the second sale took the lands free from any encumbrance by reason of the preceding purchase or the taxes previously levied against them.
The question was rightly decided. The purchaser of school-lands on deferred payments acquires an interest in the lands which is subject to forfeiture for non-payment of interest or purchase-money when the same becomes due. When such a sale is made the property is subject to taxation, but the rights and liens of those who may purchase such lands at a tax sale are exceptional and conditional. The statute provides that when the taxes levied on school-lands are not paid and the same are sold for taxes the purchaser at a tax sale is subject to the conditions of the contract between the state and the school-land purchaser, one of which is that there may be a forfeiture to the state. (Gen. Stat. 1901, § 6354.) In Prescott v. Beebe, 17 Kan. 320, it was said that the holder of a tax title “simply takes the interest of the purchaser,” and the statute itself is a warning to such purchaser that his interest is contingent and may' be lost by the default of one who purchased from the state. It tells him that his interest is subject to compliance with a contract involving forfeiture, and the provision which gives him sixty days’ notice of a proposed forfeiture warns him that if the amount due to the state be not paid within the sixty days the interest of all persons under the sale by the state will be absolutely forfeited. (Gen. Stat. 1901, §6356.)
The right acquired by a purchaser at tax sale is contingent and somewhat insecure, but the legislature has provided a measure of protection by permitting him to make the payments due under the contract with the state and substituting him to the rights of the original purchaser. (Gen. Stat. 1901, §§ 6356, 7642; Larabee v. Prather, 51 Kan. 743, 33 Pac. 608.) When a forfeiture occurs, however, the rights and interests of every one under a purchase from the state, including the tax-sale purchaser, are absolutely forfeited. This was in effect the decision in Larabee v. Prather, supra, where it was said :
“The 60-day notice which is required by that section to be served is for the purpose of cutting off the rights of both original and tax-sale purchasers, in case the instalments due the school fund are not paid. The section provides not only for service on the original purchaser, but also contains this provision : ‘And in case such land or any part thereof has been sold for taxes, a copy of such notice shall be delivered to such purchaser at tax sale, if a resident of the county.’ If the instalments in default are not paid within 60 days after the service of the notice, the rights of the tax-certificate holder, as well as of the original purchaser, are terminated, and the state then resumes its full title freed from all claim.”
(See, also, Flint v. Comm’rs of Jackson Co., 43 Kan. 656, 23 Pac. 1048; Menger v. Comm’rs of Douglas Co., 48 id. 553, 29 Pac. 588.)
The forfeitures in question appear to have been valid, and the effect was absolutely to terminate and cut off the interests of all tax-holders, including Russell county. The lands then passed to the state cleared of every lien or claim, aijd could then be reappraised and sold as they were in the first instance. The county whose officers gave the notice and conducted the forfeitures could not complain of a want of notice, and since the forfeitures were effective it was immaterial to the county that the state may have subsequently sold the same lands to a former purchaser who had made default. Even if such a sale were treated as an irregularity, it would not invalidate the forfeiture nor restore the .rights of tax-title holders.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
At the outset of the discussion we are met by respondent’s contention that we cannot inquire into the merits of the petitioner’s case, and this for two reasons. Under the article of our code relating to habeas corpus, section 671 (Gen. Sfcat. 1901, § 5167), is found this language :
"No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term- of commit ment has not expired, in either of the cases following : . . . Third, for any contempt of any court, officer or body having authority to commit. . . . Fourth, upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”
It is claimed that inasmuch as the petitioner is in custody under the order of-Judge Sheldon for his contempt-in refusing to obey the command to produce the body of William Howard, an inquiry into the legality of such detention is forbidden by the third subdivision above quoted. In order that any court or other tribunal may make an order of commitment— that is, a valid order of commitment—there must be jui’isdiction so to do in the court, officer or body making such order. Not only-jurisdiction generally to make such order's must rest in sxxch coxxrt, officer, or body, but also jurisdiction over the person and ixx the matter to which the order of commitment is sought to apply. It would hardly be contended that, even though a district judge has general authority, on px’oper occasion, to commit for contempt, such an ox’der made by a judge while he was out of his district would be of binding force, and that, were-it sought to enforce such order, any competent court might not intex'vene. So that, at the bottom of this question, as well as fundamentally in the others presently to be discussed, is the inquiry into Judge Sheldon’s jurisdiction in the entire premises; and, if we conclude that he had no jurisdiction in the matter of the issuance of the wx’it of habeas corpus on the petition of Howard, then its disobedience was not contemptuous, and would form no proper foundation for th¿ commitment of this petitioner because of its disobedience. '
The second objection to our inquiry into the mex-its has for its reason the matter found in the fourth subdivision above quoted, and for its support the argument that the petitioner should yield himself to the-adjudication of Judge Sheldon, and that upon such consideration, it being presumed that, if there were-no jurisdiction to arrest for contempt, Judge Sheldon would so decide and discharge the petitioner, and that, if he should not do so, it would then be time enough to invoke the interference of another court; in other-words, that it was the duty of the petitioner to present his cause to the court from which the order for his arrest issued. In support of this contention the case of In re Gray, 64 Kan. 850, 68 Pac. 658, is cited. That was a case where the petitioner, being in legal custody, sought to raise the question of the constitutionality of a law, the violation of which was charged by a proceeding in habeas corpus. This court there held that he could not do this ; that he must present, his entire case to the court which had jurisdiction of his person and of the matter which he sought there to present. Clearly, a very different question would-be presented in a case where the petitioner was restrained by an order made entirely without jurisdiction. It would be little short of a farce to require a petitioner to yield himself to a court having no jurisdiction of his person in order that that court might determine whether it had jurisdiction. In speaking upon this identical question, this court, in the case of In re Dill, 32 Kan. 668, 688, 5 Pac. 47, 49 Am. Rep. 505, after an exhaustive review of authorities, used the following language :
“Under the authorities before cited, and on principle, we think that § 671 of the statute does not prohibit one court, by and under proceedings in habeas corpus, from examining the judgment or commitment for contempt of another court under which a person is restrained of Ms liberty ; and if on such examination it appears, and the record shows, that the court rendering the judgment was without jurisdiction to render it under some circumstances, or if the charge-on which the petitioner is convicted and imprisoned-does not constitute an offense for which punishment can be inflicted, or that the court has rendered a judgment which it had no authority to render, or has exceeded its authority, from discharging the petitioner' from imprisonment.”
The same view was taken in the case of In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957, where the court in the syllabus said :
“The supreme court may, upon proceedings of habeas corpus, examine the judgment or order of a district court committing a party for contempt; and if,upon such examination, it appear that the district court was without authority to commit, under the particular circumstances of the case, the petitioner-may be discharged.”
Hence, this objection, as well as the first, must find its solvent in the determination of whether the judge had authority to direct the issuance of the first writ on Howard’s petition.
We are, therefore, come to the discussion of the fundamental question, whether Judge Sheldon had jurisdiction to make the original order in Howard’s-proceeding in habeas corpus, for, if this order was without jurisdiction and void, then its disobedience by Jewett was no contempt, as he would not be bound to obey an order which the judge had no authority to-make. Upon this proposition it is said at page 178-of volume 15 of the American and English Encyclopedia of Law:
“But if the court did not have jurisdiction of either' the party or the subject-matter, or if,» having jurisdiction in both respects, it exceeded its powers in making any order or determination the disobedience of which was the contempt charged, or in making a commitment, habeas corpus is the proper mode of obtaining relief, as in case of other void judgments.”
Many other authorities might be cited in support of this proposition, of which the following are a few: Church, Hab. Corp. 154; Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386, 49 Am. St. Rep. 557; Ex parte Clark, 126 Cal. 235, 58 Pac. 546, 46 L. R. A. 835, 77 Am. St. Rep. 176; State v. District Court, 21 Mont. 155, 53 Pac. 272, 69 Am. St. Rep. 645; 9 Cyc. 9, where many authorities are cited.
It must be borne in mind that, Howard’s petition showed upon its face the nature and place of confinement, and that he was being detained by Jewett as warden of the state penitentiary, at the penitentiary, in Leavenworth county, which was outside of the territorial limits of the tenth judicial district. If, under these facts, Judge Sheldon had no authority to require the production of Ploward’s body within' his district, then the order to do so was void. What, then, is the jurisdiction bestowed upon judges of the district courts by our constitution and statutes? Section 6 of article 3 of the constitution provides : ‘1 The district courts shall have such jurisdiction in their respective districts as may be provided by law.” Section 16 of the same article provides: “The several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law.” Section 1924 of the General Statutes of 1901 gives certain civil jurisdiction to judges of the district court and provides that the same shall be exercised “within their respective districts.” By the code of criminal procedure, warrants for the arrest of offenders and processes for the procurement of the attendance of witnesses may issue to any county within the state, and by section 270 of that code (Gen. Stat. 1901, § 5708) provision is made for the issuance of writs of habeas corptbs to inquire into the detention of persons held under sentence of punishment of death. Speaking generally, then, we may say that, as to civil matters, the jurisdiction of the district court, or the judge thereof at chambers, is confined to the limits of his district; while, as to criminal matters, such as are pointed out in the statute, process may go to any portion of the state.
This brings us to the question whether a proceeding in habeas corpus is in its nature civil or criminal. If the former, then Judge Sheldon’s order to Jewett to produce the body of Howard before him, both being outside of the tenth judicial district, was without jurisdiction and void. Under the provisions of article 1 of. the code of civil procedure (Gen. Stat. 1901, §§ 4429-4440) the remedies to be had in a court of justice are divided into actions and civil proceedings. An action is defined as follows :
“An ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”
Actions are classified into civil and criminal, the latter being thus defined :
“A criminal action is one prosecuted by the state as a party against a person charged with a public offense, for the punishment thereof.”
It is plain that by no possible construction of these definitions can it be held that a proceeding in habeas corpus is criminal in its character ; the state is not a party thereto; the person against whom it is directed •is not charged with a public offense (unless it might -so happen in some cases as an incident) ; and in no •case is it the object of the proceedings to punish for ¡any offense. On the other hand, the object of the writ ■ of habeas corpus, as defined in section 660 of the civil •code (Gen. Stat. 1901, §5156), is to inquire into the •cause, of the restraint of the petitioner, and to deliver .therefrom, if found illegal.
In the case of Ex parte Tom Tong, 108 U. S. 556, 559, 2 Sup. Ct. 872, 27 L. Ed. 826, Chief Justice Waite, in :speaking of the proposition, said :
“The writ of habeas corpus is the remedy which the •law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes neces.sary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is •complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a •civil right, which he claims, as against those who are holding him in custody, under the criminal process.”
- In the recent case of The State, ex rel. Durner, v. Huegin, 110 Wis. 189, 62 L. R. A. 700, 85 N. W. 1046, it was said :
“Regardless of what a habeas corpus proceeding should be called under the code,' which divides all judicial proceedings into actions and special proceedings, it is 'to all intents and purposes a civil suit—a proceeding in the nature of a civil action—in which the party seeking to establish his right to personal "liberty is plaintiff . . . and the person charged with the wrong is an adverse party, to all intents and purposes a defendant, regardless of the name by which such a person is commonly known in such a proceeding.”
The .question under consideration was discussed at length in this case, many authorities being cited. (See, also, Church, Hab. Corp. §§ 70, 174; Hurd, Hab. Corp. 129.) Indeed, this court, in Gleason v. Comm’rs of McPherson Co., 30 Kan. 53, 54, 1 Pac. 384, 2 Pac. 644, in explicit language, though merely incidental to the case, held that “ habeas corpus is not a criminal action within the definition” given in the code.
By the provisions of section 672 of the code of civil procedure (Gen. Stat. 1901, §5168), the civil remedy of habeas corpus is made to perform the function of an appeal from an order of a committing magistrate in •cases when bail has been denied upon a preliminary hearing, for the purpose of having the questions therein involved reconsidered. To this extent its use may fairly be considered criminal in its nature (In re Snyder, Petitioner, etc., 17 Kan. 542, 552; Gleason v. Comm’rs of McPherson Co., supra), this character being imparted to it by reason of the statute, rather than by its inherent quality.
It is urged that the proceedings in habeas corpus by which Howard sought relief were but a prolongation and part of the original prosecution under which he was sent to the penitentiary, and that, inasmuch as Judge Sheldon might, if he.had committed error in the imposition of the sentence, cause Howard again to be brought before him for sentence, he could compel this to be done by a proceeding in habeas corpus. We do not agree to this contention. Howard’s proceeding was an entirely independent one ; it was one in which .he was asking relief from the false imprisonment which he alleged he was suffering at the warden’a hands ; he was contending that his rights were being violated. It w’as for the purpose of having this question settled that his action, or proceeding, was instituted. Of this subject-matter Judge Sheldon had jurisdiction, but he acquired no jurisdiction of this-petitioner by the writ outside his district. As well might he claim jurisdiction of a non-resident defendant upon whom a summons had been served outside the state.
It is suggested that this view will result in hardship ; that if there had been error in the imposition of a sentence, the judge imposing it tvould be deprived of the obvious right and duty of correcting such error, inasmuch as he would have no means of compelling-the production of the criminal before him again to be-sentenced. This does not necessarily follow, for were it ascertained in a proper manner, and in the proper-forum, that error in this respect had been committed, the petitioner would, of course, be remanded to the court where sentenced for a proper sentence. Certainly no hardship could be imagined equaling the-one that would result from a holding such as the respondent would have us make, for under such holding, the probate judge of the remotest county'in the state-might require the production before him of every one-confined, not only in the state penitentiary, but in all of the county jails and various houses of detention within the state—a result which would serve much to deter us from reaching such a conclusion, if deterrent were necessary.
We feel satisfied that Judge Sheldon had no jurisdiction to direct the issuance of the writ to run outside his district, and that its service upon the petitioner outside such district gaye the judge no jurisdiction of the petitioner ; and, hence, that petitioner’s arrest for contempt because of disregard of the void writ was without authority and void.
The petitioner will be discharged from custody.
All the Justices concurring. | [
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The opinion of the court was delivered -by
Burch, J. :
The plaintiff in error, defendant below, is a corporation engaged in the operation of a packing plant, and the plaintiff below was injured while in its service. On the morning of his employment the plaintiff entered the plant through the superintendent’s office, and was shown from that room to his place of work by a guide. He left the plant in the evening by reversing the course he had followed in the morning. The next morning he attempted to enter at the same place as before, but found the door locked. After waiting a short time, the superintendent’s clerk told him that was not the proper entrance for employees ; that he should follow an elevated platform, or dock, as it is termed, around the buildings—the general way to go into the plant—and that he would find the way into his place of work. The plaintiff did as he was advised, and after following the dock for a considerable distance and making several turns he came to a storm-door, swinging both ways, through which he entered a room used as a vestibule,. Turning to the left, he found another swinging door, which he passed. Both doors closed after him automatically. After passing the second door he found himself in an unlighted hallway, along which he proceeded slowly on account of the darkness. When he had gone some twenty-five feet he fell into an open and unguarded hatchway communicating with a basement room below, and received the injuries for which he recovered damages in the district court.
So far as the evidence discloses, the defendant in error entered the building through the only general way provided for that purpose. He had never been in the hall before and was ignorant of the location of the hatchway. The hall was used for the passage of persons, as well as for access to the hatchway into which plaintiff fell, and to another hatchway some ten feet nearer the entrance. Sockets for three electric lights were provided for the hall at the time of the accident. The hatchways were twenty-four inches square, and each one was surrounded by a two-by-four-inch piece of wood, nailed to the floor. The packing company provided covers for the hatchways, to be used when men were not at work, which, at the time of the accident, were near by, but not in place. The hatchways were used for the purpose of dumping meat into the basement, and during the progress of that work were left open. Sometimes they were left open for ventilation. Why they were left open at the time of the accident does not appear. •From some of the defendant’s evidence the jury might have inferred that the persons whose duty it was to close the hatchways were fellow servants with the plaintiff, but from other evidence such a conclusion would seem to be entirely unwarranted.
The plaintiff charges the company with negligence in maintaining open and unguarded hatchways in an unlighted hall used as a passageway into the plant. The defendant answers that the plaintiff must have realized the necessity for light when he found himself enveloped in darkness, and, hence, that he assumed all hazard attending any further advance. It further answers that, having provided covers for the> hatchways, the failure to use them was negligence on the part of the plaintiff’s fellow servants, for which the defendant is not liable.
It is elementary law that the defendant was required to furnish the plaintiff a safe place to work and safe means of access to his work inside its buildings. This duty the plaintiff had a right to believe the company had performed. When he found himself in the dark passageway the plaintiff’s information regarding the place did not extend beyond the matter of an insufficiency of light. But darkness alone could not throw him down and mangle him. The open doors from the dock into the hall were an assurance of safety. He was ignorant of that which made the hall a place of peril. He was not on equal terms with the master in estimating the hazards of his surroundings. He was not obliged to institute an investigation for hid-' den menaces which could exist only by virtue of a breach of his master’s duty to him ; therefore, he had the right to proceed, and contracted to assume no risk arising from the company’s negligence when he did so. (Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 232; Railway Co. v. Bancord, 66 id. 81, 71 Pac. 253; St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 id. 701, 16 Pac. 146, 1 Am. St. Rep. 266; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 id. 129, 12 Pac. 582; A. T. & S. F. Rld. Co. v. Moore, 29 id. 632.)
The second argument in defense of the company assumes that it discharged its duty when it furnished covers for- the hatchways. The evidence, however, does not compel the acceptance of any such view. The jury had a right to believe the. openings to be dangerous to persons following the hall as a passageway while workmen going to and fro properly using them were momentarily away and while they were uncovered for ventilation ; and that barriers of some kind about the holes were necessary to render the place a safe one at all such times. The evidence was not sufficient to require the jury to find that the covers were negligently off the hatchway when the plaintiff fell into it. The defendant produced a witness who sought to create such an impression without admitting the fact, but the .jury were not obliged to follow him in his effort to shift the company’s responsibility. Therefore, a contributing cause of the injury may be found in the failure to erect railings, and the company be remiss in its duty notwithstanding the fact that it furnished movable covers.
The second argument in defense of the company further assumes that the workmen who were charged with the duty of replacing the covers over the hatchways were fellow servants with the plaintiff. This does not follow as a necessary conclusion from the quite indefinite and very ambiguous 'evidence upon the subject, and under the well-understood rule the general verdict for the plaintiff solved all doubts in his favor.
Admitting both assumptions just discussed to be correct, however, the concurring negligence of the company in the matter of lighting the hall still rendered it liable.. (A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343;. A. T. & S. F. Rld. Co. v. Holt, 29 id. 149.)
The foregoing considerations render a detailed discussion of the instructions given and refused unnecessary.
On the trial the defendant placed upon the stand a witness who assumed responsibility for the closing of the hatchways, and who in positive terms claimed to have exercised great diligence in requiring the covers to be used. In the course of a rigid cross-examination this witness stated and maintained that the hatchways had never been left. open, according to his knowledge. To confute his testimony, the plaintiff’s attorney pressed him to admit that he remembered a time when one of them had been left open, and an employee had fallen through. The company complains that an attempt was made to prove negligence by showing a previous accident at the same place. Under many circumstances this is permissible. (City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Mo. Pac. Rly. Co. v. Neiswanger, 41 id. 621, 21 Pac. 582, 13 Am. St. Rep. 304.) But the record presents no such question, since the testimony assailed was brought out in a legitimate way, as an incident to a proper cross-examination of one of the defendant’s witnesses.
This court has no such opportunity to weigh the evidence as the jury enjoyed, even if it were permitted to do so, and hence it cannot be said that the damages allowed were excessive.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The will executed by Curtis P. Casey was contested. It was found by the jury that he was not of sound mind and memory when the will was made and that it was not legally executed and attested. The court approved these findings, and also found and declared that the will was void. The sufficiency of the evidence to support the findings is the only question presented for review.
’ A reading of the testimony in the record satisfies us that it amply sustained the findings, and, hence, the judgment is affirmed. | [
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The opinion pf the court was delivered by
Burch, J. :
The treasurer of Ness county employed a deputy to assist him in the performance of the duties of his office. The board of county commissioners neither authorized the employment nor contracted to pay for the services rendered. A bill to the county by the deputy for his wages was rejected. On appeal, the district court found that it was necessary for the treasurer to have a deputy during the period covered by the bill and that the charges made were reasonable, but denied relief on the ground that it was entirely discretionary with the board of county commissioners to allow clerk hire, and that it had not done so.
The judgment of the district court was correct. So much of the controlling statute as is applicable to the case reads as follows :
“The county treasurers of the several counties of the state shall be allowed by the board of county com missioners of their respective counties, as full compensation for their services for the county, the following salaries, to be paid out of the county treasury in quarterly instalments : . . . provided, that the county commissioners of the several counties may allow the following sum, or as much thereof as they may deem necessary, for clerk hire : In counties having a population of more than 2500 and not more than 6000, per annum, $300.” (Gen. Stat. 1901, §3024.)
If the legislature had intended to force out of the treasury $300 per annum, or any part of that sum, for clerk hire it would have said so. Instead of announcing such to be its purpose, it left the matter to the determination of the board of county commissioners. No other tribunal has any power or authority to decide the question, and until the board deems it necessary and makes an allowance no money for clerk hire can be drawn. The deputy says the words “ may allow” in the statute mean “must allow.”. Grant that to be a correct interpretation, still only so much of the $300 per annum as the board deems necessary can be allowed. If it deem no part of that sum to be necessary, nothing can be paid. However, the word “may” in the connection referred to is purely permissive.
The general rule adverted to in Phelps v. Lodge, 60 Kan. 122, 55 Pac. 840, that “where public authorities are authorized to perform an act for the benefit of the public, or for an individual who has a right to its performance, the word ‘may’ is interpreted as meaning ‘must,’” has no application, because the question of public benefit through an appropriation for clerk hire can be determined only by the board of county commissioners. The opinion of the treasurer, or of the deputy, or of the district court, or of this court, upon that subject is entirely immaterial. (Youmans v. Wyandotte County, 68 Kan. 104, 74 Pac. 617.) And no individual has any right in the matter unless the public necessity has been properly found to require an allowance for clerk hire, and an allowance has been duly made.
The judgment of the district court is affirmed.
All the Justices qoncurring. | [
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The opinion of the court was delivered by
Smith, J. :
Nellie Jewett, defendant in error, entered into a written contract with school district No. 75, in Johnson county, to teach for a term of seven months, beginning on September 16, 1901, at a monthly salary of forty dollars. The contract contained this proviso: “In case said teacher fails to give satisfaction to a majority of board at end of any month, shall be legally dismissed from school, then said teacher shall not be entitled to compensation from and after such dismissal.” John W. Davis, plaintiff in error, was director of the school district, C. E. Jewett, clerk, and Mollie E. Watson, treasurer. On January 3, 1902, a written notice was served on Miss Jewett, signed by the director and treasurer, informing her that she had failed to give satisfaction to a majority of the board and notifying her to quit and vacate the school on January 14, 1902, the end of the •school month. On the date last mentioned the schoolhouse was locked with a padlock, but the teacher gained entrance to the building and continued to teach therein. The controversy was over the nonpayment of salary for three months’ service, following the order of dismissal mentioned. Defendant in error was plaintiff below, and brought this proceeding in mandamus to compel Davis, the director of the school district, to sign two warrants, aggregating $120, which had been theretofore drawn on the treasurer by the clerk in her favor, and-signed by the latter. A peremptory writ was awarded by the court below. The director, Davis, has .come here by proceedings in error.
The answer and return of defendant below alleged that the teacher’s discharge on January 3, 1902, was on account of her inability to govern the pupils, for lack of ability to teach them, and because she failed to give satisfaction to a majority of the board. It set out the resolution to that effect, adopted by the board. We.are clear that plaintiff below mistook her remedy. There appears in the proceedings and proof to have been a bona fide question raised by defendant below respecting the liability of the school district for the three months’ unpaid wages of the teacher. Mandamus is one of the extraordinary remedies. The writ may issue only in cases “to compel the performance of any act which the law specifically enjoins as a duty resulting from an office, trust, or station,” but “it cannot control judicial discretion.”, (Gen. Stat. 1901, §5184.) Again, “this writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.” (§ 5185.)
It seems that the court below tried the question of the liability of the school district under the contract of employment. The plaintiff below had no judgment against the district. Her right to recover was resisted because the boai’d asserted the legal right to terminate the contract at the time it did so by virtue of the conditions contained in it. Plaintiff had a plain and adequate remedy at law by action on the contract to recover what she claimed was due. In such action the district might demand of right a trial by jury, which it could not in a mandamus proceeding. The following cases deny the right of a party to resort to the extraordinary remedy of mandamus in such instances : Elsbree, Relator, v. Bridgeman, 8 Kan. 458; The State, ex rel., v. Hannon, Mayor, 38 id. 593, 17 Pac. 185; Cassatt v. Comm’rs of Barber Co., 39 id. 505, 18 Pac. 517; Swartz v. Large, 47 id. 304, 27 Pac. 993; State v. Merrell, 43 Neb. 575, 61 N. W. 754.
It is the duty of a director of a school district to sign all orders drawn by the clerk on the treasurer when they are ordered drawn by a district meeting or the district board. (Gen. Stat. 1901, §6162.) No such authority was shown to have been given by the board to the director, Davis, to sign the school warrants in favor of Miss Jewett, and, in the absence of such authorization, it would have been a clear violation of duty on his part to do so.
In Sharpless v. Buckles, 65 Kan. 838, 70 Pac. 886, it-was held :
“The only purpose of a writ of mandamus is to require the person to whom it is issued to perform some-act which the law enjoins as a duty. The writ itself confers no power and creates no duty, and its only office is to command the exercise of a power already possessed or the performance of a duty already imposed.”
In High on Extraordinary Legal Remedies (3d ed.),. section 341, it is said :
“In conformity with the general rule, it is held, that mandamus will not lie to municipal authorities-requiring them to pay salaries which are due from the corporation to its officers, a salary being regarded as an indebtedness of -the corporation which may be enforced by an action of assumpsit or by an action on the' case for neglect of corporate duty, and mandamus is not designed as a remedj? for the collection of debts.”'
The judgment of the court below is reversed, with-directions to proceed further in accordance with this, opinion.
All the'Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C.J. :
In constructing a telephone line the Johnson County Telephone Company was proceeding to plant poles along the highway in front of the farm of Michael McCann. The poles were placed near the hedge-fence on the line dividing the farm from the highway, and were so located as to interfere with the trimming of the hedge, and also with the cutting of the grass and weeds on the roadside.. He brought a suit in injunction, alleging that the company had not obtained his consent to plant telephone poles on the highway opposite his farm ; that his interest as the owner of the fee had not been conveyed, condemned or otherwise appropriated; arid that no compensation had been paid to him for the proposed use. A temporary order, restraining the company from placing poles opposite the plaintiff’s farm, was issued, bub upon the final hearing it was dissolved and a perpetual injunction was denied.
The question presented now, as at the first hearing of the proceeding, is whether the telephone company may occupy the highway in front of McCann’s farm without obtaining his consent or paying him compensation for the right. Was this a contemplated use when the road was established, or does it constitute an additional servitude ? It is conceded that if the use was not within the original purpose of the highway, the planting of the poles there without consent or compensation would trench upon the constitu tional rights of McCann. The adjoining owner of land holds the fee in a rural highway, and retains the ownership of the land for all purposes not incompatible with its use as a public highway. (Caulkins v. Matthews, 5 Kan. 191, 199; Comm’rs of Shawnee Co. v. Beckwith, 10 id. 603.) Owning an estate in the land, he cannot be deprived of it by any corporation until full compensation has been made or secured to him, and a possible or probable benefit from the proposed improvement is not to be taken into consideration. (Const., art. 12, § 4.) But if compensation was paid when the highway was established, or, rather,fif the easement originally given or obtained included such a use as the maintenance of a telephone line, nothing was taken from the plaintiff and the injunction was rightfully refused.
The purpose of a telephone—the transmission of intelligence between people and places—is a public one, which the public may authorize, regulate, and control. The legislature has authorized the organization of such corporations, and has provided that they may build and maintain lines in the streets and highways of the state ; and, further, that they may avail themselves of the power of eminent domain to obtain the right to build and maintain lines upon and over the property of others. (Gen. Stat. 1901, §§1251, 1252, 1342, and 1343.) The highway is established for the use of the public, and the telephone line is not only a public convenience, but it is a recognized public use. Is it a contemplated and appropopriate use of a highway, or is it one outside the scope of a rural highway, and therefore an additional burden, for which compensation must be made to the owner?
. Few questions- have received more consideration from the courts in recent years, or given rise to more conflict of judicial opinion, than this one. In some cases the use has been limited to travel, by such methods as were in vogue when the highway was established, while others include all methods, old or new., and hold it to be immaterial whether they were in use, or even thought of, when' the easement was acquired. Some confine the use to moving persons, animals, and vehicles, while others would include stationary appliances used in the propulsion or conveyance of persons and things over the highways. By some it is limited to transportation of persons and things tangible, while others extend it to communications which are transmitted unseen, by electric vibrations. Some treat it as an additional burden when the fee of the highway is in the adjoining owner, and others do not regard it to be such whether the fee is in the public or the adjoining owner. In still others a distinction is made between highways in the country and streets in the city, holding that city streets have always been designed and used for purposes not appropriate to rural highways.
The purpose of the highway is the controlling factor. It is variously defined or held to be for passage, travel, traffic, transportation, transmission, and communication. It is a thoroughfare by which people in different places may reach and communicate with one another. The use is not to be measured by the means employed by our ancestors, or by the conditions which existed when highways were first devised. The design of a highway is broad and elastic enough to include the newest and best facilities of travel and communication which the genius of man can invent and supply. This theory is well brought out in Cater v. Northwestern Telephone Exchange Co., 60 Minn. 589, 543, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543. It was there said :
"If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of - a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; and, next, a way for vehicles drawn by animals — constituting, respectively, the ‘iter,’ the ‘actus’ and ■ the ‘ via ’ of the Romans. And thus the methods of using public highways expanded with the growth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Plence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterward be discovered and developed in aid of the general -purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use.”
That court held that the construction and maintenance of a telephone line on a country highway did not impose an additional servitude upon it, but was to be regarded more as a newly-discovered method of using an old public easément.
In The Julia Building Ass’n v. The Bell Telephone Company, 88 Mo. 258, 268, the question at issue was whether the erection and maintenance of a telephone line along a street of St. Louis subjected it to a new servitude inconsistent with the purpose of a street, and for which an abutting owner might claim com pensation. The court ruled that it was not an additional burden, and in doing' so held that streets were designed not only for travel but also to facili-' tate communications between the citizens of the city, and that when the public acquired the right to a street by any method it could be appropriated not only to such uses as were common at the time but also to all such new uses as advanced civilization might suggest or the public good require; and as showing that the telephone would relieve, rather than add to, the servitude of the street, it was said :
‘1 If a citizen living or doing business on one end of Sixth street wishes to communicate with a citizen living or doing business on the other end, or at any intermediate point, he is entitled to use the street, either on foot, or horseback, or in a carriage, or other vehicle, in bearing his message. The defendants in this case propose to use the street by making the telephone. poles and wires the messenger to bear such communications instantly and with more dispatch than any of the above methods, or any other known method of bearing oral communications. Not only would such communications be borne with more dispatch, but, to the extent of the number of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen, or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires and other appliances used in telephoning, the street through these means would serve the same purpose, which would otherwise require its use either by a thousand footmen, horsemen or carriages to effectuate the same purpose. In this view of it the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a serviture or use by a footman, horseman, of carriage.”
A leading case on this question was determined by the supreme court of Massachusetts in 1883. Under a statute a telegraph company was about to build a line in the streets of Brookline, and adjacent owners sought to enjoin the authorities from granting the privilege to the company, claiming that the statute was unconstitutional because it did not provide for compensation to the owner of the fee in the highway. The court decided that the transmission of intelligence by electricity was a business of a public character, to be exercised under public control; that when land is once taken for a public use and is afterward applied to another similar public use no new claim for compensation can be sustained by the owner of the fee ; that the land taken or granted for highways, for travel on foot, on horseback, or with vehicle, conveying either persons or property and transmitting intelligence, is an easement which should be liberally viewed so as to secure to the public the full enjoyment of such use ; and that the transmission of information by electricity was a use-similar to, if not identical with, the purpose for which highways were established, and, therefore, no additional servitude was imposed nor other compensation required.. (Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7.)
The supreme court of Michigan had before it the specific question whether telegraph-poles on a rural highway constituted an additional servitude for which the owners of the fee must be compensated. In answer to the question the court said :
“Public highways are under legislative control. (Cooley, Const. Lim. 588.) They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods. ; . . When these lands were taken or granted for public highways, they were not taken or granted for such uses only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country or the discoveries of future times might demand.” (People v. Eaton, 100 Mich. 208, 211, 59 N. W. 145, 24 L. R. A. 721.)
The court therefore held that the telegraph was a highway use and did not impose an additional burden upon the land occupied.
In Kirby v. Citizens’ Telephone Co., 97 N. W. (S.Dak.) 3, in deciding that a telephone system on the streets of a city was not an additional servitude, the court remarked:
“The streets of a city or incorporated town are, in contemplation of law, dedicated, appropriated or condemned for all proper street uses, and, when a street is used for any proper street purpose by permission of the city authorities, such use does not constitute an additional servitude, though such use may not have been known when the streets were dedicated, appropriated or condemned for street purposes, and the abutting fee-owner is not entitled to compensation for any damages he may sustain by reason of such use. The streets of a city are now used for many purposes unknown in former times. . . . The telephone is but a step in advance of former methods of conveying intelligence and information, and is a substitute for the messenger and carrier of former-times.”
(Other cases and text-books cited as authorities are : Magee v. Overshiner, 150 Ind. 127, 49 N. E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358; Coburn v. New Telephone Co., 156 id. 90, 59 N. E. 324; Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, 29 Pac. 883; The People, ex rel. McManus, agt. Thompson, 65 How. Pr. 407; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; Hewett v. Telephone Company, 4 Mackey (D.C.) 424; Lockhart v. Railway Co., 139 Pa. St. 419, 21 Atl. 26; Maxwell v. Telegraph Co., 51 W. Va. 121, 41 S. E. 125; Castle v. Bell Telephone Co., 49 Hun, App. Div. 437, 63 N. Y. Supp. 482, 7 Am. Elec. Cas. 621; Keasb. Elec. Wires, 2d ed., §§ 102, 103.)
The telegraph used in the operation of a railroad is held to be a railway use and not an added servitude upon a railroad right of way. In a certain sense the telephone is an adjunct of the highway as the telegraph is of the railway. It serves to direct travel and transportation over the highway ; it keeps persons using the highway and those in authority advised of its condition, and, if necessary, they- can provide for repairs ; and it enables those who have sent teams and vehicles over it to learn the progress that has been made in the journey. The messages transmitted over the line are a substitute for the messengers who formerly passed over the highway, and thus to a great extent relieve it from the burdens and wear of travel.
No modern invention has contributed more to commercial and social intercourse than the telephone. It is an appliance of'great public utility, and is coming into general use in the country as well as in the city. Indeed, it seems to serve a more beneficial purpose, and is a greater convenience to rural residents widely distant from business centers and from one another than it is to residents in cities. The question, however, is not determinable by the difference between urban and suburban conveniences and necessities, or by the fact that the fee may be in the adjoining landowner in one instance and in the public in the other; it must be decided by the scope and purposes of the highway, and whether, in country or city, it is a means of travel and transportation, a medium of transmission, of intercommunication, between the people located in different places.
We are aware that there are authorities holding that the telephone is not one of the purposes contemplated when the highway was established; that it is not a highway purpose, and, therefore, that it is an additional burden upon the highway, for which compensation must be made to the adjacent owners. We think, however, that the more liberal view should be taken, which is in keeping with the progress of the times, holding the easement to include the modern methods of travel and communication.
The court ruled correctly in refusing the injunction, and therefore its judgment will be affirmed.
Smith, Greene, Atkinson, JJ., concurring. | [
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The opinion of the court was delivered by
Mason,' J. :
William Sehaben and Clyde Wood appeal from a conviction upon a charge of grand larceny. The facts necessary for an understanding of the merits of the contention made will be stated in connection with the discussion of the several assignments of error.
The information contained three counts, the third of which was drawn under section 83 of the crimes act (Gen. Stat. 1901, §2076), which declares that any one altering the mark of an animal with intent to steal it shall be adjudged guilty of larceny. It charged in proper form the felonious alteration of the mark of a steer, and concluded with the allegation that the defendants did so, “in manner and form as aforesaid,” steal, take and carry away said steer. The defendants moved to quash the count for the reason that it stated two distinct felonies—the altering of the mark of' an animal and the separate offense of stealing it. The court overruled the motion but struck out the allegation peculiar to common-law larceny. Of this complaint is made.
In proceedings under statutes designating certain acts as larceny it is quite customary for the prosecutor, after setting out the facts constituting the offense, to conclude his pleading with words appropriate to a technical charge of ordinary larceny. The practice is recognized by the form books (Kell. Crim. Li & Pr. §619 ; Bish. Dir. & Forms, §§ 401, 402) and has been held to be essential. (Commonwealth v. Pratt, 132 Mass. 246; Kibs v. The People, 81 Ill. 599.) The case of State of Oregon v. Sweet, 2 Ore. 127, held the contrary. The doctrine that it is necessary is criticized as a blunder by Mr. Bishop. (2 Bish. New Crim. Proc. 318.) Under our criminal code, the facts constituting the offense having been once stated in plain and concise language, the addition of th,e formal charge of larceny, having reference to the same act, seems supererogatory, but harmless. In the present case the defendants objected to it and the court struck it out, so that they have no cause of complaint.' They were not injured either by the ruling of the court or by its act in striking the matter from the information.
The first count charged the larceny of certain neat cattle belonging to Julius Nonnast, the second count the larceny of neat cattle belonging to Mrs. Rose Kunze. The steer referred to in the third count also belonged to Mrs. Rose Kunze. It developed in the opening statement that all of the cattle referred to in the information were claimed to have been stolen from the pasture of Julius Nonnast at the same time. The defendants thereupon asked that the state be required to elect upon which count it would prosecute, on the theory that but one offense had been committed. The motion was denied, but after the evidence of the state was all in the court withdrew the first count from thé consideration of the jury. A verdict of guilty was rendered on the second count, no reference being made to the third count. This was, in effect, a verdict of not guilty on the third count. (The State v. McNaught, 36 Kan. 624, 14 Pac. 277.) All the evidence introduced was pertinent to the charge in the second count, and the refusal to require an election, if error at all, was not prejudicial to the substantial rights of the defendant. (The State v. Bussey, 58 Kan. 679, 56 Pac. 891; The State v. Fisher, Adm’r, 37 id. 404, 15 Pac. 606.)
At the close of plaintiff’s testimony the defendants asked the court to withdraw the case from the jury for the reason that the evidence was insufficient to warrant a conviction. This was refused as to the second and third counts, the first count being withdrawn as already stated. Defendants claim that such refusal was error, and lay stress upon the fact that the evidence was precisely the same upon the first count as. upon the second, arguing that as the court sustained the motion as to one count it should have done so as to the other. The first count, however, seems to have béen withdrawn in pursuance of an election to rely upon the second count rather than by reason of a lack of evidence.
There were minor circumstances not necessary to detail, tending to support the theory of the guilt of defendants, but the evidence chiefly relied on related to the possession of the property shortly after it had been stolen. The stolen cattle were found in a pasture in which the defendants were holding cattle which they were about to ship. Witnesses for the state testified that when the stolen cattle were first discovered the defendants had a rope on one of them and were just releasing it; that its ear, bearing the owner’s mark, had been very recently cut off, the wound still bleeding. The defendants denied having had a rope on the animal at any time. We think there was sufficient evidence to wrarrant the verdict.
Complaint is made of the refusal of the court to give various instructions requested by defendants. So far as these instructions were correct statements of the law and pertinent to the circumstances of the case, they appear to have been covered by the instructions given by the court on its own motion. Moreover, the record does not affirmatively show that it contains all of the instructions that were given. No specific objection is made to the instructions given by the court, but it is urged that as a whole they did not sufficiently cover the material points in the case. This question cannot be examined for the reason stated.
The most serious question presented relates to the misconduct of the jury. After they had retired to consider their verdict, they asked the bailiff in charge of them to get them copies of an almanac. He procured two and delivered them to the jury. It is not shown that the jury consulted these almanacs or how long they had them. The court, upon learning of this matter, caused the jury to be brought in, and gave them an additional written instruction admonishing them to discard entirely from their minds any effects resulting from the consideration of the almanacs, which had ■ been withdrawn from their possession, and to arrive at a verdict entirely from the evidence adduced on the trial. There had been testimony that certain nights were too dark to select or handle cattle, and it is suggested, with much plausibility, that the purpose of the jury in sending for the almanacs was to ascertain the phase of the moon on the nights in question. The use by the jury of such publications, or any documents that might influence the verdict, is misconduct from which prejudice to the defendant will be presumed. (The State v. Lantz, 23 Kan. 728, 33 Am. Rep. 215; The State v. Clark, 34 id. 289, 8 Pac. 528.) Mere access to such documents has been .said to be sufficient evidence of their use. (Atkins v. The State, 16 Ark. 568; Jones v. The State, 89 Ind. 82.) There are, however, cases holding that such misconduct may be remedied by timely instruction by the court to the jury to disregard any information obtained in this manner. (United States v. Horn, 5 Blatchf. 102, Fed. Case No. 15,389; State v. Bradley, 6 La. Ann. 554. See, also, 2 Thomp. Trials, § 2592; United States v. Wilson, 69 Fed. [D. C.] 584; Schappner v. Second Avenue Railroad Company, 55 Barb. 497.)
This question need not be here determined. The almanacs to which the jury had access were attached to the motion for a new trial as exhibits, and expressly made parts of it. The motion is incorporated .in the bill of exceptions, but the exhibits are lacking'. They are not shown elsewhere in- the record ; nor is any statement there made as to their contents or character further than might be im plied by the use of the word “almanacs.” No indication is afforded even as to what period they purported to cover, no date being assigned to them. The trial court, with full knowledge of the contents of the documents that were wrongfully obtained by the jury, overruled the motion. We cannot intelligently review that ruling without similar information. If the motion for a new trial had merely alleged, and the evidence in support of it had merely shown, that the jury obtained possession of two publications described as “almanacs,” without further specification of their contents, it might well have been argued that the trial court should presume from such designation that they were of such a character as might possibly have affected the verdict, and on that account set it aside. Under such circumstances, the matter being presented to this court just as it was below, the same argument would have equal force here, but we cannot assume to judge of the correctness of ■the ruling made without knowing the evidence as to 'the vital point upon which it was based. It may be that the publications were of such nature that it was .manifest that they could have had no possible bearing upon any feature of the case, in which event no prejudice could have resulted to defendants, and the overruling of the motion for a new trial was not error. (The State v. Taylor, 20 Kan. 643.)
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, O. J. :
This was an action to enforce the individual liability of a stockholder in a national bank. In his petition George 0. Rankin alleged that he was the receiver of the Hutchinson National Bank which became insolvent in 1893; that after an accounting, and on July 19, 1894, the comptroller of the currency, upon finding it necessary, ordered an assessment of $75,000 upon the individual liability of the stockholders, being $75 on each share of stock, to pay the debts of the bank. It was further averred that after the application of the amounts collected on this assessment, and after a further accounting, it was found necessary to make, and the comptroller on November 20, 1900, did make, a further assessment of $19,000, being $19 upon each share of stock, and “that said assessment was made just as soon as discovered in the exercise of diligence to be necessary? and just as soon as it was ascertained the first assessment and the assets of the bank were insufficient.” It was alleged that the defendant owned thirty-three shares of stock, and that his contribution under the second assessment was $627, which he had failed to pay, and for which judgment was asked. This action was commenced on November 13, 1902. The ■defendant demurred to the petition because it did not ■contain sufficient facts to constitute a cause of action and showed ujpon its face that the plaintiff's action was barred by the statute of limitations. The demurrer was sustained by the trial court, and the question argued here is whether the second attempt to enforce the individual liability of stockholders, made more than nine years after the insolvency of the bank, was in time to escape the bar of the statute ■of limitations.
