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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment in a divorce case touching the. division of property, the award of alimony, and the insufficiency of the security to insure its payment.
Briefly, the facts were these: For many years past and until the current economic depression the defendant has been a successful business man in southeastern Kansas. His home has been in Pitts-burg, and he has accumulated mineral lands in Kansas, Missouri and Oklahoma, and expensive machinery for their exploitation. He has had considerable holdings in hotel and theater property and a large amount of miscellaneous real estate. As a husband defendant has twice proved himself to be a failure. He was divorced from one wife in 1907. The same year he married plaintiff. She put up with his lack of domesticity until she reared and educated their two children. Then she brought this action for a divorce. Judgment was entered in her favor, and the divorce'decree is not complained . of by either party. In this judgment the trial court made a division of property, and gave plaintiff an award of $15,000 in alimony, payable at the rate of $200 per month.
The evidence tended to show that defendant was worth $25,000 when he married plaintiff, and that they accumulated a vast amount of miscellaneous property during the ensuing twenty-five years of their married life. At one time defendant’s income amounted to $6,000 per month from dividends, rents and profits on his various business activities. The evidence did tend to show, however, that this property has greatly shrunk in value, and that defendant’s income has greatly declined in the last two or three years. There was evidence — which the trial court may have disbelieved — that defendant permitted 490 shares of lucrative stock which he held in an amusement company to be forfeited to his son by his first wife for a fraction of its value in a simulated foreclosure to satisfy a pretended debt of defendant to that son. Other incidents tended to show, but perhaps not conclusively, that defendant has so handled his business affairs in recent years as to frustrate any judgment for alimony which plaintiff might secure against him. There was testimony that he declared to plaintiff he would see that she would not get any of this property; that if she sued him for a divorce he would go to France for the rest of his days.
The trial court found that at the time of the trial the value of the property of the litigants, standing mostly in defendant’s name, was $272,967.10; that it was encumbered with liens which, with other outstanding indebtedness of defendant, amounted to $211,003.33, leaving a net worth of $61,963.77; that defendant’s income from this property was $2,193.25 per month, and that the fixed expense thereon for interest, taxes and maintenance was $2,395.58 per month, or $292.33 per month in excess of his average monthly income therefrom. The findings of fact include a lengthy schedule of properties in Kansas, Missouri and Oklahoma, with their encumbrance, monthly income, and current and overdue taxes; and also a list of defendant’s miscellaneous liabilities. Of these properties the court made a division in plaintiff’s behalf as follows:
“That the plaintiff, as her part of a division of the property of the parties and as and for permanent alimony, is entitled to money and property of the approximate net value of $36,000.”
Included in this division in favor of plaintiff was the family homestead, which stood in her name and consisted of a thirteen-room house and one and one-half town lots in Pittsburg, valued at $12,000; a $7,000 house, encumbered with a mounting unpaid tax lien of $794.62, which rented for $50 per month; an $800 house encumbered with unpaid taxes of $500, of no rental value; another $800 house with $247.21 unpaid taxes, which rents for $12.50; and a quarter section of land partly destroyed by strip mining and valued at $1,200, with a tax encumbrance of $101.14, of no present rental value. The court’s estimate of the value of all these properties set apart to plaintiff was $20,972.03. The court directed defendant to pay accounts contracted by plaintiff amounting to $167.01, and assigned to her the household furniture and fixtures in the family residence and a Hudson automobile now in her possession. The decree further provided:
“In addition to the real property hereby awarded to the said plaintiff the court hereby awards said plaintiff as permanent alimony the sum of $15,000, the same to be a judgment against the said defendant and to be paid by said defendant at the rate of $200 per month, without interest, except that past due payments shall bear interest at the rate of eight (8) per cent per annum. The first payment shall be due on August 15, 1932, and the subsequent payments shall be and become due on the 15th day of each succeeding month thereafter until the full amount is paid, and the said defendant shall have the right at any time to pay the full amount hereby awarded and/or any balance thereon. The said $15,000 shall be a lien on all of the real property of said defendant and the failure of the defendant to pay any installment within ten (10) days after the same becomes due and payable shall make the entire balance of the said sum of money due and payable and the lien hereby created subject to foreclosure." [Italics ours.]
The trial court overruled plaintiff’s motion for a new trial based on various grounds, including the following:
“Because the court, in his [its] decision, ignored the earning power of the defendant of three hundred fifty ($350) dollars per month, which he receives and has received for many years as an officer of the Pittsburg Amusement Company.”
Defendant filed a motion to modify the judgment, which motion, in part, was sustained, and pursuant thereto the court eliminated from its judgment the matter we have italicized above.
Plaintiff’s first grievance is that the real properties which the court valued at $20,972.03 and set aside to her “are of no consequence.” Her counsel contend that she will not be able to pay the taxes and maintain the large family residence set aside to her; and the other properties will not yield sufficient income to meet their own burdens of taxes and maintenance. Under present economic conditions it may be a matter of fair debate whether any real property, other than a house suitable and necessary for residential purposes, is of any “consequence;” but in this matter, as in most others where the trial court has to weigh the evidence and reach a conclusion, it is difficult for an appellate court to discover where such conclusion is erroneous. And the precedents of this court are many, indeed insurmountable, that in the division of property between husband and wife in a divorce case only a plain case of abuse of discretion will justify this court in disturbing that division. (Newton v. Newton, 127 Kan. 624, 274 Pac. 247.) In Danielson v. Danielson, 99 Kan. 222, 226, 161 Pac. 623, where the error complained of was the unfairness of the division of property between a discordant couple, it was said:
“The question here is not simply whether or not the district court was too liberal in its allowance to the defendant, but whether or not the division was so manifestly inequitable and unjust that this court should interfere.” (p. 226.)
In Rasmussen v. Rasmussen, 124 Kan. 461, 260 Pac. 576, it was said:
“Under hackneyed rules of appellate review it is only where the trial court manifestly abuses its discretion that its award of alimony in divorce proceedings can be disturbed.” (p. 462.)
A careful study of the record and of plaintiffs brief does not convince us that in the division of property between these litigants the trial court abused its discretion, consequently that division will have to stand.
It is also contended that the trial court ignored the large monthly salary or dividend defendant was receiving as an officer or stockholder of a thriving amusement company. That fact does not conclusively appear. Mayhap but for that large monthly income the fact that there was a deficit of $293.33 in the rental income of the real-estate properties set apart to defendant would have constrained the trial court to make a much less generous award of alimony to plaintiff than it did make. And whatever plausible talking point can be made against the bona fides of the foreclosure of the son’s lien on some of defendant’s stock in the amusement company, it would not justify this court in disturbing the judgment.
Plaintiff, however, does appear to have a better ground of complaint in respect to the provision made for the payment of the alimony decreed to her. It was largely upon the credence which the trial court gave to defendant’s evidence that the division of property and award of alimony were made, and which this court is constrained to leave undisturbed. But by that same evidence it appears that defendant is not paying the fixed charges on the properties set apart to him, but is collecting the income and leaving the interest and taxes unpaid. In this manner he is rapidly building up liquid assets for himself; but it is quite apparent that his failure to pay interest and taxes on his encumbered properties may soon precipitate foreclosure and eventually extinguish all his rights therein. Considering the significance of such a policy, together with the fact that it will take six years and three months to pay the alimony at the rate of $200 per month, plaintiff’s prospects of continuing to realize on that award until it is paid in full six years hence is not reassuring. We think the court erred in not making whatever provision is practicable under the circumstances to insure prompt payment of the installments of alimony. And in view of defendant’s policy of collecting all the income he can out of his properties and paying as little as he can of the fixed charges thereon, it seems imperative that the payments of alimony must be greatly accelerated to avert eventual frustration of the court’s decree. These payments should be increased to $400 per month, and default in payment of any monthly installment for ten days after it becomes due should mature the entire sum. To effectuate this, the cause will be remanded to the district court to modify its judgment in the following particulars: The monthly payments of the $15,000 award of alimony shall be $400 per month, payable on the fifteenth of each month, until the total amount is paid in full; and the $15,000 award shall be a lien on the gross income of all the real property separately decreed to the defendant, and his failure to pay any monthly installment of $400 within ten days after it becomes due shall make the entire sum due and payable and subject the lien given by this judgment to foreclosure.
It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this action appeals from a conviction of embezzlement and sentence thereon, assigning as errors the overruling of his motion for discharge at the close of the state’s testimony, the admission of incompetent testimony and the refusal to instruct the jury for his acquittal.
He was charged with the crime of embezzling and converting to his own use one certain negotiable promissory note and the proceeds thereof, both of the value of $3,000, belonging to Peter J. Graber, the defendant then and there being the agent of said Graber. The information also charged the defendant with committing the act as the trustee of Graber, but at the close of the testimony of the state the court, on motion of the defendant, required the state to elect between the two counts and it elected to stand on the agency count.
Appellant insists there is absolutely no evidence that defendant was the agent of Graber but, on the contrary, it shows he was in fact the agent of one Fred Dreiling in the transaction out of which the complaint arose. The defendant and Graber had known each other for many years.- Graber was a farmer. The defendant seemed to be handling real estate and oil deals. Fred Dreiling was in the same line of business with an office in Wichita and in some oil deals was a partner of defendant. Nick Dreiling was the father of Fred and lived on his farm in Kingman county. About three weeks before the note in question was given to defendant by Graber, he sold to defendant and Fred Dreiling his interest in an oil enterprise at LeRoy, Kan., for $6,000 and took the note of defendant-for that amount, the entire consideration, with the indorsement of Fred Dreiling. In the LeRoy transaction something was said about trading the Kingman county farm in on the deal. Nothing, how-. ever, was done of that kind, but shortly after the closing of that deal negotiations began concerning the sale and purchase of the Kingman county farm. Fred, as agent for his father, signed a contract of sale thereof to Graber. The consideration was $9,000, which consisted of the return to defendant and Fred of the $6,000 note they had given to Graber and a note for $3,000 signed by Graber in favor of the defendant. The two notes were delivered by Graber to defendant and he in turn delivered to Graber the contract of Fred for deed to the farm. The evidence shows that it would require the $3,000 to be in cash in order to close the deal, and in some places it is stated that an additional thousand dollars would have to be raised somewhere to close the deal, but as far as Graber was concerned it was to be only $3,000, represented by his note for that amount made payable to defendant, and he gave it to defendant to get the cash thereon, pay it to the landowner and bring back the deed to the farm.
The defendant immediately indorsed the note and used it at a bank as security for a loan and later sold it to another party and was able to redeem his pledge at the bank and used the proceeds thereof mostly to pay his own debts. None of it reached the landowner. Defendant claims it was by agreement with Fred to be used to develop the Le Roy oil project. The deed to the farm was never delivered to Graber and he later had to pay the.interest on the note and take it up with a new note.
Appellant directs attention to the evidence showing that Fred met defendant at Riverside Inn or the filling station near the home of Graber and gave him instructions, and that defendant went over to see Graber and a couple of hours later met Fred at the Riverside Inn; also to the following from the testimony of Graber:
“Well, when he came first in the morning, he said, ‘Now, Graber, I believe I can make the deal.’ I said, ‘What deal?’ He said, ‘You can get that Dreiling land now. Fred Dreiling is at Riverside or at the filling station, and I came over to make that deal.’ I told him, ‘All right.’ ‘But,’ he said, ‘it will take $6,000 and the old note back,’ the note we held against him. I told him there was-nothing doing. He said, T can’t trade’; he said, ‘That is my instructions to deal, trade with you that way.’ I said, ‘There is nothing doing, John. Don’t talk to me about a trade.’ He said, ‘Listen, Graber,’ he said, T will go back and I will catch Dreiling and maybe we can do better.’ And he left, and we were working out there and finally he came back, and he said, T have got him down, I can do better.’ . . . He left and came back three times. . . . The next time he came back he said, ‘Graber, I will take you up. . . . We will make it $3,000.’ . . . He went back to Dreiling; he said, T will go and see if this is okeh.’ He left and came back again and said he had everything fixed. . . . When he came back from seeing Dreiling the last time he said he would take me up, on my $3,000 offer. . . . The last time he came out he said, . . . ‘Now I have got it just exactly the way you want it. You have got to give me a new note.’ I said, 'John, that is going pretty strong; I hate to give j'ou the paper before you have the deed.’ He said, ‘You are setting pretty; here it is right in- black and white. You will get your deed in ten days. I have to have this in order to make this deal go.’ . . . He had to use the note in order to get that money and give it to Dreiling so he could get the deed for him. . . . His exact language when you finally made the trade was, he said, ‘I will trade with you for $3,000 and the old note.’ ”
The state introduced parts of the testimony of defendant given in a civil action by Graber against him and others in Kingman county to recover for the note, and in that testimony the following may be especially noted:
“Fred told me he would take that note, the $6,000 note, and $4,000, to go ahead and make the deal, and I says I cannot deal with.him. ... I talked to Mr. Graber early in the morning, and to Mr. Dreiling a couple of hours after that at Riverside Inn. I told Graber that Fred wanted to get the $6,000 note and wants to get $4,000 payment and he says I will not give over $3,000. . . . but I was working for the two of them and at the same time working for myself.”