Under the national-bank act shareholders are made individually responsible for the debts of the bank to tho extent of the par value of their stock, in addition to the amount which they have invested in such stock. In case of insolvency and liquidation the comptroller ■of the currency is vested with authority to appoint a receiver, to make an accounting, and, if necessary, ■enforce the double liability of stockholders. Whether a resort to this personal liability be necessary, and to what extent, is for him to determine. This was specifically held in Kennedy v. Gibson and others, 8 Wall. 498, 505, 19 L. Ed. 476, where it was said:
“It is for-the comptroller to decide when it is nec essary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. Pie may make it at such time as he may deem proper and upon such data as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholders is-sought to be enforced, and must precede the institution of suit by the receiver.”
It is contended that there is no enforceable liability until the comptroller has exercised his judgment and. discretion and made an assessment, and that, his act-in ordering an assessment being indispensable as a condition precedent to -the commencement of an action to enforce payment, the time limited for the commencement of such action does not begin to run until the assessment has been made. Although the cause-of action arose under an act of congress, that body prescribed no limitation on the remedy against stockholders, and, hence, the statutory limitation of the-state in which the action is brought necessarily apr plies. This was decided by the supreme court of the-United States in Campbell v. Haverhill, 155 U. S. 610, 618, 15 Sup. Ct. 217, 39 L. Ed. 280, in an action for the infringement of a patent, where it was remarked :
“The truth is that statutes of limitations affect the-remedy only, and do not impair the right, and that-the settled policy of congress has been to permit rights created by its statutes to be enforced in the manner and subject to the limitations prescribed by the laws of the several states.” (See, also, McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177; Andreae v. Redfield, 98 U. S. 225, 25 L. Ed. 158; Barney v. Oelrichs, 138 id. 529, 11 Sup. Ct. 414, 34 L. Ed. 1037; Bauserman v. Blunt, 147 id. 647, 13 Sup. Ct. 466, 37 L. Ed. 316.)
As the remedy and the time of its enforcement are governed by the local law, the next inquiry is, When does the cause of action accrue? The stockholder’s liability is assumed when the contract of subscription is made, but it is not enforceable, and the right of action thereon does not arise, until action has been taken by the comptroller. How long may action be postponed by that officer without sacrificing the remedy ? Whatever the rule may be in other states, it is well settled in Kansas that essential steps preliminary to the bringing of an action must be taken within a reasonable time, and if not then taken the statute of limitations will begin to run. (A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, 14 Pac. 271, 59 Am. Rep. 578; Rork v. Comm’rs of Douglas Co., 46 id. 175, 26 Pac. 391; Bauserman v. Charlott, 46 id. 480, 26 Pac. 1051; Kulp v. Kulp, 51 id. 341, 32 Pac. 1118, 21 L. R. A. 550; Comm’rs of Graham Co. v. Van Slyck, 52 id. 622, 35 Pac. 299; Harrison v. Benefit Society, 59 id. 29, 51 Pac. 893; Bank v. King, 60 id. 733, 57 Pac. 952; Black v. Elliott, 63 id. 211, 65 Pac. 215, 88 Am. St. Rep. 23; West v. Bank, 66 id. 524, 72 Pac. 252, 63 L. R. A. 137; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316.) The condition of the bank, the preservation of the assets, and the adjustment of claims and payments of creditors, all enjoin prompt action on the part of the comptroller.
The case of West v. Bank, supra, was an action to enforce a stockholder’s liability. Payments on subscriptions to bank stock were to be made at intervals, upon, the call of the directors. The bank became insolvent and no call or demand for payments on subscription was made for some time, and it was held that the statute of limitations began to run, notwithstanding the omission to make the call. In speaking of the diligence necessary in such a case, Mr. Justice Burch remarked :
“Being insolvent, the duty of thp corporation to satisfy its obligations became urgent and imperative. As creditor, it had the power to fix at once its debtor's liability. Delay for a single day was inexcusable and the statute commenced to run at once." (Page 530.)
Further along in the opinion it was said:
“The principle of A. T. & S. F. Rld. Co. v. Burlingame Township, supra, is now so thoroughly engrained in the fabric of our jurisprudence that it is not sufficient in this state to say, with the authorities just cited, that the statute does not commence to run until an unconditional liability is fastened upon the subscriber by a call, or its equivalent. Since the corporation can fix the liability and thereby start the statute, delay in doing so cannot prevent its running. To hold otherwise, and permit the ' liability of the stockholder to continue for an indefinite period, would defeat the policy underlying the statute." (Page 534.)
Of course, the comptroller is not required to make . an assessment until he has had time to ascertain the condition of the bank bj^ summing up the claims of creditors and appraising its asset's, but nothing in the duties imposed upon that officer makes a long delay necessary to determine the necessity for an assessment or the extent of it. One assessment does not necessarily exhaust his power to make another, providing it be done within the time such liabilities may be enforced. In referring to the promptitude necessary in such cases, Justice Swayne, of the supreme court of the United States, in Kennedy v. Gibson and others, supra, said:
“A speedy adjustment is necessary to the efficiency and utility of the law; the interests of the creditors require it, and it was the obvious policy and purpose of congress to give it. If too much be collected, it is provided by the statute that any surplus which may remain after satisfying all demands against the association shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered.” (Page 505.)
The present action was brought nine years after the insolvency of the bank and more than eight years after the first assessment had been made. The averment by plaintiff that he was diligent in the matter was no more than a conclusion, and did not overcome the effect of the allegations showing- unreasonable delay and manifest negligence. It is not always easy to determine what is a reasonable time within which such action should be taken, but it does appear beyond dispute that the comptroller made an accounting and ascertained the condition of the bank eight years before the present action was brought. About a year elapsed between the insolvency and the first assessment, and that appears to have been a reasonable time within which the prerequisite steps toward fixing the liability of stockholders should have been taken. An accounting was, in fact, had and on that the necessity was determined and the order made.
It may be said that the action of the comptroller in not making a full assessment in the first instance was out of consideration for the stockholders, and in order that he might not collect more than was necessary ; but, as was said in Kennedy v. Gibson and others, supra, if too much be collected and a surplus remain after satisfying the .demands against the bank, it may be repaid to the stockholders. “It is better they should pay more than may prove to be needed than that the evils of delay should be encountered.”
Attention is called to. the case of Aldrich v. Skinner, 98 Fed. (C. C.) 375, in which it was held that the time limited for the commencement of such an action as this cannot begin to run until the assessment has been ordered. The court in that case, however, gave no consideration to the question presented in this, and that is whether the delay of the comptroller to take the prerequisite steps within a reasonable time would start the running of the statute. The court recognized that an action to enforce such liability is governed by the rule of the state in which the action is brought, and, if the question had been presented, would undoubtedly have followed the supreme court of the United States, in Bauserman v. Blunt, supra, in holding that the prevailing rule in the state requires a party to take the preliminary steps necessary to the bringing of a suit within a reasonable time, and that if he do not the statute will begin to run within a reasonable time after he could have taken the steps and perfected his right. This was the view taken by the United States circuit court in Price v. Yates, 2 Nat. Bank Cas. (Browne), 204, 19 Fed. Cas. No. 11,418.
The individual liability of stockholders being created by statute, the period of limitation on the right to enforce it, under our code, is three years, and as more than double that time had elapsed the action was barred, and the demurrer was, therefore, rightly sustained.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bukch, J. :
At the time of the occurrence furnishing the foundation for this litigation the defendant was engaged in manufacturing brick out of shale-quarried from a pit. The shale-pit was then from 175 to 200 feet long, from 80 to 100 feet wide, and) from 30 to 35 feet deep, with steep walls. Men designated as “drillers” worked about theJop of the pit, loosening the shale by blasting. Fragments of’ shale loosened in this manner were pushed by the drillers, away from the walls, when they tumbled to the bottom of the pit by virtue of their own gravity. There-they were broken up and shoveled into small cars by men described as “shovelers.” The loaded cars were drawn out of the pit by mechanical means. All operations connected with the working of the shale-pit were superintended by an agent of the company known to the men as the “pit-boss.” He had authority to employ and discharge pit workmen, directed them where and how to work, and when to perform different kinds of work, fixed the location of the car-tracks in the pit, and in all respects exercised the company’s authority over the pit and the men at work there.
It was safe for the shovelers to work at the foot of the pit wall unless the drillers should push shale down upon them unawares. It was unavoidable that shale should be thrown down at irregular intervals. If the shovelers were allowed to consume their time, in scanning the top of the pit in an effort to protect themselves, they might not be successful in doing so, and their labor could not be profitable to the company. Therefore, the pit-boss took upon himself the entire responsibility of protecting the shovelers by watching the progress of the drillers’ work, and giving warning, whenever shale was to be thrown down, in time for the shovelers to retire beyond the reach of harm. The foreman assured the shovelers he would always do this, and instructed them to give all their attention to their work. This regulation was rigorously enforced, and any shoveler lookiug up to see if danger threatened was likely to be arrested with the command of the pit-boss: “Go ahead and shovel the shale, and I will watch that.”
The plaintiff was an experienced shoveler, who was familiar with all the operations and dangers of the pit, who had received the foreman’s promise of protection from danger, and who relied upon him for such protection. On the afternoon of March 7, 1902, a large block of shale, estimated to weigh 1500 pounds, was pushed down by the drillers without any warning from the pit-boss. After the descent had begun the drillers themselves called out to the men in the pit below, but it was then too late. The mass of rock overtook the plaintiff before he could escape, and crushed the lower part of his left limb. He knew the drillers were at work above him, and could have seen what they were doing by neglecting his own duty, but not otherwise. This he did not do. Instead, he faithfully followed his instructions, remained ignorant of his peril, and suffered the grievous consequence. Prom a judgment entered upon the verdict of a jury in favor of the plaintiff the defendant prosecutes error.
The company claims that the shoveler assumed the risk of injury from the source from which it came to him, and all the arguments which- are usually elabo rated from “open and obvious danger,” “equal facility and opportunity to see and know,” “shutting the eyes to the patent and palpable,” and kindred material, are rehearsed. They have no place here. There is no room for any implied agreement of the employee to assume the risk of danger in the presence of an express regulation upon the subject established by the pit-boss for the very purpose of protecting him. The pit-boss undertook to perform the function of the vigilant eye and ear and the cautious judgment for his men, in consideration of which they surrendered the use of their own faculties and yielded the right of relying upon their own capabilities for protection. The risk of danger from the spontaneous caving of banks, from the falling of blocks of shale loosened by natural agencies, and. from other similar causes, was doubtless assumed. Such perils inhered in the work and could b.e foreseen by the men as well as by the master. But the conduct of the work of drilling and casting down shale was properly subject to regulation, and under the rule of the pit that he should work while the foreman watched, the plaintiff W'as not bound to observe anything connected with the operations of the drillers except the warnings which the pit-boss gave.
Some authorities are cited, however, to show that the pit-boss was a mere fellow servant with the men who shoveled shale. If so, the plaintiff assumed the risk of the negligence of the pit-boss, and the company is not liable. In some cases it may be said that if the conduct of an enterprise involve the giving of monitory signals in passing progressively from detail to detail of the work, and the person set to give the signal be carefully chosen, the company will not be bound if he fail in his duty. An injured workman- •and the person employed to give the signal may then be said to be engaged in the discharge of duties so intimately related and so combinedly directed to a common end that the one must be on his guard with reference to the conduct of the other; the warning becomes a part of the service itself—which is something entirely distinct and separate from* the things the master must do to make the service and the place in which it is performed reasonably safe. But when■ever a negligent act violates any duty which the master' himself owes to the servant, as, for example, the duty to make the service and the place in which it is performed reasonably safe, that fact controls, irrespective of the rank or grade of service between employees, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end; and if, in the discharge .of the master’s duty, a warning be necessary, it is not enough for him to say that he has provided a competent person to give it; the warning must be given.
In this case it was the master’s duty to work the shale-pit in a manner affording reasonable safety to the men at the foot of the wall. The drillers were required to throw down masses of shale upon the very place where the men below were obliged to work. To render it safe for this to be done it was indispensable that a warning be given in time for the men below to retire. With a warning the place was safe enough ; without a warning it was hazardous in the extreme. The danger was inevitable, as long as men blasted down the banks of the pit; and without such blasting the company would fail of material for making brick. The shovelers were hired to work— not to dodge the drillers. It was impossible for them to protect themselves. The nature of the work and the character of the place imperatively demanded that efficient and permanent provision be made for ■warning, signals. Therefore, the adoption of a rule upon the subject and the designation of a person, however capable he might be, for the execution of that function did not measure up to the full height of the master’s responsibility. Unless the pit-boss gave the necessary warning the master’s duty was not fulfilled.
The principle involved in this case is not distinguishable from that applied in the case of H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 3 Pac. 320, in which it was held that it was the duty of a foreman or boss ■car-repairer, as the representative of a railway company, to see that reasonable precautions were taken to protect and guard subordinate car-repairers,' while engaged in the discharge of their duties under a car where he had placed them, against danger arising from the switching of cars and the making up of trains on the same track. (See, also, Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Gerrish v. New Haven Ice Co., 63 Conn. 9, 27 Atl. 235; Belleville Stone Co. v. Mooney, 60 N. J. L. 323, 38 Atl. 835, 39 L. R. A. 834, s. c., 61 N. J. L. 253, 39 Atl. 764, 39 L. R. A. 834; Andreson v. Ogden Ry. and Depot Co., 8 Utah, 128, 30 Pac. 305; Erickson v. St. Paul & Duluth R. Co., 41 Minn. 500, 43 N. W. 332, 5 L. R. A. 786.)
The defendant also assigns error with respect to several minor matters. The plaintiff was allowed to state, over objection, that his family consisted of a wife and child, and it is not permissible in personal-injury cases to augment damages by proof of sentimental facts of this character. (Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887; Kansas Pacific Rly. Co. v. Pointer, 9 id. 620.) The evidence was offered, how ever, to explain the necessity for plaintiff’s early return to work, as against a possible inference that he had not been seriously injured. The defendant, however, made no objection to proof of the fact that plaintiff was a man with a family, and the defendant itself developed the fact that plaintiff had a wife. The error, therefore, must be treated as one without prejudice.
The defendant asked the court. to submit to the jury forty-five special questions. The court struck out seventeen of them and submitted the others. It is now insisted that five of the questions stricken out should have been answered. Three of these questions were wholly immaterial under the instructions given to the jury and the foregoing conclusions respecting the law of the case, and the other two violated the rule of Foster v. Turner, 31 Kan. 58, 1 Pac. 145, and Mo. Pac. Rly. Co. v. Reynolds, 31 id. 132, 1 Pac. 150, that the jury should be required to answer particular questions of fact only and not to elaborate details of fact under general questions. But the assignment of error concerning this matter is not founded upon • an appropriate exception. It is beyond controversy that many of the rejected questions were improper. A general exception to the refusal to give the rejected list was taken. This was not suffix' cient. Each special interrogatory submitted to the jury must be so framed as to present distinctly a single material fact involved in the issues of the case. (Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83.) A request for the submission of a number of questions is analogous to a request for the giving of several instructions, each of which must contain a separate and independent proposition of law, and a general exception to a refusal to give a number of them is unavailable, unless all of them be proper. (Sumner v. Blair, 9 Kan. 521; Bailey v. Dodge, 28 id. 72; The State v. Wilgus, 32 id. 126, 4 Pac. 218.) All the reasons for this rule apply to the submission of particular questions of fact. A defeated party cannot be permitted to search through an array of proposed questions or instructions discovered to be in the record until he finds one or two sufficient to pass muster, and then to attach them to a general exception, and thereby secure the reversal of a judgment upon a point which the district court has had no reasonable opportunity to consider and decide.
Finally, it is said that, under authority of S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138, judgment should have been given for the defendant upon the following question and answer :
“Ques. Were any of the employees of the defendant guilty of negligence which contributed to, or was the proximate cause of, the injury to the plaintiff? Ans. No, but the defendant was.”
The jury, however, were instructed specially concerning the representative relation of the foreman to the company, and his identification with the company, so far as his duty to employees was concerned. The answer of the jury, therefore, merely discriminated between that official who stood for the company and the ordinary workmen about the pit.
Since the record is free from material error the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This is a proceeding by D. M. Ward to compel the officers of Isabel township, Scott •county, Kansas, to pay four judgments held by the plaintiff against the township, out of certain funds nowin the township treasury. In 1892 the township issued bonds to the amount of $22,500, which are still ■outstanding. Default was made in the payment of interest on them, for which a judgment to the amount •of $5000 was rendered in the federal • court. The plaintiff held a number of defaulted coupons in the same series of bonds, and on December 18, 1903, he recovered four judgments, amounting'to $1166.29, before a justice of the peace. On January 6, 1904, he applied for a writ to compel the payment of these judgments. At that time there was in the township treasury the sum of $357.79, levied and collected in 1903 for the purpose of paying interest on bonds, and also the sum of $1003, levied and collected to meet the general current expenses of the township. The plaintiff asks that these funds, so levied and collected, be applied to the payment of his judgments.
It is not alleged, nor shown, that the funds raised for current expenses are more that sufficient for that purpose. It does not even appear that the indebtedness on which the judgment was founded was for the ordinary expenses of the township, to which funds derived from a levy for current expenses could be legally applied. The taxes levied for one purpose cannot be diverted and applied to another. Presumably the township officers are acting in good faith and have levied and raised a fund which is necessary, as ■as well as sufficient, to meet the ordinary current expenses of an economical administration of the affairs of the township. The township organization must be maintained and its current expenses met, although creditors of the township must wait for payment of their bonds and judgments.
As the case stands, it cannot be said that more money was raised than is needed for current expenses, and nothing is shown to warrant the claim that a large and unnecessary current-expense fund was raised to avoid the payment of interest on bonds or of judgments for such interest. The law confides in the officers of the municipality the discretion to determine how much money is required to carry on the affairs of the township—a discretion which the courts cannot ■supervise or control. In the absence of a showing to ■the contrary, we must assume that this discretion has been honestly exercised, and that no part of the current-expense fund can be properly applied to the payment of plaintiff’s judgments.
Regarding the money raised for the payment of in terest on the bonds, a different rule necessarily applies. The judgments of plaintiff were based on interest due on township bonds. The fact that the interest coupons were merged in judgments does not affect the character of the indebtedness. It will not excuse the failure of the township officers to apply moneys raised for such interest on the indebtedness-in its new form, nor deprive the holder of the indebtedness of his remedy to compel such application. (Comm’rs of Osborne Co. v. Blake, 25 Kan. 356; Ralls County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220; Harshman v. Knox County, 122 id. 306, 319, 7 Sup. Ct. 1171, 30 L. Ed. 1152; United States v. King, 74 Fed. [C. C.] 493; United States v. Buchanan County, 5 Dill. [C. C.] 285, Fed. Cas. No. 14,679; State v. Royse, 3 Neb. [unofficial] 262, 91 N. W. 559; City of East St. Louis v. Underwood, Ex’x, 105 Ill. 308; Grand County v. The People, 16 Colo. App. 215, 64 Pac. 675.)
The contention' that there are other creditors holding like claims, and that plaintiff should not be given-a preference over them, is not good. They are not here demanding payment, or asking that the fund which plaintiff is seeking to obtain be distributed equally with them. The defendants are not competent to speak for them, and it will be time enough to-consider the rights of other creditors when they intervene or invoke the action of the court. Upon an application for mandamus to compel the payment of a debt out of a particular fund, and where the municipality made a similar objection, the supreme court-of California remarked :
“Nor is the fact, if it exists, that there are other-creditors interested in the fund provided for their payment, who have not demanded payment, any answer to tie application of the petitioner. Non-actions by others having equal rights with him, in a matter on which his right is founded, cannot prejudice him in the assertion of his right nor excuse non-performance of a duty in connection with it specially enjoined by law.” (Meyer v. Porter, 65 Cal. 67, 70, 2 Pac. 884. See, also, City of Galena v. Amy, 5 Wall. 705, 709, 18 L. Ed. 560; Mayor etc. of City of New Orleans v. United States, 49 Fed. 40, 1 C. C. A. 148; Vorhies v. Mayor, 70 Tex. 331, 7 S. W. 679.)
The plaintiff is entitled to a peremptory writ compelling the payment of his judgments out of the fund provided for the payment of interest on bonds, or so much of the same as remains in the township treasury. This will be the judgment of the court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
On February 19, 1902, W. 0. Schmehr brought suit against George M. Curtis to quiet plaintiff’s title to a quarter-section of land and to annul a tax deed held by defendant thereon. On June 7, 1902, and before any pleading had been filed by defendant, plaintiff by leave of court, filed an amended, petition converting the action into one for the posses sion of the same land. Defendant moved to strike out the amended petition for the reason that it changed the cause of action. This motion was overruled, and defendant answered claiming title and possession under a tax deed. Plaintiff filed an unverified reply admitting the sale of the land for taxes and the issuance of a tax deed, but alleging that the charge for which it was sold and for which the deed. was issued included a number of illegal items, which were set out in detail. The case was tried upon an agreed statement of facts, which were fatal to the validity of the tax deed, the defendant reserving the right to object on the score of irrelevance and immateriality. Defendant objected to the introduction of any evidence, for the reason that the reply did not state facts sufficient to constitute a defense to the answer, and to the introduction of the agreed statement of facts for the same reason, and for the reason that the facts stated were irrelevant and immaterial. The objections were overruled and judgment followed for plaintiff, defendant being given a lien for taxes paid. Defendant asks the reversal of the judgment.
It is- urged by plaintiff in error that the plaintiff should not have been permitted, by filing an amended petition, to change his proceeding from an equitable suit to quiet title to a legal action in ejectment. The amendment was not one that in any way prejudiced the defendant’s rights. If any question were presented of the running of the statute of limitations between the commencement of the original action and the .filing of the amended petition the case would be wholly different. The allowance of the change in the cause of action was within the discretion of the court and is not a ground of reversal. (Stevens v. Matthewon, 45 Kan. 594, 26 Pac. 38.)
The only other claim of error is based upon the fact that the reply was not verified. The argument is made that the defendant having pleaded the execution of the tax deed the failure to deny such execution under oath admitted not only the manual execution of the deed, but its validity and the regularity of all proceedings upon which it was founded. The case of Walker v. Fleming, 37 Kan. 171, 177, 14 Pac. 470, is cited in support of this contention. In that case the plaintiff claimed under certain tax deeds, alleging in detail the proceedings upon which such deeds were founded, as well as the execution of the deeds themselves. The answer was an unverified general denial, of which the court said :
"The defendants’ denial, not being verified as provided by section 108, was of no avail to. them, for it admitted the execution of the tax-sale certificates, the indorsements thereon, the assignment of the same, and-the execution of the tax deeds. This was an admission not only of their execution, assignment, and indorsement, but the legal effect of said instruments, and what they would fairly prove and establish. . . . The execution and authority being admitted, the legal effect would be a regular assessment and levy and a regular sale, and the issuing of tax-sale certificates based thereon ; their assignment and indorsement of taxes paid, and the assignment of said certificates, and a deed duly issued thereon, in due form, is a legal admission of a perfect tax record.”
The inference sought to be drawn from this language, that under all circumstances a failure to deny under oath an allegation of the execution of a tax deed conclusively admits its validity, is not justifiable. The conclusions announced in the case cited resulted from the application of two distinct and independent rules of pleading. The execution of the deed was admitted by the failure to deny it under oath ; and the regularity of the prior tax proceedings was admitted by the failure to allege any defects, either under oath or otherwise. The plaintiff was required merely to allege the execution of the deeds. A' presumption of their validity followed from the statute. (Gen. Stat. 1901, §7676.) If the defendant could not deny the execution of the deeds it was then incumbent upon him, in order to raise an issue with regard to them, to plead as new matter any facts claimed to render them invalid. It might have been contended that, as the plaintiff went further than necessary, and gratuitously pleaded affirmatively that certain of the steps in the tax proceedings were duly taken, a mere denial was sufficient to raise the question as to the truth of these averments. But this argument seems not to have been considered, and the court evidently assumed that it was necessary for the defendant to plead specifically his affirmative defenses, even though the plaintiff had anticipated them and needlessly attempted to deny them in advance. Whether this assumption was sound need not be discussed. It has been held, however, that payment cannot be proved under a general denial, even when the petition expressly alleges non-payment. (Clark v. Spencer, 14 Kan. 398, 408, 19 Am. Rep. 96.) The doctrine of the case cited is merely that the failure to deny under oath an allegation of the execution of a tax deed conclusively admits the fact of such execution, and this fact, so established, creates a presumption of the validity of the deed, which presumption will control unless challenged by a pleading (which need not be under oath) and rebutted by evidence. This is illustrated by what was said in one of the cases cited in its support:
“Now no allegation of the petition concerning said indorsements on said promissory note was put in issue by any denial verified by affidavit, and hence all said allegations, and said indorsements ‘must be taken as true.’ And everything that these indorsements will reasonably prove must also be taken as true, unless the contrary is shown to be true.” (Pears v. Wilson, 23 Kan. 343, 346.)
So, in the syllabus of Eggan v. Briggs, 23 Kan. 710, it was said of the failure to deny the execution of a note and indorsement :
“The defendant by failing to file said affidavits admitted conclusively ‘ the execution of such instrument’ and ‘the making of such indorsement,’ and admitted prima facie all that such note and indorsement would reasonably prove, by way of inference, presumption, or implication.” (See, also, Lucas v. Ford Co., 67 Kan. 418, 73 Pac. 56, and cases there cited.)
A parallel to the present case would be afforded by an ordinary petition upon a promissory note followed by an unverified answer setting up a want of consideration. The execution of the note being admitted, a sufficient consideration would also be admitted prima facie, in the se*nse that such an admission would carry a presumption of consideration ; but this presumption the defendant would be at liberty, under his pleading, to disprove if he could. • If, however, such a petition should contain an allegation that the note was given for a valuable consideration and the answer should consist of an unverified general denial, an exact parallel to Walker v. Fleming, supra, would be presented, and obviously, as there held, such pleadings would raise no issue, unless upon the theory that where the plaintiff unnecessarily alleges the existence^ of a fact a mere denial will support evidence of its non-existence—a theory, as already suggested, which was not discussed in the opinion.
In the case at bar the verification of the reply "would not have changed the situation in the least degree. The only effect of the failure to verify was to admit the execution of the tax deed, and as this was specifically and expressly admitted, a verification would have neither added to, nor detracted from, the admission. An admission by the mere failure to make an effective denial can certainly be no more damaging to the pleader than an admission deliberately made in so many words. In Douglass v. Lowell, 55 Kan. 574, 577, 40 Pac. 917, it was said:
“It is urged that the two tax titles of the defendants having been specifically pleaded in the answer, and the plaintiff admitting by her reply that the land was subject to taxation, that it was sold for non-payment of taxes, that tax deeds issued on such sales, and no defect being pointed out in the reply, their validity must be taken as admitted. The plaintiff did not admit, however, by her reply that the taxes had been duly assessed and levied upon the property, nor that the land was duly sold for delinquent taxes, and her general denial was sufficient to raise an issue as to said facts ; and, in the absence of attack by any of the methods hereinbefore indicated, this was a sufficient basis for the testimony offered on the part of the-plaintiff, showing, among other things, that some of the taxes of 1874 and subsequent years up to the date of the tax deed of 1878 were illegal, which proof was fatal to the tax title. ”
In that case a very liberal rule as to the admission of evidence was adopted by reason of the conduct of the case in the trial court; otherwise, an attack on the validity of the tax deeds would probably not have been permitted under a general denial. But the decision is necessarily an explicit authority in support of the proposition that the admission of the execution of a tax deed does not cut off an inquiry into the regu larity of the proceedings upon which it is based. We hold that the unverified reply raised an issue upon which the agreed facts were admissible in evidence.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
On August 22, 1901, the state of Kansas, on the relation of T. W. Moseley, as county attorney, filed a petition in the district court of Stafford county against the Wells, Fargo & Company Express, a corporation, and E. Brown, the agent of said company at the city of St. John, in said county, asking that it be restrained from collecting the price, and from delivering any consignments, of intoxicating liquors carried and transported 0. o. d., or by any other shift, means, or device, to any person at St. John. A temporary restraining order was issued. The district court sustained the demurrer of defendant to the petition. By leave of court, on November 15, 1901, plaintiff filed an ■amended - petition, asking substantially the same relief. Defendant answered. Upon the trial the court sustained an objection to the introduction of any evidence under the amended petition, and rendered judgment against plaintiff for costs. Plaintiff brings error.
The action was brought under the statute commonly known as the “nuisance act,” being section 4 of chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463). It was held in the case of The State v. Estep, 66 Kan. 416, 71 Pac. 857, and the recent case of The State v. Stevens, 68 Kan. 576, 75 Pac. 546, that the nuisance act was repealed by section 1 of chapter 232, Laws of 1901 (Gen. Stat. 1901, §2493).
The judgment is affirmed. | [
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Per Curiam:
The reply of H. E. Walter to the amended.' answer of Oliver P. and S. F. Hill was sufficiently verified ■ to deny any appointment or authority alleged in the • answer. (Gibson v. Shorb, 7 Kan. App. 732, 52 Pac. 579.)
We have read the evidence in the case and do not find that, in legal effect, it differs materially from the evidence ■ introduced on the former trial, which was held insufficient to support a judgment for defendants below. (Walter v. Logan, 63 Kan. 193, 65 Pac. 225.)
The judgment will be reversed and a new trial granted. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action of ejectment brought by Enos C. Foulke to recover from Thomas J. O’Brien the possession of a tract of land in Rooks county. Foulke had a complete paper title, as shown by a connected chain back to the government, while O’Brien claimed under an oral contract of purchase, and possession and improvements made in pursuance of the alleged purchase. Each asserted title from a common grantor, named Houpt. O’Brien claimed that he purchased the land from Houpt at a stipulated price and that he was to have until a fixed time to raise and pay $500, the amount of the first payment; that he obtained the money within the time and otherwise complied with the terms of the purchase; and that he took, and has held, possession under the con tract of purchase. Houpt did not accept the money, but conveyed the land to one Foster, who in turn formally conveyed it to Foulke. Houpt died before the trial, and hence the testimony of the transaction between Houpt and O’Brien was mainly that of O’Brien himself. On the testimony produced, however, the jury found in favor of Foulke. There was-testimony to the effect that there was a conditional sale of land, but some of it tended to show that O’Brien did not comply with the conditions of the proposed sale within the specified time, and also that the possession of O’Brien was taken under a lease, and not in pursuance of the oral contract of purchase.
To sustain his contention it was necessary for O’Brien to prove that he bad complied with the requirements of the oral contract, and, if he failed in thatj as the jury must have found, he failed to establish his right of possession. Again, the possession essential to his defense not only must have been actual, notorious and exclusive, but must have been taken in pursuance of the oral contract of purchase, with the consent of Houpt. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591.) Since there was testimony tending to show non-compliance with the requirements of the contract, and also that the possession was not effective, there was basis for the findings of the jury. While the evidence is in some respects quite meager, we cannot say that the verdict and judgment are without support.-
The contention that the instructions were misleading is not good. The character of the action and the claims of the respective parties were fairly presented to the jury, and while some of the principles of law claimed to have been erroneously omitted from the charge would not have been inappropriate, they were not requested by tbe plaintiff in error, nor do we regard them to be essential to a fair submission of the case. Haying correctly stated tbe issues and the general rules of law applicable thereto, the failure to amplify or to state other correct principles of law is not, in the absence of a request, a ground for reversal.
Nor is there anything substantial in the so-called variance, or in the claim that Foulke’s deed did not convey the land in controversy. The deed itself is not set out in the record, and in the partial statement of its character there is some confusion as to the description of the property, but this is rendered immaterial by the specific admission made during the trial that the deed was “in every way sufficient to convey the land in question.”
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff below recovered a judgment for damages for an injury caused by the defendant’s negligence. In this court the defendant, now plaintiff in error, argues that the injury happened'by accident; that the plaintiff was guilty of contributory negligence; that the negligence of the company, if any be discoverable, was not the proximate cause of the injury; and that the damages were excessive. The jury returned explicit findings of fact upon all these propositions except the last, expressly negativing the defendant’s claim, The findings were amply sustained by the evidence, and only the elementary principles of the law of negligence were involved. A formal opinion of this court would be of no advantage to the parties or to the profession. The damages were not so excessive that this court may interfere, and the rule given by the trial court for their ascertainment was correct.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
P. B. Elliot recovered judgment against A. N Marlatt in the sum of $240 for services rendered as a real-estate agent in selling a farm belonging to Marlatt to J. E. Conroy, the recovery being two per cent, of $12,000, the amount for which the land was sold. The theory of the plaintiff upon which he based his right of recovery was that he had brought to the attention of the purchaser the land of the de-. fendant, and that, although subsequently the defendant had himself consummated the sale, still his services had been the procuring cause of the sale, and, therefore, he was entitled to his commission. The theory of the defense, as expressed in the'answer, was that the plaintiff “ had never found and made known to the defendant that he had a purchaser who was ready and willing and able to purchase said lands.”
There was but little variance between the parties as to the- facts of the case, which, stated as briefly as possible, are these : Marlatt, who was a non-resident of the state, desiring to dispose of a half-section of valuable land, placed the same with Elliott for that purpose, instructing him to sell at forty dollars per acre, upon certain terms as to deferred payments, and agreeing to give him two per cent, of the price for which the land should be sold as his commission. This was about the 1st of June, 1901. Elliott listed the land upon his books, advertised it for sale, and called the attention of several parties to the matter' Learning that Mr. Conroy wished to purchase land of that quality in that neighborhood, he gave him the price and terms at which this could be obtained, and solicited him to buy. He offered to take him out tó look at the land, but Conroy said that, as he had á relative living in the neighborhood, he would go and look at it some time when he was out there. At different times up to August or September Elliott spoke to Conroy about the purchase of the land, and Conroy at one time made an offer of $10,000 in cash for it'. This offer was submitted to Marlatt and by him rejected. Conroy told Elliott that he would not purchase until he had sold some land which ha owned in an adjoining county. Elliott at one time communicated to Marlatt the fact that he was seeking to sell the land to Conroy. About the 1st of December, the same year, Conroy,'having become ready and desiring to purchase, opened up negotiations with Marlatt through an agent of his own, and these negotiations resulted in the sale by Marlatt to Conroy of the farm at the price of $12,000, being a reduction of $800 upon the price at which it was listed with Elliott.
The jury returned a general verdict in favor of Elliott, and also found in answer to special questions that, while plaintiff had not participated in the consummation of the sale, he had first brought the land to Conroy’s attention, and the representations made by plaintiff had been the moving cause of the sale. This specific question was asked the jury and answered :
“Did the plaintiff, under the contract sued on, bring to the defendant a purchaser who was ready, willing and able to purchase the land of the defendant in accordance with the terms under which plaintiff was authorized to make a sale? Ans. The plaintiff did bring the defendant a purchaser, but purchaser wa3 not ready or willing to pay the price asked for in contract, as shown by subsequent negotiations.” '
In brief, the claim of the plaintiff was that he was entitled to recover if, after having called the attention of the purchaser to the land, the purchaser and the defendant thereafter, without the plaintiff’s interference, had consummated the sale, even though it had been closed upon different terms and at a different price from those given to the plaintiff. The defendant, however, claimed that unless the plaintiff had procured a purchaser who was ready, willing and able to buy at the price and upon the terms given by the defendant, the plaintiff was not entitled to a commission.
The errors complained of rest in the refusal to permit many questions to be asked by the defendant and the giving and refusing to give instructions by the court, all in pursuance of this theory of the case. We are not required to speak of these specifications in detail ; it will be sufficient to examine the theories upon which they are based.
It is true that many cases are found in which the language used supports the defendant’s claim. From Aigler v. Land Co., 51 Kan. 718, 33 Pac. 593, the plaintiff in error in his brief quotes the following :
“Where a real-estate agent contracts with a landowner for a commission for the sale of his land, in order to recover for his services he must produce to the owner a purchaser ready, willing and able to buy upon the terms proposed.”
But he fails to add the balance of the quotation found below, which fully illustrates the want of application of this principle to the peculiar facts of the case at bar
■ “But if the purchaser be willing to make only an option contract, and prefer, under such a contract, as he has a right to do, to forfeit a small sum paid upon the execution of the contract rather than to accept the property, and the contract is thereby annulled, the real-estate agent cannot recover his commission, as if an actual sale had been made or agreed upon.”
In like manner we are cited to Davis v. Lawrence, 52 Kan. 383, 34 Pac. 1051, where the law was laid down in the syllabus as follows :
“Real-estate agents, authorized to sell the land of another at a stated price and for a certain compensation, have earned their commission when they produce a purchaser able, ready and willing to purchase the land upon the terms and conditions agreed upon.”
This was a proper pronouncement of the law under the facts of that case, where it appeared that the sale which the agent had negotiated in accordance with the terms given him by the owner failed only because the owner was unable to furnish a good title to the property sold. These two cases are sufficient to illustrate the proper application of the bald rule of law upon which the plaintiff in error depends and also its inapplicability to the facts of the case now under consideration. These facts call for the application of that other rule, so often announced by this court and so thoroughly grounded in the law of equity and responsive to our sense of fair dealing. In Plant v. Thompson, 42 Kan. 664, 22 Pac. 726, 16 Am. St. Rep. 512, it was stated as follows :
“It is sufficient to entitle real-estate agents to their commission if a sale be effected through their agency as its procuring cause, although the sale be made by the owners of the property, if by their exertions the purchaser and owner be brought together, and the sale result therefrom.”
As supporting this view, see, also, Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Dreisback v. Rollins, 39 id. 268 18 Pac. 187; Betz v. Land Co., 46 id. 45, 26 Pac. 456, and many cases cited therein.
While the main contention was in accordance with the theories above indicated, it is also complained that the court refused to permit the introduction of evidence showing that between the time negotiations had ceased between Elliott and Conroy and the time the sale had been made by Marlatt, Conroy had given up the thought of buying, and the sale made by Marlatt had been wholly independent of such negotiations. Of course, had this been the fact, and had Elliott not been the procuring cause of the sale, then no recovery could have been had. The purchaser, Conroy, was, while a witness, asked this question :
“Well, were or were not the negotiations between .you and the plaintiff entirely broken off and unsuccessful before you made up your mind to buy this land ?”
An objection to this was sustained because it was incompetent, irrelevant, immaterial, and in the nature of a conclusion. We think it a conclusion, and if so, incompetent. The answer to this question was the ultimate fact to be found.by the jury. This was followed by an offer of proof from the same witness even more faulty than the question itself, an objection to which was correctly sustained.
The defendant requested the giving of an instruction covering the view of the case last cited. Its re-, fusal is assigned' as error. Admitting there was evidence requiring such instruction, we think the theory was sufficiently presented in a negative form by an instruction which was given, and which required the jury to find by a preponderance of the evi dence that the sale finally consummated was by reason of the negotiations instituted by the plaintiff.
Upon the entire case we are of the opinion that nd substantial error was committed by. the court, and its. judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
This litigation involves the title to a tract of land now forming a part of the city of Argentine, comprising about thirty-three acres, upon which over 200 houses are erected. It originated in an action of ejectment brought by C. M. Campbell against the occupants of the tract. Two persons named as defendants, R. R. Dunbar and Elizabeth Benns, are, in effect, plaintiffs, and will be so treated. The other defendants (of whom there are over 200), so far as practically important, are the Kansas Town Company, in whose behalf the tract was platted as a part of Mulvane’s addition to Argentine, and its grantees. Several other defendants, claiming under a different title, have filed a cross-petition in error in this court, but no brief has been submitted in their behalf, and their contentions will not be considered. A jury was impaneled to try the case, but at the conclusion of the evidence the court directed a verdict for the defendants. A judgment was rendered accordingly, which plaintiffs now seek to have reversed.
The tract in controversy was a part of the lands set apart for the Shawnee tribe of Indians by the treaty of May 10, 1854. On December 28, 1859, it was patented by the United States to Nancy Whitefeather, a member of the tribe, the patent containing the usual provision forbidding its alienation by her without the consent of the secretary of the interior. On February 25, 1864, she conveyed to Brooking Jeffries, but her deed was not approved by the secretary of the interior until January 13, 1898. On March 29, 1865, Brooking Jeffries conveyed to Elizabeth Sharp, now Elizabeth Benns, who is one of the plaintiffs, and, so far as it affects the decision of the case, she may be con sidered, as the sole plaintiff, for the other plaintiffs are entitled to no more favorable treatment, since their claims to the property are derived from her through a series of quitclaim deeds, the first of which was executed in 1896, after the recording of the bond, for deed and other instruments affecting the title,, hereinafter described. (Lomax v. Pickering, 173 U. S. 26, 19 Sup. Ct. 416, 43 L. Ed. 601.)
On December 4, 1867, Elizabeth Benns executed a bond for a deed, or contract, by which she agreed to convey the land to Adelaide Y. Shearin for the consideration of #200 in cash and #400 to be paid in one year. An agreement was included that she would put the purchaser in possession within seven days, and Adelaide V. Shearin and her. husband went into possession of the land. On March 12, 1872, they conveyed to J. P. Kinney, and the record shows a series of deeds from Kinney to the town company, concerning which no question is raised. The plat dividing the land into lots and blocks was filed January 2, 1882. On January 13, 1898, the deed from Nancy White-feather to Brooking Jeffries was approved by the secretary of the interior.
Upon the facts so far presented the issue between the parties is whether the bond for a deed is now to be regarded as an effective transfer of title from Elizabeth Benns to Adelaide V. Shearin. Defendants claim that the ordinary effect of such an instrument under the circumstances stated, where the grantor has title, is to vest the equitable ownership in the grantee, leaving to the original owner only the naked legal title' as security for the unpaid purchase-money ; that although Elizabeth Benns, when she executed the bond for a deed, did not herself have title, because the deed from Nancy Whitefeather under which she claimed had not been approved, yet such approval, as soon as it was made, operated retrospectively, and the situation became the same in all respects as though the deed had been approved when made, thus validating not' only the various deeds but also the bond for a deed. On the other hand, the plaintiffs claim that, even had the Indian title been approved at once, the bond for a deed would not have passed title under the circumstances of this case, and complaint is made of the refusal of the trial court to allow testimony that Adelaide V. Shearin did not pay Elizabeth Benns for the land. They further contend that until the Indian title was extinguished no equitable title could be built up by contract and possession, and that the subsequent approval of the Indian deed did not inure to the benefit of the defendants.
Leaving out of consideration for the moment the questions arising from the disability of Nancy White-feather to make a deed without the consent of the secretary of the interior, and treating her deed to Brooking Jeffries as valid at the time of its execution, we think the bond for a deed, coupled with the possession of Adelaide V. Shearin, was sufficient to vest the equitable title in her, and to prevent Elizabeth Benns from recovering the property in an ejectment action, notwithstanding the non-payment of the purchase-price. (Courtney v. Woodworth, 9 Kan. 443; Burke v. Johnson, 37 id. 337, 15 Pac. 204, 1 Am. St. Rep. 257; Jones v. Hollister, 51 id. 310, 32 Pac. 1115; Usher v. Hollister, 58 id. 431, 49 Pac. 525.)
The first paragraph of Courtney v. Woodworth, supra, reads:
“Where a party sells land, executes to the purchaser a title-bond therefor, receives a part of the purchase-money, takes several promissory notes for the deferred instalments of the purchase-money, puts the purchaser in possession (time not being of the essence of the contract by the terms of the bond itself), he cannot, nor can his grantee who purchases with knowledge of the facts, maintain ejectment for said land merely because the party claiming under the title-bond for want of funds fails to pay the balance of the purchase-money.”
In Usher v. Hollister, supra, it was said :
“A person may not enter into an agreement to convey land, put his vendee in possession under such contract, receive a large portion of the purchase-money and give time for the payment of the remainder, attach no conditions of punctuality of payment to the transaction nor otherwise reserve a right of forfeiture or rescission, tolerate the possession of such vendee for a. score of years, the while the land is being improved and growing in value, and then, by taking the law into his own hands, re-enter possession, and resist ejectment by his vendee upon the sole ground of the non-payment of the balance of the purchase-money, even though an action for the collection of such purchase-money has become barred by the statute of limitations.”
It is contended by plaintiffs that the possession of Adelaide V. Shearin and subsequent occupants of the-land was not held under the bond for a deed but under an independent title. This matter will be referred to later. For the present, it is sufficient to say that the bond for a deed contained an express agreement to put her into possession within seven days ; that she went into possession ; that all subsequent occupants claim under deeds executed by her ; and that Elizabeth Benns never sought to regain possession until the commencement of this action in March, 1898. These considerations we regard as sufficient to bring the case within the principle of the authorities cited.
It remains to inquire how far this result is affected by the fact that the Indian deed was not approved until long after the execution of the bond for a deed. It is well settled that, no matter how long such an approval may be delayed, when finally given it relates to the time of the execution of the deed, and inures to the benefit of subsequent purchasers from the grantor, “not as a new title acquired by a warrantor subsequent to his deed inures to the benefit of the grantee, but as a deed, imperfect when executed, maybe made perfect as of the date when it was delivered.” (Pickering v. Lomax, 145 U. S. 310, 12 Sup. Ct. 860, 36 L. Ed. 716. See, also, Lykins v. McGrath, 184 id. 169, 22 Sup. Ct. 450, 46 L. Ed. 485.) It is suggested in the cases cited that the doctrine of relation will not be permitted to defeat the title acquired in good faith through a subsequent deed executed by the Indian owner with the consent of the secretary of the interior before the approval of the earlier deed, but the plaintiffs are in no position to claim the benefit of this exception. They have no equities superior to those of the original Indian owner or his heirs, or of the immediate grantor of Elizabeth Benns, or of any other holder of title through an unapproved deed who had executed a conveyance before its approval, for the bond for a deed was in effect a conveyance, and, however invalid when executed, and however unlawful the possession taken under it, these defects were cured by the subsequent approval of the original deed, just as the same defects in the case of other conveyances are cured.
These conclusions require the affirmance of the judgment ; however, another feature of defendants’ title is claimed by plaintiffs to have some bearing upon the matters already discussed and to require the determi nation of other questions. After the bond for a deed was given, Nancy Whitefeather having died, a deed was executed (January 28, 1870) by Elizabeth Long-tail and George Washington, describing themselves as the sole heirs of Nancy Whitefeather, to Thomas Jeffries. This deed was approved by the secretary of the interior on June 11,1870. On September 19,1870, Thomas Jeffries made a warranty deed to John H. Shearin, the husband of Adelaide V. Shearin. In the deed of the Shearins to KiDney, already referred to, John H. Shearin alone covenanted that he was lawfully seized of the premises conveyed. Plaintiffs argue that the deed from the heirs of Nancy White-feather, because it was approved by the secretary of the interior earlier than that made by Nancy White-feather, passed a good title to an undivided interest in the land, but failed to make a complete title because there were other heirs of Nancy Whitefeather who did not join in its execution. The court refused to receive evidence to show that there were other heirs, and of this plaintiffs complain. They urge that the facts just stated show that defendants and their grantors did not rely upon the bond for a deed or upon any title derived through Adelaide V. Shearin, but did rely solely upon the deed made by the heirs of Nancy Whitefeather .and upon the title derived through her husband. We see nothing in the circumstances stated to operate as a waiver or abandonment of the title derived through the bond for a deed or as. an estoppel of defendants to claim under it. The two titles are inconsistent, in the sense that they overlap, but the plaintiffs have no standing to challenge the right of defendants to claim under both. A good title against plaintiffs being shown under the bond for a deed, apart from the deed made by the Indian heirs, it is unnecessary to inquire as to the effect of the latter, or whether it was in.fact executed by all the heirs of Nancy Whitefeather.
The question whether, after the approval of the deed of the original Indian owner, Elizabeth Benns could have maintained an action to charge the land with any part of the purchase-price remaining unpaid, or to procure the rescission of her'contract in the event of non-payment, is not raised.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
On January 18, 1901, Jennie Johnson was granted a divorce from her husband, William Johnson. On June 5, 1901, she made a will, the general purpose of which was that her property should form a fund for the education and maintenance of Donald and Kenneth Johnson, the two minor children of herself and William Johnson. Kenneth Johnson died before the death of his mother. She died July 17, 1901. Donald Johnson died intestate March 15, 1902. This litigation involves the question of the disposition of the property left by Mrs. Johnson, and its result turns principally upon the construction to be placed upon her will. The trial court sustained the. contention of William Johnson that, as Mrs. Johnson died within six months of the date of the divorce, he was still her husband at the time of her death, and was entitled to one-half of the property in virtue of that relation; and that he was entitled to substantially all of the other half as the sole heir of his son, Donald Johnson, who had acquired an absolute title thereto under the will. John Olson, one of the plaintiffs in error, a brother of Mrs. Johnson, contends that by the terms of the will all of the property then unconsumed (except for a small specific legacy) passed to him upon the death of Donald Johnson.
A preliminary question arises upon an objection to the sufficiency of the record to present any question for review. The case was heard upon an agreed statement of fac.ts and is brought here by transcript. The transcript includes what purports to be a copy of the agreed statement, but, as that was not incorporated in a bill of exceptions and did not become a part of the record, it is not properly before us and cannot be considered. (Patee v. Parkinson, 18 Kan. 465, Morrow et al. v. Comm’rs of Saline Co., 21 id. 484, 515, Myers v. Wheelock, 60 id. 747, 57 Pac. 956; F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309.) An attempt has been made to remedy this defect by adding to the transcript the copy of an order recently made by the district court amending the entry of judgment by inserting therein nunc pro tunc the agreed statement, preceded by a recital that the court made such statement its findings of fact. Apart from any question of the time of such attempted correction, we do not think the agreed facts can be brought upon the record in this manner. A trial court cannot make findings of fact different from . those agreed to by the parties. (Brown v. Evans, Adm’r, 15 Kan. 88; Gray v. Crockett, 30 id. 138, 148, 1 Pac. 50.) When a cause is submitted upon an agreed statement all issues of fact are eliminated. (Richie v. K. N. & D. Rly. Co., 55 Kan. 36, 50, 39 Pac. 718; Atkins v. Nordyke, 60 id. 354, 56 Pac. 533.) There was, therefore, no occasion for any findings of fact. Having no function to perform, they are of no effect if made. What the court does under such circumstances is to apply the law to the facts as agreed to by the parties. To describe this operation of the mind as including an adoption of the agreed statement as findings of fact does not change its character, nor authorize the agreement to be made a part of the record by being spread upon the journal.
But the somewhat exceptional circumstances of this case, these considerations do not preclude a review of the important questions involved. This litigation was begun April 17, 1902, by a petition filed by L. S. Wolverton, the executor and trustee under the will, asking the direction of the court concerning the disposition of the property in his hands. All persons having any interest were made parties. On November 20, 1902, Olson filed an answer and cross-petition, in which he set out the facts upon which his claim was based, attaching complete copies of the will and the decree of divorce. On December 6,1902, Johnson filed an answer to the petition and a motion to strike matter from the answer and cross-petition of Olson. This motion appears never to have been passed upon, and there was no further pleading on the part of Johnson. He filed no answer to the cross-petition of Olson, between whom and himself the real controversy lay, none of the other parties having any personal interest in the result. It is only applying the ordinary rules of pleading to hold that the allegations of Olson’s cross-petition were admitted by Johnson’s failure to deny them. The record, therefore, fairly presents the question whether the judgment of the court is consistent with the allegations of Olson’s cross-petition and with those of the answer of Johnson to the petition of plaintiff.
The agreed statement is only the equivalent of evidence and cannot change the issues presented by the pleadings. (Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kan. 181; Myers v. Wheelock, supra.) And no matter what the agreed statement may have contained, the judgment cannot stand if it is inconsistent with the uncontradicted facts as disclosed by the pleadings. It is true that where a case is decided upon an agreed statement of facts defective pleadings will ordinarily be considered as having been corrected by amendment, in order that substantial justice may not be defeated by inadvertent omissions. (Reynolds v. Reynolds, 30 Kan. 91, 96, 1 Pac. 388.) If the agreed statement were properly before us, and it appeared from that and from the judgment that the parties and the court had proceeded as though Johnson had denied the allegations of Olson’s cross-petition, or had set out new matter affecting them, justice would not only permit, but require, that the case be treated as though such denial had in fact been made, and as though Johnson had pleaded any new matter conforming to the agreed statement necessary to sustain the judgment. But it is evident from his answer to the petition that there was no material controversy except as to the divorce and the will, and that there was no serious intention on his part of disputing the terms of these as alleged by Olson; that they were practically admitted, and that the only disagreement concerned their legal effect. The conclusions of law framed by the court were directly responsive to the very questions raised by the pleadings as they stood. There is nothing in any aspect of the affair to justify indulging in strained inferences in Johnson’s behalf lest an injustice be done him. To give him now the benefit of a pleading which he did not file would not be promoting justice ; it would be aiding a technical objection to an inquiry into the legal merit of a claim barren of equity.
The claim of Johnson to a part of the property in virtue of having been Jennie Johnson’s husband at the time of her death, on the theory that the decree of divorce did not have the effect of severing the marital relation of the parties until the expiration of six months, is disposed of by the interpretation given the statute in Durland v. Durland, 67 Kan. 734, 74 Pac. 274, 63 L. R. A. 959, decided since the judgment in this case was rendered.
The will declared in a preamble that the testator was desirous of making provision for the custody, education and keeping of her minor children. It directed the appointment of John Olson, L. S. Woolverton and Mrs. Emma Rhodes their guardians, and made the same persons trustees of her estate, to receive its proceeds and expend them in the care, maintenance and education of the children. Her household goods were given to Mrs. Rhodes, to be used for the comfort of the children. Apart from this property and a life-insurance policy of something less than $1000, the estate consisted of the half-interest in a house and lot in Pueblo, which were directed to be sold. It was recited that Olson had agreed to furnish a home for the children and for Mrs. Rhodes. Provision was made for replacing any of the trustees who might die before' the children became of age. The entire controversy turns upon the interpretation to be placed upon the concluding paragraph of the will, which reads as follows :
“It is my will, and I further direct, that in the event of one of my sons should survive the other, that the surviving son shall have and receive all the property belonging to them jointly or otherwise, and in the event of the death of each of said children, Donald and Kenneth Johnson, that in such an event the residue T my estate, whatever it may be, I give and bequeath to my brother, John Olson.”
In Olson’s behalf it is argued that the will created only a life-estate in the children, with a remainder over to him. Such a construction involves great difficulties, one of them being the requirement that the phrase “in the event of” the death of the children be deemed the equivalent of “upon” their death. Although there is no direction that any of the property ever be turned over to the children, the provision for replacing any trustee who may die before their majority points to an assumption that the trust would then cease, and may justify an inference that any surplus remaining was then to be paid to them. Had the testator intended the property to be held in trust for her children after they become of age, and for the entire period of their lives, it is reasonable to suppose that language would have been selected more clearly expressive of so singular a purpose.
On the other hand, the contention urged by Johnson and adopted by the trial court is that Olson was to take the property only in the case of both children’s dying before their mother, and that either child surviving her was to take an absolute title, capable of descending to his heirs upon his death. The argument in favor of this view is based chiefly upon the circumstance that the death of the children is spoken of as a mere contingency. Inasmuch as it cannot be supposed that any one regards death as otherwise than certain to occur at some time, it is the usual and just presumption that whenever a testator refers to it as something that may or may not happen, he has in mind, not whether it will occur, but when it will occur—for instance, whether before or after some other event; and where a will directs something to be done if some person die, in the absence of anything to suggest a different theory, it is natural to assume that the testator means that it is to be done if such death take place before his own, because that explanation presents itself readily and naturally. Upon this reasoning, it is said in Jarman on Wills (Randolph & Talcott’s edition), volume 3, page 606 :
“Hence it has become an established rule, that where the bequest is simply to A, and in case of his death, or if he die, to B, A surviving, the testator takes absolutely.”
But it is further said in the same discussion (at pages 611, 612):
“But although in the case of an immediate gift, it is generally true that a bequest over, in the event of the death of the preceding legatee, refers to that event occurring in the lifetime of the testator, yet this construction is only made ex necessitate rei, from the absence of any other period to which the words can be referred, as a testator is not supposed to contemplate the event of himself surviving the objects of his bounty; and, consequently where there is another point of time to which such dying may be referred (as obviously is the case where the bequest is to take effect in possession at a period subsequently to the testator’s decease), the words in question are considered as extending to the event of the legatee dying in the interval between the testator’s decease and the period of vesting in possession. . . . On this principle, too, it should seem that in the case of a bequest to A at the age of twenty-one years, and in the event of his death then over to another, the words would be construed to mean, in the event of his-dying under twenty-one at any time.”
And in Armistead v. Hartt, 97 Va. 316, 318, 33 S. E. 616, it was said :
“The words ‘in the event of’ import a contingency,' and must refer to death before some period or event contemplated by the testatrix, but not expressed ; for, otherwise, they would be useless and meaningless, as there is no contingency about death, nothing being more certain to happen. There is no express designation in the will nor is there .anything in its language to indicate the period or event to which these words refer, and since they must be given some effect, they must be construed as having reference .to that period or event which, under the circumstances, is the most natural.” ’
In volume 1 of Underhill on Wills, section 342, it is said:
“Where the death of the legatee can, from the character of the disposition which is made in case of death, be referred to another period than the life of the testator, the court will not hesitate so to construe it. Accordingly, when the gift to the primary beneficiary is after a life-estate, in express terms, or where a legacy is to vest in legatees when they are tioenty-one years of age, and apparently where payment only and not vesting is postponed, with a gift over in case of the death of a legatee, the term will be taken to mean death at any time, either before or after the death of the testator.”
It may be that the present problem could be properly solved in accordance with the last suggestion by considering that the bequest to the children would become absolute upon their reaching twenty-one years of age, and that the devise to Olson was intended in case they should die before that time, but a more plausible solution presents itself. The important inquiry in an effort to reach the intention of the testator is, Of what was she thinking ? What had she in mind as likely to happen before the death of her children ? The an swer may be sought not merely in the language of the will, but in all the conditions existing when the will was drawn. In Cowley v. Knapp, 42 N. J. L. 297, a disposition of property indicated in case of the death of the testator and her husband was held to have reference to their death while upon a journey they were about to undertake when the will was drawn. In the opinion it was said : “Her mind was upon the travels abroad, for which she and her husband were preparing, and her purpose was that if, in the course of those travels, death should overtake them, then this will should be operative. This was the contingency which led her to speak of their death as a thing which might or might not happen.” (Page 304.)
In the present case it is to be noted that the only property available for the support of the children, apart from the insurance money and the household goods, was the Pueblo real estate. The value of this was not shown, the plaintiff placing it at $2000, and Johnsonasserting that it was greater. Obviously Mrs. Johnson did not think it of a character to yield an income sufficient for the support of the children, or she would not have ordered it sold. One of the children was a mere infant. It is clear that she realized that she was not leaving sufficient property for the care, maintenance and support of her children until they should be twenty-one years old. Her mind was upon the probability, the practical certainty, that long before that time her estate would be exhausted and they thrown upon their own resources or left to depend upon the charity of friends and relatives. And what she had in mind when she spoke of their death as a thing which might or might not happen was that it might or might not take.place before that condition should arise. If it should, there would remain a part, of the property undisposed of, which in that event she wished Olson to have ; if it should not, then no such bequest could be made, for there would be nothing to' which it could apply. This seems a reasonable explanation which does no violence to the language used, and adapts itself to the circumstances by which the tes-, tator was surrounded. It also accounts for the will’s omitting to provide for the payment to the children, at their majority, of money remaining in the hands of the trustees. No such provision was made, because it never occurred to the mother as possible that' there could.be any such .surplus. She realized that the sum was inadequate for the purpose to which she devoted it, if the children should live to maturity, and made her arrangements accordingly.
Another consideration supporting the conclusion' just stated is this: If both children had survived-their mother and then one' of them had died, it could hardly have been contended that his share of the property would have passed to his father instead of to his brother. And yet such a contention could be supported by the same argument as is now made in behalf of Johnson’s claim. The language of the will is : “In the event of one of my sons should_survive the other, that the surviving son shall have and receive all the property belonging to them, jointly or otherwise.” Now it was just as certain that one of the sons should at some time survive the other as that both should at some time die, unless both should expire at the same moment, and that contingency is in the nature of things so remote that it would be absurd to' imagine the testator’s basing the disposition of her property upon it. It follows that the words quoted must be taken to mean either that one of the children should take all of the property in the event the other' child should die before his mother, or that one Of them should take all the property in the event the other should die before the property should be exhausted. For all the reasons suggested by the preceding discussion, and for others which readily suggest themselves, we think the latter the correct interpretation. If in the first half of the sentence the mother spoke of the death of one son as something that might or might not happen, because she had reference to his death before the complete expenditure of her money, it is only reasonable "to account in the same way for the fact' that in the second part of the same sentence she spoke • of the death of both of them as an uncertainty.
This reading also accounts for the use of the word “residue” in the paragraph quoted. Ordinarily this• word, when found in a will, is held to signify the property of the testator the disposition of which has not otherwise been indicated; that is, what remains' after the payment of charges and specific legacies. It cannot well be thought to have been so used here. There was no portion of the estate remaining otherwise undisposed of by the will. All the property of the testator had been given to the trustees for the benefit of the children, excepting the household goods, which had been given to Mrs. Rhodes, to be used for their comfort. There was no property to which the term, could apply other than that already set apart • for the children ; but it is clear that the word must have been used to signify what remained of something after taking away a part. Had it been the purpose to express the wish that if the children should die before the mother her property should go to Olson, the' language naturally selected to convey the idea would have been to the effect that all of her. estate should go to him in that event; there would have been no occasion for the use of the word “residue,” and nothing to suggest it. But, plainly, the testator assumed that, in whatever contingency she had in her mind, only a part of the property would remain. What, did she consider, would have become of the rest of it? Obviously, that it would have been used up in the only way authorized by the will—by having been expended in the care, maintenance and education of the children after her death.
We adopt the interpretation indicated, and it results that John Olson was entitled to so much of the estate of Jennie Johnson as remained unconsumed. Defendant in error, William Johnson, contends that at all events he is entitled to the unexpended portion of the proceeds of the life-insurance policy referred to, on the ground that such proceeds were never a part of the estate of Mrs. Johnson, the policy before her death having been made payable to Donald Johnson. This contention seems well founded, although, owing to the condition of the x’ecord, we cannot be sure of the fact. This consideration does not affect the conclusion announced. In the foregoing discussion the insurance money has been spoken of as a part of the assets of the estate, but only for the purpose -of arriving at the intention of the testator, it being so treated in the will.
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views here expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
John W. Cunningham received serious injuries by the runaway of a team of mules which he was driving upon a highway in Clay township, in Butler county. He sued the township, claiming that the runaway was occasioned by the .mules’ becoming frightened at a large stone lying in the road, outside the traveled portion, but near it, which was of such nature that when so placed it was likely to frighten horses of ordinary gentleness, and therefore constitued a defect in the highway ; that the township trustee had had notice of such defect for more than six months; and that the plaintiff was therefore entitled to recover his damages from the township under section 579 of the General Statutes of 1901 (Laws 1887, ch. 237). A jury' trial resulted in a verdict and judgment for the defendant, from which error is prosecuted. The rulings complained of relate to the admission and rejection of evidence and to the giving and refusing of instructions.
The nourt refused to permit plaintiff to introduce testimony that other teams of ordinarily gentle disposition had been frightened by the same object, for the purpose of proving that it was of a character likely to alarm passing horses. It has been held that in actions for injuries from defective streets proof of similar accidents, offered to show the dangerous condition of a street, should not be permitted, because many complicated collateral issues might thereby be raised, tending to divert the attention of the jury from the main question ; and in a few cases' testimony of the character now under consideration has been excluded upon the same reasoning, but the majority of decisions covering the point deny the doctrine in its entirety. (City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Madison Township v. Scott, 9 Kan. App. 871, 61 Pac. 967.) The authorities are almost unanimous in holding that it does not apply in cases like this one to the class of testimony here offered, one reason given being that any collateral issues so raised must necessarily be very simple and not of a kind to result in any practical harm. In volume 15 of the American and English Encyclopedia of Law, second edition, at page 447, it is said : “Evidence that other horses were frightened by a particular object is admissible to show that it was reasonably calculated to frighten horses.” (See cases there cited and in 1 Jon. Ev., §§ 161, 162. Also, Nye v. Dibley, 88 Minn. 465, 93 N. W. 524; Galt v. Woliver, 103 Ill. App. 71; Golden v. C. R. I. & Pac. Ry. Co., 84 Mo. App. 59; Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877.) We hold that the ruling of the court in this respect was erroneous.
Complaint is made that the defendant was permitted to give evidence of the existence of other stones claimed to be of a similar character and similarly situated with reference to the traveled portion of the highway, not only along the road in question but along other roads in the same township and in other townships of the same county. The evidence was intended to show that the stone in question did not present an unususl appearance, and was competent for that purpose. Such an inquiry must, of course, be confined to the general locality of the alleged defect, but we do not think that this rule was transgressed.
The jury were instructed that the township was “bound to use only ordinary care, caution and prudence to prevent obstructions and defects in the highway.” This is the usual rule by which the liability of municipalities is measured, but the plaintiff’s cause of action is based wholly upon the provisions of section 579 of the General .Statutes of 1901. Before the enactment.of that section in 1887 (Laws 1887, ch. 237), such an action could not have been maintained. (Eikenberry v. Township of Bazaar, 22 Kan. 554, 31 Am. Rep. 198.) The limit of the township’s liability therefore must be found in the statute itself, which reads:
“Any person who shall without contributing negli.gence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover, such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided ; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained ; and in-other cases such i’ecovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
The language of this statute leaves no room for the application of the usual rules to the determination of the degree of diligence necessary to escape legal responsibility. The liability of the township is founded upon neglect of the duty to keep the highway in repair. But instead of the general requirement of ordinary diligence in the discharge of such duty the statute' substitutes a specific test. When injury is sustained by reason of a defective highway, if the township trustee has had five days’ notice of the defect the township is liable, however great care the officers may have exercised; but if the trustee has' had no such notice the township is not liable, however negligent the officers may have been. The statute makes its own definition of actionable negligence. In George v. Haverhill, 110 Mass. 506, a case arising under a similar statute, the first paragraph of the syllabus reads :
“It is no defense to an action against a city or town, under the General Statutes, chapter 44, section 22, to recover for an injury caused by a defect in a highway, that the city or town used ordinary care in repairing the way, if, in fact, it was not reasonably safe and convenient.”
In the opinion it was said r
‘ ‘ The liability of cities and towns for defects in highways is a statute liability. The requirement is that highways should be kept safe and convenient for travelers at all times. If the way, by this standard, is defective, and the defect had existed for the space of twenty-four hours,- or there was reasonable notice of it, and injury is thereby caused without the fault of the traveler, the liability of the town is fixed. It is the duty of the town to repair the defect within the time named, or seasonably to warn the traveler so that he may avoid the danger. The question what is safe and convenient within the meaning of the statute, is a question which in most cases it is'the appropriate province of the jury to settle, and considerations relating to the nature and amount of travel, and what it is reasonably practicable to do in constructing and maintaining the way in question, will always have weight with them. Absolute safety beyond the possibility of accident will never be required, for that would be impracticable. But if the jury find that the defect exists within the reasonable application of the rule given, it is enough. The town must respond, whether the defect arose from negligence or from causes which no care on its part could prevent or control. All the instructions asked which were based on the proposition that towns and cities are bound to exercise only ordinary care in the performance of this duty were therefore properly refused, and the instructions given were sufficient and appropriate.”
(See, also, Prindle v. Fletcher, 39 Vt. 255; Burns, Adm’x v. The Town of Elba, 32 Wis. 605, citing Ward v. The Town of Jefferson, 24 id. 342.)
Under these authorities the township is under the absolute duty of seeing that the highway is kept in reasonably good condition for travel—free from de-, fects, but the question of what constitutes a defect is to be determined by the jury in view of all the circumstances of the case, so that the township is protected against immoderate requirements. Its liability is determined by the results accomplished, rather than by the diligence exercised. There are many decisions that a showing of reasonable' care is a good defense to an action for damages resulting from a defective highway, but for the most part they are made in cases in which the plaintiff claimed under the implied liability of municipal corporations proper, or under statutes very different from the one here involved.
Frequently the entire discussion of. diligence is a consideration of the question of notice, the defendant being held accountable only when reasonable care would have resulted in the discovery of the defect. In Kansas the matter of diligence has no connection with that of notice, the statute being interpreted to require actual notice (Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010), and under some circumstances actual notice not alone of the physical conditions but of the fact that they resulted in making the highway unsafe. (McFarland v. Emporia Twp., 59 Kan. 568, 53 Pac. 864.) In the present case, where the object claimed to constitute a defect was of so usual a character, was not upon the traveled portion of the road, and presented no interference with travel as an actual obstruction, being dangerous, if at all, only by virtue of its alleged tendency to frighten passing horses, we think the same rule is applicable, and that, in order for the plaintiff to recover, he must show that the trustee had notice not only of the existence and location of the stone but also of the fact that it was a menace to the safety of travel. It is not essential to the township’s liability that the trustee should have actually known, or even believed, that the stone as situated was likely to occasion runaways, but it is necessai’y that he should have had his attention directed to it.in that connection—that he should have had knowledge that the safety of the highway in that respect was questioned, or was subject to question.
The following instruction was also given :
“If the stone in question was of such character in appearance that an officer having charge of the highway, in the exercise of ordinary care, caution, and prudence, would not have considered it such an obstruction as was naturally calculated to frighten horses and mules of ordinarily gentle disposition, then, in that case, the township cannot be held liable in this case.” •
This instruction is objectionable for the reason already stated, and because it in effect substitutes the.judgment of the township officers for that of the jury upon the vital question whether the stone was an obstruction, within the meaning of the statute.
Another instruction was given that if there was a defect in the highway, and the plaintiff knew of it, he “was required to use more than ordinary care and caution to avoid the accident.” This is an inaccurate statement. It was said in the instructions of, the trial court, approved in Falls Township v. Stewart, 3 Kan. App. 403, 408, 42 Pac. 926:
“Such knowledge only requires an increased caution and diligence to avoid injury. In other words, although a person is required to exercise only ordinary care and prudence, yet such care and prudence must be commensurate with the necessities of the case, and maintain a constant level with the dangers of the situation.”
In volume 15 of-the American and English Encyclopedia of Law, second edition, at page 470, it is said, citing, among other cases, City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217:
“The knowledge of the defect, however, though it renders greater vigilance necessary, does not impose on the plaintiff the duty of exercising more than ordinary care as determined by the circumstances of the particular case, and it is therefore error to require the jury to find that the plaintiff exercised extraordinary care.”
An instruction reading as follows was requested and refused :
“When objects ordinarily calculated to frighten ordinarily gentle horses or mules are placed and suffered to remain in the public highway, they are regarded as defects in the highway, and the township wherein-such road or highway is situated is liable for injuries caused thereby after the trustee of such township has liad five days’ actual notice of such defect, prior to such injury.”
This is an incorrect statement of the law, in that it would render the township liable for the existence of all objects in the highway that might frighten ordinarily gentle horses. Such objects may be conceived, the removal of which would be impracticable, or even impossible. Many necessary, useful or convenient appliances—for instance, telephone- or telegraph-poles— located in the highway, might have the effect stated. Other objects might serve a temporary purpose, or be left in the highway for some incidental reason—as during repairs—without rendering the township liable. (15 A. & E. En’cycl. of L., 2d ed., 444.) Some of these considerations doubtless have no application to the present case, but, as already stated, the object in question is not to be deemed a defect, within the meaning of the statute, unless it be found to be, in view of all the circumstances of the case, such as the township should not have permitted to remain in the position it occupied. The instruction asked, in order to have been unobjectionable, should have been limited to objects so suffered to remain in the public highway without sufficient reason or excuse.
. For the errors noted the judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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Per Curiam:
The appellant was charged with, and convicted of, a violation of the prohibitory law (Gen. Stat. 1901, §§2451-2500), in two counts. The evidence upon which he was convicted indicated that he was what is commonly known as a “boot-legger.” Upon the request of the witnesses, and the giving to him of money by them therefor, he procured and brought to them intoxicating liquors.
The court charged the jury that the law provides that any shift or device to evade its provisions shall be deemed an unlawful selling, within the provisions of the prohibitory act (Gen. Stat. 1901, §2467). Objection is made to this for the reason, in the language of appellant’s brief, that “the defendant was not on trial for any shift or device, but. for an unlawful selling.” This, with some cognate questions relating to the introduction of evidence, is urged as error with an apparent degree of seriousness; it, however, lacks substance.
Another ground of error, equally diaphanous, is that the court did not tell the jury what constituted a sale. No such instruction was requested, nor was it required. The meaning of the word “sale,” in this connection, is too well known to require explanation.
Again, complaint is made of the giving of the following instruction:
“The state has elected to ask for a conviction of the defendant on the testimony of certain witnesses, and if the defendant is convicted by the jury it must be upon the testimony of those respective witnesses and on the particular count which the jury believe, beyond a reasonable doubt, that the evidence of such witnesses sustain.”
The objection urged is .that this only required the jury to believe, beyond a reasonable doubt, that the evidence sustained to some extent the charge upon which the state elected to try the defendant. We think this criticism is hypercritical. The court elsewhere instructed the jury that the prosecution must prove the sales charged beyond reasonable doubt or the jury should find the defendant not guilty, and we think that the language used in the criticized instruction was substantially the same.
We find no error in the entire case, and, hence, the judgment is affirmed. | [
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The opinion of the court was delivered by '
Greene, J. :
This is a proceeding in error to reverse a judgment in favor of the city in an action brought by Rufus Richardson, as trustee of the estate of Salina Williams. The petition alleges that prior to the beginning of this action two of the city’s policemen threatened to arrest Salina Williams, Agnes Gerry, Blanche Wheeler, Viola Thomas and one other, and threatened to, and were about to, incarcerate plaintiff and the others in the city jail; that the policemen informed plaintiff that if she would pay to H. W. Pratt, the police judge of said city, $107.50 she and the others would not be arrested ; that to avoid being arrested and incarcerated in the city prison she gave her check for $107.50 to said policemen, payable to H. W. Pratt, police judge; that the check was'delivered to Pratt as police judge and by him collected. It appears that Salina Williams was the keeper of a bawdy-house and the other persons named were inmates ; that the two policemen raided the house in the night-time and arrested and threatened to take these persons to the city prison until morning; that the check was given as security for their appearance before the police court on the next morning; that they failed to appear and the check was cashed. The city justified under an ordinance which fully authorized the policemen to accept money to secure the appearance of persons arrested after business hours.
We think, however, that that part of.the ordinance which authorizes the policemen to let persons to bail and accept a money deposit in lieu of bond is void, because the city has no power to confer such authority upon a marshal or policeman. Section 1034 of the General Statutes of 1901 prescribes the procedure which, must be followed in all cases of arrest for the violation of a city ordinance. It reads :
“When any person shall be arrested- and brought before the police judge, it shall be his duty to hear and determine the complaint alleged against the defendant forthwith, unless for good cause the trial be postponed to a time' certain; in which case he shall require the defendant to enter into a recognizance with sufficient surety, conditioned that he will appear before the said judge at the time and place appointed, then and there to answer the complaint alleged against him, and if he fail or refuse to enter into such recognizance, the defendant shall be committed to prison and held to answer said complaint as aforesaid.”
It was held in Applegate v. Young, 62 Kan. 100, 61 Pac. 402, that a justice of the peace could not accept a deposit of money in lieu of bail or as a substitute for a recognizance. A city council cannot by ordinance confer authority on the police judge to accept a deposit of money in lieu of a recognizance or bail. No such authority is granted it. Such an ordinance would be inconsistent with the statute above quoted. “The council shall have power . . . to enact and make all such ordinances, by-laws, rules and regulations not inconsistent with the laws of the state as may be expedient.” (Gen. Stat. 1901, § 1008.)
That part of the ordinance under which the policemen were acting is void for the reasons stated; Therefore, the judgment of the court below is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
Upon the application of plaintiff in error, February 25, 1902, the judge of the district court at chambers extended the time for making and serving a case “to the 15thday of March, 1902.” The case was served on the 15th day of March, 1902. Defendant in error has moved to dismiss the proceedings in error from this court on the ground that the time allowed by the district judge for making and serving the case had expired when service of the same was made. The determination of this question calls for the meaning of the word “to” as used in the order of the judge extending the time for making and serving the case.
Bouvier’s Law Dictionary defines the word “to” as “ a term of exclusion, unless by necessary implication it is manifestly used in a-different sense.” Substantially the same definition is given in the American and English Encyclopedia of Law. In the following cases the word “to” has been used and applied as a term of exclusion : State v. Libby, 84 Me. 461, 24 Atl. 940; Stearns et al. v. Sweet et al. 78 Ill. 446; Wells v. Iron Company, 48 N. H. 491; Schumacker v. Toberman, 56 Cal. 508; People, ex rel. Burnham, v. Jones et al., 112 N. Y. 597, 605, 20 N. E. 577.
The court of appeals, in the case of Carden City v. Bank, 8 Kan. App. 785, 60 Pac. 823, held that an order of the trial judge extending the time for making and serving a case “to March 22,” expired March 21 at midnight. In the case of The People v. Robertson, 39 Barb. 9, the court, in passing upon the question of the termination of a lease of premises “from the 1st day of May, 1856, to the 1st day of May, 1862,” held that the sublessee’s rights under the lease expired at twelve o’clock midnight on the 3Qth of April, 1862.
Webster recognizes the words “to,” “till” and “until” as synonymous, in the sense here used. The Century Dictionary gives a like recognition to their use. This court held, in the case of Croco v. Hille, 66 Kan. 512, 72 Pac. 208, that the service of a case on June 20, under an order which allowed “until June 20” to make and serve a case for this court, was made after the time granted had expired. In the case of The State v. Dyck, recently decided by this court, 68 Kan. 558, 75 Pac. 488, it was said that where appellant was given “until May 4, 1903, within which to prepare and have settled a bill of exceptions” the time given expired May 3. The word “to,” as used in the order of extension, is a term of exclusion, and excluded the 15th day of March. The time granted by the order of extension for serving a case expired at 12 o’clock midnight, March 14.
The case-made was not served in time, and the motion of defendant in error must be sustained. The proceedings in error will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
In the year 1888 Isaac C. Stuck died intestate, owning and occupying as a homestead the land in controversy, situated in Johnson county, a tract containing 160 acres. He left, as his only heirs, a widow, Elvira D. Stuck, and seven children, four of them minors, the oldest four being children by a former wife. The widow was appointed administratrix, and the claims of creditors were presented and allowed against the estate by the probate court. The administratrix sold the personal property, the proceeds, after the payment of the expense of administration, being sufficient to pay only 22\ per cent, on claims of the fifth class. There was no real estate but the homestead. The administratrix made final settlement and was discharged in December, 1891. Some of the children, upon attaining their majority, sold and executed deeds of conveyance to their respective interests in the premises. The widow and those of the children who had not sold their interests therein made several attempts to do so. Upon each occasion when there had been found a purchaser for their interests, one or more of the creditors whose claims had been allowed against the estate, by claiming an interest, present or prospective, in the premises, as a creditor of the estate, would defeat the sale.
This action was brought by the widow and the children still owning interests in the premises, and by the grantees of the children who had conveyed their interests, who were joined as plaintiffs, against the creditors of the estate whose claims had been allowed by the probate court as demands of the fifth class, to quiet the title of plaintiffs against the claims of such cred itors. The court rendered judgment for plaintiffs, and defendants bring error.
It was claimed by plaintiffs that the premises had continued to be occupied by the widow and minor children and were impressed with the homestead character, and for that reason defendants had no interests therein and could acquire none; and that, if the premises had ceased to be impressed with the homestead character, defendants could have had no claim therein or lien thereon for the reason that the demand of each of the defendants against the estate had become barred by the statute of limitations. Each of the defendant creditors who asserted an interest in his answer expressly denied a present interest in the premises, or a right to enforce his claim against the premises at that time. It was urged by defendants that plaintiffs could not maintain an action to quiet title; that if plaintiffs were entitled to maintain such action, it could only be for such time as the widow and minor children continued to occupy the premises and the premises continued impressed with the homestead character ; that the widow and minor heirs were likely to abandon the premises at any time ; that the plaintiffs who were grantees of the heirs were never in the occupancy of the premises and could not maintain an action to quiet title against defendants ; that if the claims of defendants were barred by the statute of limitations, then, before plaintiffs could ask equity, they must do equity, and discharge the demands of defendants. The court made findings of fact and conclusions of law, finding that the premises in controversy had been occupied by the widow and her minor children at the time of the commencement of the action ; that, as to the widow and minor children, the premises were impressed with the homestead character; that the premises had never been abandoned as a homestead ; that the interests of the plaintiffs and defendants claiming by deeds of conveyance from the heirs of Isaac C. Stuck, deceased, were acquired while the . premises were impressed with the homestead character. The judgment barred the defendants claiming as judgment creditors of the estate “from setting up or claiming any right, title or interest of, in or to said lands herein, as long as the same shall be occu.pied as, and impressed with the character of, a homestead.”
If the defendants claiming as creditors of the estate had, as claimed by each in his answer, a prospective interest in the tract in controversy, and whether they had or not we do not here determine, they were not prejudiced by the judgment of the trial court. Each , in his answer expressly denied a present interest in the premises, or a right to enforce his claim against the premises at the time of filing such answer. The judgment of the court barred each of the defendant creditors from setting up or claiming any rights in the premises so long as they should be impressed with the homestead character and so occupied. It is apparent that the defendants, in their claims against the premises, if any they had, were not prejudiced by the judgment rendered, and hence the errors assigned become unimportant and will not be discussed.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The meritorious question here involved is whether, in the final notice of redemption, the inclusion of a printer’s fee of twenty-five cents and a county treasurer’s fee of five cents in the amount necessary to redeem lands sold for taxes is sufficient to avoid a deed issued in pursuance of such sale, if attacked before the running of the statute of limitations in its favor.
The statute relating to this final notice (Gen. Stat. 1901, § 7671) provides that it shall contain “ a list of all unredeemed lands and town lots, describing each tract or lot as the same was described on the tax-roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest calculated to the last day of redemption, due on each parcel, together with a notice that unless such lands- or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the purchasers.” The effect of this notice is to warn the owners of lands sold for taxes that they must redeem by a time certain, and that such redemption will be at a cost therein indicated. The items of cost of advertising and fee of the treasurer for making the lists are not by this statute to be included in the amount so designated. These statutory provisions, cutting off the original title as they do, must be substantially followed. If there may be included in this advertisement a substantial amount more than is warranted by the statute, then a larger and very excessive amount may be so included, and the owner, looking upon this final notice, might well conclude that he preferred to permit his title to be defeated by this proceeding rather than to pay the amount which this notice says must be paid to redeem. Upon this particular point it was said, in Gasner v. Gahlman, 6 Kan. App. 295, 298, 51 Pac. 56:
“The notice required should state ‘description of the land as described on the tax-roll,’ the ‘name of the person to whom assessed,’ the ‘amount of taxes charged, and interest to the last day of redemption.’ The requirements of the statutes in this respect are mandatory and not directory merely, and such error invalidates the notice and renders voidable the deed.”
We think the action of the trial court in the case at bar in so holding was correct.
Plaintiffs in error think that the case of Watkins v. Inge, 24 Kan. 612, is opposed to this view, but we do not so read it. That was a case where the redemption notice failed to state an amount largo enough, the tax for one year being omitted. It did, however, plainly state that the tax of the given year was omitted, and the court held that any person wishing to redeem could easily ascertain the amount of. the taxes for the year omitted—undoubtedly because they were thus notified. The added remark, that “no redemption was attempted or any offer to redeem made,” was simply arguendo, as no attempt or offer was required as a prerequisite to the maintenance of an action like this. (Babbitt v. Johnson, 15 Kan. 252; Coe v. Farwell, 24 id. 566.)
Complaint is made that an amendment to the petition was permitted to be filed several months after the trial was had. It appears, however, that the court found that the amendment in question was permitted by the court, actually handed to the clerk upon the trial, and then used as a basis for the introduction of evidence. This being so, the court might well permit the formal indorsement of the filing date nunc pro tunc.
After the introduction in evidence of the redemption notice the treasurer was asked to state if, from his own knowledge, he could say whether the excessive charges complained of were embraced in the amount specified in the notice as being necessary to redeem, and he was permitted, over the objection of the plaintiffs in error that such oral testimony was not the best evidence, to state that they were. "We find no material error in this. It was shown that he had made up these lists for the printer; that he had personal knowledge of the items which went to make up the amount in question. It did not appear that these items were found in any of the books of the treasurer’s office. To be sure, by an examination of those books it could have been ascertained that the legitimate items there appearing were not sufficient to make up the amount found in the advertisement, and, from a calculation, the inference might have been drawn that these unauthorized items were contained in the amount shown by the advertisement; yet we hardly think that such a showing and such a calculation would have been better evidence than the statement of the treasurer, who had full knowledge of the facts.
The averments of the petition are many and prolix— unnecessarily so ; but they show that the plaintiff was the owner of the land in dispute in fee, and that the defendants had obtained and put on record tax deeds thereto, which are alleged to be void. It contains no averments as to possession, but has allegations warranting general equitable relief, and prays that plaintiff’s title be quieted. The answer, however, sets'out that the land is vacant and unoccupied. The reply generally and specifically denies the allegations of the answer. Under this condition of the pleadings the plaintiff could have his title quieted. (Gen. Stat. 1901, § 7682; Douglas v. Nuzum, 16 Kan. 515.)
At the commencement of the trial the plaintiff brought into court, and made tender of, money sufficient in character, and, as he claimed, sufficient in amount, to extinguish defendants’ tax lien. This was refused, and the litigation as to the validity of the tax deeds, as well as to the amount of the tax lien, proceeded. As seen above, the court correctly adjudged the former against the defendants, but found the amount of the tax lien to be greater than the amount tendered. The court, however, adjudged that the defendants pay all costs made after the tender. The plaintiffs in error, defendants below, suggest this as error, claiming that, as the amount tendered was not sufficient to extinguish the tax lien, the entire costs should have been taxed to the plaintiff. It must be remembered that the amount of the lien was opt the only question being litigated; the question of title, dependent upon the validity of the tax deeds, was in contention until the end. It is not at all certain that the defendants ought not to have been taxed with all the costs, in view of this. Why, in dividing the costs, the court chose as a divisional point the time of the tender is not apparent; it was certainly an arbitrary division, and, so far we can see, had no logical application to the matter, if the costs were to be divided at all; but, if divided, the division thereby fixed may have been as equitable and fair as .any that could have been made ; at least,, we do not think it was one of which the defendants can complain.
■ The judgment is affirmed.