“Q. Do you know how long it was after you had this deal in which you purchased the royalty or the lease from Graber, how long was it that you had the first conversation about this property that is in question here? A. How long before, what period it was between the deals, you mean?
“Q. Yes; how long was it after that that you said anything to Graber about this land deal ? A. Graber mentioned it to me first.
“Q. What, when was that? A. Two or three weeks afterwards.
“Q. What did he do? A. Well, I saw Fred Dreiling, I went and seen Fred Dreiling and talking to him about this trade for the wheat farm he got interested in the deal.
“Q. That is the first you knew or talked about the deal? A. Yes.
“Q. About how long was that before the contract was signed here? A. Oh, that was a couple of weeks.
“Q. You had a separate agreement with Mr. Peter Graber? A. And Mr. Graber says, T don’t care how you plan to settle for that — this four thousand dollars,’ he sa3’s, ‘just so I am giving what I told smu for the land.’ That was for me to work out, for I was working for the two of them and at the same time working for myself.”
The following is found in the testimony of Fred Dreiling, who testified on behalf of the defendant:
“I became acquainted with Mr. Graber about the first part of 1928. First saw him at his farm. I went out there to try and deal him out of a one-third interest in an oil lease he had over at Le Roy, Kan. . . . Had my first conversation with Mr. Graber regarding the Kingman land at his place in the summer of 1928. About two months before this contract was signed on the 25th day of July. ... I tried to deal for Mr. Graber’s interest. I told him I would trade him the Kingman county land for his interest. That was the first conversation in which the Kingman farm was mentioned. Mr. Schmitt had not said anything to me about it at that time.”
We cannot agree with appellant that there is absolutely no evidence that defendant was the agent of Graber. It looks to us as if it could more properly be described as being a conflict on that question with not only a preponderance in favor of defendant being the agent of Graber, but sufficient on which to make a finding along that line beyond a reasonable doubt. The defendant himself said that Graber mentioned the matter to him first and later saw Fred about it, and at another time said he was working for both of them and at the same time for himself. Fred Dreiling, the main witness for the defense, said he had several interviews with Graber on the proposition before defendant said anything to him (Dreiling) about it, and it was defendant who said something to him about it, rather than his engagement of defendant as his agent. More space is given to this testimony because of the earnestness of appellant's counsel that the proof is insufficient, and because it was apparently the theory of all parties during the trial that the agency involved and concerned the negotiations leading up to the consummation of the sale and purchase, which is the usual and general scope of agency in such transactions. However, for the purpose of meeting the charge of agency as contained in the information, it is not necessary to go back that far.- It could commence with the delivery of the note by Graber for the purpose of converting it into cash and paying the proceeds to the landowner. In other words, when the negotiations were concluded the note could have been made payable to- a bystander and delivered io him by Graber to get the cash thereon and deliver it to the landowner for the deed. Such disinterested party, if he had consented to comply with the request, would have been the agent of Graber, sufficiently to cover the requirements of the information as to agency, if he had embezzled the note or its proceeds. But in this case we do not have to separate the transactions. The evidence is all one way for the concluding part and beyond a reasonable doubt from the beginning.
One can be an agent of a purchaser even for the purpose of collecting a commission for his services, the same as being an agent for the seller of real estate. (Miller v. McGinnis, 104 Kan. 524, 180 Pac. 267.)
Appellant calls our attention to the general rule that the declarations of one assuming to act as agent are not admissible to prove his agency, but such rule does not extend to evidence of admissions against his interest, as it was in this case. (Blake v. Bremyer, 84 Kan. 708, 115 Pac. 508; Lamb v. Lemon, 103 Kan. 607, 177 Pac. 4; and 21 R. C. L. 821.)
Appellant cites Schick v. Warren, 86 Kan. 812, 122 Pac. 872, on the question of an agent attempting to serve both parties to a transaction, where it states that the agency for the adverse party is not to be inferred unless the circumstances are clear. This is in harmony with the general rule that one cannot serve both parties unless they know fully of such arrangement. This only applies here to the expression of the defendant himself that he was serving both. An agent serving both sides of a transaction might not be able to collect a commission, but if he did in fact serve both and embezzled from either or both, this general rule as to compensation for such services would not relieve him from the penalty for the crime.
It is said that Graber has recovered a judgment in the district court of Kingman county covering his entire loss in this transaction, but it is the state that is here prosecuting for the violation of a criminal law. We find no error in the proceedings.
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal originated in an order of the probate court involving the approval of the final account made by R. Boyd Wallace, as guardian of the person and estate of Albert C. Clothier, found to be of feeble mind, who was afterwards adjudged to be restored to his right mind and competent to transact business, whereupon a final account was made to the probate court by the guardian, to which a judgment of approval was entered. An ap peal from that judgment was taken to the district court by Clothier, and that court finally dismissed the appeal. Clothier brings the case here for a review of the decision of the district court.
It appears that on April 17, 1925, Albert C. Clothier was adjudged in the probate court to be a feeble-minded person, and R. Boyd Wallace was appointed guardian of his person and estate. Wallace proceeded with his duties as guardian in the care of the person and estate of the ward until May 27, 1930, when Clothier was adjudged to be restored to his right mind and capable of transacting. business. At that time Wallace was discharged from the care and custody of Clothier. Thereafter, on June 5, 1930, Wallace filed his final report as guardian to which Clothier filed exceptions, upon which a hearing was had upon evidence introduced by both parties. Exceptions were filed by Clothier to allowances made to his wife and to attorneys employed by the guardian in litigation that had been had, and for advice and assistance rendered to the guardian during the five-year period of his guardianship.
Another exception was that the guardian had failed to pay the taxes of 1929 on the property, upon which a penalty of $3.60 had been assessed, and it was insisted that this should be charged against the guardian. A certain amount of cash was found to be in the hands of the guardian, which, it was held, should be turned over to the ward, and this was done in open court, and the following receipt was taken and accepted at the time for the moneys paid out by the guardian and the securities and property turned over and accepted by Clothier:
“June 13, 1930, I hereby acknowledge receipt from R. Boyd Wallace, as guardian of the above estate, the sum of $176.92 cash, and the following securities, to wit: Note and mortgage of Nora E. Suedekum and A. E. Suedekum, covering S% 3-28-45, Baca county, Colorado, $1,250, and interest coupons; also, note and mortgage of J. A. Curray and J. H. Curray, for $5,000 and interest coupons, covering lots 22 and 24, block 27, Maxwell’s addition to Stafford, Kan.; also, note of J. A. and J. H. Curray for $187.50; total, $6,614.42, plus interest. A. C. Clothiee.”
In the district court Wallace moved to dismiss the appeal from the probate court on the ground that the acceptance of the money and property by Clothier as adjudged precluded an appeal from the judgment rendered. At the beginning of the trial in the district court that court first overruled the motion to dismiss the appeal and proceeded to examine the final account of the guardian and the exceptions made thereto, upholding the allowances made by the probate court, except upon one made to the wife, but afterwards, on a motion for a new trial, the court concluded that it had erred in overruling the motion to dismiss the appeal and accordingly entered a judgment of dismissal. When the receipt was given and the money and property accepted by Clothier in open court as a part of the proceeds of the judgment, he indicated a purpose to appeal and asked the court to fix the amount of an appeal bond, which was done, and the question we have here is whether after taking and appropriating the money adjudged to him, including the penalty assessed against the guardian for his failure to pay taxes as well as receiving the securities and property turned over to him under the decision of the probate court, he can appeal from that decision.
It has been the consistent rale of this court that one may not appeal from an adverse judgment in which he has acquiesced, nor assert error in a judgment to which he has voluntarily conformed in whole or in part. He must be consistent in his conduct respecting an adverse judgment and cannot in one way recognize its validity and in another complain that it is invalid or erroneous. A real recognition of the validity of a judgment by a party bars him from an appeal and the insistance that it is erroneous.
In Babbitt v. Corby, Adm’x, 13 Kan. 612, a tax deed was set aside and Babbitt was given a lien for the taxes paid. He appealed from the judgment but subsequently accepted the money adjudged as a tax lien. Having accepted some of the benefits of the judgment, it was held he could not maintain his appeal.
In Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553, where a party attached property and an order was made discharging it, whereupon the attaching plaintiff surrendered and caused the property to be delivered to the defendant, he was held not to be entitled to an appeal.
In State v. Conkling, 54 Kan. 108, 37 Pac. 992, a party found guilty of contempt of court and adjudged to pay a fine and costs, paid the fine under protest and discharged the judgment, stating that he reserved the right to appeal from the judgment, which he subsequently attempted to do. It was held that his protest and reservation were unavailing, and that an appeal from the judgment could not be allowed.
In Railroad Co. v. Murray, 57 Kan. 697, 47 Pac. 835, where a money judgment had been rendered against the defendant, and the defendant, having secured prior judgment against the plaintiff, procured an order to be made setting off his judgment against that of the plaintiff, it was held that he thereby recognized the validity of the judgment against him and waived an appeal from it.
In Waters v. Garvin, 67 Kan. 855, 73 Pac. 902, an action to enjoin the collection of certain taxes, in which the county was defeated, the commissioners caused the costs of the action to be paid and then undertook to appeal from the judgment. It was held that even the payment of costs precluded an appeal.
In Seaverns v. State, 76 Kan. 920, 93 Pac. 163, a settler on school land had brought proceedings asserting his right as an occupant to purchase the land. His application was denied by the probate court, and he appealed. He afterwards purchased the land from the state at a public sale, and it was held that his purchase was inconsistent with a claim of error and that his appeal was rightfully dismissed.
In State v. Massa, 90 Kan. 129, 132 Pac. 1182, Massa was convicted of the commission of an offense upon a plea of guilty. He then paid the costs of the prosecution and later appealed from the judgment, and it was held that in his plea and payment of the costs he had recognized the validity of the judgment, and his appeal was therefore dismissed.
Bank v. Bracey, 112 Kan. 677, 212 Pac. 675, was another case wherein a party against whom a judgment was rendered had paid the costs after which he undertook to appeal, but it was held that he was barred of the right to appeal.
Ralston v. Ralston, 125 Kan. 619, 264 Pac. 146, was a partition action in which a party claiming all of the property was adjudged to have only a share in it, and there was an allotment to him and other claimants. The party claiming all of it elected to take some of the property at the appraised value, and also purchased other shares in the estate. Attorneys’ fees in the case were allotted to the parties. He accepted the allotment of the attorneys’ fees awarded him, and was held to have so acquiesced in the judgment as to bar his right to appeal from it.
In Fadely v. Fadely, 128 Kan. 287, 276 Pac. 826, an action involving the construction of a will and codicil in which .attorneys’ fees were allowed out of the funds of the estate, and where' the appellant had accepted the allowance of the attorneys’ fees, he was held to have waived the right to appeal from a judgment which included the fee.
In Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, an action against a guardian and his surety upon the guardian’s bond charged wrongful and negligent management of the estate, and it was held that where a party has a cause of action consisting of several items and judgment .was rendered in his favor on one of them, but against him as to others, his acceptance of the amount allowed him bars his right to a review of the remainder of the items, although he undertook to reserve his right to proceed with the appeal.
In Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317, the appellant was prosecuted for the violation of a traffic ordinance. He had put up money and authorized the officer that in case he was convicted the amount of his fine and costs should be taken out of the cash bond. Upon his conviction the money so deposited was appropriated according to his direction. Afterwards he undertook to appeal, and it was held that by the payment so made he had acquiesced in the judgment and was not thereafter entitled to an appeal.
In an ejectment action to recover possession of land which plaintiffs jointly claimed under a will of their mother, judgment was rendered against them and in favor of defendant for costs, and plaintiffs took an appeal. Before execution was issued for the enforcement of the judgment, one of the two plaintiffs came in and paid the costs. On the motion to dismiss the appeal it was contended that an exception should be made where one of two defeated candidates paid the judgment for costs, but it was held that the payment was a satisfaction of the judgment and precluded an appellate review. (Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259.)
Here the plaintiff accepted the money and property adjudged in his favor and executed a formal receipt for the same, and within the authorities it must be held that plaintiff recognized the validity of the judgment. His acceptance of some of the benefits of the judgment is a recognition that it is valid, and is wholly inconsistent with the theory that it is erroneous. The final account and settlement of the guardianship was a single and indivisible thing in the action and is not open to the contention of the plaintiff that it is subject to be treated as containing distinct and unrelated parts which might be reviewed. The plaintiff cannot accept as to one item of the final account and thus recognize the validity of the judgment and at the same time reserve the right to appeal as to other items. (Hyland v. Hogue, supra.) Nor did the plaintiff’s notice or announced purpose that he would appeal from the judgment save him from the effect of his recognition of validity, and waiver. (State v. Conkling, supra.)
It follows that the judgment dismissing the appeal ends the controversy between the parties and, hence, the other questions discussed by counsel raised on the trial in the district court do not require consideration.
The judgment of the district court dismissing the appeal is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action where the defendant was convicted on five counts for violating R. S. 17-1020. He appeals.
The facts are as follows: Appellant had been for someVears the president and managing officer of the Santa Fe Building and Loan Association. He was charged in thirty-seven counts and convicted in five. He was charged with using and disposing of a part of the moneys, property, assets and funds of the association without being authorized to do so. Counts 1 and 5 charged the overdrawing of salary in the amount of $100 in each instance, count 30 charged the withdrawing of $30, count 31 charged the using and disposing of $2,004.07, consisting of two $1,000 liberty loan bonds and $4.07 in cash, and count 36 charged the using and disposing of $188.78. The original complaint and warrant were in the following language:
"... did then and there unlawfully, willfully and feloniously use and dispose of a part of the moneys, property, assets and funds of the said Santa Fe Building and Loan Association, to wit, the sum of $100 of the value of $100 without having first been duly authorized and otherwise than in the regular and legitimate business of the corporation.”
The defendant was bound over, and an information was filed in the same language. When a motion to quash the information was filed each count except count 31 was amended by adding the words “a more particular description of which is to your informant unknown.”
Count 31 was amended by adding the words “consisting of two $1,000 4th liberty loan bonds of the United States of America and $4.07 in money, a more particular description of which is to your informant unknown.” A motion was filed to quash this information on the grounds that each count thereof was so indefinite and uncertain as not to state facts sufficient to constitute a public offense. As to count 31, a plea in abatement was filed on the ground that appellant had'not had a preliminary hearing on the charge of using and disposing of liberty bonds.
During the trial the state offered some annual reports signed and sworn to by appellant in which his salary was listed at $2,400 a year. Appellant Undertook to show that he had an understanding with the board of directors that he should receive $2,400 a year salary and in addition he would be allowed expenses in promoting the association in the amount of about $200 a month. The trial court sustained objections to the evidence that was offered to substantiate this claim.
Appellant urges as error that the motion to quash should have been sustained; that the plea in abatement as to count 31 should have been sustained; that a motion for continuance should have been sustained; that appellant was prejudiced by remarks made by the court in sustaining objections to evidence offered by appellant; that there were erroneous instructions given by the court; that counsel for the state was guilty of prejudicial misconduct, and that there was prejudicial misconduct on the part of the trial court in interfering with the deliberations of the jury by giving certain oral instructions to the foreman of the jury in the absence of the rest of the jury and in the absence of appellant.
The statute under which the prosecution was brought is R. S. 17-1020. It is as follows:
“Any officer, director, trustee, attorney, agent or servant of any association heretofore or hereafter to be incorporated .who shall use or dispose of any part of the moneys, property, assets or funds of such association, or assign, transfer, cancel, deliver up or acknowledge satisfaction of any bond, mortgage or other written instrument belonging to such association, unless duly authorized, or otherwise than in the regular and legitimate business of the corporation, or who shall be guilty of any fraud in the performance of his duties, shall be liable civilly to the corporation, and also to any other party injured, to the extent of the damage thereby caused, and shall also be guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for not less than one nor more than five years.”
The argument directed at the complaint and warrant and at the amended information may be considered together. They both charged the offense substantially in the words of the statute. Appellant argues that the information should have stated whether the thing used or disposed of was money, property, assets or funds. This court has held many times that a complaint, warrant and information that stated the offense charged substantially in the words of the statute was sufficient. (See State v. Foster, 30 Kan. 365, 2 Pac. 628.) In that case it was said:
“Again, it is insisted that the information is defective in that it fails to contain a statement of the facts constituting the offense in plain language. The point here is this: The section reads, ‘Every person, who, with intent to defraud, shall pass, utter or publish, or offer or attempt to pass, utter or publish, as true, any forged or counterfeited instrument or writing,’ etc. Now, the information uses these words, and charges that the defendant did ‘pass, utter and publish as true.’ This, it is claimed, is no statement of facts, but simply of conclusions of law: and the case of Commonwealth v. Williams, 13 Bush (Ky.) 267, is cited as authority. We do not think the claim is well taken. This is a statutory offense, and it is a general proposition that it is sufficient to allege such an offense, in an information, in the words of the statute. (The State v. Barnett, 3 Kan. 250; The State v. White, 14 Kan. 540; Cr. Code, sec. 108; vol. 7, U. S. Dig (1st Series), pp. 379-80, secs. 205-6, and authorities cited therein; also, The State v. Johnson, 26 Iowa 407; People v. Rynders, 12 Wend. 426.) While there may be some limitations on this general doctrine, as where the statute simply designates the offense and does not in express terms name its constituent elements, yet we think the rule obtains in the case at bar. Of course it was never the duty of the pleader to narrate the evidence, and we think the words ‘pass, utter and publish’ make a clear and sufficient description of fact. They are words of common use, and refer to acts which are understood by everyone. So that, notwithstanding the remarks of the court in the case cited from 13 Bush, we think the information states the facts and is not subject to the objection made.” (p. 366.)
The argument is made that the plea in abatement to count 31 should have been sustained on the ground that the words with reference to the liberty bonds were added after the preliminary hearing, and if these words were necessary to describe the offense, then defendant had no preliminary hearing on that charge. In State v. Miner, 120 Kan. 187, 243 Pac. 318, the court said:
“Defendant contends that he should not have been put on his trial on the first and third counts, since he was not bound over to answer on the charges involved therein and was bound over only to answer on but one offense — the one the county attorney and the prosecutrix had in mind when the complaint was filed and the warrant for his arrest was issued.
“A majority of this court holds that defendant’s contention lacks merit. A defendant may be informed against on as many crimes as the evidence adduced at the preliminary hearing tends to show the accused to have committed, whether all of such crimes were charged in the complaint and reiterated in the warrant for his arrest or not. (Crim. Code, sec. 55, R. S. 62-621; Redmond v. The State, 12 Kan. 172, syl., sec. 3; State v. Bailey, 32 Kan. 83, 3 Pac. 769; and see, also, State v. Fleeman, 102 Kan. 670, 675-676, 171 Pac. 618.” (p. 190.)
To the same effect is the holding in State v. Wagoner, 128 Kan. 299, 278 Pac. 1. There is no merit to this contention of defendant.
During the trial of the case the state introduced eight annual statements to the building and loan supervisor of the state. These statements were signed and sworn to by defendant as president and general manager of the association and purported to show the financial condition of the association. Among other items included was that of salary of defendant. It was listed as $200 per month. Among other recitals was the following, “that no item of resource, liability, revenue, expenditure, fees, commissions, profit or loss has been omitted therefrom or is improperly set forth.” As has been noted, the first and fifth counts charged the overdrawing of salary. These statements were admitted on the theory that they were admissions against interest. Defendant attempted to meet this proof by testi mony that while his salary was $2,400 a year the directors of the association had agreed to pay him expenses up to $200 a month. Defendant claimed that the items charged in counts 1 and 5 were drawn and applied upon his previous expenses. When this evidence was offered the court sustained an objection to it, and said:
“I think the objection should be sustained. I don’t believe he can show in the face of these reports something different. If you want to show by this witness that these reports signed and sworn to are not true, I don’t believe they are competent in the face of this.”
Ruling again on the same question, the court said:
“The objection is sustained. So you gentlemen will understand, there has been offered some evidence and admissions of Mr. Richardson relative to the contract for salary and expenses. If you gentlemen want to claim those are not true, and want to show that those things are not true, the court is going to let you open this phase.”
Defendant argues that these were prejudicial remarks and urges that the making of them was error. This argument will be discussed together with the complaint that is made of an instruction on the same subject. This instruction was as follows:
“It is admitted that the defendant was at the time charged in the information the president and general manager of the building and loan association in controversy; and it was his duty as such president and general manager, together with the secretary of the association, to make reports to the supervisor of building and loan associations as before stated in these instructions. A number of reports admitted to have been made, and verified by the defendant, have been offered in evidence. And you are instructed that the defendant is bound by the statements made in such reports, unless it should appear that there were statements made in such reports or report which were erroneous and unintentionally made, and without any intention of deception or fraud. And unless there is evidence to show that such reports or report were erroneous, and that the errors were unintentionally made, it is your duty to regard them as true.”
The objection of defendant to the remarks of the trial court and to the instruction is that it makes the equitable rule of estoppel apply in a criminal case. This doctrine "was made to apply in a criminal case in State v. Mason, 61 Kan. 102, 58 Pac. 978. There a bank officer, who was charged with a violation of the banking laws, claimed that he should not be convicted because the bank had not been regularly organized. In dealing with this question the court said: “An officer who helped to organize the corporation and who has been connected with it continuously for a series of years will hardly be allowed to shield himself from the penalty of violated law because of irregularities and defects in the organization.” (p. 106.) To the same effect is the rule laid down in Under-hill’s Criminal Evidence, 3d ed., § 455. There it is said:
“The admissibility and effect of transcripts of public records are frequently under consideration in the trial of public officials for embezzling public property or funds. The general rule is that public records are admissible as evidence of all facts which are contained therein, and which were required by statute to be recorded by the official who made the entry. So the failure of a public officer to pay over money which he has collected may be shown by a transcript of an official register in which the payment should have been entered. Such records are not, however, conclusive against the defendant. . He may endeavor to explain or to impeach them, unless he had already examined them and appeared satisfied with the entries. Under these circumstances, he may be regarded as estopped by them.”
Defendant argues that the effect of this instruction was that he was prevented from explaining the facts and circumstances surrounding the making of the report. We cannot agree with this. The instruction only stated that defendant was bound by the statements unless it was explained that they were made erroneously and without an intention to deceive. The record discloses that defendant did introduce evidence as to the expenses during the trial.
Defendant complains that some prejudicial remarks were made by the prosecuting attorney during his argument. This matter was not called to the attention of the trial court in the motion for a new trial and will not be considered for the first time on appeal. (See State v. Cole, 136 Kan. 381,15 P. 2d 452.)
Defendant complains of alleged misconduct of the trial court with reference to the deliberation of the jury. Some time after the jury had retired to consider its verdict the foreman of the jury met the judge in the corridor of the courthouse. The foreman spoke to the judge as follows: “Some of the jurors want to know what the punishment would be, what punishment could be inflicted upon a verdict of guilty on any one of the counts.” The judge told him that the punishment could be made to run consecutively on each count or could be made to run concurrently, but that was a matter for the court, and the jury had nothing to say about it. The juror then said, “All right, I think we will be down in about five minutes.” Counsel for defendant was present when this conversation took place. What was said to the juror was a correct statement of law. In State v. Evans, 90 Kan. 795, 136 Pac. 270, the court in passing on a similar case said:
"Exactly what transpired is shown as fully as though the communication had been in writing; and it was not an instruction upon the facts or the law of the case which the statute requires shall be in writing. The punishment of the offense is fixed by statute, and as the law stood at the time of the trial there was no discretion in the judge of the court by which he could limit the term of imprisonment or extend leniency. (Gen. Stat. 1909, sec. 2461.) Under the provisions of chapter 172 of the Laws of 1913, the court now has power to parole a person convicted of statutory rape. While the jury may have believed from what the judge told them that he had such power, or that he could limit the punishment, it cannot be said that there was any inducement held out to the jury that leniency would be shown. The irregularity in the proceedings is not sufficient, in our opinion, to justify a reversal of the judgment.” (p. 799.)