■ All the' Justices concurring. | [
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The opinion of the court was delivered by '
Greene, J. :
The plaintiffs were the owners of certain lots abutting upon Main street in the city of Atchison, between Fifth and Fifteenth streets. In. 1902 the mayor and council adopted a resolution authorizing the grading of said Main street between Fifth and Fifteenth streets, entered into a contract ■therefor, and levied a special assessment upon the abutting property to pay the cost. The plaintiffs commenced this action to restrain the city and its mayor and council from making such assessment, from issuing improvement bonds, and from certifying such assessment to the county clerk. The plaintiffs based their right to an injunction on the ground that the resolution passed by the city council authorizing the grading and the levy of the special assessment to pay the expense thereof was unauthorized, because the owners of the adjoining property had not requested the mayor and council, by petition, to do so. The petition alleged that no petition, signed by the property-owners upon said street, was presented to the mayor and council asking that such improvement be made and that the cost thereof be levied as a special assessment upon their property. To the petition the defendants filed a general demurrer. For the purpose of raising the question, it was admitted that the city of Atchison was a city of the first class, with a population of less than 25,000 inhabitants. The court sustained the demurrer, and rendered judgment for costs against the plaintiffs, who bring bring this proceeding in error.
The only question for our determination is whether the mayor and council had the power to grade the street and levy a special assessment upon the abutting property without first having been requested so to do by a petition signed by the owners of the property abutting upon such street. It appears to have been the policy of the state to withhold from the mayor and council of cities of the first class the power to open, widen or grade any street or alley, and levy a special assessment upon abutting property to pay the expense or cost thereof, without having been re quested so to do by a petition signed by the owners. In section 4 of chapter 99, Laws of 1887, the provision, reads :
“Provided, that in case a' petition of a majority of the resident property-owners of a majority of the front feet on any street, or part thereof, shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof, at the cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall there-' •after have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved. ...”
This provision was reenacted in section 6 of chapter 73, Laws of 1891, and again in section 1 of chapter 274, Laws of 1895. In 1899, however, this policy was changed in so far as concerns cities of the first class with a population of less than 25,000 inhabitants.' Section 1 of chapter 81, Laws of 1899, entitled “An act in relation to cities of the first class, and to repeal chapter 274 of the Laws of 1895,” reads :
“ When the mayor and council shall deem it necessary to curb, gutter, pave, macadamize, or grade, or recurb, regutter,repave,remacadamize,or regrade, any street, lane, avenue, or alley, or any part thereof, or build or construct any sewer, within the limits of the city, for which a special tax is to be levied, such mayor and council shall by resolution declare such work or improvement necessary to be done ; and such resolution shall be published for six days in the official paper of the city if the same be a daily, or for two consecutive weeks if the same be a weekly ; and if a majority of the resident owners owning a majority in square feet of the lots or real estate liable to taxation therefor shall not within twenty days thereafter file with the clerk of said city their protest in writing against such improvement, then such mayor and council shall have power to cause such improvement to be made, and to contract therefor, and to levy taxes as provided by law, and the work may be done before, during or after the collection of the special assessments, as may be deemed proper by the mayor and council; but none ■of the provisions of this act shall prevent the mayor and council from grading or regrading any street, lane, ■or alley, or part thereof, and pay therefor out of the .general-improvement fund of such city; provided, ’that in cities of the first class having a population of ■over 25,000 no resolution to pave, macadamize, or ¡grade, or repave, remacadamize, or regrade, any street, ■lane or alley shall be valid unless a petition asking ■such improvement has been ordered spread upon the journal, which petition must be signed by the resident ■owners of not less than one-half of the feet fronting or ■abutting upon such street, lane or alley to be improved ; and provided further, that the feet fronting or abutting upon such street, lane or alley owned or held by persons not residents of said city shall not be taken into account in determining the sufficiency of any such protest or any such petition. In case of paving, such petition shall state the width of the paving, and a specific description of the material to be used.”
It is quite apparent that the legislature intended that all cities of the first class with a population of less than 25,000 might dispense with the petition as a condition precedent to the power of the council to pass a resolution authorizing the grading of streets and the levy of a special assessment upon the abutting property to pay the expense. The reason for removing this limitation on the powers of the mayor and council in cities with less than 25,000 inhabitants, and continuing it on such officers in cities having a population of more than 25,000 inhabitants, is not quite clear.
Plaintiffs in error contend that section 4 of chapter 99, Laws of 1887, which requires such petition, has not been repealed, and, therefore, the special assess ment in this instance is void. Without deciding this question, but conceding that it has not been repealed, what does it avail the plaintiffs in error ? The act of 1889 excepted from the provisions all cities with a population of less than 25,000 and limited the necessity for such petition to cities with a population of more than 25,000. The city of Atchison is within the exception. Sections 7 and 8 of chapter 73, Laws of 1891, conferred authority upon the mayor and council of all cities of the first class to grade streets and alleys and levy a special assessment upon the abutting property to pay the expense. Possessing this power by legislative grant, the mayor and council of the city -of Atchison had the power to grade its streets and levy a special assessment upon the abutting property without being requested so to do by a petition signed by the owners of such property.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
La Harpe is a city of the third class. On June 25, 1901, the mayor and council of the city granted to C. L. Evans, his successors and assigns, the right to use the streets, alleys and public grounds for the erection and operation of machinery for drilling for oil, gas, or water, and to lay and maintain necessary pipes and appliances to convey oil, gas or water to manufacturing plants within a radius of one and one-half miles of the city hall.- Evans drilled a well in the city and obtained a large flow of gas, and in January, 1902, sold and transferred his interest in both the well and franchise to A. B. Cockrell, who, in May, 1902, sold and transferred his interest to the Elm Township Gas, Light, Fuel and Power Company. In August, 1902, the gas company initiated proceedings to condemn a right of way for a pipe-line from its well in La Harpe to manufacturing plants and to a plant in the city of Gas, which is two and one-half miles away. Commissioners were appointed and condemnation was made and completed October 20, 1902, substantially in the manner that is provided for in the condemnation of a right of way for a railroad. No compensation was awarded for the right to use the streets and alleys of La Harpe, but satisfactory arrangements as to compensation appear to' have been made with owners of private property over which it was proposed to lay the pipe-line.
On November 17, 1902, the gas company undertook to excavate for the laying of pipes in an alley of the city, but the city officers caused the arrest of the men engaged in the work, and by threats of violence prevented its continuation. The gas company then prepared a notice and served it on the officers of the city, setting forth its purposes with respect to the laying of pipes, its claimed rights under the law, the previous interference with the work, that it was about to resume operations on the pipe-line, and warning them not to interrupt the work again, nor to molest the men who would be engaged in it. Later, and on November 24, 1902, efforts were made by the gas .company to excavate and lay the pipes, but the officers of the city, claiming that the company had no right to lay pipes in the streets, alleys or public grounds of the city, again interfered and stopped the work. It appears that ordinances were passed purporting to repeal the franchise granted to Evans; also, providing that no one should lay pipes in the streets or alleys for the purpose of conducting oil, gas or water until a franchise had been obtained from the city, and finally declaring that it was unlawful and a misdemeanor so to excavate without obtaining a right from the city. When the gas company was thwarted in the second effort, this proceeding was brought to enjoin the officers and agents of the city from preventing or interfering with the operations of the company in laying the pipes. The gas company claimed a right to use the streets, alleys and public grounds of the city for piping gas, first, under .the ordinance of the city previously passed, granting Evans, his successors and assigns, the privilege, and, second, under the statutes and the condemnation proceedings had under them. The trial court sustained the second claim of the gas company and awarded an injunction against the city and its officers.
Sincedhe trial court did not base the injunction allowed on the franchise originally granted by the city to Evans, which was set up in the first count of the petition, no further attention need be given to that feature of the case. The questions for consideration are: (1) Do the statutes confer upon corporations like the gas company authority to lay pipes in the streets, alleys and public grounds of a city for the purpose of conducting gas to consumers ?' (2) Did the gas company conform to the statutory requirements ? The production and distribution of natural gas for light, fuel and power affect the people generally to such an extent that the business may be regarded as one of a public nature, and is almost, if not quite, a public necessity, the control of which belongs to the state. It was therefore competent for the legislature to provide for the laying of pipes and mains in streets and other highways in order to transport gas to consumers, and for such purpose there may be an appropriation of private property under the sovereign power of eminent domain. (10 A. & E. Encycl. of L., 2d ed., 1085, and cases cited; 14 id. 916.) The legislature has provided for the appropriation of land for the purpose named; and in the same act conferred upon corporations organized for such purpose the privilege of laying pipes through any street, alley or public ground of any city of the second or third class. (Gen. Stat. 1901, § 1366.)
The city attacks the validity of the act conferring the power because it contains subjects not embraced or properly expressed in its title. The title of the act as originally passed was “An act concerning private corporations,” and was intended to comprise within a single chapter the entire body of the statute laws concerning private corporations. (Gen. Stat. 1868, ch. 23 ; Gen. Stat. 1901, § 1245 et seq.) In section 88 of that act it was provided that lands might be appropriated for the use of macadam, plank-road and telegraph corporations in the manner provided for railroad corporations, so far as the same was applicable. Later, this section was so amended as to include hydraulic corporations. (Laws 1871, ch. 64.) In 1876 it was again amended by including irrigating corporations and making provision for conducting water and the transmitting of water-power. Authority was there given to lay pipes and other appliances through any street, alley or public ground of any city of the second or third class, with the provision ‘ that no such canal shall be located through any street or alley or public ground of any city without the consent of the municipal authorities thereof.” (Laws 1876, ch. 58.) The legislature of 1891 extended like authority to milling and other manufacturing corporations, and made additional provisions with reference to conducting water, electricity, compressed air, and the transmission of power generated by the corporations, but retained the features with reference to the occupation of streets, alleys and public grounds, and also the requirement of consent of the municipal authorities to the location of a canal or raceway through any street or alley. (Laws 1891, ch. 85.) In 1899 the section was again so amended as to include corporations organized for the piping of gas, likewise authorizing the laying of pipes through the streets, alleys or public grounds of a city of the second or third class, but prohibiting any corporation from piping or carrying natural gas beyond the limits of the state. (Laws 1899, ch. 95.) In 1901 the provision was again so amended as to include hospital corporations, but preserving the general features of the section. (Laws 1901, ch. 128 ; Gen. Stat. 1901, §1366.)
The title to the original act is general, and is sufficiently broad to cover provisions as to the powers of private corporations and the manner in which these powers may be exercised. Although the act embraces a great variety of matters, all of them are germane to the subject of private corporations; and this title has been approved in Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kan. 181. Each of the amendatory acts referred to is entitled as amendatory of the preceding one, and introduces no subject that is not germane to the title of the first act. None of the acts can be held invalid because of the insufficiency of its title.
In this statute the privilege of laying gas-pipes in the streets, alleys and public grounds of cities of the second and third class is directly conferred on corporations organized to produce and distribute gas. The power to confer the privilege and to prescribe the conditions upon which it may be exercised .is not delegated to the city, nor is its consent required. In the section questioned, the legislature, after providing for the condemnation of a right of way for canals, race-ways, and pipes, as well as shafting, belting, pulleys-, and wires, through streets, alleys and public grounds of cities, added “that no such canal or race-way shall be located through any street or alley or any public ground of any city without the consent of the municipal authorities thereof.” ■ (Gen. Stat. 1901, § 1366.) In effect, this was a declaration that the consent of the city was not necessary to the exercise of any of the other uses mentioned. Having the question of municipal consent under consideration in the conduct of water by canals and raceways, of gas and air by pipes, of electricity by wires, and the transmission of power by shafting, belting and ropes through the streets, alleys, and public grounds, it made the consent of the municipality essential only as to the conduct of water in canals and raceways, and by the clearest inference indicated that such consent should not be necessary in any other case.
It is argued with much force that the interests and safety of the public would be better subserved if excavations could not be made, and pipes could not be laid, in the streets of a city except with the consent and under the supervision of municipal officers. If we were acting in a legislative capacity we might readily agree with this claim, but that is a matter for the determination of the legislature alone, which, as has been said, is the “master of its own discretion.” In the control of the streets and highways the power of the legislature is supreme and unlimited, except so far as it may be restricted by constitutional provisions. The general statutes relating to the government of cities generally place the power to lay out and improve streets and public grounds, and to regulate their use, in municipal officers, but that is a power which the state may exercise either directly or through one of its agencies. In placing the control of streets and public grounds in cities, the legislature surrendered none of its own power, nor did it vest any rights in such cities as against the public. A city is a creation of the legislature — a subordinate agency of the state, which exercises only such power as the legislature confers, and for such period of time as the legislature in its discretion determines. The state gives, and the state can take away ; and the legislature is at liberty to resume so much of the control of the streets and alleys and public grounds formerly exercised by the city as it deems best, and this without obtaining the consent of either the officers or the inhabitants of the city. (Ell. Roads & St., 2d ed., §421.)
The permission of the city of La Harpe was, therefore, not necessary to the’privilege of laying gas-pipes through the streets and”alleys, nor could it impose any conditions upon a corporation availing itself of the statutory right. The occupancy of the streets, however, is not wholly unrestricted. The privilege must be exercised with a care for the safety and convenience of the public, and the pipes laid in such a way as to do as little damage as possible, and impair as little as possible the use of the streets and alleys while the work is in progress; and when the pipes are laid the streets and alleys should be restored to their former condition. While the city cannot confer or withhold the privilege, it may be that reasonable regulations may be prescribed by ordinance looking to the safety of travelers and the protection of the public while the work is in progress. Then, again, if the privilege be abused and the rights of either public or private parties trenched upon, a resort may be had to the supervisory power which courts can exercise for the protection of either public or private interests. If municipal consent be so essential to the public welfare as is contended by counsel for plaintiff in error, an appeal may be had to the legislature, which has ample authority to place upon the exercise of the privilege conditions other than those which now exist.
There appears to have been substantial compliance with the statutory requirements. Attention is called to the fact that no compensation was awarded for the right to use the streets and alleys, but this does not affect the validity of the statute. The fee of the streets and alleys is in the public, and the legislature, which represents the public, and has unlimited control of the streets and alleys, may grant a privilege or franchise in them without providing for the payment of compensation. (O. O. C. & C. G. Rld. Co. v. Larson, 40 Kan. 301, 19 Pac. 661, 2 L. R. A. 59; 10 A. & E. Encycl. of L., 2d ed., 1133.)
Injunction was a proper remedy to prevent the defendants from interfering with, and hindering, the company in its work. The city assumed that the company had no right except such as it might grant, and the interference and arrests that were made were for the purpose of preventing the exercise of a privilege which the statute conferred. The fact that the interference and obstruction to some extent took the form of criminal arrests and proceedings could not deprive a court of equity of the right to exercise its jurisdiction to protect property and property rights. (The City of Atlanta et al. v. The Gate City Gas Light Co., 71 Ga. 106.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to set aside a deed conveying land from father to son.
The plaintiff’s petition alleged undue influence and duress on the part of the son and his agents, operating upon the father. It recited:
“The said defendant hired and persuaded certain men, viz.: Henry Chandler, Warren Russell, J. B. Lamb, and others whose names are unknown to this plaintiff, to persuade and help defendant and persuade and coerce said David Blanton to sign and execute an instrument of writing. . . .
“That said defendant and said men above named did in the month of December, 1920, and while said David Blanton was in a weak and feeble state of mind and body, use undue influence and duress to persuade and force said David Blanton to sign and execute said instrument of writing or said deed.
“That for several weeks just preceding the 27th day of December, 1921, said defendant and said men intimidated, nagged at, argued with and worried said David Blanton.”
Issues were joined; and in the plaintiff’s opening statement the following admission was made:
“Now, the plaintiff is not claiming that the old man was insane. The plaintiff is claiming that the old man was enfeebled in mind and that he was very much subject to the influence of William as any weak, any feeble, sick old father would be and especially—
“The Court: You mean you don’t claim he was so mentally feeble that he was not — did not have the capacity to make a contract?
“[Counsel for plaintiff.] . . . Judge, we are not claiming the old gentleman didn’t have the capacity to make the deed at the time he made it, but we do claim that he made this deed on account of his feeble condition and being persuaded, coerced and intimidated by these men, and we do—
“[Counsel for defendant] Do you admit he had the capacity to make the deed at the time he made it?”
“[Counsel for plaintiff] Yes.”
In the cross-examination of a witness touching the grantor’s mental capacity, plaintiff’s counsel made an objection, and the court ruled:
“I hardly see how his mental incapacity to make a contract is in this case. It is in the record here that it is not claimed by the plaintiff that he was at the time this deed was made, and I am going to accept that for the purpose of this case.
“[Counsel for defendant] Well, with that view of it we don’t care to cross-examine, but they have been presenting testimony that they—
“The Court: I take the plaintiff at their word that they didn’t claim that.”
The trial court made findings of fact, the most significant of which are the following:
“10. At the time of making.said deed, David Blanton was 85 years old, though weak in body and mind, had just recovered from an attack of pneumonia from which he was not expected to survive, also crippled from a paralytic stroke suffered in 1918 and greatly bereaved from the recent, death of his wife had sufficient mental capacity to make a contract or gift disposing of his property.
“11. Defendant, William Blanton, when on the witness stand was asked two or three questions by the court in regard to the consideration of the deed in question and in the answer to said questions, he in substance stated that he was to keep and take care of his father for the balance of his life time. Said questions by the court and the defendant’s answers to the same are not shown or given in the reporter’s transcript of the evidence in the case to show that as consideration for said deed, the defendant agreed to care for and keep his father for his life time, and I find that said promise by the defendant was and is the sole and only consideration for said deed.
“12. There is no evidence to show that at the time the deed in question was executed Evan Adam, Dr. Woodmansee or J. B. Lamb used or exercised any undue influence or control over David Blanton and by which he was induced to execute said deed. I find the fact to be that shortly prior to the execution of said deed, to-wit the day before said deed was executed, the defendant by undue influence and control exercised over his father, induced him to execute said deed and that he for some time prior thereto, and thru his agent and friends of his father used undue influence over his father and thereby leading him to execute said deed. That the act of David Blanton in the execution of said deed was not his voluntary and willing act. He executed said deed because of the continual nagging, argument, persuasion, pressure of William Blanton and his agents and because of which in his weakened and feeble condition he could not resist.
"conclusions of law.
“1. In the making of the deed in question and as a part of the same as a consideration for said deed, William Blanton promised and agreed to keep and care for his father, David Blanton, during the rest of his lifetime.
“2. The act of David Blanton in executing the deed in question was not his free and voluntary act. He was unduly influenced to execute the same by William Blanton, his agents and friends.
“3. That the deed in question was wrongfully obtained and that the same should be set aside and held for naught.”
Pursuant thereto, judgment was entered for plaintiff and the deed was set aside.
Défendant’s principal contentions on appeal are that the adverse part of finding No. 12 was not supported by the evidence, and that the evidence did not justify the second and third conclusions of law nor the judgment entered pursuant thereto.
We begin our task of verifying the accuracy of these contentions with the plaintiff’s admission of the father’s mental capacity, and with the trial court’s findings 10, 11, and the first part of finding 12, which are favorable to defendant — the father’s conceded mental capacity, the court’s recital of the unreported testimony of the son showing the consideration for the conveyance, and the court’s exoneration of Adam, Doctor Woodmansee and Lamb from the charge of undue influence. The next part of finding No. 12 is “that the day before said deed was executed the son by undue influence and control exercised over his father induced him to execute said deed.” Defendant says that this finding has no support in the evidence, and after a searching perusal of the defendant’s abstract of 87 pages, the accuracy of which is not challenged, we are constrained to hold that this contention is correct. Neither the day before the deed was executed nor at any other time shown by the record presented to us did the son himself exert any undue influence over his father, nor any influence except of the most commendable sort — his long-continued, filial attention to his father and mother in the growing infirmities of their old age, even to the neglect of his own family and his private business. Indeed this is in accord with the trial court’s finding No. 5:
“5. . . . Since May, 1918, it has been necessary at all times for someone to live with and take care of David Blanton, and while she lived, his wife. The work of taking care of the father and mother since May, 1918, has been divided between the four children, but because of the fact that John and James lived on the Pacific coast the major portion^fell on William and Mrs. Linn, and as between these two, the major portion fell on William. William Blanton lived with his father and mother in Dunlap for about a year prior, to the execution of the deed in question, and during that period of time with the help of a nurse who was constantly present, took care of his father and mother.”
But finding No. 12 is also to the effect that the defendant “thru his agent and friends of his father used ündue influence over his father and thereby leading him to execute the deed. . . . He executed the deed because of the continual nagging, argument, persuasion, pressure of William Blanton and his agents.”
"Since we have seen that William- did not directly and by his own conduct exercise undue influence, and the trial court found that neither Adam, Woodmansee, nor Lamb, exercised any such influence, we must carefully look for evidence which may support the finding of undue influence on the part of some agent or agents of the son.
The land was conveyed on December 27, 1920. Some time later, the defendant’s sister, Mrs. B. A. Linn, who resided on a farm at some distance, and his two brothers, who had long resided on the Pacific coast, learned about this transaction; and thereafter, on February 19, 1921, the father commenced this action to set aside the deed. Some days later, a somewhat informal inquiry into Blanton’s mental capacity was conducted at the residence of Mrs. Linn, following which she was appointed guardian for her father; and pursuant thereto she was substituted as plaintiff. The father’s deposition, notwithstanding the probate court’s adjudication of his feeble-mindedness, was taken in plaintiff’s behalf. He deposed that some months before the deed was made, Mr. Lamb, a neighbor, said to him:
“Well he said the other boys had gone and they didn’t care anything about me and he thought the best thing I could do was to deed the land to William.”
Mr. Lamb denied this:
“Q. Had you ever asked the old man to make a deed to William Blanton? A. I never did approach the old gentleman to make Bill or anyone else a deed to that properties, no time.” •
The trial court apparently disbelieved the above-quoted portion of the father’s testimony, and did believe Lamb’s denial of it. (Finding No. 12.)
Other portions of the father’s deposition read:
"Q. Did anybody talk to you about that land last December? A. I don’t know as they did.
“Q. Did anybody else talk to you about deeding the land to William? A. Oh yes, quite a number of men talked to me about deeding it to William.
“Q. Who else talked to you about it? A. Why, Warren Russell and Mr. —I can’t recall his name now.
“Q. What did Warren Russell say to you about it? A. He just wanted to know if I had deeded the land to William. I told him ‘no.’
“Q. You told him ‘no’? What did he say thán, if anything? A. He didn’t say anything much.
“Q. Now to refresh your memory, I will ask you if Mr. Henry Chandler . spoke to you about the affair? A. Yes, that’s the name I couldn’t think of.
“Q. What did he say about it? A. Well, sir, he said a good deal; he said a good deal. I couldn’t quote, I couldn’t quote the man the way he talked.
“Q. About how long a time did he talk to you about it? A. About an hour, I guess. .
“Q. To refresh your memory, I will ask you if Tom Barber said anything to you about it. A. Oh yes, Tom Barber talked a good deal — talked a good deal. He stayed there at my house and he thought I ought to deed William the farm and he said I ought not to kick on taking care of it and he thought William would.
“Q. Did they say anything about William being the only one who cared anything for you? A. Yes, he said that William was here and these other boys wasn’t here and they didn’t care for me.
“Q. Did you believe what these men told you? A. Well, they kept nagging me and nagging me and I did believe it.
“Q. Did you want William to have that land? A. No, sir.
“Q. Well, why did you sign that deed? A. I signed it by over-persuasion.
“Q. Why didn’t you refuse to sign it? A. I didn’t think about it. I didn’t think about it. I signed the deed— signed the deed to get rid of them.
“Q. When did you first decide that you didn’t want to make this deed to William.after it was done? A. Well, I never in my life until it was made and then I regretted that I had made it, very much. I never intended to give William a deed to the land and—
“Q. Didn’t you know this was a deed the day you were making it? A. It was supposed to be a deed.
“Q. Then John Lamb didn’t influence you to deed the land? A. He just talked to me about it and he thought I better do it.
"Q. Deed the farm to William? A. Yes, sir.
“Q. And you only had that one conversation? A. Just one that I remember.
“Q. And you just had one conversation with Warren Russell? A. That is all that I remember.
“Q. And you just had one with Chandler? A. That is all that I remember.
“Q. They didn’t any of these three men persuade you to sign this deed, you just talked to them about it? A. They just nagged me all over, one man today and another one to-morrow.
“Q. I thought you said you just had one conversation with each one? A. They did nag me to sign the deed.
“Q. Did anyone talk to you to change your mind about it? A. No, sir.
“Q. You just changed your mind yourself? A. Yes. Oh, I believe Mrs. Linn she said that I oughtn’t to have done it. Since that time — since that time I have always regretted that I ever made the deed.
“Q. Then in'your conversation with Mrs. Linn she told you you oughtn’t to have done it because of the other children? A. Yes, because of the other children might come in and waive — want some of the proceeds of that land.
“Q. Did these men bother you or worry you? A. No,' no, he didn’t worry me at all. I just about — to tell you the truth about it, I intended to give the land to somebody.
“Q. Did you intend to divide it between your children? A. Yes, I wanted to divide it betwixt the children. I told William that I wanted it divided betwixt the children.
“Q. That morning down there you didn’t tell these three men, Doctor ' Woodmansee, John Lamb and Evan Adam you didn’t want to sign that deed? A. No, I didn’t say anything about it.”
This testimony, being in deposition form, is addressed to our independent consideration and we are not required to defer to the credence given to it by the trial court as we necessarily must do when the testimony is presented by witnesses in open court. (Record v. Ellis, 97 Kan. 754, 760, 761, 156 Pac. 712; Farney v. Hauser, 109 Kan. 75, syl. ¶ 7, 198 Pac. 178.) But even giving this testimony all due credence, does it show that Warren Russell, Henry Chandler and Tom Barber so greatly overbore the free agency of David Blanton as to coerce and dominate him, thus substituting their will for the free will of the grantor? Holding the plaintiff to the concession of her counsel as the trial court had intended to do — that Blanton had mental capacity to make the deed, and the trial court’s ruling that it would “take the plaintiff at their word as to that,” we do not think it establishes undue influence. Russell “didn’t say anything much”; and Chandler and Barber each talked to him on only one occasion that Blanton could recall. At most it shows that these neighbors urged him to do the handsome thing by the son who, at the sacrifice of his private affairs and at the necessary neglect of his wife and children, had served his parents so long and so well. To constitute undue influence so as to justify setting aside a deed it must be proved that at and about the time of the execution there was an influence bearing upon the will of the grantor so potent as to destroy his free agency and to substitute therefor the will of another. In Smith v. McHenry, ante, p. 659, it was said:
“A presumption of undue influence arises more readily with respect to the execution of a deed or contract than of a will. (Ginter v. Ginter, 79, Kan. 721, 744, 101 Pac. 634, 643.) But in either case in order for the evidence to be sufficient to warrant setting aside the instrument upon that ground it must show that a real consent was lacking. ‘The undue influence for which a will or deed will be annulled must be such as, that the party making it has no free will, but stands in vinculis.’ (Conley v. Nailor, 118 U. S. 127, 134.) ‘In order to render a deed void it must operate to deprive the grantor of his free agency, by substituting for his will that of another. It does not, therefore, consist in mere gratitude for kindness, affection, or esteem, where a conveyance is induced, . . . nor in a mere desire by the conveyance to gratify the wishes of another, if the free agency of the 'grantor is not impaired, nor even in suggestions, entreaties, and importunities, short of exactions overpowering the grantor’s volition.’ (8 R. C. L. 1032.)”
Here there may have been argument, persuasion, suggestion and entreaty, if David Blanton told the truth; his friends “nagged" him to the extent to which he deposed; but none of this occurred at or about the time the deed was executed, and while Blanton says he made the deed “to get rid of them,” they were not acting upon his will at the time he requested his son to call the notary, nor when the notary came to prepare the deed and take his acknowledgment. Neither Russell, Chandler nor Barber, the men said to have “nagged” him, were present when the deed was executed, and there, is no evidence that at that time the will of the grantor was subordinate to the will of those who had urged him to convey the land to his son William.
We note the testimony that some time before the deed was executed, William having been advised that his father had said he would give the land to him, said: “I would give $100 to anybody who would get him to do it.” There was nothing wrong or discreditable to William in this. Both his parents had led him to expect that in some way and at some time the land would be his. His mother, in his father’s presence, had declared that the land should not be sold to a stranger, that it was to go to William. Even the sister, who is here as the substituted plaintiff, had gone with the father to Mr. Lamb to get him to write to the sons in Washington and California to suggest to them the propriety of letting William have this land at a mere fraction of its value so that he might continue ,to care for his parents with full assurance of compensation for his services rendered and to be rendered to them. Quite naturally then William said, and may have.said repeatedly, that he would give $100 if his father would make him a deed, so that the end he had been led to expect would be consummated while his father was alive and competent to do so.
The other evidence has all been carefully examined,' but space forbids further quotation. It does not show undue influence. Very much of it was persuasively to the contrary. The defendant has no quarrel with the finding that the consideration for the deed was his promise and agreement “to keep and care for his father, David Blanton, during the rest of his lifetime.” That is a perfectly lawful consideration, notwithstanding it was not incorporated in the deed. (Stout v. Ennis, 28 Kan. 706; Weld v. Weld, 71 Kan. 622, 624, 81 Pac. 183.)
Moreover, and pursuant thereto, the defendant bought a house to be moved to the land in order that he might adequately care for and keep his father. Since there was neither undue influence, fraud nor other illegality, there was no ground for equitable interference with the deed or the contract on which the deed was founded.
The other matters urged upon our attention need no consideration. The evidence did not show any fiduciary relation existing between father and son. The son had been the father’s tenant for thirty years, and their business relations were merely those of landlord and tenant. Consequently the rule announced in Smith v. Smith, 84 Kan. 242, 114 Pac. 245, has no application.
Reversed and remanded with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Porter, J.:
The case was started by the Kendall Land Company, a partnership of Colby, to recover the proceeds of wheat harvested on certain lands. C. W. Trickett and C. G. Eddy were made defendants. Eddy filed a cross-petition against Trickett claiming to be entitled to an agent’s commission for the sale of the lands to the plaintiff. Trickett joined issues on the cross-petition and there was a trial and verdict in favor of Eddy. Trickett appeals.
Trickett owned two sections of land in Thomas county, one of which he had listed for salé with Eddy. The only question is whether he sold the land before he received notice from Eddy that the latter had made a sale. There is no conflict in the evidence on the essential facts. On the afternoon of April 14, Eddy had ar ranged for a sale of the land and tried to communicate from Colby by telephone with Trickett at Bird City but failed, for the reason that Trickett was attending a public sale about ten miles in the country. Eddy left word at Trickett’s bank with an employee to inform Trickett when he returned that he had sold the land. He did not succeed in getting into communication with Trickett until about ten o’clock.
Garvey, who was one of the partners doing business as the Kendall Land Company, called Trickett by telephone about four o’clock in the afternoon. The talk related to Trickett’s price on the land, and the commission that would be paid. Trickett testified that he could not hear very well, and that whoever was talking with him said that he would call up later when he got home. This part of the message was repeated to him by central. Trickett went direct from the sale to his home in Bird City. About seven o’clock in the evening, Garvey called Trickett again. The latter understood who was talking and stated again the price and terms including the commission which he would be willing to pay. Garvey wanted to buy both sections. Trickett agreed to take a cash payment of $5,000 on the two sections and the balance October 1, with interest on the deferred payments. Garvey told him he would take the land, and he told Garvey he would consider the land sold. The following day Trickett received a letter from Garvey enclosing two checks each for $2,500 to apply on the purchase price and confirming the telephone conversation. The amount of the incumbrances was stated and Trickett was told that he might fix up contracts, or if satisfactory, he might prepare deeds, leave the grantee’s name blank and send the deeds to a bank at Colby. The sale was subsequently completed in accordance with the original agreement and confirmation. Shortly after the conversation over the telephone with Garvey in which the terms of the sale were agreed upon Trickett went down to his bank. Mr. Trout, an employee in the bank was there and said to him, “I got a message from Mr. Eddy, stating that he had sold section 15 in Thomas county.” Trickett replied, “It is too late, I have sold it myself.” About an hour later, Eddy talked with Trickett over the telephone from Colby and said he had sold section 15. Trickett told him he was sorry but he had already sold it by wire that day.
“Q. What did Mr. Eddy say? A. He wanted to know why I had not notified him and I told him I hadn’t had time to notify him as I had just sold it.”
Eddy testified that when he finally got Trickett on the ’phone in the evening he informed him he had sold section 15 and asked to have the deed and abstract sent, and Trickett said, “That is too bad, I sold that land to some other parties.” Eddy further testified: “I said, ‘When did- you sell it?’ He said, ‘This afternoon,’ and I asked him who he sold it to and he said he had sold it some parties in Nebraska and I asked what their names were and he said he didn’t remember, and I said, ‘It seems funny that a man would sell twenty to twenty-five thousand dollars’ worth of land and not know who he sold it to’ and I said, ‘Did you sell it over the phone?’ and he said, ‘Yes.’ I said, ‘You had better not involve yourself in another sale because I think my sale is first’ and he said, ‘It is too late now, the contracts are in the mail’ and he hung up the receiver.” In reply to a letter written by Eddy on April 15, insisting on closing his deal for the land, Trickett wrote the following letter;
“Mr. Carl Eddie,
• Colby, Ks.
“Dear Sir:
“I was very much surprised to get your letter you claim that you notified the Bank of the sale now I was at a sale when I got word from the Parties and excepted the deal before I heard from you. further more I did not give you a price for any definite time. I have sold to the other people which are not the one that I thought it was at first the contracts are signed and returned now.
Yours truly, C. W. Trickett.”
Garvey, who was acting for the Kendall Land Company in purchasing the land, testified that when he called Trickett at seven or eight o’clock in the evening, and inquired about the sale and the price, he told Trickett they were buying some land with a Nebraska land company; that Trickett said a Nebraska man had been given three days in which to sell this and other land, and that was the third day; that the Nebraska man’s name was Williamson of Lincoln who was going to buy both sections, and Trickett wanted to sell both together. Garvey asked if he had any objections to selling the land to them, and he said he. had not.
Among other instructions, the court gave one substantially as follows:
“7. . . . You are instructed that the owner of land may have an oral contract with a purchaser for the sale of land and if the substantial terms of the contract are understood by each of them, that is, the lands being sold, the price thereof and the terms of payment, the party selling and the party buying said land, and if it is understood between them that one party has purchased and the other has sold said land, and it is followed up by reducing their agreement to writing in substantially the same terms as agreed upon orally, it would constitute such a sale as would protect the owner of the land from paying an agent commission if he had made such a sale before being notified by the agent that he had found purchasers for the land.”
The appellant criticizes that portion of the instruction which declares it essential to a valid contract that the parties shall each understand who is the party selling and who is the party buying. Complaint is also made of instruction No. 8, which reads:
“You are instructed that when parties have a conversation relating to the sale of real estate and one party does not know the name of the party wishing to purchase the same, it does not constitute a sale, but if such a conversation occurs it may throw light upon the probability or improbability of what the parties did after that, if they did anything.”
We think both instructions were erroneous in this respect: An oral contract may be made between the owner of land and someone representing the proposed purchaser which, if recognized by the parties interested and treated as a sale, that is, followed up by an actual transfer of the property or by an agreement in writing binding the seller, will constitute a sale, although at the time of the oral agreement the person selling may have no knowledge of the name of the person who is purchasing the land. Every day sales of real estate are made in the same way, where the one who sells is not informed of the name of the purchaser until the' deed is to be executed, and frequently at the request of the agent or of the purchaser the name of the grantee is omitted with an understanding that the person to whom the instrument is delivered has authority to insert the name of the grantee. Here the controlling fact is that Trickett received by telephone an offer to purchase his lands on terms satisfactory to him, which he agreed to accept. If the terms were carried out he was not concerned whether the person to whom he talked was buying it for himself, the land company, or some client of the company. A letter confirming the sale followed. The substantial terms of the contract were understood by each of the negotiating parties, that is, the lands to be sold, the price and terms of payment and the party selling. This was followed up by a conveyance in accordance with the terms as originally understood between the parties. Trickett having the right to sell his lands, if he acted in good faith in doing so, it is no concern of the appellee that at the moment when Trickett agreed to sell he did not know whether the purchaser was the Kendall Land Company or some man in Nebraska. On the undisputed facts, the court should have directed a verdict in favor of Trickett.
An abstract sufficient to present all the portions of the record, and all testimony necessary to be considered would have required not to exceed fifteen or twenty pages of printed matter. Appellant’s abstract consists of seventy pages and copies in full twenty-five pages of pleadings, including the petition of the plaintiff, which is not in- ' volved in this controversy. We can discover no occasion for setting forth a copy of any of the pleadings. A copy of the journal entry recites in full the rendition of six formal verdicts with the title of the case showing the names of all the parties to the original litigation. The journal entry, the motion for a new trial and notices of appeal were unnecessary to present the question involved in this proceeding. A counter-abstract of twenty-two pages sets forth the pleadings in full a second time, reprints the journal entry, copies the verdict and notices of appeal, and the numerous exhibits which would better have been abstracted.
Under rule No. 5, the court would be justified in striking both abstracts from the files. The court is of the opinion, however, that ■each party should pay for his own abstract.
The judgment is reversed, and the cause remanded with directions to enter judgment in favor of Trickett. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to specifically enforce a contract for the sale of real estate. Specific performance was adjudged and defendant appeals.
By the contract which was executed on August 28, 1920, A. L. Knisely sold and Charles Robinson purchased a property in Liberal for the sum of $9,000. It was stipulated that $300 should be paid in cash and deposited in a certain bank with a copy of the contract to be held until the completion of the transaction, $700 to be paid upon approval of the title by Robinson and the execution and delivery of a good and sufficient deed conveying the real estate. It was further stipulated that the balance of $8,000 was to be paid in eight yearly installments of $1,000 each, with eight per cent interest, and the unpaid balance to be secured by a first mortgage on the property. There was a stipulation that the purchaser should be given possession of the property not later than September 10, 1920. The $300 was paid and deposited in the bank. Shortly afterwards the plaintiff tendered an abstract and deed, conceded to be sufficient to convey a good title. Possession of the property was taken by the defendant and he leased it to another for a time and retained the rentals collected. .-He instructed agents to sell a part of the property at the price he had agreed,to pay and he stated to them that he would retain the remaining part as his profit in the transaction. He failed to make the stipulated payment and on October 17, 1920, he notified the plaintiff that he would forfeit the $300 that had been paid,'.but would not complete the transaction.
Defendant insists that it was optional with him to consummate the transaction or to forfeit the advanced payment of $300. One of the stipulations of the contract was:
“That should second party fail or refuse to accept deed according to the terms of this contract, the amount of money paid at thb execution hereof shall be forfeited to first party.”
It was competent for the parties to make an alternative agreement by which the purchasers are given the right to complete the purchase or to pay a stipulated amount of money by way of damages in place of performance, and where that is the agreement specific performance of the contract will not be decreed. The question in every case of this kind is, whether the provision for the forfeiture of a prescribed amount is made to secure performance or as a substitute for performance. If the stipulation shows that it was a mere ..penalty to secure compliance with the conditions of the contract a court will enforce it, but if it shows that- it was alternative in character, giving the party the option to perform or pay a stipulated amount in lieu thereof, specific performance will be denied. In Fry on Specific Performance, 6th ed., p. 68, it is said:
“The simplest illustration of this is the ordinary ease of a stipulation on the sale of real estate that if the purchaser fail to comply with the condition he shall forfeit the deposit, and the vendor shall be at liberty to resell and recover as and for liquidated damages the deficiency on such resale and the expenses. Such a condition has never been held to give the purchaser the option of refusing to perform his'contract if he choose to pay the penalty, nor to stand in the way of specific performance of the contract.” (See, also, Koch v. Streuter, 2 L. R. A., n. s., 210, and note; Powell v. Dwyer, 11 L. R. A., n.s., 978, and note; 36 Cyc. 570.)
An examination of the whole contract and the attending circumstances shows that it was not the intention of the parties that the purchaser might break the agreement by paying the penalty as the price of the breach. The penalty referred to in the'contract which contained many stipulations, was an advance payment of the consideration of the purchase. The large amount involved in the pur chase, the surrender of possession, the collection of rental by the purchaser and the small penalty mentioned, indicate clearly enough that the contract was not alternative in character but was a mere security that the agreement would be carried out. As was said in Lyman v. Gedney, 114 Ill. 388:
“The mere fact that a contract, stipulates for the payment of liquidated damages in case of failure to perform, does not prevent a court of equity from decreeing specific performance.”
To secure an option for the performance of certain acts or, pay a specified sum of money, it is necessary that the contract shall contain in reasonably specific terms a provision giving an alternative to the purchaser fco perform or pay a sum of money as damages in lieu of performance and the terms of the contract under consideration do not carry such an implication.
The judgment of the court must therefore be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, as executrix of the estate of Josephine Diebolt, deceased, brought an action against J. H. Goll, and his wife, Minnie Goll, to recover the possession of an automobile. After the action was brought Minnie Goll disclaimed any interest in the automobile, after which the trial proceeded against J. H. Goll alone. The defendant prevailed, and plaintiff appeals.
The plaintiff claimed the possession of the car under a chattel mortgage executed by the defendants for money advanced by Josephine Diebolt to pay for the car. The defendant claimed that the indebtedness and mortgage lien were forgiven, that a gift of the interest was actually made by her, and that in recognition of special attention and nursing given to her by the Golls she released her interest and made a complete gift to the defendant. Mrs. Diebolt was an elderly widow living apart from her children, and in June, 1917, came to live in the hotel kept by the defendant. She was in poor health, had many attacks of illness, and during the eleven months that she was with the defendant she was cared for and nursed by Mrs. Goll. Shortly after she came to the hotel she assisted the defendant in the purchase of an automobile by joining him in.the execution of a note for $1,100, being the greater part of the purchase price, and the defendant gave her a chattel mortgage to secure the obligation which she had assumed. According to the testimony in behalf of the plaintiff she was frequently taken by defendant in the car to five farms owned by her and on numerous trips about the city of Atchison, and as one witness said, rode in the automobile whenever she wanted to do so. She paid the note when it became due and held it and the mortgage for a time. The testimony for plaintiff is that in recognition of the care given her she made a will devising property to the Golls and later she made a completed gift of the note and mortgage to the defendant. Before her death and while she was in a hospital in Kansas City she made another will leaving no property to the Golls, and at the same time gave instructions to reclaim the automobile under the chattel mortgage. It appears that she had executed a release of the mortgage, but withheld it from record. She admitted that she owed the Golls for the special attention they had given her, and indicated a willingness to pay the bill.
The controlling question in the case is the matter of the gift of the note and mortgage interest to the defendant. The matter of gift was discussed by the parties, and the note and mortgage came into the possession of the defendant, but the plaintiff contends that the gift was not complete, and that this was shown by her direction that the release which Mrs. Diebolt executed was not to be recorded before her death and was recalled before that event. The testimony relating to the recording of the release was competent as throwing light on her intention as to the nature of the gift made and whether or not the property was delivered to the defendant with the intention of releasing the defendant from all obligation to her. A record of the release, however, was not essential to a valid and effective gift if it was made with the intention that it should take immediate effect. On this question the evidence was conflicting, and we conclude that that produced by the defendant is sufficient to uphold the verdict of the jury.
The court instructed the jury as to what must be shown to establish an executed gift, and also with respect to a conditional gift that was not to take effect until the death of the donor. They were told that if Mrs. Diebolt did' not in her lifetime make a completed gift of her interest in the automobile, but made it upon the condition that it was to take effect on her death, she was at liberty to revoke and cancel it before that time, and if she did so the defendant would have no right to claim the property. The issue as to whether a completed gift had been made was fairly submitted to the jury.