It does not appear that any rights of the defendant were prejudiced by what took place.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for an accounting. Judgment was for defendant. Plaintiff appeals.
The petition alleged that defendant Lora S. Burris was the sole heir under the law and the sole legatee and devisee of E. P. Burris, and that Lora Burris was the executrix of the estate of E. P. Burris. The petition further alleged that at the time of the death of E. P. Burris he and Frank Burris were partners on the basis that each was to share in the profits equally. The petition alleged that during the partnership E. P. Burris collected the sum of $31,505.59, which amount legally belonged to the partnership, and that he failed to account to the partnership for this amount with the exception of $1,000, which he paid to the firm; that at the time of his decease E. P. Burris was indebted to the firm in the amount of $30,505.59, which amount passed into the estate of E. P. Burris and for which his estate has refused to account.
The petition prayed for an accounting.
The defendant demurred to this petition on the ground that the court had no jurisdiction of the subject matter; that the petition did not state facts sufficient to constitute a cause of action; that the petition shows on its face that the cause of action is barred by the statute of limitations, and that the petition does not state facts sufficient to constitute a cause of action because it showed on its face that the action was barred and could not be maintained by reason of R. S. 1931 Supp. 22-701, 22-702, 22-727 and 22-732. This demurrer was sustained generally as to both parties. This appeal is from that judgment.
The statutes provide a method of procedure for the liquidation of the affairs of a partnership where it has been dissolved by the death of one partner and a surviving partner desires to liquidate. The surviving partner is entitled to the possession of the partnership property, but he must give the bond required by the statute as to his management of the property. The probate court has jurisdiction to cite the surviving partner to account and to adjudicate upon such account as in the case of an ordinary administrator. Under the statute if the surviving partner fails to give bond, then the executor of the deceased partner has the right, upon giving bond, to the possession of the property and to wind up the estate. (See R. S. 22-401 to 22-408, inclusive.)
The petition in this case shows on its face that it is an action by a surviving partner who is apparently managing and winding up the affairs of the partnership. It does not disclose that the surviving partner has given the bond provided for in R. S. 22-402 or has subjected himself and the firm property to the jurisdiction of the probate court as the act contemplates. In the case of Glass Co. v. Ludlum, 8 Kan. 40, this court considered this question. The statute was the same then as it is now. The court said:
“Before a surviving partner can proceed to close up the partnership affairs he must give a bond. (Comp. Laws,'p. 519, sec. 47; Gen. Stat. p. 437, sec. 33.) If he fails to give bond, the estate, not only of the decedent, but of the surviving partner, as far as the partnership is concerned, can be taken from his possession and given to the administrator upon his giving the requisite bond. (Comp. Laws, p. 520, secs. 49, 50; Gen. Stat. p. 437, secs. 35, 36.)” (p.48.)
The court also dealt with this question in the case of Shattuck v. Chandler, 40 Kan. 516. The point in that case was the right of the surviving partner to give an assignment of the partnership estate. The surviving partner had attempted to make the assignment without complying with the statute. The court said:
“We think that the legislature by this provision intended to provide a trustee to close up the partnership upon the death of a member of the firm, and that the statute creates a trust in the surviving partner which he has no' power to transfer to another except as it is transferred by his refusal to ad-. minister upon the partnership estate, in which event it is transferred by operation of law to the administrator of the deceased partner’s estate.” (p. 520.)
We think that under the plain terms of the statute the right to maintain an action with reference to the partnership property is circumscribed by the necessity that the surviving partner furnish bond and otherwise comply with the statute as is the right to possession and disposition of the partnership property. In order for a petition by a surviving partner to state a cause of action it should show that he has complied with the statute so as to give him the right to bring the action. This petition did not contain any such allegations. Therefore, the demurrer should have been sustained.
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The opinion of the court was delivered by
Johnston, C. J.:
The purpose of this proceeding is to compel the commissioners of the city of Hutchinson to submit to a vote of the electors of the city a franchise ordinance that they had just passed granting to a gas company the right to maintain and operate a plant or system for the distribution and sale of gas for twenty years to the city and its inhabitants. Petitions purporting to contain the names of 1,123 registered electors were presented asking for a pop ular vote on the adoption or rejection of the franchise ordinance which had just been passed by the city commissioners. When action was taken on the petitions the commissioners, by a vote of three to two, decided that the petitions were insufficient and refused to call an election.
Plaintiffs contended that the petitions were sufficient and made application to this court for a writ compelling the city commissioners to submit the question on the ordinance to a vote o'f the electors, and an alternative writ was allowed. The parties are proceeding on the theory that the alternative writ and return, including the records and unquestioned facts, are sufficient to raise the legal questions which divide the parties, namely, the sufficiency of the petitions to require the submission of the question to a vote of the electors. It appears to be agreed that 706 legal petitioners were required to the submission of the question. It appears, too, that petitions, forty of them, were signed and presented by 1,123 electors of the city, but the defendants found and contend that of the 1,793 signers of the petitions some of them were not qualified electors. Some of the petitions were not duly authenticated, some of the petitions were not verified by a signer of the petitions, and some had no jurats on them and were not verified by qualified electors, and some of them were verified by a person who did sign the petition but was not a qualified voter. Then it appears that a few of the signers withdrew from the petitions, and the commissioners, after deducting the names of signers from the petitions deemed not to be in proper form under the law and not entitled to ‘be counted, decided that only 284 of the signers' on the petition could be regarded as legal petitioners, and therefore denied the application for the calling of an election. The petitions were presented under R. S. 13-2801, which, after authorizing the commissioners of the city to grant a franchise to a person, firm or corporation, to manufacture, sell and furnish artificial or natural gas, light and heat, electric light, power, or steam, provided, among other things, that—
“If, at said special election, the majority of votes cast shall be for said ordinance and the making of said grant, the same shall thereupon become effective; but if a majority of the votes cast at said special election shall be against the said ordinance and the making of said grant, said ordinance shall not confer any rights, powers or privileges of any kind whatsoever upon the applicants therefor, but shall be, ipso facto, absolutely null and void.”
The mayor and board of city commissioners enacted an ordinance on August 5, 1932, granting a gas franchise to the Hutchinson Gas Company, to furnish and market gas upon a schedule of rates prescribed for the period of twenty years. This company had been furnishing gas to the people of the city for some time, but its franchise had expired. The ordinance had been duly published, but within the time before it became effective petitions were filed with the city clerk asking the city commissioners to submit the question of the adoption or rejection of the ordinance to a vote of the electors of the city. Petitions were presented from sections of the city, forty in number, purporting to contain 1,793 names of petitioners, which were presented to the commissioners on September 12, 1932. It is agreed that 7,060 votes had been cast for mayor at the last preceding election, and ten per cent of that number, namely, 706 petitioners who were legal electors, were required for the calling of the special election. Examination of the petitions was begun by the city clerk and city attorney, under the direction of the mayor. On the first count by the city clerk he found 1,123 qualified electors had signed the petitions, and for several reasons the city attorney advised the clerk that many of the names found there could not be counted because of defects in the petition, one of which was they were not verified by those circulating the petitions, and that deducting these names and also names of others who had withdrawn from the petition, his opinon was that only 284 legal petitioners could be counted as favoring the election. On October 14, 1932, the commissioners found by a vote of three to two that the petitions for calling an election were not sufficient, and this action followed.
Motions by respondent to strike certain matters stated in the alternative -writ, and also by plaintiff to strike certain allegations from the return of respondents to the writ, with a demurrer to the averments in the return to the writ, but these are not deemed to be material to the determination of the question submitted at this time. No testimony has been taken on the issues, and we have only the allegations in the alternative writ, including the exhibits set out by the relator and the return made to it by the respondents. We are asked at this stage of the proceeding to determine questions of law raised and discussed on the pleadings.
An objection is suggested that there were forty separate petitions when only one is contemplated, but we think that is of no special significance if the petitioners signing these separate papers were qualified voters and adequately expressed their request.
Another question much discussed is the effect of the finding of the commissioners that the petitions were insufficient as not being in conformity to the requirements of the statute, and the petitions did not contain the requisite number of legal voters to warrant the calling of an election. It may be stated that it was not the function of the city clerk to finally decide the question submitted to the commissioners. While the commissioners may rightly call to their aid the services of the clerk and of others to make an examination of the petitions and the election rolls in order to ascertain the number of qualified electors and to find whether those signing the petitions were qualified electors, the decision is ultimately with the commissioners.
As we have seen, the commissioners have expressly and formally found and declared that the petitions were insufficient to require the calling of the election. Was the finding and determination of the duly constituted commission of binding and conclusive force, or may there be a resort to the court to retry the issues of fact? Under what is deemed to be the settled law of this state, the decision of such a commission is final and conclusive in the absence of fraud or corruption or misconduct that is the equivalent of fraud. The court may not interfere with their decision because of a mere mistake or error of judgment on the part of the commission in reaching a decision. In State, ex rel., v. Electric Power Co., 116 Kan. 70, 226 Pac. 254, a city commission was presented a petition asking for a referendum election on the adoption or rejection of a franchise ordinance, and the petition was held to be insufficient, whereupon the call was refused. The controversy involved the question whether the finding of the commission was conclusive and beyond the interference of the courts, and it was held:
“Apart from the insufficiency of the evidence there is the finding and decision of the city commission that ten per ce'nt of the legal electors had not signed the petition. To that commission the legislature has committed the authority to ascertain and determine the sufficiency of the petitions and whether those signing them constituted ten per cent of the legal electors of the city. This power and discretion is to be exercised by this tribunal unhampered by judicial interference, unless it is shown that the act is without jurisdiction or there was fraud or some misconduct which is the substantial equivalent of fraud. Nothing approaching fraud in its action was shown or attempted to be shown. In the absence of evidence to the contrary it must be presumed that the commission acted honestly and in accordance with law, and its determination on the question submitted to it is binding alike on all parties and conclusive upon the courts.” (Citing a number of cases.) (p. 73.)
In Williams v. City of Topeka, 85 Kan. 857, 119 Pac. 864, where the question was raised as to the effect of a decision by the city commission as to which of several parties was the lowest bidder on the letting of a paving contract, the question was upon whom the responsibility rested for the ultimate decision of the question, and the court remarked:
“The next inquiry is how this responsibility is to be determined. Here, again, the authorities speak with practically one voice. The governing body of the city, the mayor and council or commissioners as the case may be, must determine the fact, and such determination cannot be set aside unless the action of the tribunal is arbitrary, oppressive or fraudulent.” (p. 863.)
In another case where a petition was presented to a board of county commissioners for the organization of a city, the sufficiency of the petition was challenged and likewise the validity of the decision made by the board. In the opinion it was said:
“We have, therefore, a case in which the legislature has committed to the board of county commissioners, moved to action by the presentation of a petition, authority to ascertain the existence of certain conditions, pass upon the reasonableness of the prayer of the petition, make an order effecting incorporation, and call an election to perfect corporate ■ organization. The action of the board in satisfying itself and finding that a majority of the taxable inhabitants favor incorporation and that the number of inhabitants exceeds two hundred, considered alone, might be said to be judicial. The finding that the prayer of the petition is reasonable is not so. The satisfaction of the board respecting that matter is the satisfaction of a legislative body. In one sense the declaration of incorporation on the basis of findings made is ministerial. But the proceeding cannot be split up in this way. It is political and legislative in character, no review of the action of the boat’d of county commissioners is provided for, and the courts have no authority to interfere unless for want of jurisdiction, fraud, misconduct, or other cause vitiating the integrity of the proceeding.” (The State, ex rel., v. Holcomb, 95 Kan. 660, 663, 149 Pac. 684.)
In Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5, where a petition was presented to the county commissioners for the improvement of a road, it was contended that the board decided the sufficiency of the same without investigation and found that the requisite number of legal petitioners had signed the petition. The court decided the case reiterating the prevailing rule that—
“In the absence of fraud, corruption or other misconduct the substantial equivalent of fraud, the findings of the board of county commissioners are conclusive on the courts.” (p.676.)