Objection was made to the testimony of Mrs. Goll, the wife of the defendant, upon the ground that she was not a competent witness to testify as to transactions and communications with the deceased mortgagee. She had been named as a defendant when the action was instituted, but before the trial she disclaimed all interest in the property in question, and the trial proceeded as if she was out of the case. Thereafter she was a competent witness and could testify as to transactions and communications with the deceased mortgagee to the same extent as if she had not originally been named as a defendant.
There is a further contention that certain special findings as to the recording of the release required a judgment for plaintiff. The jury found that Mrs. Diebolt had given a release to one L. M. Baker and had told him that he was to file it if she died, but that if she lived she might want to recall it. That she afterwards did direct its return and it was returned by Baker before her death and was never recorded. As has already been said, the testimony as to recording the release and its recall went to the contention that the gift was incomplete, but the recording was not essential to an executed gift if the property was delivered to the defendant by the donee and accepted by him with the intention of transferring title when it was given. The findings in this regard did not entitled the plaintiff to a judgment.
Judgment affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a demurrer to a petition in an action for damages for the alleged publication of a false and malicious article in defendant’s newspaper during the World War. The article was headed:
"DEFERRED MAN TO CAMP. LEWIS OF ATTICA HAD' A FRIEND WHO GOT HIM OFF THE TRAIN-NOW HE MUST GO.”
The article narrated the futile efforts of plaintiff to obtain deferred classification in the draft, that when he was called to the military training camp a friend succeeded in getting him off the train and getting permission for him to return to his home. It narrated a later investigation of plaintiff’s case before the local draft board, and that he made contradictory affidavits to explain why he broke his journey to the training camp; and told of a peremptory order of the provost marshal directing that plaintiff be summarily forwarded to Camp Funston.
On behalf of appellant it is urged that the petition did not contain the recitals of “inducement, colloquium and innuendo” which are usually requisite to good pleading in an action for libel. (25 Cyc. 436, 449.)
The alleged article was so direct and pointed that it had little need of recitals of inducement to make its meaning intelligible, nor to show that it referred to plaintiff. The innuendo involved in the imputation of perjury was sufficiently pleaded. Moreover, this was a civil action, not a criminal prosecution, and the strict rules of criminal pleading have little relation hereto.
The article was bound to render the plaintiff contemptible as a slacker, and expose him to the public as so lacking in patriotism in his country’s time of need that he would swear first to one thing and then to another to avoid military service. There can be no doubt that the facts recited in the article, if false, were actionable.
The last paragraph of the published article did contain certain statements which in na way reflected on the plaintiff. It implied an attempt on the part of his father to bribe a member of the draft board to obtain deferred classification for plaintiff. The allegations of the petition pertaining to this feature of the alleged libelous article might have been subject to a motion to strike, but the petition was-not" demurrable. It should have been met by a denial, or by a plea of justification. (Bill of Rights, §11; Gen. Stat. 1915, §§7018, 7019; Castle v. Houston, 19 Kan. 417; Mundy v. Wight, 26 Kan. 173; Eckert v. Van Pelt, 69 Kan. 357, 361, and citations, 76 Pac. 909; Klover v. Rugh, 99 Kan. 752, 755, 756, 162 Pac. 1179: Carver v. Greason, 101 Kan. 639, 168 Pac. 869.)
Judgment affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a mother against her daughter for miscellaneous relief on account of fraud.
The plaintiff, a woman of eighty years, and the defendant, her daughter, were the heirs and devisees of the late- C. W. James, of Independence, Mo. James was the owner of 292.53 acres of land in Jefferson county, Kansas, which descended in equal shares to mother and daughter. The defendant was appointed executrix of his estate. The plaintiff by a former husband has several sons who, in the usual course of nature, would inherit a considerable share of the James property through their mother.
Plaintiff’s petition alleged that defendant and one Tom J. Long entered into collusion to defraud the plaintiff out of her title and interest in the Jefferson county land, and that, pursuant thereto and in bad faith, she caused a proceeding to be instituted in the probate court of Jefferson county to sell the land for the pretended purpose of paying the debts of the C. W. James estate, there being at the time sufficient personal property in the estate to discharge all its debts, that the probate court ordered the land sold, and that defendant fraudulently caused the land to be sold to Tom J. Long for three-fourths of the appraised value, and that such sale had been confirmed and a deed executed and delivered conveying the premises to him, and that such deed had been recorded.
Issues were joined and evidence was presented at length. It was shown that James had bought the land in 1910 for $40 per acre and at the time of the trial in 1921 it was worth $60 to $70 per acre; that it had been appraised at about $34.81 per acre; and that defendant declined an offer of $40 per acre, and sold it’to Tom J. Long at private sale for $26.25 per acre. There was evidence tending to show that this sale was not bona fide, and that Tom J. Long and defendant had a private understanding pertaining thereto whereby he was to hold the land for defendant’s benefit, or for the joint benefit of himself and defendant.
The trial court found all the issues in favor of plaintiff, set aside the proceedings in the probate court, and canceled and set aside the deed to Tom J. Long and barred him of all rights thereunder.
While this action was pending the defendant was removed from her position as executrix by the probate court in Missouri, and an administrator with the will annexed was appointed in her stead, and this administrator has been made a party to this action and he supports the judgment and the attitude of the plaintiff in this appeal.
. The defendants contend that this action is a collateral attack on the order, finding and judgment of the probate court, and that this independent action to set aside the probate court proceedings and to set aside the executor’s deed cannot be maintained.
It is perhaps true that practically every grievance alleged by plaintiff except the cancellation of the deed could have been corrected by appropriate proceedings in the probate court; but as to the cancellation of the executor’s deed to Long we do not see how that could have been accomplished by any corrective action by the probate court. And it cannot be denied that the plaintiff, under the facts alleged and proved to the satisfaction of the trial court, was entitled not only to have the fraudulent proceedings set aside, but to a cancellation of the deed as well. It seems unreasonable that plaintiff should be required to go to the probate court for part of her relief, and to a court of general jurisdiction for that portion of the relief which it alone could render.
Klemp v. Winter, 23 Kan. 699, was an action to recover on a guardian’s bond for money belonging to a ward.. The defendant guardian had made two annual and one final settlement in the probate court. It was alleged that defendant had deceived the probate court. The defendant contended that the final settlement of a guardian, unless revoked, reopened or appealed from, is conclusive upon the parties, and could not be attacked collaterally, but only by direct proceedings in the probate court. This court said:
“That fraud vitiates everything it touches — final judgments, final orders, final settlements and contracts, as well as things of less consequence — we suppose all persons will admit. And that courts, possessing general equity or chancery jurisdiction, have the power to grant proper relief in all cases of fraud, we suppose will also be admitted. . . .
“We think it is possible that, under sections 568, 575, and 576 of the Code of Civil Procedure, the plaintiff might have had Winter’s said settlements in the probate court set aside by the probate court. But this would have been a very inadequate remedy in this case. . . . The whole status of things had changed since said settlements were made, and the probate court had lost its jurisdiction over the parties and over the estate, except, perhaps, to merely set aside said fraudulent settlements. But when they were set aside (if set aside), the plaintiff would be but little nearer to a complete remedy for the wrongs she had suffered than she was before. She would still have to sue in the district court to recover her money which Winter wrongfully detained from her. . . . The probate court had no power to set that contract aside. The district court alone was the only court that could have obtained the requisite jurisdiction over it, so as to set it aside. And so long as this contract remained in force, the setting aside of said fraudulent settlements would have been of no benefit to the plaintiff. Hence it was necessary for the plaintiff, in order to obtain a complete remedy for all the wrongs which she had suffered, to commence her action in some court that could have or take complete jurisdiction over all the subject-matter of such wrongs.” (pp. 703-705.)
Counsel for defendants cite Fleming v. Bale, 23 Kan. 88, and a number of later cases which hold that proceedings, judgments and orders of probate and other courts cannot be collaterally attacked. True, but the present action, for relief on account of extrinsic fraud in the probate proceedings and in the sale and conveyance of the property thereunder, is a direct and not a collateral attack.
In Mastin v. Gray, 19 Kan. 458, 466, it was said:
“Proceedings instituted for the purpose of destroying, impairing, or modifying the force or effect of a judgment for all cases, such as proceedings to reverse, vacate, set aside, declare void, suspend, modify, or perpetually enjoin a judgment, are direct proceedings.”
(Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; McAdow v. Boten, 67 Kan. 136, 72 Pac. 529; Finche v. Bundrick, 72 Kan. 182, 83 Pac. 413; Railway Co. v. Lasca, 79 Kan. 311, 100 Pac. 278; 1 Black on Judgments, §297; VanFleet’s Collateral Attack, §2; 18 Cyc. 810, 811.)
In Leslie v. Manufacturing Co., 102 Kan. 159, 163, 169 Pac. 193, it was said:
“Where the fraud complained of is extrinsic io the issues, an independent action is permitted and ordinarily equitable relie: is a necessary and pertinent feature of such an action, and it is not necessaiy to bring it in the inferior court where the first judgment was rendered, especially if such court has no equitable jurisdiction. Moreover, a mere vacation of the collusive judgment in the city court was not all the relief the plaintifl was entitled to.”
Defendants also contend that there was no evidence to support the trial court’s finding that there was sufficient personal property to discharge the debts of the C. W. James estate. This wa§ not the only nor the controlling ground for the judgment of the district court, but even this cannot be sustained. The debts set up by defendant as a foundation for the authority to sell the real estate aggregated $462.50. This was more than shs proved on this trial. The same petition for leave to sell showed assets in bank amounting to $347, and the rent collected from the tenant of the land in controversy was $400.
The record contains no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this action to set aside a deed to land alleged to have been obtained from him through defendant’s fraud and for the recovery of the interest in the land affected by the alleged fraudulent conveyance. Some other deeds similarly obtained from third parties are also involved herein.
The principal facts are these: One Ira A. Foy died testate in 1906 seized of a homestead and of other real estate. He left no direct heirs except his wife, the defendant, Callie Greenwade, who survived him. By the will of Ira, there was devised to Callie a quarter, section of land; some lands were devised to testator’s brother Arch, and other lands to a nephew, Charles F. McCune; and a life estate in the residue was devised to Callie with remainder over to his heirs at law.
Callie declined to take under the will, and the probate court decreed certain of Ira’s lands to be her separate half of Ira’s property, and also awarded to her the possession of Ira’s homestead as his widow. The decree on the homestead feature, somewhat equivocally reads:
“And now towit, on this 31st day of August, 1906, . . . [recital of appearances, motion to approve report of commissioners who set off and allotted to Callie her portion as widow, findings of regularity, approval, and confirmation] ... It is further . . . adjudged that . . . [land in controversy] be and the same is hereby set off to the said Callie Foy, widow of said Ira A. Foy as a homestead to be her separate property and not subject to distribution or to payment of the debts of the said Ira A. Foy, deceased.”
Ira had several brothers and sisters, John, Arch, Andrew, Carrie, Jennie, and Sara, and a brother James who had died before Ira. The plaintiff is an only son of James.
In June, 1909, Callie married Luther Greenwade. So far as' the record, discloses, the heirs of Ira did'not then assert any rights of ownership or rights of possession by virtue of the termination of her widowhood. Callie and her husband continued in possession and in December, 1909, through the agency of Arch Foy, a brother and heir of Ira, they made a deal for the sale of this property, but the sale failed because of Callie’s defective title. All the heirs of Ira seem to have been aware of the cause of the failure of the sale. On the advice of her attorneys Callie set about the task of procuring quitclaim deeds to the interests of the Foy heirs, and shortly thereafter she obtained quitclaim deeds from John B. Foy and Sara (Foy) Lambe, brother and sister of Ira, conveying their interest. In 1912 when the plaintiff, Roy Foy, attained his majority, she received a quitclaim deed from him conveying his interest.
In 1919, the defendant Callie and her husband sold the property to Charles F. Sloan for $14,400.
In 1920, Roy Foy, plaintiff, filed his amended petition herein against Callie Greenwade and her husband, and against Charles F. Sloan, their grantee, charging that the quitclaim deed which he had executed in 1912 had been obtained from him by the fraud of Callie. He alleged that—
“He was approached by the defendant and asked to make a quit claim deed to the property involved in this action. And that the defendant told him he had no interest in the property and that she simply wanted to remove any possible cloud there might be upon the property which was her home and asked him to make a deed to said property and told him if he would make a deed to said property although he had no interest in it, that she would give him $25.00 to remove the cloud and that he trusting and relying on her statement and having full confidence in her honor and integrity and believing the facts as she stated them to be, made and executed said deed and received, therefor, the sum of $25.00. That he did not know that he had any interest in said property or any right to the same until about two weeks ago when he was informed that he did have a one-fourteenth interest in said property.”
Plaintiff also set up an interest in the property as a nephew and heir of Arch (deceased), who had similarly been induced to quitclaim his interest to Callie; and plaintiff also impleaded as defendants his uncle, John B. Foy, and his aunt, Sara Lambe, who had quitclaimed to Callie under similar circumstances. Charles F. Sloan, who had purchased the property in dispute was also impleaded as were also certain heirs of a dead sister of Ira.
The defendant, Sara Lambe, filed an answer and cross-petition, admitting all the facts alleged by plaintiff, said that she was a resident of Oklahoma, that she was a sister of Ira Foy, that the defendant Callie Greenwade had fraudulently induced her to sign a quitclaim deed to her interest in the property by falsely representing that the instrument presented to her for her signature was a quitclaim conveyance of the property which had been decreed by the probate court as the absolute and separate property of Callie, and she signed it through reliance on the statements of Callie, when in fact it was a deed to Sara’s interest in Ira’s homestead. She also alleged that she did not discover the fraud “until less than a year ago.”
John B. Foy’s answer and cross-petition was to the same effect, and that he did not discover the fraud of Callie “until within the last six months.”
To these pleadings, after demurrers filed and overruled, the defendant Callie Greenwade answered, with a general denial, raised the two- and three-year provisions of the statute of limitations, alleged her possession and occupancy of the property with her first husband, and thereafter until 1919, set up the decree of the probate court entered in 1906, narrated her marriage in 1909 to Greenwade, and alleged the prompt recording of the quitclaim deeds of Sara and John in 1909. She also alleged the sale of the property in good faith to Charles F. Sloan, and that she had put him in possession of it and had received cash and notes in payment therefor.
Defendant Sloan filed a similar answer, and that he had purchased without notice of any interest therein belonging to the adverse claimants, and that he relied on the record title.
These adverse claimants also set up a claim for rents contingent upon Callie’s establishing a claim for compensation for improvements.
The trial court made findings of fact and conclusions of law which must be set down herein:
“Under the proper probate proceedings the interest of the widow, Callie Foy, was set off to her, giving to her one-half interest in value of all of the real estate of the deceased, and in addition to her other interest, she was permitted to remain on and occupy the homestead until it was sold in 1919. On June 14, 1909, the widow Callie Foy, married the defendant Luther Green- wade, and ever since said last date until the sale of said homestead consisting of 160 acres the said Greenwades have been receiving the rents and profits from said tract of land.
“Roy B. Foy is the sole and only heir of James Foy, deceased, and said James Foy was a brother of Ira A. Foy, and one of the beneficiaries under the said Ira A. Foy’s will. The cross petitioner, John B. Foy, is a brother and Sarah Lambe a sister of Ira A. Foy, and were beneficiaries under his said will. There were also other relatives beneficiaries but who are not parties to this suit.
“II. In the year 1909, Callie Greenwade procured from Ira A. Foy’s sister, Sarah Lambe, through fraud, a quit claim deed to the property in controversy and caused the same to be immediately placed of record in Sumner County, Kansas. About the same time said Callie Greenwade, by fraud, received from John B. Foy a quit claim deed to the land in controversy and caused the same to be immediately placed of record. The cross petitioner, Sarah Lambe and John B. Foy after the deeds had been secured, in addition to the knowledge imparted by the record of the deeds, had more than two years prior to the beginning of this action actual notice of the fraud upon the part of Callie Green-wade in securing such deeds.
“III. The plaintiff Roy B. Foy, at the time of his uncle’s death, and at the time when all the probate proceedings were had in relation to his uncle’s estate, was a minor. After he became of age and on the 3rd day of October, 1912, the defendant Callie Greenwade obtained from the plaintiff Roy B. Foy a quit claim deed to the property in controversy, and she obtained said deed by false and fraudulent statements and had the said deed immediately placed of record in Sumner County, Kansas.
“IV. Some time during the year 1919, the defendant Callie Greenwade brought a suit in this court praying that her title to the land in controversy be quieted as against Andrew Foy a brother of Ira A. Foy deceased, and certain other beneficiaries under the will, and upon which suit a judgment was rendered against the plaintiff, Callie Greenwade, and finding the interests of the said defendants in the land in controversy.
“V. The only actual knowledge that the plaintiff Roy B. Foy had of the fraud practised by the defendant, Callie Greenwade, in securing from him the quit claim deed was obtained after the filing of the suit by her to quiet title against Andrew Foy and others, and within two years after the discovery of such fraud he commenced this suit to determine his interest in the land in controversy.
“VI. The value of the land in controversy is $14,400.00. The value of rentals and income less'taxes paid and improvements made thereon since the 14th day of June, 1909, is $1643.18.
“conclusions of law.
“The plaintiff Roy B. Foy is the owner of a one-fourteenth interest in and to the land in controversy, and in addition to his interest therein is entitled to a judgment against the defendants Greenwade and Greenwade for the sum of $117.37, being one-fourteenth of the net proceeds of the income from 1909 to the present time, less $25.00 received at the time of the execution of the quit claim deed in controversy.
“This is an action praying for relief on the ground of fraud, and the cross petitioners Sarah Lambe and John B. Foy are barred by the statute of limitations, having had personal knowledge of the fraud for more than two years prior to the commencement hereof.”
Judgment being entered in accordance with these findings, Callie Greenwade and Charles F. Sloan appeal, and so do Sara Lambe and John B. Foy.
Proceeding first to the errors assigned by Callie Greenwade, it is her contention that the allegations of plaintiff’s petition are insufficient to state a cause of action for relief on the ground of fraud, and that the evidence did not support a finding of fraud. She also shows by the plaintiff’s own testimony that when he was eighteen years old, ten or eleven years before this action was begun, he learned that Callie failed in her attempted sale of the property in 1909 because the heirs of Ira had some interest in it; he learned that she would need quitclaim deeds from himself and the other heirs before she could give title to the property; that she once said to him she was looking forward to the time when he would come of age, to have him sign a quitclaim deed; that he also knew that some of his elder kinsmen had signed such deeds 4pr her, and that she had paid them varying sums therefor.
The decree of the probate court was very equivocal; it was quite susceptible of the erroneous interpretation that the homestead was unqualifiedly apportioned to Callie. It provided:
“. . . The same [land in controversy] is hereby set off to the said Callie Foy, widow of said Ira A. Foy as a homestead to be her separate property,” etc.
Read in connection with the rest of the decree, and aided by our knowledge of the law, we can see, of course, that only a homestead right of occupancy for the duration of her widowhood was or should have been decreed to her; but we search this record in vain for any evidence to show that she wilfully misrepresented the facts to the plaintiff, or any evidence that her statements to him were other than her opinion, founded, as it appears, upon the advice of her attorneys. It would be rather harsh to hold that the expression of such an opinion of her rights was a fraud on her quitclaim grantors, for such an opinion in similar cases has persisted in the minds of some eminent attorneys down to recent date. (Newby v. Anderson, 106 Kan. 477, 188 Pac. 438; Campbell v. Durant, 110 Kan. 30, 202 Pac. 341; Jehu v. Jehu, 110 Kan. 210, 203 Pac. 712.)
But it may be unnecessary to rest our judgment on the disputed sufficiency of the allegations of fraud or on the evidence of fraud. This action was essentially one to set aside a deed obtained by fraud, although it included a claim to the real estate affected by the deed. The statute of limitations provides that an action for relief on the ground of fraud must be commenced within two years. (Civ. Code, § 17, subdiv. 3.) The time does not begin until the discovery of the fraud, or until the time when the fraud could reasonably have been discovered by the exercise of ordinary diligence. Plaintiff’s quitclaim deed was recorded in 1912. The public records at that time disclosed the fee title resting in Ira A. Foy, deceased. The probate court record disclosed the subsequent disposition of the property, and the status of the title; the plaintiff knew his relationship to Ira and his rights as heir thereunder; he was also apprised that he had some claim to the property of sufficient dignity so that Callie could not give good title without a quitclaim deed from him. How, then, can he be heard to complain of any fraud of Callie, assuming that she did defraud him, eight years afterwards? The record does not show that the lawsuit in 1919 between Callie and other parties gave him any new or additional information touching any right of his in the property that he had not known for ten or eleven years. It probably did define his precise interest. But the law does not excuse laches because a person does not know his precise rights or their extent. At no time since he became of age would he have experienced the slightest difficulty in ascertaining his interest in the property if he had exercised any diligence. The public records gave him constructive notice of all he needed to know, and of all that was necessary to maintain and establish his cause of action.
“The language employed in the statute, 'until discovery of the fraud,’ does not mean until the party complaining had actual knowledge of the fraud alleged to have been committed, but that constructive notice of the fraud is sufficient to set the statute in motion, even though there is no actual notice; that where the means of discovery lie in public records required by law to be kept, involving the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient notice of the fraud to set the statute in motion.” (Black v. Black, 64 Kan. 689, 704, 68 Pac. 662.)
“Constructive discovery resulting merely from a statute, under such circumstances that the aggrieved person, although actually diligent, has no reasonable opportunity to learn of the facts constituting the fraud, may not be sufficient to set the statute in operation, but constructive discovery resulting from his failure to be diligent when diligence would have disclosed the fraud practiced upon him will always do so.” (Donaldson v. Jacobitz, 67 Kan. 244, 247, 72 Pac. 846.)
“The existence of a public record showing facts disclosing a fraud, the perpetrator of which sustains no fiduciary relation to the victim, is deemed to impute knowledge thereof to anyone who in the exercise of reasonable care for his own protection would be led to examine it. (25 Cyc. 1190; 19 A. & E. Encycl. of L. 251.)” (Duphorne v. Moore, 82 Kan. 159, 162, 107 Pac. 791.)
To the same effect are: Rogers v. Richards, 67 Kan. 706, 74 Pac. 255; Walline v. Olson, 84 Kan. 37, 113 Pac. 426; Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611; Davis v. Heynes, 105 Kan. 75, 181 Pac. 566.
See, also, Note in 22 L. R. A., n. s., 208.
Counsel for plaintiff seek to override this barrier of precedents by arguing that the two years’ statute does not govern the case at bar— that the action is essentially one for the recovery of real estate. But plaintiff must get rid of his deed of 1912 before he can successfully maintain his claim to the real estate, since he has parted with his title — parted with it by defendant’s fraud, he says. Very well, let us concede that he parted with it through fraud. Then he needed some relief; he needed the relief furnished by the statute, and the relief must be invoked according to the statute. The statute says two years is the limitation for an action for relief on the ground of fraud. Plaintiff has waited seven years — on the theory perhaps that he has fifteen years. He would have fifteen years if he had given no title; but having given title, he does not have fifteen years to get rid of his conveyance; he only has such time as the statute allows — two years. Once rid of the alleged fraudulent conveyance he might wait as long as he chose to recover his interest in the property, not exceeding fifteen years. His suit for relief on the ground of fraud and for recovery of his interest in the property may be combinéd in one action, but the second count to recover the property has no standing until the matter of title is disposed of. It would be a considerable surprise to the profession to have it said that when one has been induced by fraud to convey his interest in land he may disregard his conveyance, disregard the statutory time for obtaining relief from the fraud practiced on him, and wait just as long to commence his action as if he had never made such conveyance and had never been subjected to any fraud. When a man has parted with his title through fraud, he must bestir himself to obtain relief therefrom, and he must do so within the time allowed.
Cases of fraud in the procurement of an interest in realty are as common as any other cases of fraud with which this court has had to deal, and notwithstanding the California case cited by appellee (Murphy v. Crowley, 140 Cal. 141), in which two justices dissented, and a third justice only concurred because the matter was stare decisis in that state, no Kansas precedents can be found to support the argument that an action of this sort is governed by the fifteen years’ limitation, and not by the two years’ limitation. Our precedents are all to the contrary. Some of our own cases cited above-were concerning real estate, and New v. Smith, 86 Kan. 1, 119 Pac. 380, paragraphs 1 and 3 of the syllabus, was to the same effect. It is there said:
“The action in form is ejectment, but, as was shown by the undisputed evidence, to obtain the relief sought for the plaintiff must show that a deed of record from herself to one Schultz was fraudulently obtained from her. Looking beyond the mere form of the action to the real issue therein, we hold that the action is an action for relief on the ground of fraud and that the two-year limitation applies.” (p. 7.)
From this it follows that disregarding appellant’s contentions that fraud was not sufficiently pleaded and not proved, the appellee was charged with notice of his interest in the property by the records of the register of deeds and of the probate court, as well as by his knowledge of his relationship and rights of heirship to Ira A. Foy, and his action to set aside the quitclaim deed which he gave his aunt, Callie Greenwade, in 1912, through her alleged fraud was barred in two years.
It is needless to determine whether the evidence was sufficient to sustain the trial court’s findings of fact that the cross appellants John B. Foy and Sara Lambe had actual'knowledge of the alleged fraud of Callie Greenwade for more than two years before their cross action was begun. (Fitzgerald v. Realty Co., 106 Kan. 54, 56, 186 Pac. 739.) They had the same constructive notice of the facts which controls the determination of the claim of the plaintiff, Roy Foy. If a more liberal rule be extended to Sara because she resided in another state and had no access to the record, then the excerpt from Sara’s testimony quoted'by her counsel, “I knew how she [Callie] had done; I told her I knew what she had done,” would indicate that the trial court’s finding concerning notice to Sara was correct.
It follows that the judgment of the district court, in favor of the plaintiff must be reversed with instructions to enter judgment in favor of Callie Greenwade and Charles F. Sloan, and against the plaintiff; and that on the cross appeal of John B. Foy and Sara Lambe the judgment should be affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for the balance claimed to be due a contractor for constructing a garage, a foundation for a house, and a house built on the foundation. The plaintiff recovered, and the defendant appeals.
The controversy arose over changes and extras, and the defendant contends the plaintiff’s witnesses were interrogated in such a way that value of items of the plaintiff’s account for material and labor was not proved. The defendant was to pay cost of certain items, and cost was testified to from paid bills. In some instances value was established according to approved method. Very often in the course of the trial the question relating to an item took substantially the form of, “How much was that?” In no instance was objection made to the form of a' question on the ground it would not elicit value. The issue was value, the testimony was tendered to show value, and, if the defendant did not desire to concede probative force to the testimony, he should have interposed objection when the testimony was offered. He could not remain silent until the trial was over, and then, when defeated, complain of the form of questions.
. The defendant contends the verdict was not supported by evidence. It would serve no purpose for which decisions of this court are reported to cumber this opinion with a discussion of the various items of the long account. Presumably the attorneys presented to the jury their analyses and summaries of the evidence. The district court reviewed the testimony at a hearing on a motion for a new trial, and approved the verdict. There is evidence which, if believed,' would warrant recovery of a larger sum than the jury allowed, and this court is not authorized to interfere.
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The opinion óf the court was delivered by
Johnston, C. J.:
Sam P. Schaefer was convicted upon a charge of grand larceny, and appeals.
The subject of the larceny was a Ford car which was taken from the owner, E. Briles, in Wilson county by Ed Chidister and Jack Vaughn, who drove it to Baxter Springs in Cherokee county and turned it over to Fred Williams and the defendant, Schaefer; they in turn drove it to Southwest City, Mo., and sold it to one H. C. Cox for $450. Ed Chidister and Jack Vaughn were included with Schaefer in the charge of larceny, but a separate trial was given to Schaefer. Williams, it appears, escaped and has never been apprehended. On the trial the testimony of Chidister and Vaughn, who had been convicted of stealing other cars and were confined in prisons, was received, and the defendant contends that it was erroneously admitted, in that it had not been shown that there had been any arrangement between them and the defendant or Wil liams, and no ground for the admission of the statements of Williams in respect to the theft of the car.
The state proceeded upon the theory that the defendant aided and abetted Chidister and Vaughn in the larceny, was an accessory before the fact and equally guilty with them of the offense charged. Of course, if the defendant had no part in planning the theft or in stealing the car and had no knowledge of it until the car was brought to Baxter Springs, he could not be convicted upon the charge of stealing the car in Wilson county. However, there was testimony tending to show knowledge by him of the contemplated theft and to warrant the inference of prearrangement and participation in it. Chidister and Vaughn and the defendant had been together in Oklahoma and together had motored up to Baxter Springs. Chidister testified that when he and Vaughn brought the stolen car to Baxter Springs they found Schaefer, who informed them that Williams was in town and that he had their money ready to pay them for the stolen car. They received $150 for the car. The witness said he had participated in stealing six cars and that defendant in a conversation with him said that a car stolen at Arcadia had red paint on the hub and that they had trouble in removing it. Vaughn testified that defendant had talked with him the day before the theft about stolen cars and had offered him a Studebaker for three stolen Fords. It appears that he borrowed some money from defendant on that day and when Williams paid for the stolen car he retained out of the price the money borrowed from Schaefer. The testimony objected to is deemed to be admissible and sufficient to warrant the finding that the defendant aided and abetted Chidister and Vaughn in the larceny of the car.
Complaint is made of instructions refused and given. From the evidence recited it is clear that the court did not err in refusing to give a peremptory instruction to find for the defendant.
Error is assigned on the refusal of a requested instruction that defendant could not be found guilty of stealing the car in Wilson county by the mere proof of his purchase of a car in Cherokee county, knowing it to have been stolen. That phase of the case was not overlooked by the court, as the jury was instructed that—
“If you should find and believe beyond a reasonable doubt that the defendant purchased and paid for the car in question or that he did either purchase and pay for the car in conjunction with Fred Williams that fact alone would not be sufficient evidence upon which you could render a verdict of guilty even though you should find and believe that at the time the same was so purchased defendant knew it had been stolen, and you are instructed that before you could find the defendant guilty in this case you must find and believe beyond a reasonable doubt that before the theft of the car the defendant counseled, aided and abetted the actual perpetrators of the crime in question, and if you do not so find you should acquit the defendant.”
Throughout the charge the court made it plain that the defendant was being prosecuted as a principal in the larceny and not for the offense of receiving stolen property. Some reference was made in an instruction to the possession and sale of the car by the defendant, but it only related to the essential element of intent of defendant to deprive the owner permanently of the ownership or possession of the ear.
Special objection is made to instruction number five, relating to the recent possession of stolen property, in which it was stated:
“You are instructed as a matter of law that possession of stolen property immediately after the theft thereof is prima facie evidence of guilt and is sufficient to warrant a conviction unless attending circumstances or other evidences so far overcome the presumption thus raised as to create a reasonable doubt of guilt. It is a guilty circumstance which taken in connection with other testimony is to determine the question of guilt.”
Apart from the phrase “it is a guilty circumstance,” the instruction states the rule in the language usually employed in charging juries in larceny cases. The rule has been the subject of much contention and criticism and some conflict of judicial decision, but as was said in the early case of The State v. Cassady, 12 Kan. 550—
“That the rule that possession of property recently stolen makes out a prima facie case of guilt, and throws upon the defendant the burden of explaining that possession, is one of long standing and abundantly fortified by authorities, no one can question.” (p. 559.)
This rule has been upheld and applied from the time of that decision, as is well shown in the later case of The State v. White, 76 Kan. 654, 663, 92 Pac. 829, where it was said—
“That the rule stated is subject to some criticism in view of the present state of the criminal law. Technically the unexplained possession -of recently stolen property does not make a prima facie case of guilt. It is merely an evidential fact which should be submitted to the jury to be considered in connection with all other facts and circumstances disclosed by the evidence, but which, if the jury so regard it, is sufficient to warrant a conviction; and technically, the burden of proof in a criminal case never shifts.
“However, the instruction states the common law upon the subject. With some unimportant verbal changes and the not improper addition of the phrase ‘or if his explanation, is not satisfactory’ it follows the fifth paragraph of the syllabus of the case of The State v. Cassady, 12 Kan. 550, decided in 1874. That syllabus has served as a model to district judges in the preparation of instructions in larceny cases ever since it was formulated. In 1894 it was expressly approved in the case of The State v. Hoffman, 53 Kan. 700, 37 Pac. 138. The objections to it noted above were adverted to in the case of The State v. Powell, 61 Kan. 81, 58 Pac. 968, and the court refused to extend its application to burglary, but it still remains an unmodified expression of the settled law of this state. This being true the instruction cannot be condemned.”
The instruction given would have been more nearly correct in form if the court had not characterized the matter of recent possession as a “guilty” circumstance, but as the court told the jury this circumstance was to be taken in connection with other testimony in determining the guilt of the defendant, no prejudice could have resulted from the use of the term. The importance of the circumstance depends upon other evidence as to the kind of property stolen, the time and manner in which it was taken and the time and manner in which the defendant took and held possession of it. The defendant insists that he had no knowledge of the theft and no part in it and that therefore the rule was not applicable to his possession. If that had been the state of the evidence, the circumstance would have be'en a very slight indication of. guilt. As the testimony tended to connect him with the theft, it was a circumstance to be considered in connection with other testimony, as the court advised the jury.
In other instructions the court told the jury that if the car had been obtained by purchase it was not enough on which to base a verdict of -guilty, and unless they found that the defendant aided and abetted Chidistór and Vaughn in stealing the car they must acquit defendant.
We find nothing substantial in the claimed misconduct of the county attorney in the argument of the case before the jury.
Some other objections are made, but they are not deemed to be material nor to require special comment.
Finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This was originally a foreclosure action to which the appellant was not a party. He purchased the land at the sheriff’s sale under the foreclosure decree on the 10th of May, 1915, paid the amount of his bid, $300, and the sale was confirmed on the 24th day of June, 1915'. The certificate of purchase issued by the sheriff stated that the purchaser would not be entitled to a deed until the expiration of nine months from the date of the sale, which would be February 10, 1916. The judgment was obtained on service by publication only, and on the 31st day of December, 1915, before the date when the deed would be due, the defendant filed a motion to open the judgment under the provisions of section 6974, General Statutes of 1915, which authorizes such a judgment to be opened up at any time within three years from the date of the judgment, upon showing certain facts. Subsequently Chambers was made a party plaintiff to the action. The case turns upon the nature of the title acquired by the purchaser at a sheriff’s sale in such an action and involves the construction of the proviso in section 6974, which reads:
“But the title to any property, -the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall, after expiration of six months, not be affected by any proceedings under this section.”
Chambers, who is the appellant, claims that because six months had expired from the date of the sale the title to the property passed to him notwithstanding the time for issuing of the deed had not arrived. The trial court denied this contention and held that the title had not passed to the purchaser until the execution of the sheriff’s deed.
As early as 23 Kan. 321 (Marshall v. Shepard), it was held that the purchaser at a judicial sale obtains an inchoate equitable title to the property; that by the confirmation the value of the purchaser’s title is enhanced but it was held still to be only an equitable title, which was further enhanced by the execution of the sheriff’s deed. In the opinion it was said:
“As to all persons who had actual notice of the deed, their [the purchasers’] title was then complete and perfect both legal and equitable (Conveyance Act, § 21); but as to all others their title was at most only an equitable title.” <p. 326.)
In Robinson v. Hall, 33 Kan. 139, 5 Pac. 763, it was held that "the purchaser at a sheriff’s sale is not ordinarily entitled to the possession of the premises as a matter of right until the deed is -executed in conformity with the order of confirmation. The question was referred to in the case of Haish v. Pollock, 79 Kan. 624, 101 Pac. 3. In the opinion it was said:
“In a few jurisdictions it is held that title may pass at a sheriff’s sale without the actual execution of a deed, but the general rule is to the contrary. (25 A. & E. Encycl. of L. 807.)” (p. 625.)
In some states it is held that before the confirmation of a judicial sale the bidder is not a purchaser, but that after the confirmation the contract is complete. (Virginia Fire, etc., Ins. Co. v. Cottrell, 85 Va. 857.) Undoubtedly this is true for certain purposes, because the bidder may be compelled by proceedings- of the court to comply with his contract. But obviously he is not the owner of the legal title until he has complied and the deed has been executed. There are authorities holding that while the purchaser at a judicial sale acquires certain vested rights when the property is knocked off to him, he does not obtain a complete title until after the sale is confirmed. Expressions will be found in some of the texts indicating that complete title passes on confirmation. For instance, it is said that until confirmation is actually had the bidder is not considered as the purchaser in the full sense, and that “he acquires no complete and independent right or interest in the land, nor any title, legal or equitable, until the sale is confirmed,” and that “by the acceptance of his bid, and the subsequent confirmation of the sale by the court, the bidder becomes the purchaser in the full sense of the term, and the substantial owner of the property sold, with right of possession, though this right may not be asserted against the former owner until the due execution of a deed.” (16 R. C. L. 115, 116.) Some text- writers lay stress upon the fact that the purchaser, after confirmation, is entitled to any increase in the market value of the property and has to bear the loss, if any, that may afterwards occur to it.
But while these rights and liabilities accrue on confirmation, we think it is because the equitable title passes to the purchaser after confirmation and before the deed is executed.
“The property is held in trust for the purchaser between the time of sale and the time when the conveyance is made to him. Still, he does not obtain the legal title by such confirmation unless the decree divests and vests title, or a 'deed is made by the master or officer selling pursuant to a decree ordering him to do so, or unless on being so ordered, the master fails to make the deed within a reasonable time.” (16 R. C. L. 117.)
We have held that the provisions of section 6974 must be liberally construed in the furtherance of justice. (Young v. Martin, 96 Kan. 748, 153 Pac. 542, holding that the application and affidavit filed within time might be amended or supplemented after the time to open the judgment would otherwise have expired; Leslie v. Gibson, 80 Kan. 504, 103 Pac. 115, holding that the assignee of the party defendant has a right to open the judgment; Kibby v. Hensel, 81 Kan. 229, 105 Pac. 696, holding that a misdescription of the land may be corrected in an answer after the three-year period has expired.) We think the proviso in the section which declares that “the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall, after expiration of six months, not be affected by any proceedings under this section,” etc., must be strictly construed in order to carry out the general purpose of the section which was to enable the defendant to open up the judgment by making a showing of certain facts, and that the legislature intended that .the proviso should apply only where the full title to the property had passed more than six months prior to the filing of a motion to open up the judgment. The effect of the former decisions is to hold that the equitable title is vested in the purchaser, after the confirmation of the sale, and that he thereby obtains certain vested rights and incurs certain obligations which, in a proper case, could be asserted or enforced. But the title does not pass until the execution of the sheriff’s deed.
It follows, therefore, that the judgment of the trial court was correct, and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to annul and set aside a judgment obtained against Champion D. Kircher by his mother, Priscilla Kircher, rendered on April 4, 1918. The judgment determined that a deed which had been executed by the mother to the son on December 12, 1904, was null and* void, and it was decreed that it be discharged of record.
In that action Priscilla Kircher alleged that she had been induced to execute the deed through the importunity and misrepresentations of her son, who was living with her and to whom she had entrusted the management of her business affairs. She alleged that she was then in feeble condition physically and mentally, that he took advantage of her enfeebled condition and her trust in him and urged her to make the conveyance of the land to him, telling her that it was encumbered with a mortgage when it was unencumbered and that she would lose the same through the pretended mortgage unless she would convey the property to him. He also threatened to institute insanity proceedings against her unless the property was conveyed. She further alleged that he employed one P. C. Helder to prepare the deed and represented to her that Helder was a minister of the Gospel and a justice of the peace, and that, taking advantage of her religious nature and confidence in ministers, told her that Helder would not permit her to sign a deed unless it was just and right that she should do so. Helder, she alleged, was not a minister nor a justice of the peace, and all of the representations made were untrue and were made to quiet her apprehensions, and by reason of these she was fraudulently induced to sign the instrument. She further alleged that she did not have knowledge or mental capacity to comprehend the .nature of the instrument or to understand its terms; that a part of the inducement to sign the deed was that he promised to make a home for her and would pay her the income of the property, but he had failed to provide her with a home, except for the short period of ten months, and that he has never paid her any part of the income except $100. She asked to have the deed set aside, that she recover the reasonable annual rental of the property, which is $480, and that the plaintiff and his wife be ejected from the premises.
That action was pending from August 23, 1915, until about April, 1918. In the instant case the testimony offered to set aside the judgment is based largely on the ground that Champion D. Kircher was of unsound mind and unable to make a defense in the former action in which the deed was set aside. His wife, who was joined with him as a defendant, had been adjudged insane and was confined in the state hospital. His mother, who brought the original action in which the judgment sought to be set aside was obtained, became insane before the judgment was rendered and has since died. The judgment in favor of the guardian of the mother was rendered by default as against Champion D. Kircher, but his wife was represented by her guardian. The judgment recites that the plaintiff introduced her evidence in support of her allegations of misrepresentation and fraud and that the defendants introduced no evidence, although the guardian ad litem of Mrs. Champion D. Kircher was in court, and the court found the allegations of plaintiff’s petition to be true and entered a decree setting aside the deed and restoring the title to the plaintiff.
It appears that Champion D. Kircher employed' attorneys to represent him when the action was brought, but they had withdrawn from the case a year prior to the entry of judgment. In the latter part of the year 1915 there were negotiations between the parties looking to a settlement of the original controversy, but it was never consummated. In behalf of Champion D. Kircher, it is said that after the original action was begun, his wife sued him for divorce and, upon a charge that the children were neglected, they were taken from both parents and committed to another. This was followed by a proceeding in which his wife was adjudged insane, and it was claimed that all these circumstances affected his mentality and rendered him unfit to understand the action brought against ■ him or the necessity for a defense. The evidence as to his competency shows him to have been a preacher, and a peculiar and eccentric man. The probate judge and sheriff stated that they hardly thought he was normal. One of his attorneys testified that they had great difficulty in making him understand the nature of the action and that there was incoherence and inconsistency in the statements he made to them. Some of his witnesses said that he was abnormal only on the topics of religion and women, while others said they thought there was a real unsoundness of mind.
The question presented to the trial court was whether the plaintiff, against whom the judgment was rendered, had shown that he was prevented from making his defense by unavoidable casualty or misfortune. It was mainly a question for the trier of the facts and it has been determined against the plaintiff. There was much testimony produced tending to show the abnormality of plaintiff and a lack of appreciation of the importance of the litigation with his mother. He did employ attorneys, who had difficulty in making him understand the nature of the case and the possible result of it. They represented him for about two years while the case was pending and presented a number of motions in it, but finally withdrew from the case after giving him ample notice of the withdrawal, and advising him that it was essentially necessary that he should employ others. This he neglected to do, although the action was not tried nor judgment rendered until about a year after his counsel had severed their connection with the case. There was no haste, no fraud of the adverse party, nor anything which contributed to the failure of plaintiff to prepare and make his defense. His failure to appear and defend was his own careless inattention and gross negligence, which cannot be regarded as unavoidable casualty or misfortune, or grounds for a vacation of a judgment. He was negligent, not only before but after judgment, as he made no attack upon it until the present action was brought, and that was more than fifteen months after the judgment was rendered. In the recent case of Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133, it was said:
“The rule is settled that a litigant can not invoke the code provision for relief on the ground of ‘unavoidable casualty or misfortune preventing a defense’ where he has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense, nor on account of the negligence of his attorney.” (p. 487.)
The ground upon which counsel for plaintiff mainly relies for the. vacation of the judgment is the incompetency of- plaintiff and his lack of appreciation of the course of litigation. It was shown that he is peculiar and eccentric, and it is true that a number of distracting and distressing circumstances occurred in his life while the litigation was pending. Some witnesses regarded him to be of unsound mind, while others thought him to be sane but erratic. His mental condition was peculiarly a question for the trial court, which had much better opportunity than this court of determining his sense of responsibility and competency to make a defense. It has determined that these afforded no excuse for his negligence and no ground for the vacation of the judgment.