In State, ex rel., v. Jacobs, 135 Kan. 513, 11 P. 2d 739, an original proceeding was brought in this court to compel the city commissioners to submit to a referendum of the voters an ordinance passed by the commission condemning and appropriating land for the purpose of widening an avenue of the city, based upon a petition which had been presented. The petition for the referendum was presented and denied. Again it was held that in the absence of fraud or misconduct, the finding and decision of the city authorities are conclusive, and that the power vested in them was to be exercised unhampered by judicial interference. See, also, Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; People v. Town of Loyalton, 147 Cal. 774; State, ex inf., v. Fleming, 158 Mo. 558.
All the authorities cited show, and it is conceded, that, if fraud or its equivalent exists and is established by evidence, the findings and decision of the commissioners may be set aside by the courts. Respondents are contending that the existence of fraud is not in the case and is not to be derived from the allegations of the alternative writ and not admitted in the return to the writ. Was fraud charged by the plaintiff? If it is alleged and relied on by plaintiff and not conceded by the respondent, it must be established by proof and, therefore, final disposition of the case cannot be made at this stage of the proceeding. Both parties state that if it be an issue in the case that they desire and are ready to try out that question of fact before a commissioner appointed by the court.
The allegations of the plaintiff on this phase of the controversy, after alleging the passage of. the ordinance and the presentation' of petitions asking for a vote of the electors on its adoption or rejection, stated that the commissioners neglected to take up or act on the petitions from the time of filing the same on September 12,1932, until October 14,1932, and—
“That- the said mayor and board of commissioners of the city did arbitrarily and without legal cause or excuse, fail, neglect, and refuse to approve said petitions and the signatures thereto, but that said mayor and commissioners of the city of Hutchinson, Kansas, the defendants herein, permitted said petition to lie dormant until on the 14th day of October, 1932, and said mayor and city commissioners did find that there were 1,123 qualified voters signing said petition, and upon said finding, and for the reason set forth in the minutes of the meeting of mayor and board of city commissioners of October 14, 1932, and for no other reason the mayor and commissioners did make a purported finding that said petitions were not sufficient, and by motion rejected same.”
Reference is then made to an exhibit presented to the commission in which the city clerk, to whom the matter was assigned for examination, made a report in which he stated that the total number of petitions was forty and the total number of qualified voters signing petitions was 1,123, and another exhibit in which a letter of the mayor was written to the clerk in which he said:
“I, therefore, hereby instruct you to throw out anything which raises the slightest question of doubt in your mind, which means that you will simply certify as to those on which there is no question.”
Another exhibit is a letter of the city attorney on October 6, 1932, stating that:
“I understand there are some discrepancies and possible illegalities in the petitions presented to you, calling for an election on the gas franchise proposition.
“I have not had time nor opportunity to check into these matters to determine their correct status, and I would appreciate it if you would hold up certification of these petitions until I have had a chance to determine what petitions are and what are not correct according to law.”
Another exhibit is a letter written by the city attorney to the clerk on October 14, 1932, stating that the clerk had advised him that the count on the petition showed:
“Total number of signers.................................. 1,793
Total number of petitions................................ 40
Total number of qualified voters signing petitions......... 1,123”
Also, stating total number of unqualified voters signing petitions, 667; total number of undiscemible names, 3; total number of qualified voters signing petitions on which the person verifying the petition did not sign it, 731; and he further said there are a number of immaterial items in the report, “The 731 names on the petitions in which the verifier did not sign the petition should be stricken off,” and he spoke of other defects in verification, and he added: “This would leave a total of 284 names on petitions of qualified voters which were proper, as to form and content.”
Plaintiff alleges that notwithstanding the finding and report of the city clerk showing 417 more signers than were required, the respondents arbitrarily refuse to call an election — ■
“And that the acts of said mayor and city commissioners in refusing to promptly perform their duties, and determine the legality and sufficiency of said petitions as soon as possible, and in acting in such arbitrary manner, they did thereby neglect and refuse to perform their duties and as provided by law, and said mayor and city commissioners do still refuse to call said election, notwithstanding the fact that said petition did contain the names of more than ten per cent of legally qualified voters.”
Later in the pleading it is said:
“That said city commissioners, without legal cause, or excuse, and acting arbitrarily and not in good faith, did unlawfully throw out one document on which a total of 731 voters and electors had signed their names on the various papers of same, and which papers were attached together and filed, with the city clerk, as one document, but your relator is informed, believes, and therefore alleges that the various pages and sheets of said document were separated and torn apart in the city clerk’s office, and after same was filed; and that said mayor and city commission failed and refused to consider same or canvass the same or to perform its duty to said city and to the qualified electors, signed thereon, and all of the electors of the city of Hutchinson, all of which acts on the part of said mayor and board of commissioners was and is arbitrary, wrongful, illegal and oppressive, was not done in good faith, and constituted a wrong and injury to said qualified electors.”
There is a further allegation—
“That on the 7th day of- October, 1932, at a regular meeting of the board of city commissioners of the city of Hutchinson, a request was made by the commissioner of public utilities of the city of Hutchinson, Kansas, asking that said referendum petitions filed, be approved and be found sufficient and a determination of same be made at that time, but that the said mayor and the majority of the city commissioners of the city of Hutchinson, Kansas, acting together and for the purpose of aiding the Hutchinson Gas Company, a corporation, the grantee of said franchise ordinance No. 2190, at that time refused to act on said petition or to determine the legality and sufficiency thereof, until after the sixty days intervening time, provided by law, had passed by, and at said time did postpone taking any action on same, until the 14th day of October, 1932, a copy of which resolution, presented by Carr W. Taylor, the commissioner of public utilities, is hereto attached marked ‘Exhibit G,’ and made a part hereof, at which time the mayor and the majority of the board of commissioners arbitrarily and without legal cause or excuse, and in violation of its duty and in disregard of the rights of the qualified voters of the city of Hutchinson, Kansas, and particularly those who signed said petition, asking for submission to a vote, of said ordinance No. 2190, did refuse to sustain said petition or to call the election.”
In respondents’ return they took cognizance of these charges of bad faith and arbitrary action and met the issue so presented by alleging that they—
“Specifically deny that they or any of them acted arbitrarily or in bad faith at any time in connection with the matters and things set forth in the writ, but on the contrary allege that they acted at all times in good faith and with honest motives,” etc.
While the charges of bad faith and arbitrary conduct of the commissioners are not stated in much detail, they appear to be sufficient to raise the issue in their determination. It is stated in effect that the city clerk, to whom was given the task of examining the petitions and finding the number of legal electors who had petitioned for the calling of an election, found that it contained 417 names in excess of the required number, and that the majority of the commissioners arbitrarily and in bad faith refused to perform their duty to fairly declare the result and to issue the call; that they arbitrarily and not in good faith ignored and threw out a large number of legal electors who had signed the petition which were identified, and that this was wrongful, illegal and oppressive, and further that it was done to aid and protect the Hutchinson Gas Company, to which the franchise had been granted by the commission, and was done in violation of its duty and in disregard of the rights of the signing electors. These averments cannot be ignored and we think are sufficient to raise the question of misconduct and bad faith. The respondents joined issue on this charge by specific denials, and hence the case cannot be finally determined until the issue is settled by proof. Of course, the party alleging misconduct and bad faith has the burden of proving the charges, and if established by the evidence the court may rightly interfere and adjudge the effect as to the fraudulent action and inaction of the commissioners. Only questions of law can be determined at this hearing, and the issue of fact cannot be determined until that question is tried out. It follows that the demurrer to the alternative writ must be overruled, but final judgment cannot be rendered until the question is determined whether or not the decision of the commission was arbitrary and fraudulent. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages arising from an automobile accident.
The petition alleged facts concerning the accident, and that the defendant, Carroll, driver of the automobile truck involved, was the employee and agent of the defendant, the Allvine Dairy Company. The verified answer of the last named defendant put the employment and agency in issue. Trial was had and, after plaintiff rested, the defendants, the Allvine Dairy Company and Fred C. Allvine, entered their demurrer on the ground that no cause of action had been proved. This demurrer was overruled as to the Allvine Dairy Company, and error is assigned on account of such ruling. Thereafter the trial proceeded, and after each party had closed, the defendant, the Allvine Dairy Company, requested a peremptory instruction for a verdict in its favor, wihich motion was denied, and error is assigned on account of such ruling. The matter was then submitted to the jury, which returned its general verdict in favor of the plaintiff and against the defendants Carroll and the Allvine Dairy Company, and answered special questions submitted. Thereafter the Allvine Dairy Company filed its motions for a new trial and for judgment notwithstanding the verdict, which motions were denied, and error is assigned by the Allvine Dairy Company on account of these rulings.
In connection with appellant’s demurrer to plaintiff’s evidence, it is urged that there was no. evidence that the defendant Carroll was the employee or agent of the appellant, but it is contended that such evidence as bore upon the question showed Carroll to be an independent contractor. A summary of plaintiff’s evidence shows the Allvine Dairy Company buys milk in Wyandotte and Leavenworth counties and sells same in Kansas City, Kan.; that F. C. Allvine is president- and controls the routing of the wholesale routes, but not the retail; that on the sides of the trucks used is the' name “The Allvine Dairy Company” and the permit number and telephone number, and that the name of the driver also appears on the doors of the independent trucks; that Carroll owned his own truck; and that Carroll does not have any route or district but sells milk wherever he wants to; that the bottles carry the label of the Allvine Dairy Company. Allvine’s testimony, which is not disputed, is, in part, as follows:
“I have no jurisdiction at all over the retail men. In other words, all we do to them we bottle the milk, and sell it to them, and they pay cash for it and they — pay cash for it every day, and they can do what they please with it. They build up their own routes, and do their own soliciting.”
And further:
“Delivery or collection or solicitation, or anything, I have nothing to do with it. They pay me cash for the milk every day.”
Allvine further testified that he knew Carroll, who owned a Dodge truck which he was using on March 26, 1931 (date of the accident); that he sold Carroll milk, but he did not tell him where to take the milk, where to go with it, nor what territory to cover; that the only control he had over Carroll or his truck was to make him pay for his milk; that this was the situation on March 26, 1931, and had' been for seven or eight years. There was no other evidence tending' to show Carroll’s agency for the Allvine Dairy Company, except that of the policeman Delich, who saw the accident, and stated—
“And as she was waiting there, a fellow got in an Allvine dairy truck and as he was in the truck the lady got down on the street, waiting for traffic to go by, and she was there about three or four seconds and the fellow in the Allvine dairy truck backed into her.”
and that the driver said his name was Dan Carroll.
Whether Carroll was the agent or servant of the Allvine Dairy Company or whether Carroll was an independent contractor depends on whether the dairy company retained the right of general control and management of the work, or whether the dairy company left the choice of means and methods to Carroll. If the former, Carroll was the servant and agent of the dairy company, and if the latter, he was an independent contractor. If Carroll was the servant and agent of the dairy company, it is responsible for his negligence under the circumstances of this case, but if Carroll was an independent contractor, then the dairy company is not so liable.
In Laffery v. Gypsum, Co., 83 Kan. 349, 111 Pac. 498, this court said:
“The general rule, variously stated, is that when a person lets out work to another, the contraetee reserving no control over the work or workmen, the relation of contractor and contraetee exists, and not that of master and servant, and the contraetee is not liable for the negligence or improper execution of the work by the contractor.” (Citing cases.) (p. 354.)
In Pottorff v. Mining Co., 86 Kan. 774,122 Pac. 120, paragraphs 1 and 2 of the syllabus recite:
“When a person lets out work to another, the contraetee reserving no control over the work or workmen, the relation of contractor and contraetee exists, and not that of master and servant, and the contraetee is not liable for the negligent or improper execution of the work by the contractor.
“An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.”
And in the latter case of McCraner v. Nunn, 129 Kan. 802, 804, 284 Pac. 603, this court said, after reviewing the testimony:
“No control of any kind was exercised by the defendants. Under the facts, about which there is no material dispute, Jones cannot be regarded as the agent or employee of defendant, but must be held to be an independent contractor.”
See, also, 2 C. J. 424 (Agency § 10) and 39 C. J. 37, 38 (Master and Servant, § 8).
. Appellee asserts, however, that agency may be shown by circumstantial evidence, and that use of the company’s name,-permit number and- telephone number, and the sale of milk bearing the company’s caps raises a presumption of agency sufficient to go to the jury, regardless of Allvine’s testimony! It was held in Tice v. Crowder, 119 Kan. 494, 240 Pac. 964, that proof of ownership does not raise a presumption of liability, and in Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863, that a prima jade case was not made out by plaintiff’s showing defendant’s ownership of the automobile which caused the injury, where the evidence offered by him in the same connection showed that at the time of the injury the automobile was being used in the business of the borx’owers and not that of the owner, and that, in the absence of evidence, a fact may be prer sumed from the existence of other facts and circumstances, but where there is direct and positive proof of the fact, there is no room for the presumption.