Within the rule which governs us in the review of a decision of a trial court on a question of fact, its judgment must be affirmed. - | [
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Per Curiam:
The questions involved in this case are the same as those in Allen v. Waddle, just decided (ante, p. 690), and upon the authority of that decision this judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover money according to the provisions of a written contract. The defendant prayed for reformation of the instrument on the ground it did not express the agreement of the parties. The court denied reformation, and rendered judgment for the plaintiff. The defendant appeals.
In deciding the matter of reformation, the court said:.
“Contracts are reduced to writing to avoid just such a muddle as we have gotten into. Mr. Padfield signed this contract after reading it, and he is held to have understood it and known all that was in it, whether he actually did or not. He contends that certain provisions ought to be. inserted, and the contract reformed to contain those provisions. Now, the law requires that evidence establishing those facts should establish them beyond a reasonable doubt. . . . You have not proved by the evidence beyond a reasonable doubt that this contract should be reformed, and I shall so hold.”
There was substantial evidence that no mistake was made in the preparation of the instrument, and substantial evidence that after the execution of the instrument the parties conducted themselves in accordance with its terms. The standard of cogency which the court applied to the proof is the standard recognized by this court in such cases. (Bodwell v. Heaton, 40 Kan. 36, 18 Pac. 901; Schæffer v. Mills, 69 Kan. 25, 76 Pac. 436.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On December 3, 1920, the defendant issued a policy insuring plaintiff’s touring car against loss by fire to the extent of $1,600. Five days later the car was destroyed by fire. The defendant refused payment and this action was brought. The answer denied that the plaintiff owned the property at the time the policy was issued and at the time the loss occurred. As a further defense it was alleged that there was a change of ownership in the car and a misrepresentation and concealment of facts in reference to the ownership. The reply was a general denial. The plaintiff introduced his evidence tending to prove the facts alleged in the petition. The defendant introduced no evidence and waived argument. The court instructed the jury fully upon the issues and a verdict was returned finding that the plaintiff was the owner of the automobile at the time the policy was issued and when it was destroyed. The verdict was for $1,286, upon which judgment was rendered and the court upon the testimony found that $300 was a reasonable attorney’s fee and that plaintiff was entitled to recover that amount. A motion for a new trial was overruled.
The main contention is that the petition was so defective that the plaintiff was not entitled to recover. The defects alleged are the failure to state that the insurance was in force when the car was destroyed; the failure to state that the plaintiff was the owner at the time the loss occurred; the failure to allege the value of the car at the time of the loss as required by the terms of the policy attached to the petition. There was no demurrer to the petition, no objection to the introduction of testimony, and no objection to anything that occurred on the trial except to the judgment rendered. A number of decisions are cited from Missouri courts to the effect that a petition in such a case fails to state a cause of action unless it alleges that the property was covered at the time of the fire; and other decisions from the same courts holding that a statement in the petition that the property was plaintiff’s property would not be sufficient. We have not examined the cases to discover the particular facts upon which the decisions turned, but it is enough to say that the rule of pleading stated therein does riot appeal to us as persuasive, and that applied to the facts here the rule seems quite technical. In this case the petition alleged that at the time the policy was issued the plaintiff was the owner of the car and that five days later, while it was in his garage at his home, it was destroyed by fire. Without a demurrer or any objection to the petition, we think this was sufficient to carry the case to the jury on the question of ownership. To uphold the judgment courts would be justified in indulging the presumption that the title having been shown to be in the plaintiff on the 5th day of February, and the car still in his possession and control five days later, the title had not changed. The same thing may be said as to the failure to allege the value of the car five days after the policy was issued.
One other question relates to the arbitration clause which reads:
“4. In the event of loss or damage to the property insured herein, and the assured and the association fail to agree as to the amount of such loss or damage, then such loss or damage shall be determined by appraisers, each party to select one (1) and in case of their disagreement, the two so chosen shall select a third and the award in writing of two of them shall be binding as to the amount of such loss or damage only. The association and the assured shall pay the appraisers respectively Selected by them and share equally all other expenses in connection with such appraisement.”
It is insisted that' arbitration was a condition precedent to the right to maintain the action. The defendant cites Insurance Co. v. Wallace, 48 Kan. 400, 29 Pac. 755. The policy in that case provided for. arbitration in case differences arose as to the amount of the loss or damage before or after proof', and upon the written request of 'either party; etc. .It was held that because there was no showing that any differerice of opinion ever arose as to the amount of the loss or damage, arbitration was not a condition precedent. The evidence in the present case shows that the plaintiff gave notice of the loss to the local agent and sent a number of communications to the defendant which so far as the evidence shows were ’ never" answered. At all events, there is no showing that any différences arose between the parties calling for an arbitration. Besidés, no defense was made to the action upon that ground.
Judgment was rendered for the amount of the verdict plus $300 attorney fees, fixed by the court upon evidence submitted on that question. The fees should be taxed as costs instead of being included in the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a sum plaintiff claimed was due her on deposit in the defendant bank. The bank answered, admitting the deposit, and alleged that the amount claimed had been paid out on checks signed by plaintiff. In her reply plaintiff denied signing the check referred to, or authorizing anyone to do so, and alleged the checks were forged. The jury found plaintiff’s signature to the checks in question had been forged and returned a verdict for plaintiff. Defendant has appealed.
Appellant first contends that the court erred in placing the burden of proof on defendant. Appellant is not in position to raise this question. After the jury was impaneled and sworn the record discloses the following colloquy between court and counsel respecting the.burden of proof:
“The Court: Who has the burden of proof in this case?
“Counsel for Plaintiff: The defendant has the burden of proof — make the opening statement.
“Counsel for Defendant : It doesn’t make any difference to me.
“The Court: I think we better make them in the right order.”
Perhaps at that time counsel for defendant thought it to be to the advantage of his client in the trial to have the opening and closing in the introduction of evidence and in the argument to the jury. Perhaps because of former decisions of this court (Kansas City Title & Trust Co. v. Fourth National Bank, 135 Kan. 414, 10 P. 2d 896; Goddard v. National Bank, 115 Kan. 651, 224 Pac. 59; United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974), he thought the burden of proof to be on his client. But whatever the reason may have been, defendant assumed the burden of proof without objection and is not now in position to complain. (Kopke Bros. Merc. Co. v. California Canneries Ass’n, 122 Kan. 451, 251 Pac. 1077.) The court instructed the jury that defendant, having admitted the deposit and having alleged payment to have been made on plaintiff’s checks, the burden of proof was on defendant to establish that defense by a preponderance of the evidence. The record does not disclose any objection to this instruction at the time it was given, nor that the point was raised on the motion for a new trial; hence, it does not appear that the question now presented was raised in the court below.
Appellant contends the court erred in not granting a new trial. The checks in question bore plaintiff’s name as maker. She denied having signed them. Much of the evidence bore upon the question of the genuineness of the signature on the checks. Expert handwriting witnesses testified, some of whom were called by plaintiff and some by defendant. For the purpose of comparison, they had not only the checks which bore the disputed signatures, but other checks bearing her admitted signatures, her signature card which she had signed at the bank, a few letters written by her, and a receipt bearing her name given to the bank for a statement of her account. After the jury had spent some time considering the verdict, it asked to have sent to the jury room the checks bearing the disputed signatures, also cheeks bearing her admitted signatures and the signature card. These instruments were sent to the jury room. The jury did not ask for the letters written by plaintiff nor for the receipt given the bank, and these instruments were not sent to the jury room. Appellant contends it was error to send to the jury a part of the exhibits used by the expert witnesses in giving their testimony without sending all of them, and further contends that some of the expert witnesses called by the defendant based their opinions largely upon comparisons made between the disputed signatures on the checks in question and the writing in the letters written by plaintiff. Appellant argues that since the letters were not sent to the jury room the jury was deprived of the benefit of the testimony of its witnesses. The point is not well taken. It is well settled that a court may, in its discretion, send exhibits to the jury room, particularly when they are requested. It is not unusual for a jury to ask to have read to it a part of the testimony of a witness, without asking for all of the testimony of that witness, and without asking for the testimony of other witnesses on that point. We have not heard it contended that it was error to comply with such a request. We see no reason why the same rule would not apply when the request of the jury was for a part of the exhibits. Here the jury had sent to it all of the exhibits it requested. Per haps there was no controversy among the jurors respecting the other exhibits or testimony which had been given concerning them. It certainly would not be error to omit sending to the jury exhibits it did not need in reaching a verdict.
We find no error in the record, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
The defendant, Kenneth P. Seck, who was indefinitely suspended from the practice of law by this court in 1995, attacks the constitutionality of K.S.A. 21-3824, a false impersonation criminal statute.
Seck, in appealing his misdemeanor conviction under K.S.A. 21-3824, contends the statute is vague and overbroad. We disagree. Seek’s conviction is affirmed.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from Court of Appeals on our own motion).
FACTS
In early December 1997, Stephen Rose, chairman and owner of Sun Publications, received the following demand letter from Seck on a letterhead that represented Seck as an attorney and counselor at law:
“Kenneth P. Seek
ATTORNEY AND COUNSELOR AT LAW
8600 W. 95th St., Ste. 104
Overland Park, Kansas
U.S.A. 66212-3201
(913) 338-9404
(913) 642-4433 (FAX)”
“FRAUD DECEIT
MISREPRESENTATION INTENTIONAL INFLICTION OF
MALICIOUS LIBEL EMOTIONAL HARM
“DEMAND FOR SETTLEMENT
“Dear Mr. Rose:
“As a proximate consequence and result of your malignment — at times, malicious — of Elaine Beckers Braun, Demand is hereby made for settlement in the Amount of One Million Dollars ($1,000,0000.00). Unless we can settle this case by NOON Friday, December 12,1997,1 will file a Lawsuit in the Johnson County District Court.
“If you have an Insurance Policy which provides coverage for intentional acts and conduct by you, your agents and employees, you should refer this Demand Letter to such company. If you are self-insured, you should call this office and advise of your status.
“Notice is hereby provided that this is a ‘Kansas Nelson Letter.’
“Sincerely,
KEN SECK
(Elaine Beckers Braun’s Brother)”
Rose, after consulting his attorney, sent the letter to the Johnson County District Attorney s office because he believed Seek was illegally practicing law. Seek was charged with false impersonation under K.S.A. 21-3824, a class B misdemeanor.
Seek was admitted to the Kansas Bar in 1969 and to the Missouri Bar in 1970. He was indefinitely suspended from the practice of law in Kansas at the time he sent the letter to Rose. See In re Seek, 258 Kan. 530, 905 P.2d 122 (1995). Seek had received two previous informal admonitions and two previous orders of published censure. He was ordered to comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276) (disbarred or suspended attorneys required to surrender license to practice; must notify each client, the courts, and opposing counsel of inability to undertake further representation and must file motion to withdraw from pending litigation). Seek claims he was never specifically told anything by anyone associated with the Disciplinary Administrator’s office regarding the use of a letterhead. Seek was disbarred in Missouri by that state’s Supreme Court on September 17, 1996.
At trial, Seek admitted he knew he was not licensed to practice law when he wrote the demand letter. He agreed that all of the actions in the letter on which he based his monetary demands appeared to be personal actions with his sister as tire person who was wronged. He testified that he was upset with Sun Publications and the Kansas City Star and, by the letter, was pointing out the “malignment” of his sister. Seek said Sun Publications had not engaged in fraud or misrepresentation directed towards him. According to Seek, his démand letter discussed a libel against his sister. Seek claimed he wanted to settle the case based upon “deceit [d]one to his sister.” He admitted writing a similar letter to the Kansas City Star.
Elaine Beckers Braun, Seek’s sister, served on the Overland Park City Council for 5 years. She became a Johnson County Commissioner in 1993. Seek had been living with his sister and her husband after his suspension from the practice of law. His sister committed suicide in April 1997. The Johnson County Commission would collect newspaper articles relating to the commissioners and give them to each of the commissioners for review. Thus, his sister was receiving weekly editorials, cartoons, and articles, which were mainly from the Sun and the Kansas City Star. Seek had kept all of the weekly summaries or weekly notes of the commission. One cartoon, which appeared in the Sun, had a caricature of his sister and other people after a bi-state meeting concerning a tax issue.
A jury convicted Seek of false impersonation. The district court did not order any jail time but, rather, suspended imposing a $1,000 fine upon certain conditions, including a requirement that Seek obtain a mental health examination.
DISCUSSION
K.S.A. 21-3824(a) says: “False impersonation is representing oneself to be a public officer or public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the state of Kansas, with knowledge that such representation is false.”
Seek contends that K.S.A. 21-3824, criminalizing false representation, is both unconstitutionally vague and overbroad. He asserts that his prosecution was “politically inspired.” Seek supports his vagueness contention by arguing:
“K.S.A. 21-3824 is vague because its wording which not only prohibits not only engaging in the practice of law, but also in one’s profession’ leaves a person of common intelligence guessing at its meaning. One who is suspended from the practice of law may as the Kansas Supreme Court has held be employed as a Law Clerk, Investigator or Paralegal. . . . [N]owhere is found a definition of what constitutes engaging in one’s profession.’ For example, it is commonly known that persons who posses [s] a Juris Doctor (and even persons who do not in some instances) may act [as] a Professor of Law, may give lectures on subjects pertinent in the ‘legal’ arena and may act as correspondent or consultants concerning legal issues or trials and thing[s] of that nature; all of which might be viewed as part of the legal ‘profession.’ Because one might debate whether these activities fall within the legal ‘profession’ rather [than] within the teaching, lecturing, or consulting profession, however, the statute is void for Vagueness [sic]. In summary, K.S.A. 21-3824, as it is worded, leaves a person of common sense guessing as to its scope and application. The statute is vague in that it lacks clarity and precision and thus, is Unconstitutional [sic]."
According to Seek, the statute is vague because it not only prohibits engaging in the practice of law but also in one’s profession. We reject Seek’s interpretation of the statute.
Determining a statute’s constitutionality involves a question of law. Our standard of review is unlimited. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
The constitutionality of K.S.A. 21-3824 was squarely addressed in State v. Marino, 23 Kan. App. 2d 106, 929 P.2d 173 (1996). Marino was a law school graduate who was not a licensed practicing lawyer, although at one point in time he may have possessed a temporary permit to practice. He appeared on a local access cable program, representing himself as a practicing criminal defense and divorce lawyer. Someone called the attention of the Johnson County District Attorney’s office to the program. Marino was charged with and convicted under K.S.A. 21-3824 of false impersonation of a lawyer. 23 Kan. App. 2d at 106, 108.
The Marino court said:
“K.S.A. 21-3824 makes it a crime to claim or represent that one is licensed to practice or engage in any profession or vocation for which a license is required in this state while knowing that such representation is false. We conclude that there is nothing vague about the definition of the crime as set forth in the statute and that no one need necessarily guess at the meaning of the statute. There is certainly nothing vague about the activity prohibited.” 23 Kan. App. 2d at 109-10.
We agree. K.S.A. 21-3824 is neither void for vagueness nor over-broad.
A prohibited act under K.S.A. 21-3824 is to represent that one is licensed to practice law when one is not. There is no constitutionally protected act which is prohibited or curtailed. The statute is not constitutionally overbroad.
Seek raises six additional issues in his brief on appeal. In each instance, he simply asserts an error without providing any legal authority or argument supporting his contention. Supreme Court Rule 6.02(e) (2001 Kan. Ct. R. Annot. 35) requires an appellant’s brief to contain “[t]he arguments and authorities relied upon, subdivided as to the separate issues in the appeal if more than one. Each issue shall begin with citation to the appropriate standard of appellate review.” See State v. Boyd, 268 Kan. 600, 606, 999 P.2d 265 (2000). We need not address the six additional issues. See Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). Seek has abandoned the additional issues. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999) (an issue which is not briefed on appeal is deemed abandoned).
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Robert Clinton Hunziker, from his plea of guilty to one felony count of criminal damage to property and one count of misdemeanor theft. At the restitution hearing, the district court ordered that Hunziker and his codefendant, Nicholas D. Cox, would be required to pay the attorney fees incurred by the victim for consultation in preparation of the restitution memo presented to the court. In addition, the court ordered them to pay for the market value of a damaged backhoe, towing expenses, mileage, touch-up paint, work hired, and lost profits. Hunziker appealed, contesting the restitution ordered by the district court and the amount of his required monthly payment. Cox also filed an appeal.
Both Hunziker and Cox questioned the district court’s inclusion of the victim’s attorney fees in the restitution order. In Hunziker’s case, the Court of Appeals determined that attorney fees should be included as restitution, but in Cox’s case, the Court of Appeals held that attorney fees should not have been included as part of the restitution order. See State v. Hunziker, 30 Kan. App. 2d 279, 41 P.3d 880 (2002); State v. Cox, 30 Kan. App. 2d 407, 42 P.3d 182 (2002). We granted Hunziker’s petition for review to resolve the conflicting decisions of the Court of Appeals.
Hunziker’s convictions arose from an incident on August 16, 2000, in which Hunziker and Cox took traffic cones and a barricade belonging to the City of Palco and burned a pasture, trees, and Floyd Van Loenen’s backhoe tractor. Hunziker entered a plea of guilty in the District Court of Rooks County, Kansas, to one count of felony criminal damage to property and one count of misdemeanor theft. District Judge Thomas L. Toepfer suspended Hunziker’s 6-month jail sentence and placed him on 1 year of probation under the supervision of the Court Services Officer. Hunziker was ordered to begin paying $125 per month for court costs of $146, a $50 probation fee, restitution, and attorney fees. The question of the proper amount of restitution was reserved for determination at a later hearing.
The district court conducted a restitution hearing. At the hearing, Hunziker and Cox stipulated to $200 restitution to George Whisman for the damage to his pasture and trees. The remainder of the hearing concerned restitution for Van Loenen. Van Loenen testified that he had hired a personal attorney, Randall Weller, to advise him since he was unfamiliar with court procedures and had never been to court.
A restitution booklet prepared by Weller tallied the repair bills for Van Loenen s backhoe, jobs lost, miscellaneous expenses, and attorney fees, plus statutory interest for claimed restitution damages of $14,403.47. The list included $9,311.32 for repairs; $1,018.97 to replace and mount new tires; $2,115 for lost work; $400 to hire someone to complete jobs; $125.88 in towing expenses; $272.80 in mileage to check the repairs; $21.97 for touch-up paint; and $700 for private attorney fees. Hunziker, however, had introduced an exhibit showing that the fair market value of the 1975 backhoe would range from $7,500 to $8,750. In response to Judge Toepfer’s questions, Van Loenen testified that the expenses associated with backhoe work generally would cost him one-third of the gross income.
After hearing the oral arguments of counsel for the parties, the district court stated:
“I think I’m ready to malee my decision. This is a senseless act, there’s no question about that, and I think the defendants admitted that at the time of their sentencing. Mr. Van Loenen obviously had a tractor that he felt comfortable with and enjoyed and it was important to him and for no good reason that tractor was essentially destroyed.
. . I will find therefore that the value in terms of the tractor is the fair market value as estimated by Murphy Tractor and Equipment, and I for this purpose, because there is testimony that it was a good tractor in good condition and well maintained, I’m going to accept the higher value of $8,750.
“With regard to the lost work, the itemized jobs lost, there is $2,115 gross revenue. I’m going to reduce that by one-third which is $705, that would be the necessaiy expenses that he didn’t have to expend. The net on that would be $1,410.
“The Becker Company bill apparently is a bill that he had to pay, that’s $400, and I will award that. The miscellaneous items I believe are all fair and reasonable. I think Mr. Weller’s fees are reasonable, and I think they should be included to the full amount. I think it’s $700 instead of $450. So there’s an additional $250 that needed to be added to that figure of $870.65.
“Regarding interest, I believe that interest is an appropriate factor in case of restitution. It is lost money and should be paid unless counsel has case law to the contrary. I’m not aware of any.”
Hunziker filed a timely appeal of the district court's restitution order. The Hunziker appeal was heard by the Court of Appeals. That court found that a trial court may award attorney fees if a causal connection exists between the defendant’s criminal conduct and the victim’s attorney fees. The court held that Van Loenen’s retainer of an attorney was a “reasonable and logical result” of Hunziker’s criminal conduct. 30 Kan. App. 2d 286. Ultimately, the court held that the district court correctly included Van Loenen’s attorney fees in the restitution order. In addition, the court found that since Hunziker failed to argue to the trial court that the restitution plan was financially unworkable, the issue of the trial court’s consideration of his financial obligations was not preserved for appeal.
Following the Court of Appeals’ decision, Hunziker petitioned this court for review, based on the conflicting Court of Appeals’ decision in his codefendant’s case. In Cox, the Court of Appeals decided that it was the county attorney’s duty to compute tire victim’s losses and to advise the court on restitution and found that Van Loenen’s attorney fees were not a “direct result” of the defendant’s criminal acts. Consequently, in Cox, the court reversed the trial court’s imposition of private attorney fees in the restitution order.
This court granted Hunziker’s petition for review due to the conflicting Court of Appeals’ decisions.
We begin with a determination of the proper standard of appellate review of a sentencing court’s imposition of restitution. Both parties cite State v. Casto, 22 Kan. App. 2d 152, 912 P.2d 772 (1996), as authority for the proposition that the correct standard of appellate review for restitution as a condition of probation is abuse of discretion.
While “[t]he sentencing judge has considerable discretion in determining the amount of restitution under K.S.A. 21-4610(d)(1),” (emphasis added) State v. Applegate, 266 Kan. 1072, Syl. ¶ 3, 976 P.2d 936 (1999), “the terms of K.S.A. [2001] Supp. 21-4610(d) specific to restitution controls its imposition as a condition of probation.” State v. Hymer, 271 Kan. 716, 723-24, 26 P.3d 63 (2001),' Although K.S.A. 2001 Supp. 21-4610(d)(1) makes restitution a mandatoiy condition of probation, the statute also acts to restrict the scope of permissible restitution orders and limits the otherwise broad grant of authority given to the sentencing court. See Hymer, 271 Kan. at 724; State v. Yost, 232 Kan. 370, 374-75, 654 P.2d 458 (1982), overruled in part on other grounds State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986).
The amount of restitution and manner in which it is made to the aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. Casto, 22 Kan. App. 2d at 153-54. “Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure.” 22 Kan. App. 2d at 154. Because K.S.A. 2001 Supp. 21-4610(d)(1) limits the imposition of restitution to “damage or loss caused by the defendant’s crime,” the question of whether an item claimed by the aggrieved party as loss qualifies for inclusion in a restitution order because it was caused by the defendant’s offense is a question of law. See Walker v. State, 26 Kan. App. 2d 410, 411, 988 P.2d 283, rev. denied 268 Kan. 896 (1999). An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
I. RESTITUTION IN EXCESS OF FAIR MARKET VALUE
Hunziker’s first assertion is that the district court erred by requiring him to pay a total restitution amount in excess of the market value of the damaged property.
“A sentencing court has substantial discretion when ordering the amount of restitution. [Citation omitted.] Moreover, the method of determining the amount of restitution is a matter within the discretion of the trial court. [Citation omitted.]” Casto, 22 Kan. App. 2d at 153.
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” Applegate, 266 Kan. at 1079, citing State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998), and Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993).
Hunziker argues that under Casto, 22 Kan. App. 2d at 154, “a victim of a property crime is entitled to restitution only up to the amount of his or her loss.” Hunziker states that the total restitution to Van Loenen should not have exceeded $8,750, the fair market value of the tractor determined at the restitution hearing.
Judge Green, writing on behalf of the Court of Appeals, observed:
“Hunziker does not contest the reasonableness of the amount that the trial court ordered for each type of damage. Rather, he argues that only the physical damage to the property can be ordered as restitution under K.S.A. 2001 Supp. 21-4610(d)(l). According to Hunziker, the trial court abused its discretion by awarding restitution for the other damages.” Hunziker, 30 Kan. App. 2d at 281.
The State argues that Hunziker reads Casto too narrowly and asserts that the Applegate decision held that, under 21-4610(d)(l), the measure of restitution or reparation to be ordered is “the amount that reimburses the victim for the actual loss suffered.” 266 Kan. at 1079. According to the State, Van Loenen suffered additional loss beyond the value of his tractor, and neither statutoiy nor case law limits his recovery to a single item.
K.S.A. 2001 Supp. 21-4610(d)(l) states, in pertinent part:
“In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
“(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
In addition to ordering restitution for the market value of the backhoe, the district court ordered Hunziker to pay restitution to Van Loenen for hired work, towing expenses, mileage, touch-up paint, lost work, interest, and Van Loenen’s private attorney fees.
As the Court of Appeals noted, Hunziker did not dispute the district court’s authority to order restitution for towing expenses, mileage, or hired work; thus, he cannot challenge the district court’s authority to do so for the first time on appeal. Hunziker, 30 Kan. App. 2d at 282. Issues not raised before the trial court cannot be raised on appeal. State v. Crume, 271 Kan. 87, 98, 22 P.3d 1057 (2001). In addition, the Court of Appeals found that Hunziker had abandoned his challenge concerning the propriety of interest charges on appeal and, therefore, upheld the district court’s award of interest. Hunziker, 30 Kan. App. 2d at 283.
Further, the Court of Appeals upheld the district court’s award of restitution to Van Loenen for lost work, finding that an award to compensate a victim for lost work was analogous to restitution orders for an employee’s lost wages. Hunziker, 30 Kan. App. 2d at 283. The Court of Appeals based its decision on State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992), where this court upheld tlie trial court’s order of restitution for airfare to transport a murder victim’s 12-year-old son to New York and wages lost by the boy’s father so that he could taire custody of his son. Hunziker, 30 Kan. App. 2d at 283.
Before this court, Hunziker presents no opposition to the Court of Appeals’ decision upholding the district court’s award of restitution for lost work. Neither does Hunziker challenge the Court of Appeals’ determination that he abandoned his objection to the district court’s imposition of interest. This court need not consider issues diat are not presented in an appellant’s petition for review or fairly included therein. Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56).
Hunziker did, however, challenge the propriety of restitution damages for touch-up paint, lost work, and attorney fees before the district court. First, we will address the propriety of the restitution order for lost work and touch-up paint, and then consider the award of restitution for attorney fees.
On appeal, in Hunziker, the Court of Appeals held that the touch-up paint expense in the amount of $21.97 was improper under Casto and found:
“In support of his argument, Hunziker cites Casto, 22 Kan. App. 2d 152. In Casto, the defendant damaged the victim’s tractor and challenged the trial court’s computation of the amount of restitution. [The Court of Appeals] reversed the trial court’s restitution order because it failed to consider the value of the tractor after tlie repairs were made and gave two methods to determine the amount of restitution. It then stated that under either method, ‘the restitution amount should not exceed the reasonable market value of the tractor immediately before the damage.’ 22 Kan. App. 2d at 154. Clearly, Casto addresses only the computation method for physical damage to property and is not about limitations on the dif ferent types of damages a trial court may order as a part of restitution.” Hunziker, 30 Kan. App. 2d at 282.
The Casto court wrote:
“We find no Kansas case which provides a formula for determining restitution in criminal cases. Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure. A victim of a property crime is entitled to restitution only up to the amount of his or her loss. [Citation omitted.]” 22 Kan. App. 2d at 154.
The Casto court based its decision in part on State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). There, defendant Hinckley pled nolo contendere to two counts each of burglary and felony theft but later appealed the amount of restitution. The State had offered evidence of the replacement value of the stolen property rather than the actual value of the property at the time it was stolen. In Hinckley, the Court of Appeals reversed the sentencing court’s restitution order because the “sum ordered clearly requires the defendant to pay a sum of money in excess of the amount of damage his criminal conduct caused the victim.” 13 Kan. App. 2d at 419.
In Applegate, the State appealed the district court’s finding that a settlement in a civil suit fulfilled the defendant’s criminal restitution obligation. There, we noted:
“Restitution is not merely victim compensation but also serves the functions of deterrence and rehabilitation of the guilty. State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence. [Citations omitted.] The sentencing judge has considerable discretion in determining the amount of restitution, but the court must, pursuant to K.S.A. 21-4610(d)(1), order restitution for the offense of conviction. [Citation omitted.]” 266 Kan. at 1075.
In Applegate, this court reviewed the Arizona case of State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (1991). In Iniguez, the Arizona Supreme Court upheld the trial court’s determination that the Arizona restitution statutes should fully compensate the victim for economic loss but should not bestow a windfall on the victim. 169 Ariz. at 537. “ ‘Because a primary purpose of restitution is to make the victim whole, and the other aim of restitution is rehabilitative rather than punitive, payment beyond that necessary to compensate does not serve the Legislature’s purposes.’ 169 Ariz. at 537.” Applegate, 266 Kan. at 1076-77. “The measure of reparation or restitution to be ordered, pursuant to K.S.A. 21-4610(d)(l), is the amount that reimburses the victim for the actual loss suffered.” 266 Kan. at 1079. In Applegate, this court concluded that the district judge had not abused his discretion in finding that the civil settlement satisfied defendant’s restitution requirement. 266 Kan. at 1080.
We find no indication in K.S.A. 2001 Supp. 21-4610(d)(l) or in Kansas case law that an aggrieved party is limited to recovering restitution solely for damaged property. There is no language in K.S.A. 2001 Supp. 21-4610(d)(l) limiting restitution solely to property damage or property loss. When granting probation, a court is required to order restitution for “damage or loss caused by the defendant’s crime.” K.S.A. 2001 Supp. 21-4610(d)(l). Thus, the district court did not err by directing Hunziker to pay restitution for losses caused by his crime in addition to the physical damage to the backhoe tractor.
However, the Hunziker panel correctly found that, since the district court ordered restitution for the fair market value of the backhoe, the touch-up paint expense should not have been compensated. The district court’s award of $21.97 for touch-up paint for the backhoe was in excess of the fair market value of the backhoe and, thus, exceeded the total loss incurred by Van Loenen for that piece of equipment.
II. ATTORNEY FEES AS RESTITUTION
We turn now to Hunziker’s principal assertion on appeal. Hunziker contends that tire district court erred in requiring him to pay restitution for Van Loenen’s private attorney fees. Hunziker asks this court to reverse the restitution order and direct the district court to prepare a new journal entry reflecting the correct amount of restitution.
“A court lacks authority to assess attorney fees under its equitable powers absent statutory authority. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905-06, 908 P.2d 1329 (1995). Here, whether the trial court had the authority to impose attorney fees is a question of law; our review is plenary. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).” Walker, 26 Kan. App. 2d at 411.
The State’s position is that Van Loenen’s payment of the private attorney fees was caused by Hunziker’s commission of a crime and is therefore compensable as restitution under K.S.A. 2001 Supp. 21-4610(d)(1). Without citing any case law in support of its position, the State points out that the cases cited by Hunziker are not criminal cases; thus, the State contends that no legal authority supports Hunziker’s position. Finally, the State argues that if the legislature disagrees with the award of private attorney fees as restitution in criminal cases, then the legislature can amend 21-4610(d)(l).
In his briefs, Hunziker sets forth several reasons why he believes the restitution should not have been awarded for Van Loenen’s private attorney fees. First, we consider Hunziker’s argument concerning cases where the Tenth Circuit Court of Appeals has reversed restitution orders for a victim’s attorney fees under the federal Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. § 3663 (2000).
Due to the VWPA’s explicit language limiting an award of restitution in cases of destruction or loss of property to only those losses “sustained by any victim as a result of the offense” (18 U.S.C. § 3663), federal courts generally will not order restitution for a victim’s consequential attorney fees. See Hughey v. United States, 495 U.S. 411, 413, 109 L. Ed. 2d 408, 110 S. Ct. 1979 (1990) (interpreting predecessor to 18 U.S.C. § 3663 to permit restitution only for those losses caused by “specific conduct that is the basis of the offense of conviction”); United States v. Patty, 992 F.2d 1045, 1049 (10th Cir. 1993) (holding that “attorney fees incurred by the victim to recover his property are not direcdy related to the defendant’s criminal conduct and thus are not recoverable in restitution under the VWPA” and overturning “any attorney fees not directly related to Defendant’s criminal conduct”); United States v. Mullins, 971 F.2d 1138, 1147 (4th Cir. 1992) (denying restitution for legal fees incurred in an effort to recover equipment taken through fraud).
As this court noted in Applegate, K.S.A. 2001 Supp. 21-4610(d)(1) provides “only a general statement of the legislature’s intent,” in contrast with the VWPA, “which provide [s] a veiy specific statement for determining the amount and payment of restitution.” 266 Kan. at 1077. We decline to apply federal case law based on the mandates of a specific federal statute as authority for an interpretation of our more general statute.
Next, we turn our attention to Hunziker’s comparison of the victim’s private attorney fees to investigation expenses by a governmental agency, which are not recoverable as restitution or reparations. In Cox, the Court of Appeals briefly addressed this issue and found:
“The record is very limited on what services Van Loenen’s attorney did provide. The district court file includes a letter written by the attorney to the defendants’ attorneys and the trial court. He stated he and Van Loenen had been to a court hearing in early October and agreed to give the final amount Van Loenen would be requesting for reimbursement. He also stated the restitution amount requested was $15,302.24 and the supporting documentation was available. The county attorney appeared at all hearings on behalf of the State. There is nothing in this record to indicate what Van Loenen’s attorney did, when he did it, the time he spent doing it, or his hourly fee for doing it. There is no finding by the court that the fee was reasonable or necessary. It appears Van Loenen retained the attorney to determine and document Van Loenen’s damages.
“Based upon the record, Van Loenen’s attorney did not act as prosecutor, assistant prosecutor, or special prosecutor, and the State’s attorney did not relinquish his prosecutorial duties to Van Loenen’s attorney. The attorney was hired by Van Loenen to act as his privately retained attorney and maintained his allegiance to Van Loenen and not the State. The attorney fee was an expense incurred by Van Loenen and not the State.” Cox, 30 Kan. App. 2d at 409-10.
Hunziker’s comparison of the victim’s attorney fees to investigation costs incurred by a governmental entity advances a strained analogy, at best. Private attorney fees for individual representation cannot be compared to costs of investigation of a government agency. Thus, we decline to rely on the case law cited by Hunziker finding investigation costs unrecoverable as restitution as a basis for our decision in this case.
Next, Hunziker contends that such an award is contrary to the American Rule, long followed by Kansas courts, which states that a court may not impose attorney fees unless authorized by statute or by prior agreement of the parties. In support, Hunziker cites State v. Dugan, 29 Kan. App. 2d 71, 25 P.3d 145 (2001), where the State moved for attorney fees and costs related to the defendant’s appeal of the imposition of a presumptive sentence. There, although die Court of Appeals agreed that the defendant’s appeal was frivolous, Judge Green wrote:
“Although. [Supreme Court Rule 7.07(c) (2001 Kan. Ct. R. Annot. 52)] appears to give the appellate courts blanket authority to order attorney fees based on frivolous appeals, Kansas follows the American Rule that courts do not have authority to award attorney fees except when authorized by statute or agreed to by the parties. See United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). Likewise, a court does not have authority to impose attorney fees under its equitable powers in the absence of statutory authorization. [Citation omitted.]” 29 Kan. App. 2d at 73-74.
Hunziker contends that K.S.A. 2001 Supp. 21-4610(d)(l) does not authorize restitution for attorney fees and concludes that since the parties did not agree to restitution for attorney fees, the district court erred in requiring him to pay the victim’s attorney fees. The accuracy of Hunziker’s assertion is predicated on the conclusion that 21-4610(d)(l) does not permit restitution damages for attorney fees.
In Kansas, restitution for a victim’s damages or loss depends on the establishment of a causal link between the defendant’s unlawful conduct and the victim’s damages. Beechum, 251 Kan. at 202-03. “Not all tangential costs incurred as a result of a crime should be subject to restitution.” Beechum, 251 Kan. 194, Syl. ¶ 3.
“The fee of $700 allowed as restitution accomplished nothing insofar as the prosecution of Cox was concerned. It has no causal connection to the crime of criminal damage to property. The order allowing it is reversed.” Cox, 30 Kan. App. 2d at 414.
We find that Van Loenen’s retention of an attorney was not a direct result of Hunziker’s criminal conduct. Here, there was no need to trace embezzled funds, recreate destroyed data, or recover stolen property. Because Van Loenen’s private attorney fees only arose as an indirect or consequential result of Hunziker’s crime, we reverse the order allowing $700 in attorney fees as restitution.
III. OTHER FINANCIAL OBLIGATIONS
Finally, Hunziker asserts that under K.S.A. 2001 Supp. 21-4610(d)(1), the district court erred by ordering a restitution payment plan that was unworkable.
“A sentencing court has substantial discretion when ordering, the amount of restitution. [Citation omitted.] Moreover, the method of determining the amount of restitution is a matter within the discretion of the trial court. [Citation omitted.] Judicial discretion is abused only where no reasonable person would take the view adopted by the court. [Citation omitted.]" Casto, 22 Kan. App. 2d at 153-54.
Hunziker argues that, under K.S.A. 2001 Supp. 21-4610(c)(8), State v. Loffer, 24 Kan. App. 2d 495, 947 P.2d 458 (1997), rev. denied 263 Kan. 889 (1998), and Applegate, 266 Kan. 1072, the district court was required to institute a plan of restitution that considered the amount of support he is required to provide to his dependents. Hunziker asserts that the district court failed to consider the fact that he had “a child on the way.” He further contends that because Kansas statutes require him to provide support to his dependent child, his monthly restitution payments are unworkable.
The State contends that the district court did not abuse its discretion in setting the restitution payments. According to the State, the district judge did consider Hunziker’s financial condition before setting the monthly minimum restitution payment at $200 per month.
The Court of Appeals wrote:
“The trial court first inquired of Hunziker’s codefendant about his employment, child support, and the monthly payments he had been making to the court pending the restitution hearing. When the trial court then asked Hunziker how much he had been paying while reporting on probation, Hunziker responded $125 per month. His attorney then told the court that Hunziker understood he would be on probation until full restitution had been paid and that Hunziker had a child on the way. He also told the trial court that he advised Hunziker to make every effort to get the restitution paid within 1 year because if he did not, his probation would be extended.
“It appears the trial court was beginning to ask Hunziker about his financial conditions as it had asked Hunziker’s codefendant when Hunziker’s attorney advised the trial court he had informed Hunziker to pay any restitution orders within a year. Moreover, Hunziker did not argue to the trial court that its restitution plan was unworkable. When the defendant failed to challenge the restitution plan before the trial court, the issue was not preserved for appeal. [Citation omitted.] As a result, Hunziker’s argument fails.” 30 Kan. App. 2d at 286-87.
Hunziker’s attorney advised the district court of the fact that Hunziker had a child on the way. Further, counsel told the court that Hunziker would “make every effort” to get the restitution paid within the year. The district judge ruled:
‘Well, you gentlemen got yourself into this, and, you know, if it means getting a part-time job on weekends or evenings to make some money to repay this gentleman at a greater rate, I think you are going to need to do that. I really think you both need to be paying $200 a month. That may mean you are going to have to find some additional work. Otherwise this will never get paid off. The interest will keep going and you will be on probation forever, and the minute you miss a payment you are going to be back before me and I may have to put you in jail and I don’t want to have to do that.”
The district judge allowed 1 month before the $200 payments would begin in order to give Hunziker and Cox time to find additional work. Counsel for Hunziker made no objection to the district court’s ruling on the monthly amount of restitution payments.
The Court of Appeals correctly determined that Hunziker failed to preserve the issue for appeal. Issues not raised before the trial court generally cannot be raised on appeal. Crume, 271 Kan. at 98.
Affirmed in part, reversed in part, and remanded with directions to reduce the restitution order by the amount of $721.97.
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal from the district court’s order admitting a will to probate. The two opponents to the will, Suzette Hickey and Janell Rangel, were the decedent’s heirs at law but were not named as beneficiaries in his will. The opponents claim the district court erred in finding (1) the will was executed with testamentary formalities; (2) the opponents to the will must show lack of testamentary capacity by clear, satisfactory, and convincing evidence; (3) the decedent possessed testamentary capacity; (4) the will was not the product of undue influence; and (5) the opponents saw the deceased no more than three times each during the last 8 years of decedent’s life.
James W. Farr died November 29,1999, at Terrace Garden Care Center (Terrace Garden), an intermediate care facility, where he had been a resident since October 9,1996. The cause of death was listed as “severe progressive dementia.” Farr was survived by his two sons, Marvin and Howard, and two granddaughters, Suzette and Janell, daughters of Farr’s deceased son Everett. Farr was described as “stubborn, hard-headed, and sometimes difficult,” and the type of person that would tell you if he was upset with you.
A petition to submit Farr’s will to probate was filed December 6,1999. The will had been executed on July 2,1997, named Marvin as executor of the estate, and devised and bequeathed the entire estate to Marvin and Howard equally. The will contained no provision regarding Everett or Everett’s daughters. Suzette and Janell objected to the admission of the will to probate, claiming the will was not properly executed and that Farr either lacked testamentaiy capacity or was under undue influence in executing the will. A 2-day bench trial was held.
At trial, Keen Brantley, Farr’s attorney of nearly 30 years and scrivener of the will, testified that the 1997 will was an exact duplicate of Farr’s 1991 will, which had been lost. Brantley recalled that the 1991 will was drafted shortly after Farr’s wife died intestate, named Marvin as the executor, and devised all the property to Marvin and Howard in equal shares.
After his wife’s death in 1990, Farr discovered that land he believed was held in joint tenancy with his wife was not so held and that half of his wife’s interest in the property would pass to her heirs at law. Farr requested, via a letter by Brantley, that Marvin, Howard, Suzette, and Janell quitclaim their interest to him. Brantley testified Farr was upset when one of the opponents to the will conditioned conveyance upon the other heirs conveying their interest and the other opponent indicated she did not want to convey the property. Brantley’s letter to the heirs indicated that the deeds would be returned if any of the heirs did not agree to the quitclaim. Brantley informed Farr that Marvin and Howard had agreed to convey the property. Marvin and Howard never deeded the'property back to Farr.
In 1996, prior to Farr moving into Terrace Garden, Farr notified Brantley on at least two occasions that he was unable to locate the 1991 will. Brantley explained to Farr on each occasion that he could draw up another will with the same provisions and that Farr could reexecute it. Shortly after Farr moved to Terrace Garden, Farr again contacted Brantley about the missing will. During that conversation, Farr requested that Brantley draft another will just like his previous will. Later, Brantley received a call from an unknown woman at Terrace Garden who claimed to be calling at Farr’s request and who inquired as to the progress on Farr’s will. Brantley recalls having the copy of the 1991 will in his office when the 1997 will was drafted and that someone in his office had merely retyped the provisions of the 1991 will. Brantley was unable to produce a copy of the 1991 will or any documents to show the 1991 will ever existed.
On July 2, 1997, Brantley went to Terrace Garden to execute the will. Brantley testified that after engaging in some small talk with Farr, he gave a copy of the will to Farr and read the will aloud to him. Harriet Kretzschmar, the director of nursing at Terrace Garden, was present when Brantley read the will to Farr.
Brantley testified that Farr identified, in the presence of Harriet and Christine Pokorney, a registered nurse, that he owned farmland, machinery, cash investments, a home in Scott City, and an oil well; said that he was leaving his property to Marvin and Howard; and indicated he was ready to sign tire will when asked. Farr had failed to mention that he owned a tavern and a modular home. Harriet also testified that Farr identified Marvin and Howard as being his children and that he had identified some of his property; however, the property identified differed somewhat from Brantley’s testimony.