It follows that Carroll was an independent contractor and was not the servant or agent of the Allvine Dairy Company, and that, therefore, the demurrer of the dairy company to the evidence of the plaintiff should have been sustained. In view of this conclusion, it is not necessary to comment on the other assignments of error.
The decision of the trial court overruling the demurx’er of appellant to the evidence produced by the plaintiff is reversed, and the cause is remanded with instructions to sustain the demurrer and enter judgment for the appellant, the Allvine Dairy.Company. | [
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The opinion of the court was delivered by
Lockett, J.:
Appellant Ahmon Mann appeals his conviction for first-degree murder. Mann was sentenced to life in prison with no possibility of parole for 25 years. Mann claims that (1) the trial court failed to instruct the jury on eyewitness identification; (2) he was denied his constitutional right to be present at critical stages of his trial; (3) the prosecutor engaged in reversible prosecutorial misconduct; (4) the trial court failed to instruct the juiy on the lesser offense of voluntary manslaughter; (5) his trial counsel was so ineffective as to deny him a fair trial; and (6) he was denied his statutory right to a speedy trial.
At 10:11 p.m. on April 17,2000, Officer Conrad Martin received a call that shots had been fired from a car. Upon arriving at the scene, Officer Martin discovered a car in the intersection of 40th and Minnie with its headlights on and its front and rear passenger doors open. Robert Diaz was sitting on the driver’s side of the car. Diaz had suffered multiple gunshot wounds and was dead. The car reportedly had sat in the intersection for 10 minutes with the doors open and lights on before the police were called.
Discussions with two women, who desired to remain anonymous, caused police to look for Loren Artis. The two women had provided a description of Artis and an address that he frequented.
On April 20, 2000, police located Artis with the help of Dorothy Dean, a woman who had taken Artis in and had allowed him to stay with her on occasion. After an interview with Artis, police arrested Ahmon Mann.
Mann gave a taped statement to the police after his arrest. Mann told police that at the time of the shooting he had been at Walter Coleman’s house waiting for Coleman to return home. Coleman lived a few houses from where Diaz’ car was found. Mann was charged with first-degree premeditated murder in violation of K.S.A. 21-3401. A 5-day jury trial was held beginning January 29, 2001.
Artis testified that on the evening of the shooting, while selling narcotics on the comer of 40th and Minnie, he saw a car approach the intersection. Artis observed Robert Diaz driving the vehicle, Mann (“Duke”) sitting in the front passenger seat, and Reggie Golden (“Red Man”) sitting in the back passenger side seat. The streetlight at the intersection allowed Artis to see the vehicle’s occupants. The men in the car looked to be having a conversation and were not observably fighting.
The car stopped at the intersection’s stop sign and moved forward into the intersection. Artis saw Mann reach for something towards his waist. Mann and Diaz stmggled briefly. Artis then saw a couple of flashes and heard gunshots. Artis testified that he did not see a gun. Mann and Golden then jumped out of the car, leaving the car doors open, and ran away. Mann was wearing a black or blue jumpsuit and Golden was wearing a red jacket and sky blue pants. Artis then approached the car and saw the driver’s window was shattered and Diaz, who appeared to be dead, leaning over in the seat. Artis ran to Dorothy Dean’s house, but did not tell anyone what he observed because he was scared.
While outside Dean’s house, Artis saw Walter Coleman sitting in a vehicle. Coleman told Artis that he was waiting for Mann, who Coleman thought was visiting Patrice Seawood, Dean’s next door neighbor and the mother of Mann’s daughter. Artis later observed Mann come out of and from around the side of Seawood’s house and get into Coleman’s vehicle. The vehicle then left the area.
Artis knew Mann and Golden from the neighborhood and had had occasion to speak to them. Artis testified that the different dmg selling groups within the neighborhood would occasionally argue about customers or territory. Artis claimed that he was not involved in any arguments or feuds with Mann or Golden.
Diaz had arrived home at approximately 9:15 p.m. that evening. Both Emesta Diaz, his wife, and Emesta’s mother, Annie Mc-Kelvy, were home at the time. Approximately 5 minutes later, there was a knock on the door. Annie observed a young man she did not recognize at the door and assumed the man was there to see Diaz. Diaz opened the door, spoke to the man, then went into the bedroom to talk with Emesta. Diaz asked Ernesta for $2 to go to the store, took the $2, and left the house. At approximately midnight, Ernesta and Annie were informed by three men, one of whom was Walter Coleman, that Diaz was dead.
Diaz had suffered 7 gunshot wounds to the body. Four of the wounds were to the right side of his head and neck, with 3 of the 4 located behind the right ear. The wounds behind the right ear were intermediate shots, inflicted at a distance of somewhere farther than contact but closer than 2 to 3 feet. The shot to the neck area was inflicted at closer range. Erik Mitchell, a forensic pathologist, testified that he was unable to determine whether the shooter was in the front or back seat at the time of the shooting. Mitchell also testified that based upon the positioning of the wounds it was unlikely that the victim struggled with the shooter.
Five .380 caliber cartridge cases, all fired from the same weapon, were recovered from both the front and back seats of Diaz’ car. Sally Grew, a firearm and tool marks examiner with the Federal Bureau of Investigation (FBI), testified that she did not believe it unusual that the cartridge cases were found in both the front and back seats. She testified she was unable to determine the location of the shooter from the placement of the cases.
The broken glass behind the car indicated that the car rolled slightly after the firing of some shots. Latent prints recovered from the car’s passenger side did not match those of Diaz, Mann, or Golden. No other prints were recovered from the scene. Police recovered a blue jumpsuit from Seawood’s house. Golden’s red jacket was also recovered. No traces of blood were found on these items.
Walter Coleman was on his way home that evening from the Osage County jail. When Coleman arrived in town, the shooting had already occurred and there were police cars at the scene. According to Coleman’s mother, Joyce Winfield, Mann was waiting for Coleman when Coleman arrived. Winfield originally told police that two men had come to visit Coleman that night.
Bruce Wilson (“Little B”), Golden, and Mann were close friends, often referring to themselves as brothers. When Little B’s sister was killed in September 1999, Little B and Mann had t-shirts made with her picture. Diaz was implicated in Little B’s sister’s murder, but the charges against him were later dismissed. Diaz was incarcerated from October 1999 to March 13, 2000. These dates closely coincide with Little B’s sister s murder and Diaz’ subsequent murder.
Golden testified that on the day of the shooting he wore a dark blue jumpsuit and a red jacket. Golden had previously told police he had been wearing light blue pants. Golden got the nickname “Red Man” because he frequently wore a red jacket. Golden first testified drat he saw Diaz early on the morning of the shooting, but that he did not see him the rest of the day or that evening. Golden later testified that around noon he had tried to buy marijuana from Diaz while Diaz was in Diaz’ vehicle. Golden stated that he did not find out about the shooting until later when his girlfriend Danella told him. Golden saw Mann on and off throughout the day of the shooting, meeting to smoke cigarettes or do drugs. He denied seeing Little B that day. Mann had told Golden that that evening he would be waiting for Walter Coleman to return home from jail. Mann had given Coleman’s mother the money for Coleman’s bond.
A video surveillance tape showed Diaz purchasing beer from a liquor store at approximately 9:39 p.m. that evening. The surveillance video from the attached convenience store showed Golden in that store at 9:37 p.m. The two stores share the same parking lot. Annie McKelvy identified Golden from the surveillance video photo as the man that had come to the door that night and spoke with Diaz. Golden admitted being in the convenience store, but denied seeing Diaz. Golden also admitted that he was in the parking lot near Diaz’ residence just minutes before going to the convenience store but denied having gone to Diaz’ house that evening.
Golden was also charged with the first-degree murder of Diaz. However, the charges against him were dismissed following the preliminary examination. At trial, Golden testified that he and Mann were in the business of selling drugs together; that there had been a dispute over territories with other sellers; that he and Mann were involved in a dispute with Jason, Dorothy Dean’s son; and that Artis was a good friend of Jason and had participated in the altercations over territory.
Approximately 30 minutes to an hour after Telisha Grant, a friend of Mann’s, learned of the shooting, Danella, Golden’s girlfriend, told Grant that Mann would pay Grant $20 to take Little B home. Grant agreed. Little B came over to Grant’s house and Grant drove him home.
Patrice Seawood testified that after she arrived home from work that evening at approximately 11 p.m., she spoke to Mann on the phone. Mann told her he was at Walter Coleman’s house. Seawood was unaware of Mann having any disagreements with Diaz, but she knew that Mann had had disagreements with Jason in the past.
Deborah Allen testified that when she arrived home between 10:05 and 10:15 p.m. that evening, she noticed Mann standing in front of Walter Coleman’s house. A few minutes later, Allen saw Diaz’s car drive down the street.
Mann testified that he went to Walter Coleman’s house between 9:30 and 10 that night to wait for Coleman. While outside Coleman’s house, he saw the woman across the street (Deborah Allen) arrive home. While waiting he also saw emergency vehicles approaching the area of where Diaz was shot and observed the streets being blocked off by police. When Coleman arrived, he informed Mann that someone had been killed up the street. Mann testified that the last time he had seen Diaz and Diaz’ car was that morning when he purchased marijuana from Diaz. Mann had told the police that he had purchased marijuana from Diaz around noon that day. Mann denied having earlier told the police that he had seen Diaz in Diaz’ vehicle. A receipt showed Diaz’ vehicle was dropped off for repairs at 8:18 on the morning of the shooting and was released at 5:06 that evening.
Mann admitted that he had often had arguments with Jason, Artis, and others over drug territory in the past, but claimed he had not associated or had any disputes with Diaz. He denied having any vendetta against Diaz because of Little B’s sister’s death, testifying that he was not aware at the time of the shooting that Diaz had been charged in her death. Mann admitted that he was wearing the jumpsuit that was tested for blood stains, but stated that that was what he wore nearly everyday. Mann denied seeing Little B the night of the shooting.
Krystal King, a friend of Mann’s, testified that she saw Mann, Golden, and Little B in the parking lot outside Diaz’ house the night before the shooting. Previously, King had told police that she had seen Mann, Golden, and Little B in the parking lot at approximately 9 p.m. on the night of the shooting. King testified that the date in her statement to the police was incorrect and had been suggested by the police officers conducting the interview. King stated that Mann had called her after the evening news the night of the murder to tell her about the incident. Mann told King that “police were everywhere and some dude got shot.”
The jury found Mann guilty of first-degree murder. Mann was sentenced to life with no eligibility of parole for 25 years. Mann appealed his conviction. This court has jurisdiction over the appeal pursuant to K.S.A. 22-3601(b)(l).
EYEWITNESS IDENTIFICATION INSTRUCTION
Although defense counsel did not request an eyewitness identification instruction at trial, Mann now asserts that the trial judge erred in fading to give the instruction. Kansas law provides that no party may assign error in the giving or failing to give an instruction absent a specific objection being lodged prior to the jury retiring to consider its verdict unless the instruction or failure to give the instruction is clearly erroneous. K.S.A. 2001 Supp. 22-3414(3). The reviewing court must be firmly convinced that there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred for the failure to instruct to be clearly erroneous. State v. Saenz, 271 Kan. 339, 346, 22 P.3d 151 (2001); State v. Scott, 271 Kan. 103, 110-11, 21 P.3d 516, cert. denied 534 U.S. 1047, 151 L. Ed. 2d 550 (2001).
This court has stated that in any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony. Saenz, 2741 Kan. at 353; State v. Richmond, 258 Kan. 449, 455, 904 P.2d 974 (1995); State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981); see also State v. Gaines, 260 Kan. 752, 758, 926 P.2d 641 (1996) (PIK Crim. 3d 52.20 promulgated as direct result of decision in Warren).
Mann’s defense was that he was not in Diaz’ car at the time of the shooting. Artis was the sole eyewitness to the crime, all other evidence was circumstantial. Artis’ identification of Mann was critical to the State’s case. Therefore, Mann contends the following instruction should have been given:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of die witness to observe, the lengdi of die time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by die use of a weapon or a threat of violence;
“3. Whetiier die witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by die witness at the time of any identification of the accused; and
“7. Whether diere are any other circumstances that may have affected die accuracy of the eyewitness identification.” PIK Crim. 3d 52.20.