Christine testified at her deposition, which was admitted into evidence at trial, that Brantley had asked Farr who he was leaving his property to and what property he had, that Brantley told Farr that his two sons were mentioned in the will and listed off the property Farr owned, and that Farr responded affirmatively by shaking his head. Christine did not recall Farr having made any audible responses to Brantley’s questions. During cross-examination, Christine admitted that it was possible Farr had named his property and his children, but testified she did not remember. She stated that Farr’s main concern was that this new will was like his prior will. Brantley had assured Farr that this will was just like his prior will.
Farr signed the will in the presence of Brantley and the subscribing witnesses, Harriet and Christine. During the execution of the will there was no mention of Farr’s granddaughters.
As for Farr’s state of mind on July 2, 1997, Brantley testified that Farr recognized him, there was no indication Farr was unaware of what he was doing, and there was no indication that Farr did not sign the will freely and voluntarily. Brantley estimated that he has participated in drafting and executing over 1,000 wills.
Harriet, who saw Farr daily, believed Farr responded appropriately to the questions and conversations with Brantley and testified she did not doubt Farr willingly signed the will. She testified that Farr always recognized her, Marvin, and Lottie Farr, Marvin’s wife.
Christine, who saw Farr approximately four times during the 6 months before the will was executed and had only visited with him briefly, testified that Farr did not seem confused at any of these visits. She testified that at the time the will was executed, Farr was not confused, his mood was appropriate, and he was alert and seemed to understand what was happening.
Up until the summer of 1996, Mary Lawrence was Farr’s home nurse 14 hours a day, 7 days a week, for 3Vz years. During her employment, she observed Marvin visit daily and Suzette visit twice, but testified Howard and Janell never visited. Mary testified that Farr had told her that his granddaughters would not be left anything because they never came to visit him.
Janell has resided in Colorado since she was a child. Janell and her husband Roman testified Janell’s grandmother’s property was quitclaimed to Farr as he had requested and denied that they put any condition on the deed. They claimed that it was not until 1996 that they discovered Janell still owned the property. Janell visited Farr almost every summer and at least one holiday a year prior to her grandmother s death in 1990. After their marriage in 1990, at which Farr was a participant, Janell and Roman visited Farr on four occasions, the last visit being at the hospital in October 1996. At this last visit, Farr recognized Janell but did not recognize Roman. In tire times they have seen Farr since Janell’s grandmother’s death, Farr did not seem angry or more distant and the visits were good. At the reading of the will, Brantley indicated to Janell that she and Suzette had been left out of the will because they did not convey the land to Farr as Farr had requested.
Suzette has lived in Oregon since 1996. She testified that after Brantley sent the letter about conveying her grandmother’s land to Farr, she spoke with Brantley. Brantley indicated to Suzette that she was in Farr’s will and that she should convey the land in order to avoid upsetting Farr. At that time, Brantley told her that he was unsure whether Howard would quitclaim the land to Farr, so Suzette decided to wait and see what the others were doing. Suzette heard nothing further about the matter. Brantley denies having ever told Suzette or Janell that they were in Farr’s will, instead recalling that he had told one of the them that Farr was upset with them and that it would be shortsighted of them not to convey the land. Suzette lived with Farr for nearly 3 years prior to her grandmother’s death and for a 3-to 4-month period after her death, ultimately moving out because Farr was too emotional and had mood swings. Suzette last saw Farr in October 1999 at Terrace Garden. At that time Farr was confused and was unable to carry on a conversation. Howard told Suzette of an incident when Farr had been unable to recognize his (Farr’s) sister. Farr never expressed any anger towards Suzette during any of their conversations since her grandmother’s death.
Joan Scofield, Suzette and Janell’s mother, was married to Farr’s son Everett for 7% years before Everett died in a car accident. Joan stayed in the area for a time after Everett’s death, eventually remarrying and moving, away. When Everett passed away, he owned farmland. Joan kept the land for a while and then eventually sold it. Brantley testified that in 1991, Farr was upset with the sale of this land, with how Joan had handled the proceeds of the sale, and with Joan s remarriage.
Marvin Farr, who held a durable power of attorney for Farr since 1993 and visited Farr at least weekly while Farr was at Terrace Garden, testified that Farr never told him that he was angry at Janell and Suzette. Marvin also stated that Farr did not usually discuss things like that with him. Marvin testified he believed Farr recognized Janell, Roman, and Joan when they visited Farr in the hospital in 1996 because after they left Farr asked, “What the hell they doing here?” and told Marvin, “I don’t — didn’t really want them here, didn’t want you calling them.”
Dr. Michael Jackson became Farr’s physician when Farr came to live at Terrace Garden in 1996. It was Dr. Jackson’s practice to visit his patients at Terrace Garden once every 60 days and additionally if necessary. When he first met with Farr, he discovered Farr had been diagnosed as suffering from dementia. Dementia is a chronic disease resulting in loss of mental function or cognitive ability that takes years to progress. Dr. Jackson testified that people suffering from dementia may have days in which they are “more on top of things” and other days when they are not, stating that physical health on that particular day may be a factor. Dr. Jackson testified that upon meeting Farr in the fall of 1996, Farr was in a “moderate to even a severe demented state,” and later testified that Farr was in a severe state of dementia at that time. Dr. Jackson opined that it would have been “veiy difficult, at best, for [Farr] . . . to know what he was doing and perhaps what he had” on the day the will was executed. Farr never recognized Dr. Jackson.
On cross-examination, Dr. Jackson testified that he had stated in his deposition that people who observed Farr daily and on the day the will was executed would be in the best position to know whether Farr was having a “good day or bad day.” Dr. Jackson also admitted that he had stated at his deposition that is was possible that Farr “could have known his possessions, could have known these people and perhaps what his initial will in regard to those were — were on a good day, he might not have been agitated, he might have interacted well with the staff or family and be able to express these.” Dr. Jackson admitted he never extensively evaluated the level of dementia Farr was suffering and its progression.
Medical records submitted to the trial court indicated that Farr suffered a great deal of confusion, had problems with his memory, and was taking medication at the time the will was executed. The medication was to control hostility and agitation, and could have had a sedative-type effect.
The trial court, in a memorandum decision, found that the will was executed in accordance with all testamentary formalities, that Farr had testamentary capacity at the time of execution, and that the will was not the product of undue influence. Suzette and Janell filed a motion to reconsider, which was summarily denied. The trial court entered an order admitting the will to probate on November 27, 2000. A timely notice of appeal was filed. This court has jurisdiction over this case by transfer on its own motion pursuant to K.S.A. 20-3018(c).
TESTAMENTARY FORMALITIES
Opponents contend the trial court erred in finding Farr s will was executed with testamentary formalities. Specifically, opponents assert the trial court erred (1) in not finding the self-proving affidavit invalid; (2) in finding the testimony of the witnesses was sufficient to allow the will to be submitted to probate; and (3) in finding Harriet was a disinterested witness.
Where the trial court has made findings of fact and conclusions of law, the appellate court’s function is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998).
When offering a will to probate, the burden of proof is initially upon the proponent to make a prima facie case showing capacity and'due execution of the will. See K.S.A. 2001 Supp. 59-2224; In re Estate of Perkins, 210 Kan. 619, 624, 504 P.2d 564 (1972); Amerine v. Amerine, Executor, 177 Kan. 481, Syl. ¶ 6, 280 P.2d 601 (1955); In re Estate of Peirano, 155 Kan. 48, 49, 122 P.2d 772 (1942). It is well established in Kansas that once it has been shown that a will has been executed-in accordance with the formalities required by law, the burden is upon the will contestant and he or she must produce evidence to support his or her position. In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000).
We note that the trial judge refused to find a- prima facie case had been shown during the trial because the judge had not yet had the opportunity to read Christine Pokomey’s deposition testimony. The memorandum decision did not specifically find the proponents established a prima facie case; however, the judge held that the proponents had shown by a preponderance of the evidence that the will was executed with testamentary formalities and that the burden of proof shifted to the opponents. In order for the burden of proof to have shifted to tire proponents the trial judge necessarily found the proponents had put forth a prima facie case. See Perkins, 210 Kan. at 624.
Self-Proving Affidavit
Opponents contend the trial court erred in failing to invalidate the self-proving affidavit because no oath was administered. In order to execute a valid self-proving affidavit, the testator and witnesses must be under oath at the time and the testator must declare that the document is his or her will and that it was freely and voluntarily executed. See K.S.A. 2001 Supp. 59-606. Here, the witnesses were not under oath at the time the self-proving affidavit was signed, nor did Farr specifically declare the will was his or that it was made freely or voluntarily. Even so, we need not address opponents’ assertion that the self-proving affidavit was invalid, because the-trial court did not rely upon the affidavit in determining that testamentary formalities had been met. The testimony of both subscribing witnesses was received into evidence at trial and was used by the trial court in admitting the will to probate. In addition, it is important to note that pursuant to K.S.A. 2001 Supp. 59-606, if a will containing a self-proving affidavit is contested, the will is treated as if it contained no such affidavit. Thus, once a self-proved will is contested, the question of the validity of the self-proving affidavit is moot because the affidavit is no longer conclusive as to the admission of the will to probate.
Sufficient Evidence to Admit Will to Probate
Opponents contend the testimony of the witnesses was insufficient to support the trial court’s finding that all testamentary formalities had been met and that the will should be admitted to probate. As noted, the proponents of a will must put forth evidence estabkshing a prima facie case of capacity and due execution. See K.S.A. 2001 Supp. 59-2224.
A prima facie case of capacity requires a showing that the testator was of sound mind and majority at die time the will was executed. See K.S.A. 59-601. In this case, the proponents put forth the testimony of those present at the execution of the will. Although there were discrepancies in their testimony, all present at the signing of the will testified that Farr either proclaimed or acknowledged the majority of the assets in his estate and his intent to leave his property to his sons, Marvin and Howard. The witnesses testified that Farr was alert and that he seemed to understand what was happening. The record indicates Farr was 82 years old at the time of the execution of the will. Thus, there is sufficient evidence to support a prima facie case of capacity. See Amerine, 177 Kan. at 484 (prima facie case of capacity found where witnesses testified testator was of sound mind and no possible inference of lack of majority); Peirano, 155 Kan. at 51 (prima facie case found where testator appeared to know what he wanted, was keen and alert, recited who he wanted to receive property under the will, and described some of the assets that comprised his estate).
In order to establish a prima facie case of due execution, the proponents of a will must show compliance with K.S.A. 2001 Supp. 59-606. Pursuant to K.S.A. 2001 Supp. 59-606, a will must be: (1) in writing; (2) signed at the end by the testator or by another party in the presence and at the i'equest of the testator; and (3) attested and subscribed in the presence of the testator by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will. The attestation clause recites that the will was signed by the testator in the presence of the witnesses, at his request, and in his sight and presence and that the witnesses were also in the presence of each other. An attestation clause is presumptive evidence of the facts stated in it. In re Estate of Arney, 174 Kan. 64, 67-68, 254 P.2d 314 (1953).
Both subscribing witnesses to the will, as well as Brantley, also testified that Farr signed the will in the presence of the subscribing witnesses and that each witness signed the will in Farr s presence. Farr s signature appears at the end of the document just above the attestation clause. Thus, there has been compliance with the requirements of K.S.A. 2001 Supp. 59-606, and a prima facie case of due execution was shown.
Disinterested Witness
Opponents contend the trial court erred in finding Harriet Kretzschmar was a disinterested witness. The trial judge found the will was witnessed by “two disinterested witnesses.” Opponents claim Harriet was not disinterested because: (1) Harriet drove back and forth to work with Lottie Farr, Marvin’s wife; (2) Harriet moved into Farr’s home in early 1997, making the rent checks payable to Farr and delivering those checks to Lottie or leaving them for Marvin to pick up; (3) Harriet brought Marvin an unsigned copy of Farr’s 1997 will the day it was executed; (4) Harriet sometimes joked she was Marvin’s sister; and (5) Harriet sat in the front row with the family at Farr’s funeral and was ahead of the opponents in the funeral procession.
Witnesses to a will are only required to be competent under K.S.A. 2001 Supp. 59-606 and are not required to be disinterested. Compare K.S.A. 59-608 (an oral will made in the testator’s last sickness is valid with respect to personal property if it is reduced to writing and subscribed by two competent and disinterested witnesses within 30 days). Opponents malee no allegation that either witness to Farr’s will was incompetent, nor do the facts support such a finding. A witness who is also a beneficiary may lose all or a portion of the devise or bequest to him or her unless there are at least two other subscribing witnesses who are not beneficiaries, pursuant to K.S.A. 59-604; however, even in such a case, the will still complies with testamentary formalities.
The trial court in finding that both Harriet and Christine were disinterested witnesses interpreted that to mean that they were “individuals who did not take from the Will.” Neither Harriet or Christine were named as beneficiaries under Farr’s will; thus, the trial court’s finding of fact was not erroneous. Even if it were, however, the trial court’s finding that the witnesses were disinterested is not required to support its decision to admit the will to probate and would be harmless error. See K.S.A. 60-2105.
SHOWING LACK OF TESTAMENTARY CAPACITY
Opponents contend the trial court erred in ruling the opponents to the will were required to show lack of testamentaiy capacity by clear, satisfactory, and convincing evidence. Determination of burden of proof is a question of law over which this court has unlimited review. See Fischer v. Kansas Dept. of SRS, 271 Kan. 167, 175, 21 P.3d 509 (2001).
The trial court relied upon Arney, 174 Kan. at 67-68, for the proposition that an attestation clause serves as presumptive evidence and its recitals may only be overcome by clear, satisfactory, and convincing evidence, and In re Estate of Bennett, 19 Kan. App. 2d 154, 865 P.2d 1062, rev. denied 254 Kan. 1007 (1994), which held that clear, satisfactory, and convincing evidence is required. Opponents contend that because the attestation clause does not reference Farr’s capacity, the burden of clear, satisfactory, and convincing evidence does not apply.
In Bennett, the Court of Appeals addressed this same issue with regard to the burden of proof necessary to show undue influence. In that case, the opponents of the will asserted that the level of evidence necessary to show undue influence was preponderance of the evidence and not clear and convincing evidence. After reviewing the cited authorities, the Bennett court held that they were either no longer controlling or were misstatements of the required standard of proof. 19 Kan. App. 2d at 163. The Court of Appeals relied instead upon cases in which this court stated that the stan dard of proof required to rebut a prima facie case was that of clear, satisfactory, and convincing evidence. 19 Kan. App. 2d at 163-64; see In re Estate of Suesz, 228 Kan. 275, 277, 613 P.2d 947 (1980); Perkins, 210 Kan. at 624; In re Estate of Wittman, 161 Kan. 398, 401-02, 168 P.2d 541 (1946); In re Estate of Wallace, 158 Kan. 633, 637, 149 P.2d 595 (1944). The Bennett court also noted that another reason for requiring clear and convincing evidence to prove undue influence is because undue influence is a species of fraud and that the burden of proving fraud has almost always been higher than preponderance of the evidence. 19 Kan. App. 2d at 164. In Haneberg, this court relied upon Bennett and required opponents alleging undue influence to prove their claim by clear, satisfactory, and convincing evidence. 270 Kan. at 374.
Opponents contend the Bennett court’s primary rationale for requiring clear and convincing evidence was because undue influence is a species of fraud, claiming that there is no similar rationale with regard to testamentary capacity. The decision in Bennett, however, seems to have been based primarily upon prior Kansas cases and the recognition that historically substantial proof has been required to overcome a prima facie case. 19 Kan. App. 2d at 163-64. The analogy of the higher standard of proof required to show undue influence, a species of fraud, although undoubtedly influencing the court’s decision, does not appear, as opponents contend, to be the primary basis for the Bennett court’s decision.
This court has previously recognized that clear, satisfactory, and convincing evidence is the burden that must be met in challenging testamentary capacity. See Suesz, 228 Kan. at 277 (after proponents of will established prima facie case of capacity, a showing by clear, satisfactory, and convincing evidence was required to prove incapacity of the testator).
Kansas courts have also applied the burden of clear, satisfactory, and convincing evidence to other defenses to a will. See Arney, 174 Kan. at 67-68 (in claim that will was not properly executed and attested as required by law, attestation clause was presumptive evidence of facts stated in it and its recitals may only be overcome by clear, satisfactory, and convincing evidence); see also Feeney and Carmichael, Will Contests in Kansas, 64 J.K.B.A. 25 (1995).
There is no basis for requiring a different burden of proof to show lack of testamentary capacity. Thus, the trial court did not err in finding the opponents must have shown lack of testamentary capacity by clear, satisfactory, and convincing evidence.
FINDING TESTAMENTARY CAPACITY
As stated previously, opponents to the will must prove lack of testamentary capacity by clear, satisfactory, and convincing evidence. Where a trial court’s finding as to a testator’s mental capacity is challenged on appeal, the appellate court is only concerned with whether there is substantial competent evidence to support the trial court’s finding and does not compare or weigh the testimony. Perkins, 210 Kan. at 626.
In Kansas, it is well settled that in order for the testator to have testamentary capacity, the testator, at the time the will is executed, must know and understand the nature and extent of his or her property and have an intelligent understanding of the disposition he or she desires to make of it, realize who his or her relatives are and who the natural objects of his or her bounty are, and comprehend the nature of the claims of those he or she desires to include and exclude from participation in the property distribution. In re Estate of Raney, 247 Kan. 359, 367, 799 P.2d 986 (1990); In re Estate of Ziegelmeier, 224 Kan. 617, Syl. ¶ 1, 585 P.2d 974 (1978); In re Estate of Oliver, 23 Kan. App. 2d 510, 516, 934 P.2d 144, rev. denied 262 Kan. 960 (1997).
“The test of a testamentary capacity is not whether a person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body.” Perkins, 210 Kan. at 626.
The time when the will is made is the time of primary importance in considering if the testator possessed testamentary capacity. Evidence of capacity or lack of capacity before or after that time serves as only an aid in determining whether the testator had capacity at the time the will was executed. Oliver, 23 Kan. App. 2d at 516; Perkins, 210 Kan. at 627. The fact the testator suffered from senile dementia is not the determining factor that the person lacked testamentary capacity. In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982); Oliver, 23 Kan. App. 2d at 516.
Opponents cite to numerous incidences that occurred both before and after the will was executed as support for their contention that Farr lacked testamentary capacity on the day the will was executed. The events opponents cite to include the following: (1) Two days before the will was executed, as well as on other occasions, Farr was noted as being unable to recall the current season, location of own room, staff names and faces, and that he was in nursing home, and his cognitive ability was noted as severely impaired; (2) less than 2 weeks after the will was executed Farr did not recall that he had gone to his grandson Justin’s funeral only 2 days earlier; (3) while at his grandson’s funeral, Farr did not recognize Nancy Farr, Marvin’s ex-wife after a nearly 32-year marriage, or his grandson Courtney Farr; (4) Farr was reported as being unable to handle medical and financial decisions because of declining cognitive ability; and (5) in the fall of 1996, Farr did not recognize Lottie Farr, Marvin’s wife and an employee of Terrace Garden, who had frequent contact with Farr.
The first requirement for testamentary capacity is that the testator know and understand the nature and extent of his or her property and understand the disposition he or she desires to make of it. See Ziegelmeier, 224 Kan. 617, Syl. ¶ 1. The testimony at trial was that Farr either recited or acknowledged the majority of his property, recited or acknowledged his sons were Marvin and Howard, and inquired whether this will was the same as his previous will, which, by Brantley’s testimony, left all Farr’s property to Marvin and Howard and excluded the opponents. The trial court made findings of fact specific as to this evidence. Thus, there is sufficient competent evidence to support this element of testamentary capacity being met.
The second and third requirements for testamentary capacity are that the testator realize who his or her relatives are and who are the natural objects of his or her bounty and comprehend the nature of claims of those included or excluded from property dis tribution. See Ziegelmeier, 224 Kan. 617, Syl. ¶ 1. The trial court did not specifically find Farr knew his relatives. There was testimony that Farr either recited or acknowledged his two sons Marvin and Howard; however, on the day the will was executed, no mention was made of the opponents, Farr’s other heirs at law, or their father, Farr’s deceased son Everett. The trial court apparently did not find this fact sufficient to defeat testamentary capacity. The trial court did find that Farr had previously voiced dissatisfaction with the opponents concerning the disposition of property made following his son Everett’s death and that Farr had attributed failure to convey the property that passed to opponents following their grandmother’s death on the opponents.
Opponents also claim the trial court erred in the weight it gave Dr. Michael Jackson’s testimony and in making specific findings regarding that testimony. Both expert and lay testimony is competent on the question of mental capacity. The trier of fact is not obligated to adopt the views and opinions of a physician, no matter how highly qualified, and to reject nonexpert testimony. The court may weigh the testimony of all witnesses on the question and follow the evidence which the court as the trier of fact finds is entitled to the most weight and credence. In re Estate of Carothers, 220 Kan. 437, 444, 552 P.2d 1354 (1976).
Opponents contend the trial court erred in finding that Dr. Jackson testified that Farr might have had testamentary capacity on the day the will was executed. Opponents’ argument appears to be that the trial court misinterpréted Dr. Jackson’s testimony. The trial court found that Dr. Jackson’s testimony was that Farr would not have been able to have had a lucid interval, defining lucid interval as “one in which the subject person [is] completely restored to contractual capacity.” Opponents contend Dr. Jackson’s testimony that Farr could not have had a lucid interval did not speak to his inability to be restored to contractual capacity, but instead that Farr was unable to return to a level of less cognitive decline because dementia is irreversible and progressive.
After reviewing the testimony referred to by the opponents, Dr. Jackson’s statement regarding Farr’s inability to have a lucid interval did not extend beyond the definition in the trial court’s decision. Additionally, the opponents are missing the most important findings of fact the trial court made regarding Dr. Jackson’s testimony. The trial court found:
“Dr. Jaclcson further admitted on cross examination that he testified previously; that the decedent suffered only ‘moderately advanced’ dementia, that perhaps the decedent would have been capable of understanding the nature of his property, the decedents natural heirs and the distribution that the decedent would like to make-, that the staff and persons who were present in the room at the time of the execution of the Will would be in a better position to observe the decedent; that the disease afflicting the decedent was one which would generally take years to advance; that less than 60 days prior to Dr. Jackson’s diagnosis, another doctor in Scott City opined in a medical record that the decedent had only senile dementia with one report clearly showing a diagnosis of‘early senile dementia.’ ” (Emphasis added.)
In so finding, the trial court either gave greater weight to Dr. Jackson’s deposition statements or used the statements in weighing Dr. Jackson’s credibility; regardless, however, there was no misinterpretation. It is not this court’s duty to reweigh the evidence, only to determine whether there is substantial competent evidence to support the trial court’s findings.
Opponents also challenge the trial court’s finding that Dr. Jackson’s deposition testimony that Farr’s dementia was moderately advanced differed from his testimony at trial. Opponents contend the terminology used at trial was different from that used during the deposition and that Dr. Jackson never changed his opinion of Farr’s condition.
On direct examination, Dr. Jackson testified that Farr was in a moderate to severe demented state when he started seeing Farr in late 1996. At his deposition, Dr. Jackson testified that Farr’s dementia was only moderately advanced, as the trial court’s finding of fact states. At the time of trial, Dr. Jackson had reviewed an article submitted by the opponents that contained a seven-level classification system for individuals with cognitive disease. This article was not admitted into evidence at trial. When asked to classify Farr under this classification system, Dr. Jackson testified Farr was in a “severe state of dementia” when he first met Farr in 1996, basing this classification on his records, a couple of visits with Farr, and the fact that Farr was a resident in an intermediate care facility. The trial judge noted that the terminology had been changed during the case. This distinction in classification, however, did not serve as the sole basis for the trial court’s determination that Farr had testamentary capacity and is an accurate statement. Thus, it does not amount to reversible error.
Opponents contend the trial court erred in finding that Dr. Jackson had testified that Farr could have been capable of understanding the nature of his properly, his natural heirs, and the distribution he would like to make of his property. On re-direct, opponents attempted to explain Dr. Jackson’s deposition statement by claiming Dr. Jackson was referring to Farr’s long-term memory in making this statement.
Opponents are attempting to convince this court to reweigh the evidence and find its witnesses and facts more credible. This court’s standard of review is to determine only whether substantial competent evidence exists to support the trial court’s findings, and it will not reweigh the evidence. See Perkins, 210 Kan. at 626.
Opponents also contend the trial court erred in failing to give greater weight to Dr. Jackson’s expert testimony. They cite to Dr. Jackson’s testimony that a person suffering from dementia can attempt to conceal it and contend the trial court should have given more weight to Dr. Jackson’s testimony because of this, relying upon In re Stafford, 193 Kan. 120, 392 P.2d 140 (1964). In In re Stafford, the court held that medical testimony presents the most clear and satisfactory evidence when a person afflicted with a mental disorder is capable of concealing the disorder from a layman. 193 Kan. at 129.
It is the factfinder’s function to determine the weight and credibility of the witnesses. Appellate courts will not pass upon the credibility of witnesses or reweigh conflicting evidence. Griffin v. Price, 199 Kan. 649, 651, 433 P.2d 464 (1967); Stoskopf v. Stoskopf, 173 Kan. 244, 245, 245 P.2d 1180 (1952); State v. Timms, 29 Kan. App. 2d 770, 31 P.3d 323, 327 (2001).
Although Dr. Jackson testified a person suffering from dementia might attempt to conceal the disease, Dr. Jackson did not testify that Farr was successful in doing so. In fact, Dr. Jackson testified at his deposition that those present at the time die will was exe euted and those who observed him daily were in a better position to judge whether Farr was having a good day or a bad day. Those present at the execution of the will included two members of the medical profession and a long-time acquaintance. Dr. Jackson, who saw Farr approximately once every 60 days, did not pursue extensive diagnosis of his dementia. The trial court did not ignore the testimony of Dr. Jackson in rendering its decision, and this court will not pass upon the credibility the trial court placed on Dr. Jackson’s testimony. See Carothers, 220 Kan. at 444.
Those present at the execution of the will, medical professionals and a long-time acquaintance, believed Farr to have been aware of what was going on when the will was executed. There was evidence that would support that Farr intended to disinherit the opponents. There was also evidence that Farr intended for the 1997 will to be identical to his 1991 will. Opponents had the burden of proving lack of testamentary capacity by clear, satisfactory, and convincing evidence. The trial court’s findings of fact supports its conclusion that Farr had testamentary capacity at the time the 1997 will was executed. This court will not reweigh the evidence. See Perkins, 210 Kan. at 626.
UNDUE INFLUENCE
Opponents contend tire trial court erred in finding the will was not the product of undue influence. They claim a confidential relationship existed between Farr and Marvin and that suspicious circumstances existed.
The trial court’s finding that the will was not the product of undue influence is a negative finding. A negative finding indicates that the party with the burden of proof failed to sustain that burden. Brown v. Kansas Parole Board, 262 Kan. 903, Syl. ¶ 1, 943 P.2d 1240 (1997); see Haneberg, 270 Kan. at 374 (negative finding where trial court found will opponent failed to establish testator was under undue influence when the will was executed) and Bennett, 19 Kan. App. 2d at 166 (negative finding when trial court found there was not a confidential or fiduciary relationship). An appellate court will not disturb a negative finding, “absent proof of an arbitrary disregard of undisputed evidence or some extrinsic circumstance such as bias, passion, or prejudice.” Haneberg, 270 Kan. at 374; Dalmasso v. Dalmasso, 269 Kan. 752, 758, 9 P.3d 551 (2000).
As this court recently stated in regard to a will contestant’s claim of undue influence,
“[i]t is well established in Kansas that once it has been shown that a will has been executed in accordance with the formalities required by the law, the burden in upon the will contestant and he or she must produce evidence to support his position. [Citations omitted.] The will contestant must overcome the burden of proof by clear, satisfactory, and convincing evidence. [Citation omitted.]” Haneberg, 270 Kan. at 374.
See also' Bennett, 19 Kan. App. 2d at 165 (once prima facie case of due execution is shown, contestant has burden to overcome by clear, convincing, and satisfactory evidence).
“ ‘Power, opportunity, and purpose to exercise undue influence, or possibility, conjecture, surmise and suspicion that undue influence has induced a will, alone cannot authorize tire inference that such influence has in fact been exercised.’ In re Estate of Millar, 167 Kan. 455, 465, 207 P.2d 483 (1949). Undue influence must ‘amount to such coercion, compulsion and restraint as to destroy die testator’s free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercise his own.’ In re Estate of Hall, 165 Kan. 465, 470, 195 P.2d 612 (1948); see In re Estate of Carothers, 220 Kan. 437, 443, 552 P.2d 1354 (1976); Heck v. Archer, 23 Kan. App. 2d 57, 62, 927 P.2d 495 (1996). ‘Pluman desire, motive and opportunity to exercise such influence will not alone authorize the inference that undue influence was in fact exercised. Neither will suspicion or die possibility of their having induced the making of die will favorable to them be enough to justify a finding of undue influence.’ Klose v. Collins, 137 Kan. 321, 326, 20 P.2d 494 (1933). Legitimate influence is not improper. Influence obtained by kindness and affection will not be regarded as undue. Ziegelmeier, 224 Kan. at 622. Undue influence, in order to overcome a testamentary act, must directly affect the testamentary act itself. Bennett, 19 Kan. App. 2d at 163.” Haneberg, 270 Kan. at 374-75.
In Haneberg, 270 Kan. at 375, this court adopted the two-prong test set forth in Bennett, for determining whether undue influence was exercised. Under the first prong, the opponents to a will must show that the person who is alleged to have exerted undue influence was in a confidential and fiduciary relationship with the testator. Under the second prong, the opponents must show that the there were “suspicious circumstances” surrounding the making of the will. Haneberg, 270 Kan. at 375; Bennett, 19 Kan. App. 2d at 165, 169. If there is a confidential relationship and suspicious circumstances are shown by clear, satisfactory, and convincing evidence, a presumption of undue influence will arise and the burden will shift back to the proponents of the will. Haneberg, 270 Kan. at 375; Brown, 230 Kan. at 732.
The trial court did not specifically apply this two-prong test in this case, but instead held as follows:
“[T]he burden of proof as to undue influence is on the opponent of the Will and must amount to coercion, compulsion or constraint which destroys the testator’s fee [sic] agency, and by overcoming his power of resistance obliges him to adopt the Will of another instead of exercising his own, and it must be brought to bear directly on the testamentary act. [Ziegelmeier, 224 Kan. at 622] citing [Carothers, 220 Kan. at 437]. The opponents of the Will have failed to carry this necessary burden.”
The trial court’s statement of Kansas law is not incorrect, and neither party contends the trial court applied an erroneous standard in evaluating the undue influence claim. The opponents presented the two-prong test to the trial court in their “Trial Brief in Support of Suzette Hickey and Janell Rangel” and in “Respondent’s Proposed Findings of Fact and Conclusions of Law.” In the absence of an objection to inadequate findings of fact or conclusion of law, the trial court is presumed to have found all facts necessary to support the judgment. Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998); Weber v. Tillman, 259 Kan. 457, 464, 913 P.2d 84 (1996).
Opponents contend that a confidential relationship existed between Farr and Marvin because Marvin was granted power of attorney over Farr, relying upon Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691 (1974), for support. In Kline, an action was brought on behalf of aged parents against their son for misappropriation of property in misusing his powers of attorney over his parents. The Kline court held that the son had obtained the powers of attorney as a result of his confidential relationship with his parents and that after being granted powers of attorney the son became their agent, thus giving rise to a fiduciary relationship. 214 Kan. at 210.
Kansas appellate courts have been reluctant to adopt an express definition of “confidential relationship” and have repeatedly recognized that whether a fiduciary or confidential relationship exists is a question of fact which must be determined by the facts of the case. See Haneberg, 270 Kan. at 375-76; In re Estate of Brodbeck, 22 Kan. App. 2d 229, 237, 915 P.2d 145, rev. denied 260 Kan. 993 (1996). In Brodbeck, the Court of Appeals was faced with a claim of undue influence, with the opponents contending that a beneficiary was in a confidential relationship with the testator. The beneficiary had been granted a durable power of attorney over the testator. The Brodbeck court found there was sufficient evidence of the existence of a confidential relationship, but in making this decision the court looked at more than the fact the beneficiary held a durable power of attorney. The additional facts considered included the fact the testator’s health was failing, the beneficiary accompanied the testator out of state for medical treatments, and the testator entrusted tire beneficiary with her car, which the beneficiary used to run errands for her and drive her to appointments.
We decline to adopt the opponents’ contention that a durable power of attorney necessarily places the parties in a confidential relationship. Instead, this should only be considered as a persuasive fact in evaluating whether such a confidential relationship existed.
Regardless of whether there were enough facts to support a finding of a confidential relationship, the opponents also had to prove suspicious circumstances existed in order to give rise to a presumption of undue influence. See Bennett, 19 Kan. App. 2d at 169. Kansas courts have also declined to define what constitutes suspicious circumstances, recognizing that what in one case might be suspicious may in another case raise no suspicion. See Bennett, 19 Kan. App. 2d 154 (trial court declined to find that certain circumstances are suspicious circumstances as a matter of law, deferring to the factfinder to make the determination in each case). “ ‘The question of whether suspicious circumstances exist is a question of fact to be determined on a case-by-case basis in the light of the factual background presented.’ ” Haneberg, 270 Kan. at 376 (quoting Bennett, 19 Kan. App. 2d at 170).
Opponents set forth numerous circumstances in their brief that they assert are suspicious. The opponents conclude that the existence of the confidential relationship and the presence of these suspicious circumstances shifted the burden of proof to the proponents to prove there was no undue influence and that the proponents failed to sustain their burden. Proponents contend there is no evidence of any undue influence at the execution of Farr’s 1991 will, which contained the same provisions as the 1997 will, or at tire execution of the 1997 will.
Although some of the facts in this case are somewhat suspicious, the existence of these circumstances is not sufficient to overcome the trial court’s negative finding that the will was not the product of undue influence.
Finally, the opponents contend the trial court’s finding that the opponents had not seen Farr more than three times each during the last 8 years of Farr’s life was not supported by the evidence. Opponents contend the evidence at trial established that Janell and her husband saw Farr at least four times between 1991 and his death and that Suzette had stayed with Farr for a 3-to 4-month period after her grandmother’s death and visited Farr on two other occasions before his death.
After reviewing the record on appeal, the opponents’ assertions regarding their visits are correct. However, the error is harmless and will not support reversal. See K.S.A. 60-2105.
There is substantial competent evidence to support the trial court’s decision. We will not reweigh the evidence.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover for a fire loss. The controverted question was whether a contract of insurance had been effected. The jury found for plaintiff. Defendant has appealed.
Plaintiff, who lives in the country a few miles from Sabetha, desired to insure his household goods against loss by fire. About October 25, 1931, he went to S. G. Potter, of Sabetha, who was the agent of the defendant company, and executed an application for insurance in the defendant company against loss by fire on his household goods in the sum of $300. He paid the premium demanded, $2.25 in cash, and executed to defendant his nonnegotiable note for $7.50. The application fixed the time when the policy should go into effect as noon of the next day, as plaintiff testified, although there was some controversy on that point. Potter, as agent for defendant, executed to plaintiff a receipt for the application and the premium paid by cash and by note, which receipt recited, among other things, “All to be refunded if policy is not issued.” About two weeks later Mr. Potter went to plaintiff’s home and asked his wife for a list of the property, but said nothing about whether the application for insurance had been accepted or rejected. Plaintiff was not at home and did not see Potter on that occasion. On December 23, 1931, plaintiff’s home and household goods burned. The loss was total. The next day plaintiff reported the loss to Mr. Potter, who then stated that the insurance was no good. Later that day, or the next, Potter mailed plaintiff a check for $2.25, and the letter which accompanied it stated: “I just received the application back yesterday.” Plaintiff returned the check to Potter and brought this action. The evidence disclosed the above facts and in addition thereto Mr. Potter testified that after receiving plaintiff’s application he mailed it to the head office of the defendant company on October 26, together with his check for $2.25; that the application and check were returned to him on October 30, with the advice from defendant’s secretary that the company had discontinued writing policies for less than $400 for a five-year term. He further testified that the application, check and letter were lost or destroyed and could not be produced; that he later attempted to procure this insurance from an agency at Salina, but was unable to do so, and that the statement in the letter to plaintiff after the fire that he had “just received the application back” referred to the application sent to Salina. The carbon duplicate of the letter sent by the secretary to Potter on October 30 stated that plaintiff’s application was being returned “for the reason it will be necessary to write this application on the cash plan, . . . as we have discontinued writing applications for less than $400 on the note plan.” Mr. Potter did not notify plaintiff that the premium should all be paid in cash, nor did he say anything to plaintiff about the application not being accepted, or that he was attempting to get insurance through some other agency. There is no serious controversy over any material fact in the evidence, nor is any complaint made of the instructions given by the court.
Appellant contends that the facts pleaded and proved are insufficient to establish a valid contract of insurance. It is argued that the mere failure of an insurance company to notify the applicant of the rejection of his application does not result in the creation of a binding contract of insurance, citing Northwestern Mutual Life Ins. Co. v. Neafus, 145 Ky. 563, 140 S. W. 1026; Dorman v. Connecticut Fire Ins. Co., 41 Okla. 509, 139 Pac. 262; Richmond v. Insurance Co., 123 Tenn. 307, 130 S. W. 790; 26 C. J. 54; 14 R. C. L. 896, and allied authorities. This argument overlooks the provision of the receipt given to plaintiff at the time he made the application and paid the premium, partly in cash and partly by note. That receipt contained the positive agreement that the application; cash payment and note would be returned to plain tiff if the policy were not issued, the language being, “All to be refunded if policy is not issued.” This receipt was executed by Potter as agent for the defendant company and on the blank furnished him by defendant for that purpose. By it defendant agreed to do one of two things: (1) Issue the policy, or (2) “refund” the premium payment, note and application. All of these were not returned or tendered to plaintiff at any time. After the fire the agent, Potter, undertook to return the cash premium paid only. At no time was there any effort made to return plaintiff’s note or his application. Appellant speaks of Potter as being a soliciting agent only, but it is clear that he represented the company in all negotiations with respect to this transaction. (Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245.) He not only took the application, but he executed, as “agent” for defendant, the “receipt” which contained the agreement that the policy would be issued or “all” would be “refunded.” From defendant’s secretary we learn that the only trouble with the matter was, so far as the company itself was concerned, that the premium was not all paid in cash, which plaintiff might have done had he been advised of it. Naturally it would take a little time for the company to act on the application. The court properly submitted to the jury the question whether defendant had ample time to issue the policy or “refund all.” • The answer was that it did have sufficient time. This answer was the only one it could have made consistent with the evidence. The application was made October 25, and the fire did not occur until December 23. The company was bound under its receipt and agreement to return to plaintiff, with reasonable promptness, his premium payment and note. It did not make such return, or even make any serious attempt to do so, hence it is not in position to complain that the other alternative of its agreement is binding. An authority directly in point has not been cited us, but the conclusion we reach accords with the common rules for the interpretation of contracts, applicable generally to insurance contracts. (32 C. J. 1091.) The agreement contained in the receipt embodied, in the alternative, the essential elements of an insurance contract. (32 C. J. 1095.) The following tend to support our conclusion: (Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986; Mooney v. Merriam, 77 Kan. 305, 94 Pac. 263; Brown v. Insurance Co., 82 Kan. 442, 108 Pac. 824; Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in replevin by the holder of a mortgage on cattle brought against the mortgagor and the owners of the land on which the cattle were pastured, the latter claiming an agister’s lien. The owner of the cattle admitted the mortgage indebtedness and offered to confess judgment.
The issue raised by the pleadings was the existence of an agister’s lien of $160 — the complication arising from the claim of the landowners that the mortgagor was their agent in caring for the pasture and for these and other cattle therein. A further question involved was whether or not the cattle were turned back to the owner after the close of the pasture season.
Defendant Whitham and his sister were the owners of 320 acres of land in Butler county, 80 acres of which was farm land with a dwelling and other buildings thereon. This was rented to defendant Griffin for a crop rent and he occupied the dwelling as a home for himself and family. The pasture of 240 acres was adjoihing, but not included in the lease. Later Griffin, the tenant of the farm land and owner of the cattle previously mortgaged to plaintiff, arranged with Whitham to pasture his cattle on this pasture land for the season for $6 per head for the older ones, $4 for the yearlings and nothing for the calves.
The evidence shows that the owners of the land lived six miles from the farm and pasture and came to see it occasionally. The fences needed repairs. The owners furnished the posts and Griffin made the repairs. Griffin was to continue to look after the fences and the cattle of his own and others in the pasture for the pasture of four milk cows and his work horses, and was to be reimbursed for salt purchased for the cattle and water that might have to be hauled during a dry season. He hauled water twenty-five days during the season for the promised compensation of $2 per day. Two other parties had five head of cattle each in this pasture during the season. The total number of calves and all in the pasture was sixty-two head.
The pasture season closed generally sometime in October. This replevin action was commenced on December 24, and the cattle were taken by the sheriff from the feed lot adjoining the pasture on December 26. The cattle belonging to others had been taken out of the pasture prior to the time the replevin action was commenced. A demand and claim of an agister’s lien for $160 was made of the sheriff by Whitham at the time and place the cattle were taken by the sheriff.
The trial court held the burden of proof was on the defendant Whitham and his sister, the landowners, to establish their claimed agister’s lien. The defendants introduced their evidence in the trial before the court and a jury, and at the close of defendants’ testimony the court overruled the plaintiff’s demurrer thereto. At the close of the evidence offered by the plaintiff, mortgagee, the court instructed the jury, and in due time the jury returned into court its verdict for defendants and its answers to seven special questions as follows:
“We, the jury empaneled and sworn in the above-entitled cause, do, upon our oath, find for the defendants Perry Whitham and Eunice Harsh, and as against the plaintiff, and assess their recovery in the sum of $160.
“1. Who had possession of the cattle covered by the Hoy mortgage on Thanksgiving Day, 1931? A. Perry Whitham and Eunice Harsh.
“2. Who had possession of the cattle covered by the Hoy mortgage on December 26, 1931? A. Perry Whitham and Eunice Harsh.
“3. Were the cattle covered by the Hoy mortgage ever in the exclusive possession of Griffin after the pasture season of 1931 commenced and prior to December 26, 1931? A. No.
“4. Did Griffin from time to time remove the cattle from the Whitham pasture to the premises leased by him? A. No.
“5. Did Perry Whitham or Eunice Harsh ever have the possession of the cattle covered by the Hoy mortgage after the pasture season of 1931 ended? A. Yes.
“6. If you answer question No. 5 ‘yes,’ state in what manner they had such possession. A. Never removed from pasture.
“7. If you answer question No. 5 ‘yes,’ state if they ever surrendered such possession prior to December 26, 1931. A. No.”
The motion of the plaintiff for a new trial was overruled. Plaintiff also filed the following motion:
“Comes now said plaintiff and moves the court to set aside the verdict heretofore rendered by the jury in the above-entitled action, on the 28th day of March, 1932, and to render judgment herein in favor of said plaintiff J. C. Hoy, and against defendants Perry Whitham and Eunice Harsh, notwithstanding said verdict.”
The trial court sustained the latter motion in the manner and upon the grounds as stated in the journal entry as follows:
“Thereupon came on for hearing the motion' of the plaintiff for judgment in accordance with the prayer of his petition, notwithstanding the verdict of the jury and the answers to the special questions, and the court, after hearing the argument of counsel and being fully advised in the premises, finds that said motion should be and the same is hereby sustained, and that the answers of the jury to the special questions be and the same are hereby set aside, as being contrary to the evidence, and the general verdict of the jury is hereby set aside as not being supported by, and being contrary to the evidence.”
The court rendered judgment for plaintiff for the possession of the cattle free from any and all claims of the defendants and against the defendants for costs. Later the trial court overruled the motion of defendants for a new trial, and from all adverse rulings the defendants appeal.