In support of his claim that the requirements for giving an instruction on eyewitness identification were met in this case, Mann sets forth approximately 10 factual situations that question the ability of Artis to make an identification of the shooter.
The State contends an instruction on eyewitness identification was not required because Artis was personally acquainted with the defendant. In support of this assertion, the State relies upon Saenz, 271 Kan. 339. In Saenz, this court recognized that the factors set forth in Warren and contained in PIK Crim. 3d 52.20 contemplated that the witness did not personally know the defendant. The witness in Saenz had seen the defendant earlier in the evening and knew the defendant personally. The Saenz court held that since the witness’ reliability was not questionable, the failure to give the instruction was not clearly erroneous. 271 Kan. at 354. Just as in Saenz, Artis personally knew both Mann and Golden.
In addition to the fact Artis personally knew Mann, Artis’ testimony as to the events of the shooting was supported by the testimony of officers arriving at and processing the scene. Artis testified that he was at a location that other testimony confirms was well-lit. Artis’ identification of Mann occurred only 3 days after the incident. Artis accurately identified the clothing worn by both Mann, and arguably Golden, on the evening of the shooting. Artis testified he was positive Mann was the shooter. The defense had the opportunity to point out to the jury any discrepancies in Artis’ previous statements, as well as any motive Artis might have had in making a misidentification.
The reliability of the identification and credibility of an eyewitness are not the same thing. The jury was instructed as follows regarding weight and credibility:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
Artis’ testimony does give rise to questions as to Artis’ credibility. Furthermore, testimony indicated that Artis may have had a vested interest in implicating Mann and Golden in the murder based upon disagreements over drug territory. The questionable credibility of a witness, however, is not a factor in giving an eyewitness identification instruction.
Under these circumstances, an instruction on eyewitness identification was not necessary and would not have changed the result of the trial. The trial court’s failure to give the instruction was not erroneous.
RIGHT TO BE PRESENT AT CRITICAL STAGES OF TRIAL
Mann contends he was denied his constitutional right to be present during critical stages of his trial. He cites three separate occasions during the trial where communications occurred outside his presence. The State contends these incidents were either harmless or did not constitute ex parte communications.
A defendant’s constitutional right to be present during criminal proceedings stems from the Sixth Amendment to the United States Constitution right to confront witnesses and the Fifth and Fourteenth Amendments to the United States Constitution due process right to attend critical stages of a criminal proceeding in which the defendant is not actually confronting witnesses or evidence against him or her. State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000); State v. Bowser, 252 Kan. 582, 586, 847 P.2d 1231 (1993). The due process right to be present only exists to the extent that a fair and just hearing would be thwarted by the defendant’s absence. Calderon, 270 Kan. at 245; Bowser, 252 Kan. at 586.
In addition to a defendant’s constitutional right to be present during critical stages of the trial, the defendant’s statutory right to be present is set forth in K.S.A. 2001 Supp. 22-3405(1), which states:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the juiy and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntaiy absence after the trial has been commenced in such person’s presence shall not prevent continuing the trial to and including the return of the verdict.”
K.S.A. 22-3420(3) further provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in tire case, they may request the officer to conduct them to the court, where the information on die 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 dre prosecuting attorney.”
Mann first complains of an incident which occurred on the third day of the trial, when the trial judge had various conversations with four jurors on the record in chambers and outside the presence of either counsel or the defendant. The meetings occurred after two female jurors reported to the bailiff that a male spectator, sitting on the defendant’s side of the courtroom, had followed them outside during breaks and had stared or glared at them frequently during the course of the trial. The trial judge reported the jurors’ complaint to both counsel who agreed that the judge should speak to the two reporting jurors outside the presence of counsel.
When speaking with the two female jurors the trial judge discovered that the jurors felt uncomfortable because a bald and somewhat heavy-set African-American male had been glaring at them while they were in the jury box during the previous 2 days of the trial. During a break, the two jurors had also overheard the man commenting on his cellular phone about the case and about how “they better not get anything on him because they don’t have fingerprints.” The women did not have an opinion on whether they believed the man was acting in a deliberate manner. The judge informed the two jurors that the man was the defendant’s uncle and that defense counsel would speak with the man and tell him to stop. Both jurors stated to the judge that they would be able to be fair and impartial and make a decision based solely on the evidence and the law. They stated that the feeling of uncomfortableness regarding this man had only been discussed between the two of them and two other female jurors.
Following the same procedure, the judge then spoke with the other two female jurors who had been identified. Both jurors stated that they would be able to remain fair and impartial. These jurors were also informed that the man was the defendant’s uncle and that defense counsel would speak to the man and tell him to stop.
The judge then reported the conversations he had with the four jurors to counsel and to the defendant, outside the jury’s presence. The State agreed to continue with the trial. Defense counsel expressed concern with the ability of these four jurors to carry on in a fair and impartial manner. The judge offered to allow defense counsel to question each of the four jurors individually. Defense counsel declined, expressing concern that further inquiry might worsen the matter. Defense counsel noted that counsel had only consented to the judge speaking with two jurors.
The judge’s recorded conversations with the four jurors were read to the defendant and both counsel. After speaking with Mann, defense counsel moved for a mistrial, contending that the fact this issue was brought to the court’s attention indicated a problem with the jurors’ “line of thinking” and indicated that they were not paying attention to the evidence but to the gallery. The judge denied the motion, finding that the jurors had merely reported something that made them feel uncomfortable and had indicated that they could remain fair and impartial and that the incident would not affect their decision in this case. The judge also noted that in addition to their verbal statements, the demeanor of the jurors also indicated that they would judge the case based on the evidence and not on this event.
It is well settled that a conference between a trial judge and a juror is a critical stage of the trial at which a criminal defendant has a constitutional right to be present. State v. Fulton, 269 Kan. 835, 844, 9 P.3d 18 (2000); State v. High, 260 Kan. 480, Syl. ¶ 2, 922 P.2d 430 (1996). Although both counsel consented to the judge speaking with the two reporting jurors, this consent did not include the judge’s additional conversation with the other two jurors. Additionally, and most importantly, the record does not indicate that Mann waived his right to be present at either conversation. An attorney cannot waive a defendant’s right to be present at a critical stage of the proceeding without first discussing the matter with the defendant. Crease v. State, 252 Kan. 326, Syl. ¶ 4, 845 P.2d 27 (1993). Thus, it was error for the trial judge to have conducted these conversations with jurors outside Mann’s presence. The question is whether this error was harmless.
In Calderon, this court addressed the issue of whether harmless error could prevent reversal once a defendant’s constitutional right to be present during a critical stage of the proceeding had been violated. Calderon was found to have been denied his constitutional right to be present at a critical stage when the trial court ordered the interpreter, necessary for Calderon to understand die proceedings, not to translate closing arguments for Calderon. The court examined the distinction between trial errors, which are subject to a harmless error analysis, and structural errors, which require a new trial. In reversing Calderon’s conviction, the majority of the court concluded that the failure to translate the closing arguments implicated a basic consideration of fairness and that a harmless error analysis was inappropriate under the circumstances. 270 Kan. at 253.
The harmless error analysis was applied, however, in State v. Lopez, 271 Kan. 119, 134, 22 P.3d 1040 (2001). In Lopez, there were two instances in which the defendant contended he was denied his constitutional right to be present at a critical stage of the trial. The first instance involved the judge’s conversation with counsel outside his presence prior to voir dire regarding the qualifications of potential jurors. The Lopez court found there was no error because the conference did not constitute a stage of trial under K.S.A. 2001 Supp. 22-3405(1). 271 Kan. at 130-31. The second instance occurred during voir dire on the second day of trial when the judge, both counsel, and a juror convened outside the defendant’s presence. Because the record did not indicate Lopez had waived his right to be present and the conversation involved questioning of a potential jury member, error was found to exist. The conversation involved questioning of the juror regarding a report that he might know a member of the victim’s family. The juror denied knowing such a person and indicated that he would come forward if he recognized anyone in the audience and that even if he did recognize someone he could remain fair and impartial. The Lopez court, in a unanimous decision, held that Lopez was not denied a meaningful presence at a critical stage of his trial and that his absence did not implicate a basic consideration of fairness or undermine the function of a criminal trial, thus the error was not structural and a harmless error analysis was applied. 271 Kan. at 134.
In this case, the judge’s conversation with the four jurors did not implicate a basic consideration of fairness or undermine the function of a criminal trial. Thus, this was not a structural error, but rather a trial error to which application of the harmless error analysis is appropriate.
“The denial of a defendant’s constitutional right to be present at all critical stages of the trial is subject to a constitutional analysis to determine if the error was harmless. Before an error of constitutional magnitude may be declared harmless, the appellate 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.” State v. Rayton, 268 Kan. 711, 717, 1 P.3d 854 (2000).
Kansas has adopted the following four-factor test for analyzing the effect of ex parte communications with the jury: (1) the overall strength of the prosecution’s case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter and the manner in which it was conveyed to the jury; and (4) the ability of a post-trial remedy to mitigate the constitutional error. Rayton, 268 Kan. at 717; State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998).
Strength of Prosecution’s Case
The prosecution’s case was almost entirely based upon Artis’ eyewitness testimony. There was no physical evidence suggesting Mann was involved in the shooting. There was also defense testimony that placed Mann at Coleman’s house just prior to the shooting. Thus, the evidence against Mann was less than overwhelming.
Objection to the Ex Parte Communication
There was no objection to the ex parte communication in this case. The judge informed both counsel of the complaint received by the bailiff and both counsel consented to the judge speaking privately with the two complaining jurors. Even after the judge spoke with the jurors, the only complaints defense counsel lodged were that the consent had been limited to speaking with two jurors and that the fact the jurors complained indicated a problem. The request for a mistrial was not based upon the content of the ex parte communication itself, but upon the information obtained in that communication.
Contents of the Ex Parte Communication and Manner Communicated
The communication did not concern the evidence. The communication was significant, however, because it involved possible juror prejudice and the ability of the jurors to objectively evaluate the evidence after feeling threatened. See Rayton, 268 Kan. at 719.
Although erroneous, the ex parte communication, or at least part of it, was communicated with the consent of both the State and defense counsel. The communication was also recorded and available for both counsel and the defendant to examine.
Ability of Post-Trial Remedy to Mitigate Error
Mann’s motion for new trial alleged the court erroneously denied the motion for mistrial made after the four jurors expressed fears of Mann’s uncle. The motion alleged the jurors were prejudiced in their opinion of Mann and were erroneously permitted to continue serving as jurors. The motion was denied.
A factually similar case is that of Rayton, 268 Kan. 711. In Rayton, the trial judge, in response to a juror’s concerns about the presence of two young black males in and about the courthouse who had been staring at the jurors, invited the complaining juror and one other juror into his chambers to discuss the problem. The jurors stated their concerns and the trial judge recounted the concerns to the parties. One of the males was the defendant’s younger brother and the sole defense witness. Defense counsel requested that the judge inquire of the jurors whether their ability to decide the case on the evidence had been compromised. The State agreed. The defendant waived his right to be present at this inquiry. The majority of the inquiry was recorded; however, the judge did go off the record at one point. The jurors assured the judge that their ability to decide the case based on the evidence had not been compromised. The judge related this second conversation to the parties and the transcript of the conversation was read back. The defense moved for a mistrial on the basis that the jurors had identified the defendant’s younger brother as one of the intimidators, the jurors were terrified despite what they told the court, and the defendant would receive less than a fair trial. The judge denied the motion, stating that in his opinion the jurors would be able to decide the case based on the evidence. On appeal, this court applied the four-factor test and held that there was little, if any, likelihood that the ex parte communications changed the result of the trial. 268 Kan. at 717-20.
It can be said beyond a reasonable doubt that this error had little, if any, likelihood of changing the result of trial. The failure to include Mann in these two conversations with the jurors was harmless.
The second complained-of incident occurred when the trial judge conversed on the record with both counsel outside the presence of the defendant and the jury. The conversation occurred as a result of the jury requesting equipment to view a videotape in evidence. The videotape contained video from both the crime scene and the autopsy of the victim. Only the crime scene video had been shown to the jury and admitted into evidence. On the record, the trial judge noted that the prosecutor had made a duplicate tape that included only the video from tire crime scene. Defense counsel agreed to the submission of the duplicate video to the jury. The duplicate videotape and the viewing equipment were then provided to the jury.