In support of the final judgment appellee claims appellants never were entitled to an agister’s lien under the statutes of this state, that if they had been so entitled at one time they had waived it by the surrender of the cattle to the owner thereof, and that the trial court was fully within its power under the facts and circumstances of the case in rendering judgment for plaintiff notwithstanding the verdict of the jury and its answers to the several special questions.
The two sections of the statutes which authorize and limit the right of an agister’s lien in this state are as follows:
“The keepers of livery stables, and all others engaged in feeding horses, cattle, hogs, or other live stock, shall have a lien upon such property for the feed and care bestowed by them upon the same, and if reasonable or stipulated charges for such feed and care be not paid within sixty days after the same becomes due, the property, or so much thereof as may be necessary to pay such charges and the expenses of publication and sale, may be sold as provided in this act.” (R. S. 58-207.)
“The voluntary delivery to the owner or claimant of any personal property by any person claiming a lien thereon, as provided in this act, shall be held to be an abandonment of such lien, and such lien may also be waived by special contract.” (R. S. 58-215.)
The trial court, in its instructions to the jury, said that whether defendants were entitled to a lien was a question of fact, and it was a question of fact as to whether the landowners or the owner of the cattle had actual possession and control of the cattle during the time they were grazing in this pasture and until they were taken by the sheriff.
Under the statute above quoted it is not sufficient to be entitled to a lien, to furnish the pasture. Care must be bestowed upon the cattle directly or indirectly by the landowners in addition to furnishing the pasture and this possession and control must continue with them. If the cattle were turned back to their owner or if he assumed possession and control of them, the lien that may once have existed would, under the last above-quoted statute, be waived. The confusion that exists in this case arises out of the dual capacity in which the evidence tends to show the defendant Griffin to have been placed. He was in the first place the owner of the cattle and primarily entitled to the full possession and control of them. Then he and the landowners claim he surrendered that possession and control to Whitham and his sister, owners of the pasture, to have them pastured for the season at a definite amount per head for pasture, water, salt and care. And because the evidence further tends to show that he accepted employment of the owners of the pasture to keep the fences in repair, look after these cattle and others in the pasture, furnish salt and water for all of them and to be compensated for such services by being given pasture for four cows and his work horses free of charge, reimbursed for the salt and paid $2 per day for hauling water, he became the employee or agent of the landowners. On the other hand, it is claimed he was not acting for the landowners but for himself, and therefore was always in possession and control of his cattle. Suppose instead of Griffin doing this work in looking after the cattle and the pasture, the landowners had employed an entire stranger to do this same work for this same com-pensation, there would be no serious question or confusion as to the possession or control of the cattle during the pasturing season, and it would not likely have been held that tlie hired man had such possession and control.
The following are leading cases on the question of agister’s liens in which helpful distinctions are made and essentials are emphasized: Case v. Allen, 21 Kan. 217; Kelsey v. Layne, 28 Kan. 218; Bank v. Brecheisen, 65 Kan. 807, 70 Pac. 895; and Cattle Loan Co. v. Warren, 115 Kan. 21, 222 Pac. 138. But the case most nearly in point as applied to the facts in this case is that of Loader v. Bank, 113 Kan. 718, 216 Pac. 264. It is evidently the case which convinced the trial court that judgment should be rendered for the plaintiff notwithstanding the general verdict and the answers to the special questions. Among the findings of fact in that case made by the trial court were the following which show a wide distinction between it and the one at bar: That the owner, who was also the mortgagor, was at all times in full and exclusive possession of the stock. That the landowner not only did not have possession of the cattle at any time but'had nothing to do with keeping up the pasture fences, supplying stock with water when necessary, or caring for the stock in any respect. In the opinion the fact is also stated that the lease which reserved the pasture to the lessors provided for the pasturing of the tenant’s cattle at the customary price per head and for landowners “to have a lien for payment of the sums due.” Numerous other differences are to be observed by reference to the record in that case. While the general relations of the parties in the two cases are similar, yet the details are directly the opposite as to employment and compensation, which with other distinctions make the Loader case, supra, not one “on all fours” with the case at bar, nor decisive of the rights of the parties hereto.
Appellee insists that the verdict of the jury was not supported by evidence and that it, as well as the answers to the several special questions, is contrary to the evidence. Isolated answers of witnesses are cited which apparently support that contention, but whether the evidence was entitled to credence or not there certainly is in the record some evidence and sufficient evidence, if believed, to sustain the verdict and the answers to the several special questions. The jury, under proper instructions, believed this testimony with reference to possession and control of the cattle being in the owners of the pasture and remaining there until disturbed by the sheriff.
The trial court in the exercise of its judicial duty and control over verdicts, general and special, apparently could not approve the verdict or the answers. Instead of granting a new trial, as is usually done in such cases, the trial court thought best to set aside the verdict and the answers to the seven questions and render judgment on the petition of the plaintiff.
The case of Shore v. Shore, 111 Kan. 101, 205 Pac. 1027, is cited by appellee as an authority for such action by the trial court. In that case punitive damages were awarded plaintiff when no actual damages were allowed by the jury, as shown by the answers to special questions, and the trial court set aside one of these answers and then rendered judgment on the general verdict. On appeal the judgment was reversed and it was held that defendant’s motion for judgment in his favor notwithstanding the verdict should have been sustained, and it was further held—
"When reviewing a vérdict or special finding, the district court acts according to its own independent Judgment, and should set aside either or both when satisfied the jury has not properly discharged its functions.” (Syl. It 1.)
The following was said as to the duty of the trial judge in such cases in the case of Williams v. Townsend, 15 Kan. 563:
“It is unquestionably the duty of the district court to set aside a verdict and grant a new trial whenever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact; for, while this is true as long as the jury have the case under their consideration, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence, yet, if the verdict is manifestly erroneous, he should always set it aside, and grant a new trial; and he should be controlled by his own judgment in the case, and not by that of the jury.” (Syl. If 3.)
Another helpful ruling on the subject of what is best to be done by the trial judge as to approval or disapproval of verdicts is Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602.
“While it is the imperative duty of the trial court to sustain a motion for a new trial in all cases where there is an utter failure to prove any essential fact necessary to support the verdict, and also where the judge is of the opinion that the verdict is clearly opposed to the weight of the testimony, yet in cases of doubt, where there is sufficient testimony to support the verdict, if the court after a full consideration of it approves the verdict and enters judgment thereon, this court will not reverse that action merely because the judge states that he doubts the correctness of the verdict and would not have found as the jury did if the ease had been submitted to him as a trier of the facts. In doubtful cases, where the jury have acted fairly and conscientiously on conflicting evidence, the trial court may properly defer to the judgment of the jury and approve a verdict, even though acting on its own judgment alone it would have reached the opposite result.” (Syl. ¶ 4.)
Appellee urges that this is just the same as if the trial judge had sustained the demurrer to the defendants’ evidence or had given a peremptory instruction at the close of the testimony — quite true, except the fact that the triers of fact have definitely found the facts to be otherwise. Of course, the trial court is not bound to approve such findings and should not unless it can do so conscientiously, but should the judge render a judgment of an entirely opposite nature or grant a new trial? In this case the trial court overruled the motion of plaintiff for a new trial just prior to sustaining the motion to render judgment for plaintiff notwithstanding the verdict, and later overruled the motion of defendants for a new trial. It is said in 15 R. C. L. 606:
“Where there is a total absence of evidence on some material point, and it appears probable that the party has a good cause of action or defense, and the defects, if any, in - the evidence, are largely technical and might be supplied upon another trial, a new trial and not a judgment non obstante veredicto, will be granted. ... If, however, the evidence precludes any right of the plaintiff to recover, a motion by the defendant for judgment notwithstanding a verdict in favor of the plaintiff is proper and should be granted.”
33 C. J. 1183 gives the following as the rule in such cases:
“A judgment non obstante veredicto must be based solely upon matters appearing upon the record. It cannot be granted upon affidavit or evidence, but only on the face of the pleadings. ... A judgment non obstante veredicto must be granted, if at all, upon the record, and the evidence cannot be looked to in determining a motion for such judgment. Such a judgment cannot be rendered merely because the verdict is against the weight of the evidence, although there are intimations that such a judgment may be entered upon undisputed evidence 'or where the verdict is not sustained by any evidence whatever. The proper remedy for a wrong or mistaken verdict on the facts is by motion for a new trial, not by motion for a judgment non obstante veredicto."
“The power of the court to grant a motion for judgment notwithstanding the verdict is no broader than its power to direct a verdict, and it cannot be exercised where there is a conflict in the evidence, although the conflict is such that the trial court would be justified in granting a new trial notwithstanding it, as the motion must be based upon such a state of facts as will warrant the court in granting it without trespassing on the province of the jury to be judges of all questions of fact in the case.” (Hunt v. United Bank & Trust Co., 210 Cal. 108, syl. ¶ 12.)
“There being evidence from which the jury were warranted in finding for the plaintiff, it is error to enter a judgment for the defendant n. o. v. . . .” (Fleming v. Buerkli, 159 Wash. 460, syl. If 2.)
“If there is any evidence to support a material finding, it cannot be stricken from the special verdict or a directly opposite one substituted for it. If a finding is against a decided preponderance of the evidence, the remedy is by motion for a new trial.” (Ohlweiler v. Lohmann and others, 82 Wis. 198, syl. ¶ 1. See, also, Sheehy v. Duffy and another, 89 Wis. 6.)
“. . . If, after a careful study of the evidence, it appears that there is substantial evidence to support every essential element of plaintiff’s case, the verdict of the jury cannot be set aside, and judgment notwithstanding the verdict is erroneous.” (Landers v. Crescent Creamery Co., 118 Cal. App. 707, syl. ¶[ 3.)
While the burden of proof was properly placed on the defendants in this case, yet, with such answer as was filed by defendants, the pleadings were not such as would support a judgment for plaintiff on motion, and with evidence, if believed, sufficient to support the verdict and the answers to the special questions the duty of the trial court would seem to have been to grant a new trial.
“The fact that the jury are the exclusive, judges of all questions of fact submitted to them does not justify the judge of the trial court in declining to examine the sufficiency of the evidence upon which the verdict rests, when it is challenged by a motion for a new trial; and whenever it is manifest that the jury have found against the clear weight of the evidence, and that the party asking for a new trial has not in all probability had a fair trial nor received substantial justice, it is his imperative duty to set the verdict aside and grant a new trial.” (Coal and Mining Co. v. Stoop, 56 Kan. 426, syl., 43 Pac. 766.)
We think the trial court went further than can be justified by approved precedents in rendering judgment for plaintiff notwithstanding the verdict and answers after having overruled the motion of the plaintiff for a new trial, and for that reason the judgment rendered on the last motion of plaintiff must be reversed and the cause remanded for further proceedings after the setting aside of the general verdict and the answers to the several special questions as being contrary to the evidence. This the trial court did before attempting to render judgment for plaintiff notwithstanding the verdict and the answers, and then, as the journal entry shows, proceeded to render judgment for the plaintiff and against the defendants. The verdict and answers are as effectively disposed of by the trial court in setting them aside on this motion as if done in the usual way by sustaining a motion for a new trial. With the verdict and answers set aside by the trial court, which it had a perfect right to do, there is nothing left on which to base a judgment for either party, and the only recourse is to grant a new trial, as should have been done under the previous motion, when the trial court thought the verdict and answers were contrary to the evidence.
Appellant indulges in a severe criticism of the action of the trial court, which we not only disapprove but censure. The similarity of the outline and the surroundings of the Loader case, were sufficient to suggest it as a logical precedent, notwithstanding the widely different details.
The judgment is reversed and cause remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injury to person and property sustained in an automobile collision. A demurrer to the amended petition was overruled, and defendants appeal.
The petition alleged that while plaintiff was carefully driving his fully equipped automobile on the proper side of a highway, “defendants,” driving their automobile at a high rate of speed, negligently, recklessly and wantonly ran into plaintiff’s automobile, wrecked it, and injured plaintiff. Actual and punitive damages were prayed for. Defendants moved the court to require plaintiff to state which one of defendants was driving their automobile when the collision occurred. The motion was allowed, and plaintiff amended by stating defendants were engaged in a joint enterprise in which each one acted as agent of the other. Otherwise there was no material difference between the two petitions. After the petition was filed, but before the amended petition was filed, the statute of limitations ran against maintenance of an action for damages resulting from the accident. Defendants contend the original petition did not state a cause of action, and the amended petition, departing from the original petition, stated a cause of action for the first time.
The original petition charged commission of a tort, the elements of which were detailed, and charged that defendants committed the tort. Of course there may be joint tortfeasors under joint liability, and defendants were so charged. Therefore, the original petition stated a cause of action without vagueness as to wrongdoers, con7 duct or consequence. The amended petition charged commission of the identical tort by the identical actors. All that was new in the amended petition was an explanation of the relation between defendants which made them jointly liable — a matter which was not an essential ingredient of the cause of action. The result is, for purpose of application of the statute of limitations, the action was commenced when the original petition was filed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a supersedeas bond given in an action of forcible detention. Plaintiff recovered, and defendants appeal.
Nance recovered judgment in the district court against Mullikin for possession of a quarter section of land. Mullikin appealed to this court, and gave a bond, signed by Mitchell as surety, to pay the value of use and occupation of the land in case the judgment should be affirmed. The judgment was affirmed. (Nance v. Mullikin, 131 Kan. 828, 293 Pac. 490.) By virtue of the bond, Mullikin held possession of the land from December 16, 1929, to December 29, 1930. At the trial of the action on the bond, the jury found specially the value of use of the pasture land was $25, and found generally that plaintiff’s total damages were $248. Judgment was rendered accordingly.
At the trial the topography of the land and the uses to which it was adapted were described. About ninety acres were in cultivation, and the remainder was pasture land. The land had no cash rental value. Farmers who knew the land and who had been engaged in farming in the vicinity for many years were permitted to express their opinions respecting usable value of the land during the period of detention. Mullikin contends the testimony should have been limited to the facts relating tp uses to which the land was adapted, and it should have been left to the jury to draw the conclusion respecting value. The case was clearly one in which the jury could be aided by the opinions of persons qualified to express opinions.
Nance was entitled to such compensation as would put him in as good position as if he had enjoyed use and occupation of the land. Mullikin, who has spent considerable money in keeping possession, is in no position to say use of the land was of no value. The usual method of valuing use, that is, by rental value, could not be employed, and the method which was employed was the best available.
Mullikin contends the value which was proved was speculative. There is uncertainty with respect to what any farmer who sows may reap, but farming is not a speculative enterprise, and experienced farmers of the vicinity have a good notion of what the opportunity to use a farm of a given character in a given locality is worth.
The witnesses mentioned a variety of facts which bore on the subject of value of use and occupation of the farm. All these facts were embodied in instructions to the jury, to be considered in arriving at fair and reasonable compensation. As indicated, a considerable portion of the- land was wheat land. Nance was prevented from sowing wheat in the fall of 1930 which would mature in 1931. The court told the jury they might consider this fact in determining value of use and occupation from December, 1929, to December, 1930. Mullikin contends the instruction enlarged the terms of the bond to include damages to accrue beyond the period of wrongful detention. The instruction was too clear to 'be misunderstood, and had no such meaning or effect. Privilege to use the wheat land in the fall of 1930 for wheat sowing was an element of value of use for the year preceding December, 1930.
The appeal is without merit, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal was disposed of in an opinion filed on December 10, 1932. (136 Kan. 514.) Appellant now moves the court to revise the text of that opinion in respect to our comment on the erased and altered date of the assignment of the so-called “negotiable trust receipt,” from which an inference could be drawn that the erasure and alteration were perpetrated fraudulently. It is now shown by apparently credible affidavits that the imperfect erasure and alteration happened otherwise.
The order will therefore be that appellant’s motion is sustained, and the court’s comment on the matter of the erased and altered date will be stricken from the official opinion. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to set aside a deed from a daughter to her father to a tract of land conveyed to her by her father about two and one-half years earlier, in which the plaintiff claims to be the owner of a half interest, and to have the daughter declared to be a trustee for the plaintiff’s half interest therein and directed to execute and deliver to plaintiff a good and sufficient deed therefor. The trial court made findings of fact and conclusions of law and rendered judgment thereon in favor of the defendants, from which the plaintiff appeals.
The plaintiff, S. R. Stalcup, was a farmer, who for seven years lived with his brother and family in Stafford county, and was engaged with his brother in farming land belonging to his brother’s wife and, also, some land the plaintiff had rented. The name of the brother’s wife was Mattie May Stalcup, and she was the daugh ter of R. C. Gates, both of whom are defendants in this action. They kept their funds in one account in a neighboring bank in the name of the brother of the plaintiff. After the purchase of the land in question by the daughter from her father, plaintiff continued with his brother farming the land they previously had and this new quarter section, dividing the crops on this new quarter, the plaintiff getting half of it. He paid half the interest on the mortgage of $6,000 assumed thereon and half the taxes for two and one-half years, sending one interest check directly to defendant R. C. Gates.
The following findings of the trial court have special reference to the questions involved in this appeal:
“4. The court finds that the defendant, Mattie May Stalcup, purchased the above-described real estate from the defendants, R. C. Gates and wife, on September 24, 1928, and said deed was made subject to the following conditions :
“ ‘Said party of the second part hereby agrees to assume six thousand dollars of a certain twenty-four thousand dollar mortgage, on all of section 35-21-13 to The Prudential Insurance Company of America, ... that the consideration for said sale and conveyance of said land from R. C. Gates and wife to the defendant Mattie May Stalcup was twelve thousand dollars, of which the defendant Mattie May Stalcup assumed six thousand dollars, or one-fourth of a twenty-four thousand dollar mortgage, on said real estate, agreed to pay R. C. Gates one thousand dollars, and that the said’ Mattie May Stalcup paid five thousand dollars to the said R. C. Gates in cash, and that she obtained the said five thousand dollars in cash by mortgaging some real estate that she owned in her own right and that she owned at the time she married plaintiff’s brother.
“5. The court finds that the plaintiff paid no part of the purchase price of said land which the defendant, Mattie May Stalcup, purchased from the defendant R. C. Gates, her father, being the real estate involved in this action.
“8. Plaintiff and Mattie May Stalcup, his sister-in-law, defendant herein, had business transactions relative to farming, and at or about the time the land was purchased from R. C. Gates by Mattie May Stalcup, plaintiff and Mattie May Stalcup figured up what was due the plaintiff and Mattie May Stalcup told plaintiff, and they agreed, that plaintiff had three thousand one hundred seventy-six dollars due him from Mattie May Stalcup, and the parties had a verbal agreement or understanding that plaintiff was to own a three-thousand-dollar or one-half interest in the above-described real estate, provided he paid out his share of the mortgage on the land.
“9. The land was to be kept in the name of Mattie May Stalcup, so when Mattie May Stalcup bought plaintiff out, a new deed would not have to be given.
“10. Mattie May Stalcup offered to give plaintiff a deed for a one-half interest in said real estate several times, but plaintiff said he did not desire a deed.
“13. The price of real estate declined rapidly on account of the present depression, and the mortgage on the real estate came due and the defendant R. C. Gates, defendant Mattie May Stalcup’s father, was compelled to and did pay the mortgage on said real estate.
“14. On May 5, 1931, a divorce was granted Mattie May Stalcup from J. A. Stalcup, known as Burt Stalcup, brother of plaintiff, in the district court of Stafford county, Kansas; the evidence was introduced on April 25, 1931, and the decree rendered May 5, 1931.
“15. On April 1, 1931, and also under date of May 26, 1931, Mattie May Stalcup conveyed said real estate back to her father, R. C. Gates, by a general warranty deed; the deed of May 26, 1931, was recorded. The plaintiff knew of the conveyance from Mattie May Stalcup to R. C. Gates prior to the' time the divorce case was tried.
“16. The consideration for the sale and conveyance of the real estate from Mattie May Stalcup to R. C. Gates, her father, was that R. C. Gates pay the mortgage assessed against the above-described real estate, which was a twenty-four thousand dollar mortgage on a section of land which covered the land in question, and the said R. C. Gates canceled the one thousand dollars which his daugther, Mattie May Stalcup, owed him; and the said R. C. Gates further orally agreed to pay the five thousand dollar mortgage indebtedness which the defendant, Mattie May Stalcup, put on her real estate at the time she purchased the land from her father and which she paid her father, R. C. Gates.
“17. The land in question, at the time of the trial of this action, was worth approximately nine thousand dollars.
“18. The court finds that from the time Mattie May Stalcup purchased from R. C. Gates in 1928 the land in controversy, and up until the spring of 1931, plaintiff had never had any conversation with R. C. Gates in which plaintiff told R. C. Gates that he had bought a half interest in the quarter section of land involved in this controversy; and the evidence is not clear that the defendant R. C. Gates ever knew that plaintiff and his daughter had had any conversation or agreement relative to the land in question.
“19. All the negotiations between the plaintiff and defendant Mattie May Stalcup were oral.
“20. The defendant R. C. Gates is in possession of the real estate.
“21. The defendant R. C. Gates has already paid the twenty-four thousand dollar mortgage, of which the defendant Mattie May Stalcup had assumed six thousand dollars in the deed, and has canceled the' one thousand dollars due him, and has agreed to pay the five thousand dollar mortgage indebtedness owed by Mattie May Stalcup.
“22. The court finds that no fraud was practiced by R. C. Gates in any of the transactions related herein.
“23. The court finds that the plaintiff was not indebted to any person; and there was no fraud practiced by him in any of the transactions related herein, and the agreement between Mattie May Stalcup and plaintiff was free from fraudulent intent.
“24. Mattie May Stalcup sold the land baok to her father, R. C. Gates, for exactly what she gave for it.
“25. During the time plaintiff and defendant Mattie May Stalcup farmed the land together they divided the crops.
“26. Plaintiff never paid or offered to pay or made tender of any part of the mortgage' when the mortgage came due.
“27. Defendant R. C. Gates saw the plaintiff working upon the real estate in controversy herein.
“29. Plaintiff never personally paid anything to R. C. Gates on the purchase price of said real estate; the payments made by plaintiff for interest and taxes are enumerated in finding No. 11.
“31. Defendant Mattie May Stalcup was unable' to pay the mortgage at the time it came due.
“32. R. C. Gates has paid interest on the five thousand dollar mortgage which he orally assumed.
“33. R. C. Gates saw the plaintiff working on the real estate in controversy herein; also saw the plaintiff working on other land of Mrs. Mattie May Stalcup.
“35. Mattie May Stalcup never paid R. C. Gates any part of the one thou-said dollars mentioned in finding No. 4.”
The following is the conclusion of law made by the trial court:
“The court concludes as a matter of law that the deed from Mattie May Stalcup to R. C. Gates should not be set aside, and that defendant Mattie May S'talcup should not be decreed and declared to be a trustee for plaintiff of an undivided one-half interest, or of any interest, in the real estate' involved herein; and judgment goes for the defendants, and the relief asked for by plaintiff should be and hereby is denied.”
The first and main question involved in this controversy is, whether or not the defendant R. C. Gates was an innocent purchaser of the land from his daughter, taking it back for the same price for which he had sold it to her two and one-half years before, and without knowing or having notice of the claimed interest of the plaintiff in the land.
The court finds that he had no knowledge or notice of such interest until after his purchase thereof, and a careful examination of the evidence shows there was sufficient evidence to support such finding, although there is some evidence to the contrary and many circumstances which are urged as being sufficient to have put a prudent man upon his inquiry, among which were the farming of the land regularly by the plaintiff and his brother, the payment of half the interest regularly and one time by check signed by the plaintiff and sent directly to him and indorsed by him. Appellant insists that the payment of interest and taxes on land by one other than the record owner should be sufficient to put the purchaser upon inquiry. But the farming and handling of their financial affairs together by the plaintiff and his brother would not make this conduct as noticeable as if the payments had been made by one not otherwise connected in work and business with the record owner and her husband; likewise with the circumstances of possession. Plaintiff was in possession of this land in a way, but with his brother. They were both seen on the land frequently by defendant Gates, and such possession, in order to put one upon inquiry, should have been exclusive. In the case of Penrose v. Cooper, 86 Kan. 597, 121 Pac. 1103, it was held that possession the notice of which will put the purchaser upon inquiry must be open, notorious and exclusive. The fact that the plaintiff and his brother worked together on this land after it was purchased in 1928 would not indicate anything different as to ownership than on the other land owned by Mrs. Stalcup. In Beaubien v. Hindman, 38 Kan. 471, 16 Pac. 796, it was said—
“In. order for mere possession of real estate to put a purchaser upon inquiry, the party claiming possession must have actual, open, visible, notorious and exclusive possession of the premises.” (p. 472.)
As to findings of fact being conclusive, if there is evidence to support them, it was said in Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619:
“Rule followed that where questions of fact have been determined by the trial court upon substantial and competent evidence, such determination is conclusive on appeal.” (Syl. ¶ 2.)
Appellant argues very forcibly the rules as to resulting trusts and insists that the statute of frauds urged by the appellee is not applicable under the circumstances of this case, citing Duncan v. Johnson, 89 Kan. 21, 130 Pac. 655, where it was said:
“When two parties purchase a tract of land for their mutual profit and the consideration is paid by one of them and the deed made to him with the verbal agreement that he is to hold for both unless other arrangements are subsequently made, the statute of frauds does not preclude an action by the other party to be adjudged the owner of an undivided one-half of the land, and for an accounting.” (Syl. If 3.)
Under the findings of the trial court as to the relation of the plaintiff and Mrs. Stalcup with reference to the purchase of this land by her with the use or investment of the funds she owed the plaintiff, and her subsequent recognition of his interest in the land and her offers to convey a half interest therein to him, a conclusion as to her being a trustee for him might have been reached while she still held the title, although the findings show he never fully paid his part of the obligation for the purchase thereof. But no good purpose is served by speculating or reasoning along this line when the title to the land has been transferred to an innocent purchaser.
“No such trust, whether implied or created, shall defeat the title of the purchaser for a valuable consideration and without notice of the trust.” (R. S. 67-402.)
The good faith of the purchaser is all that is required to fully dispose of the land and place it beyond the reach of the daughter, sought by the plaintiff to be made a trustee for his half interest therein. Quite a little of the argument and the supporting authorities of the appellant would have been apparently conclusive in an action against the daughter while she still owned the land, but they are not availing when the object of the trust is beyond her reach.
In the trial court appellant moved to set aside certain of the findings of fact for the reason that they were contrary to and not supported by the evidence. The adverse ruling of the trial court on that motion is assigned as error. We have carefully examined the evidence and find some evidence to support each of such findings.
In the brief of appellant our attention is directed to apparent inconsistencies in some of the findings, but a possible construction of them as one being a modification of the other is suggested and is quite reasonable. When they are all read together there appears to be no serious conflict between them.
Appellant concludes his brief with two earnest appeals to this court to protect him in his evident loss by the conduct of Mrs. Stalcup, who owed him $3,000 and now claims she owes him nothing, by our directing the trial court to render judgment against defendant R. C. Gates for $3,000 to be paid appellant and defendant Gates to be relieved of that amount in meeting his promise, not yet performed, in paying off the $5,000 mortgage on the daughter’s land. The other appeal is to relieve the plaintiff of the costs and tax them to the daughter. It is true this is an equity case, and these appeals may sound equitable, but costs usually follow the judgment, even in equity cases, and we must have from the trial court a basis on which to rest a modified judgment, however equitable the proposed modification may appear to be. We have no such basis here.
We find no error in the proceedings. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to partition three quarter sections of land and some city property, and the recovery of certain rents. Upon the testimony and admissions of the parties, certain findings of fact and conclusions of law were made by the court and upon these judgment was entered, of which the plaintiff complains and from which she appeals.
Francis A. Boulls and Emma E. Conley were married on April 2, 1915. Each had been married before and both had children by former marriages. Francis A. Boulls had several children who were named as defendants in this action brought by Mrs. Boulls, but no children were born of the later marriage of the parties. Before their marriage and on March 27, 1915, they entered into the following antenuptial contract:
“This agreement made and entered into this 27th day of March, 1915, between Francis A. Boulls of Jennings, Kansas, and Emma E. Conley, of Jen-nings, Kansas, witnesseth:
“That whereas the said Francis A. Boulls and Emma E. Conley have mutually agreed to intermarry and that each of said parties has property consisting of real and personal property and each has reared a family, members of which are now living, and it is the desire of each of said parties to leave, in so far as it is desirable, property now possessed by them to,their children of such former marriage; and whereas each of said parties is fully informed as to their rights under the law of this state upon marrying each other as to the property rights and estate of each other; it is agreed by the said Emma E. Conley, in consideration of the said promise of marriage and the covenants, and agreements hereinafter set out on the part of the said Francis A. Boulls, that at any time during the married life of the said parties said Francis A. Boulls may dispose of one-half of the property which is now possessed by him, by sale, or will or gift or in any manner that he pleases and that in case of his death she shall receive only a life interest in the remaining one-half of the said estate of the said Francis A. Boulls and that the remainder of said estate shall go and descend to his heirs or by will as he shall direct. And it is understood that this agreement does not apply to property acquired by their joint labors during marriage.
“It is agreed on the part of the said Francis A. Boulls in consideration of the promise of marriage and the covenants and agreements on the part of the said Emma E. Conley hereinbefore set out that said Emma E. Conley may, at any time during their married life dispose of all of the estate she now possesses by sale, or will or gift or otherwise as she may see fit to do and that the said Francis A. Boulls in- case of her death, as her survivor, shall take nothing from the estate of said Emma E. Conley except his lawful interest in such estate as they may hereafter acquire by their joint labors.
“In Witness Whereof the parties to this contract have hereunto set their hands this 27th day of March, a. d., 1915, at Oberlin, Kansas.
Francis A. Boulls,
Mrs. Emma E. Conley.”
On August 5, 1921, Francis A. Boulls executed a will giving the property to his children in prescribed shares, and providing that his wife, Emma, should have the exclusive use of what is designated as the home place in Jennings as long as she should live. He died on February 28, 1930, and at that time all of his children had reached and passed the age of majority. His son was duly appointed executor as the will directed, and he has managed the farm land of the estate.
At the time of the marriage, and of the husband’s death, he owned three quarter sections of farm land, and after the marriage he had acquired a residence property in Jennings, spoken of as the home place, in which he and his wife had been living for about eleven years prior to his death, and he also owned some personal property. The personal property was found to be insufficient to pay the debts of the estate and the costs of administration, and an application had been made to the probate court, and is still pending, for the sale of a certain quarter section of the farm land for the purpose of meeting the debts and expenses of administration of the estate. The estate is still unsettled and cannot be finally settled until a sale of so much of the land be made as is necessary to pay the debts and expenses of administration. The plaintiff claims nothing in the estate by virtue of the will but rests her claims in the action under the ante-nuptial contract.
The court found that the plaintiff is the owner of a life estate in the undivided one-half of the property mentioned, to be retained by her during her natural life, and that the defendants, the children of Francis A. Boulls, are the owners of the undivided one-half interest of the land described in which plaintiff has her life estate subject to that life estate, and that the defendants hold the fee-simple title to the other one-half interest in the real estate. Among other things the court found that the property is subject to partition among the defendants according to their respective interests, but it cannot be finally partitioned until sufficient of it may be sold through the probate court to pay the debts and expenses of administration, and the decree was that partition should be postponed and held in abeyance until the debts and expenses are paid. It was further found, as to the matter of rents received by the defendants from the farm lands in which the plaintiff claims the use of a one-half interest, that defendants have received and are holding the sum of $193.79, to which plaintiff would be entitled to one-half; and as to the home place in Jennings, that the net rental received by plaintiff from the home place, in which defendants claim a half interest, should be set off against the rents received by the defendants from the farm lands, that held by the plaintiff being $707.50, and that defendants were entitled to one-half of that as a set-off against what they had received from the farm lands, and it was found that she is not entitled to a recovery against the defendant for any rents, but that the defendants are entitled to have their share of the net rental value of the home property to be set off against the rents due from defendant from the farm lands.
There was testimony as to the rental value of the lands, the crops grown thereon, the value of such crops and the value of the rentals on the real estate, the amount of the taxes and repairs, the amount of the debts and the value of the personal property. There was also testimony as to the rental value of the home place in Jennings and the repairs thereon, and the expenses of administration.
Plaintiff testified that she had received no rents and profits except the use of the house in town. She also stated that she had not paid anything to the executor on account of the use of the house, but had spent $75 in repairing it.
Plaintiff contends that the court erred in decreeing that the life estate of plaintiff was liable for the payment of the debts of Francis A. Boulls, which she contends is not liable for the debts, stating that there is plenty of property for that purpose without resorting to the life estate. Second, that the court erred in decreeing that the homestead property in Jennings was subject to partition for the debts of the deceased, and in adjudging that the plaintiff was liable for rents on the homestead from the time of the death of her husband.
Other objections are to the admission of evidence and the overruling of the motion for a new trial.
The validity of the antenuptial contract is not questioned, and it is admitted that the plaintiff based her- claim under that contract and is not claiming under the will later made by her husband. Under the antenuptial contract plaintiff became entitled to one-half of the property of which her husband died seized, which includes both the farm land and the home place in Jennings. The plaintiff, and her husband began occupying the residence in Jennings about four years after their marriage and continued to live in it until his death, and she is still living in it, claiming homestead rights therein. The right of plaintiff to the rentals on one-half of the farm land is conceded by defendants, but there is a dispute as to the right of the defendants to-a share of the rentals of the homestead in Jennings or to have the rentals on the homestead set off against the rentals to which she was entitled on her interest of the farm land, to wit, $193.79. The plaintiff, it appears, had rented rooms to others in her home in Jennings, and in the period since her husband’s death had received therefrom $707.50. The court decided that the defendants were entitled to a share of the rentals in the homestead and to have them set off against her share of the rentals on the 480 acres of farm land — in effect holding that she should receive nothing on the rentals of farm land, and, so far as rentals were concerned, she was practically found indebted to defendants in the sum of over $500.
It is conceded that a sale of only a small part of the farm land is necessary to pay the debts of the estate, and defendants say they are not seeking to interfere with the plaintiff’s occupation of the homestead; but they did ask for a part of the use of the homestead, and it was decreed to them by the court when it required the plaintiff to account to defendants for the rentals of the homestead and set them off against the rentals due her on her life estate in the farm land. She is entitled to the full use of the homestead in addition to the right given her under the antenuptial contract. Her homestead right is superior to that provided in that contract, and, so far as occupancy and exemption are concerned, she is not limited to the terms of the contract. In Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, it was said that—
“The homestead rights of the wife, provided for by our constitution (art. 15, § 9) and statutes (R. S. 22-101) cannot be affected by an antenuptial agreement.” (Citing cases.) (p. 152.)
The homestead right of plaintiff extended not only to a part of the home, but to the exclusive use of all of it. There can be no question that the homestead rights attached to the home, and that unless abandoned it will persist, even for the benefit of a single individual, the wife, as long as she lives. During her occupancy it cannot be sold for debts of the estate or even for her own debts, and no part of the homestead can be appropriated to meet the obligations, of the estate or of the children who are to receive the re mainder or ultimate title to the property. Plaintiff is not claiming under the will made, but in that instrument the husband provided that his wife should have the exclusive use and benefit of the homestead as long as she shall live. The court erred in requiring her to account to the defendants for the use of the home or in setting off the rentals as against what was due her from her share of the farm lands.
There is no reason to complain that the court proceeded with the partition action during the existence of the homestead. It was determined in Towle v. Towle, 81 Kan. 675, 107 Pac. 228, that there may be partition of an estate involving a homestead where there are children and heirs of the owner who have a share in the estate, and have reached an age to require a distribution. The court did proceed with the partition, so far as it could go at the time, and deterr mined what the widow and each of the children should receive when the debts of the estate were paid, decreeing that after the debts were paid she was entitled to one-half of the remaining estate during her life and that the other defendants should receive the remainder in fee in the part of the real estate in which plaintiff has a life estate, and further adjudged that the defendants are the owners of the fee-simple title of the other half of the real estate in which the plaintiff does not have a life estate.
There is reason to complain of the holding that the plaintiffs ■shall only have a life estate of the remaining real estate after the debts are paid. By holding that she should receive only what remained after the debts were paid, was in effect to hold that part of the widow’s life estate given to her under the antenuptial contract, might be sold to pay the debts of the estate, and the costs of administration. It appears that there is plenty of property, besides that given to her by the contract, and it appears that a quarter section of the farm land has been petitioned to be sold to meet this charge. As we have seen, the homestead may not be sold or appropriated for debts or interfered with during its existence, and we think that no part of her life estate should be reduced or taken for the debts. When the antenuptial contract was made, giving her a one-half interest in all the real estate owned by the husband, and on the consummation of the marriage the right to one-half of the estate became fixed. It will be noted that the husband, in the contract giving her one-half of his property, stipulated that during the marriage he reserved the right to sell or dispose of one-half of his property as he pleased, implying that he considered that he did not have the right to sell the part which he contracted to give her.
The contract evidenced an intention of the husband that the widow should have at his death a life estate of all the property possessed by him, and that the other half was intended to go to the children. It did not provide that the widow’s interest was to be one-half of the property after the debts and costs of administration were paid or other obligations were discharged. The property owned by the husband at his death was the same as when the contract was made, except the homestead in Jennings, which was in the contemplation of both parties when the contract was made.
We conclude that under the contract and the circumstances of the case that the widow’s life estate was not subject to the payments of the debts of the estate and that there was error in the decision that her interest was limited to what remained after the debts and costs of administration were paid.
No other objections raised as to the rulings of the court appear to be meritorious, but for the errors mentioned the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action against Robert A. Moore, ex-probate judge of Jewell county, and his surety, for his failure to account for certain moneys which came into his hands during his incumbency of the office of probate judge.
After the issues were formulated by pleadings, the material facts were agreed to by stipulation.
It appears that one A. Teeple was probate judge of Jewell county from 1914 until 1923. Teeple was succeeded by one John W. Ross, who served until 1929, at which time he was succeeded by defendant Moore. Certain moneys came into the hands of Teeple informally, which he delivered to Ross, his successor; and these moneys, with additions thereto, were delivered by Ross to defendant. It is these moneys and other items of similar sort which defendant Moore received during his incumbency of the office, aggregating $3,635.49, which he failed to account for and which got him into the toils of the civil and criminal law and eventually landed him in the penitentiary.
In the course of the present litigation the state has collected from Moore the sum of $709.02, and the defendant surety company has paid $2,120.63 on account of Moore’s defalcations. Of the balance of $805.84 due the state for the benefit of whoever is entitled thereto, the principal legal question of present concern is whether the defendant surety is liable therefor. The trial court ruled affirmatively, and judgment was entered accordingly.
The surety company appeals, contending that Moore did not receive the various items composing this balance of $805.84 by virtue of his office as probate judge, and, in consequence, defendant is not liable therefor under the bond it executed to insure his official integrity. The pertinent provision of the bond reads:
“Now, therefore, if the said Robert A. Moore shall faithfully perform all the duties of his said office required of him by law and faithfully apply and pay all moneys and effects that may come into his hands in the execution of the duties of his said office, then the above obligation to be null and void, otherwise to remain in full force.”
This obligation of the bond was in accord with the terms and conditions prescribed by the statute. (R. S. 19-1101.) To determine the liability of the surety for Moore’s breach of his statutory duty “for the faithful application and payment of all moneys and effects that may come into his hands in the execution of the duties of his office,” we must scrutinize the particular items constituting the sum which the state seeks to recover from the surety company.
In 1923 the retiring probate judge, Teeple, paid over to Ross, his successor, $307.25. This sum was the total of certain unclaimed distributive shares and bequests paid into his hands by executors or administrators. Ross, in turn, delivered this sum to Moore. In 1926 the district court of Jewell county made an order that certain moneys of the estate of Emily Diamond be paid over to Probate Judge Ross for distribution. Ross distributed all of these sums except $93.66, and this balance he turned over to Moore, his successor. During Moore’s incumbency certain executors and administrators turned over to him certain unclaimed distributive shares of estates being administered under his official supervision; also one item due as an inheritance tax on an estate, and an item he had received as rent of an estate. These various items aggregated something over $400. This sum plus the amounts delivered to him by his predecessor made up the amount of $805.84, for which judgment against the surety was entered.
Turning now to the law of this case: No statute can be cited which authorized or permitted the probate judge to receive any of these moneys into his own hands. Under the statute all distributive shares of estates unclaimed for one year must be paid over to the county treasurer by the executor or administrator who has them in charge. (R. S. 22-932.) It is therefore obvious that the moneys ($307.25) handed over by Probate Judge Teeple to Probate Judge Ross, and by him in turn to defendant Moore, did not come into the hands of Moore “in the execution of the duties of his office” as specified in the official bond to which the defendant surety company affixed its signature.
Touching the balance of $93.65 left in the hands of Probate Judge Ross after he had disbursed certain sums on order of the district court (however appropriate such a method of disbursing such moneys may have been under the circumstances, of which the record reveals nothing), it is perfectly obvious that Ross did not receive that money from the district court in his official capacity as probate judge, but merely as a citizen in whom the district court had confidence. If we should turn aside from the record to consider the case of State Bank v. Diamond, 119 Kan. 294, 297, 239 Pac. 970, for further light on this item, it becomes clear that no money was turned over to Probate Judge Ross by order of the district court, but merely that certain claims were adjudicated and the cause remanded to the probate court with instructions to proceed with a settlement pursuant thereto. Such an order did not mean for the probate judge to take physical possession of any money of the Diamond estate, pay it out with his own hands, put the balance in his pocket until he went out of office and then hand it over to his successor. It is therefore apparent that the undistributed balance of $93.85 which Moore received from Ross did not come into his hands as probate judge, and consequently his surety is not liable therefor.
These observations likewise dispose of the items of money which Moore received from various sources while he was probate judge. The administrators and executors in charge of estates under his official supervision had no right to intrust any money of estates in their hands to Moore, either as probate judge or otherwise. It was their bounden duty to care for and dispose of the moneys in their hands as the law directs. That is the reason they were serving as administrators or executors. Aside from certain trifling items for court costs, where the probate judge acts as his own clerk, and for marriage licenses and the like, the law does not contemplate that the probate judge shall come into actual possession of moneys by virtue of his office. The law does not contemplate that he shall act as official custodian of moneys or estates; and sound official policy and judicial ethics will not permit him to serve' even in a private capacity in financial matters which by any possibility may require his judicial consideration. Every dollar in money and every bit of personal property belonging to an estate under administration belongs in the hands of an administrator or executor until disbursed to those entitled thereto, and the probate judge cannot relieve these functionaries of their responsibility by taking into his own hands any money or property of estates intrusted to them and for the faithful accounting of which they themselves are officially bound.
It therefore follows that in its main aspects the judgment of the district court was erroneous. In the stipulation of parties it is agreed that the sum of $61.05, being the total of certain fees received by Moore in his official capacity and for which he did not account, does constitute a liability on his official bond. (R. S. 1931 Supp. 28-113.) By stipulation also it was agreed by counsel for the litigants that a mere modification of the judgment with directions to reduce it to this amount should not carry any costs against the surety company.
In this appeal no question is raised against plaintiff’s right to any of the moneys for which defendant Moore failed to account. But on this point see State v. Spaulding, 24 Kan. 1; State v. Patterson, 66 Kan. 447, 71 Pac. 860, syl. ¶¶ 5, 6; State, ex rel., v. City of Stafford, 99 Kan. 265, 161 Pac. 657, syl. ¶ 3; State, ex rel., v. Bradbury, 123 Kan. 495, 500-502, 256 Pac. 149.
The judgment of the district court will therefore be modified by reducing it to $61.05, and when so modified it will be affirmed; and the costs in this court will be charged to appellee as per stipulation. It is so ordered. | [
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