Mann contends this was an improper ex parte communication with jurors. The judge did not, however, communicate with the jury on this occasion.
The defendant’s constitutional right to be present extends only to those stages of the criminal proceeding that are critical to the outcome and at which the defendant’s presence would contribute to the fairness of the procedure. Calderon, 270 Kan. at 245. It is difficult to imagine, and Mann does not contend, that his presence at this particular conference among the judge and both counsel outside the presence of the jury could have contributed in any way to the fairness of the procedure. Mann merely relies upon the fact that he was not present and that the court made a decision during that time. This conversation was merely engaged in for the purpose of recording an evidentiary issue, and no decision was made that would have affected die trial’s outcome. Mann did not have a constitutional or statutory right to be present under diese circumstances.
The third complained-of incident occurred when the jury requested a readback of testimony. The trial judge received the request and believed that one of the items requested to be read back was vague. The jury had requested “Loren Artis - Defense answer testimony.” Because neither counsel was present, the trial judge, by note, asked the jury the following question: “Regarding your first request by defense answer testimony, do you mean the cross-examination of Mr. Artis by Mr. Lewis [defense counsel] or something else?” The jury responded, stating that they wanted the cross-examination of Artis by defense counsel. The following day, outside the presence of the jury, the judge informed both counsel and Mann of the communication. Neither party objected. The testimony was then read back to the jury in Mann’s presence, and the jury retired to continue its deliberations.
The State contends this did not constitute an ex parte communication with the juxy. Additionally, the State cites Scott, 271 Kan. 103, in support of its claim that this communication with the jury was harmless, noting that the judge’s comment was not an answer and that the question did not involve the law or evidence. In Scott, the jury sent a question to the trial judge inquiring whether all the definitions in Instruction No. 12 pertained to premeditation. Without notifying counsel, the judge responded that Instruction No. 12 defines terms used throughout the instructions. The judge notified both counsel of the question and his response after the jury returned with a verdict. No objections were made. The Scott court held the judge’s response to the jury’s question was legally correct and completely innocuous. Although the response to the jury outside the defendant’s presence was error, the court concluded beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. 271 Kan. at 112-13.
The absence of Mann at this particular time did not implicate a basic consideration of fairness or undermine tire function of a criminal trial. Thus, the court will apply a harmless error analysis. Once again, it is difficult to image how Mann’s presence on this occasion could have changed the result of the trial. After the readback of the testimony, the jury foreman indicated that that was all the testimony the jury had wanted to be read back. Any misunderstanding or miscommunication could have been remedied at that point. Therefore, this court finds beyond a reasonable doubt that this contact with the jury also had little, if any, likelihood of having changed the result of trial. The judge’s contact with the jury on this occasion was also harmless.
PROSECUTORIAL MISCONDUCT
Mann contends the prosecutor improperly expressed opinion as to Mann’s guilt in making the following statement during the State’s closing argument:
“The [S]tate believes that [Diaz] was killed with premeditation intentionally, first degree, and this is why.”
Defense counsel did not object to this statement.
Reversible error predicated on prosecutorial misconduct must be of such magnitude that it denies a defendant his or her constitutional right to a fair trial. State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000). Reversible error generally cannot be based upon misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If, however, the prosecutor’s statements violate a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. Henry, 273 Kan. 608, Syl. ¶ 4, 44 P.3d 466 (2002).
Analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, it must be determined whether the remarks are outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in both the language and in the manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, it must be determined whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. Pabst, 268 Kan. at 505; State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 (1999).
Mann contends that it was improper for the prosecutor to assert that the State had an opinion as to Mann’s guilt. Specifically, Mann asserts the comment was prosecutorial vouching, which placed the prestige of the State behind the prosecutor’s personal assurances.
The comment occurred near the beginning of the prosecutor s closing argument. Although claiming to express the opinion of the State, the comment can best be characterized as directional, with its intended purpose being to serve as an opening for the prosecutor s upcoming summation of the evidence that pointed toward Mann being guilty of first-degree premeditated murder. The prosecutor’s comment is not beyond the wide latitude afforded prosecutors.
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Mann contends the trial court erred in failing to instruct the juiy on the lesser offense of voluntary manslaughter. The jury was instructed on first-degree premeditated murder and the lesser included offense of second-degree intentional murder. Defense counsel did not request the jury receive an instruction on voluntary manslaughter nor did he object to the instructions given.
K.S.A. 2001 Supp. 22-3414(3) provides in pertinent part as follows:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
It is well settled that voluntary manslaughter is a lesser included offense of first-degree murder. Where there is substantial evidence to support a conviction for a lesser offense, the trial judge is required to instruct on the lesser offense. See State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993); State v. Hobbs, 248 Kan. 342, 346, 807 P.2d 120 (1991). Thus, the only issue before this court is whether, under the evidence presented at trial, the trial court’s failure to instruct the jury on voluntary manslaughter was clearly erroneous. For an instruction or the failure to instruct to be found clearly erroneous, the reviewing court must be firmly convinced that there was a real possibility the jury would have returned a different verdict if the trial error had not occurred. State v. Parker, 273 Kan. 56, Syl. ¶ 2, 41 P.3d 789 (2002); State v. Pierce, 260 Kan. 859, 868, 927 P.2d 929 (1996).
“Voluntary manslaughter is the intentional killing of a human being committed:
“(a) Upon a sudden quarrel or in the heat of passion; or
“(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force.” K.S.A. 21-3403.
Heat of passion has been defined as “any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.” PIK Crim. 3d 56.04(e). Sudden quarrel is one form of provocation for “heat of passion” and is not separate and distinct. State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 (1978).
In support of his contention that an instruction on voluntary manslaughter was warranted, Mann cites to the State’s theory that the murder was in retribution for Diaz’ murdering Little B’s sister as providing the emotional background for such an instruction. Additionally, Mann relies upon Artis’ testimony that he observed a struggle between Mann and Diaz before the first shot was fired.
Artis testified that he observed Mann and Diaz involved in a struggle at some point between when the vehicle started to move forward from a stop at the stop sign and when the first shots were fired. He testified that he observed Mann make a move toward his waist and then saw the flashes. Artis also testified, however, that the struggle lasted only a “second” and that prior to this the occupants of the car appeared to have been having a conversation and did not appear to have been fighting. It must also be noted that Mann testified that he did not know that Diaz had been a suspect in Little B’s sister’s murder. Therefore, there is no evidence that would support an instruction on voluntary manslaughter because there is no evidence that would support Mann having been in such an emotional state of mind that he acted on impulse without reflection.
INEFFECTIVE ASSISTANCE OF COUNSEL
Mann contends his trial counsel was so ineffective that he was denied his right to a fair trial. To support this claim, Mann cites 14 actions or inactions of his defense counsel that demonstrate to a reasonable probability that the result of the proceeding would have been different if counsel had not made these errors. In the alternative, Mann asserts this court should remand the case back to the trial court for consideration of the issue. The State maintains because the issue is raised for the first time on appeal, the matter is not properly before this court. Alternatively, the State contends that even if defense counsel made errors in representing Mann, there is no reasonable probability the result of trial would have been different.
The notice of appeal in this case was filed by trial counsel and requested that appellate counsel be appointed. Appellate counsel filed the docketing statement on August 23, 2001. Appellate counsel filed a motion for remand on January 8,2002, almost 10 months after the notice of appeal was filed and 4 days after filing the brief in this case. No explanation was provided for the over 4 months that passed between the appointment of appellate counsel and the filing of the motion for remand. We denied the motion for remand because it was not timely filed.
We have stated that an allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Johnson, 258 Kan. 475, 488, 905 P.2d 94 (1995); State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986). The reasoning behind this practice was stated in Van Cleave, 239 Kan. at 119:
“The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than an appellate court is in reviewing the issue for the first time from a cold record. Many times what would appear in the record as an indication of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue and our refusal to consider tire matter for the first time on appeal is sound.”
The Van Cleave court set forth two alternate remedies for an ineffective assistance of counsel claim not raised before the trial court: (1) a motion brought pursuant to K.S.A. 60-1507; and (2) seeking remand to the trial court for determination of the issue. 239 Kan. at 119-20. See State v. Greene, 272 Kan. 772, 37 P.3d 633 (2001) (appellate court addressed claim of ineffective assistance of counsel on direct appeal after previously remanding to trial court for consideration of claim at request of appellate counsel while retaining jurisdiction over appeal); State v. Orr, 262 Kan. 312, 940 P.2d 42 (1997). We note that there are exceptions to the rule. See, e.g., State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000); State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).
The test for determining whether a defendant received ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by this court in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985).
“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
Regarding the performance prong of the Strickland test, the Chamberlain court stated:
“The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 236 Kan. 650, Syl. ¶ 3(a).
With regard to the prejudice prong, the Chamberlain court stated:
“With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 236 Kan. 650, Syl. ¶ 3(b).
Mann raises the following in support of his claim that his trial counsel was ineffective:
(1) Trial counsel did not subpoena any witnesses to testify. Mann relies upon the district court’s case history record as support for this statement, concluding that those who did testify (Reggie Golden, Patrice Seawood, and Deborah Allen) must have just shown up and testified voluntarily. The record indicates the State issued subpoenas to Deborah Allen and Patrice Seawood on January 4, 2001. Mann does not assert that there were any additional witnesses that could have been subpoenaed or that any prejudice resulted from defense counsel’s failure to subpoena witnesses.
(2) No notice of alibi was ever filed by the defense even though alibi was the defense in this case. The State contends that from the evidence at trial, Mann did not have an alibi and there is no evidence that supports that the failure to file a notice of alibi affected Mann’s right to a fair trial.
We note that during trial, the prosecutor objected to Deborah Allen’s testimony as being that of an alibi witness without the State being properly noticed. The trial judge overruled the objection and allowed Allen to testify to having seen an individual she believed to be Mann standing across the street at the same time she observed Diaz’ car drive by her home. Allen testified her belief that the individual was Mann was based upon what she saw and upon her son having identified the individual as Mann when he later arrived at her home.
(3) No discovery motion was filed by trial counsel. The State contends there was no need for a discovery motion because defense counsel was provided unlimited access to the State’s file and was given copies of documents to which counsel was legitimately entitled.
(4) Trial counsel reserved his opening statement until the end of the State’s case, and the opening statement covered just over two pages of the trial transcript, barely referring to the facts. As the State points out, this may have been part of defense counsel’s trial strategy, i.e. playing down the facts of the case.
(5) Trial counsel was in trial the 3 weeks prior to this .trial. The State cites to the fact trial counsel did not request a continuance on grounds he was unprepared and nothing in the record supports trial counsel not having been prepared.
(6) Trial counsel failed to object to the three occasions where proceedings were held outside Mann’s presence. As previously discussed, these three occasions had little, if any, likelihood of changing the result of trial.
(7) Trial counsel “unnecessarily and for no reason clearly elicited damaging testimony” that Mann had a criminal record and had previously been incarcerated. The testimony cited to by Mann occurred during die direct examination of Reggie Golden and involved Golden describing how he and Mann first met in a youth center where they had been placed by the courts. As the State points out, there was no indication that trial counsel was surprised by this information, and there was no information elicited as to why Mann had been placed in the youth center.
(8) Trial counsel unnecessarily elicited evidence that Mann had an illegitimate child and that, although he lived with the mother of this child, he also had other girlfriends at the same time. As the State points out, this information was nothing other than part of defense counsel’s strategy. Mann’s relationship with Patrice Sea-wood was definitely relevant, as Seawood was to testily as to Mann’s whereabouts. Krystal King was a friend of Mann’s. Potentially, this same information could have been elicited by the State and been received more negatively by the jury than if defense counsel had not elicited such testimony on direct examination.
(9) Trial counsel failed to object to the prosecutor’s statement during closing argument that “the state believes that he was killed with premeditation, intentionally, first degree, and this is why.” As discussed previously, this statement did not result in reversible prosecutorial misconduct, thus no error can be found in defense counsel’s failure to object.
(10) Trial counsel failed to object to the testimony of two witnesses (Telisha Grant and Joyce Winfield) who were not endorsed by the prosecution. The State agrees these witnesses were not endorsed and that Mann’s trial counsel failed to object. The State points out, however, that the trial court has discretion, even over an objection, to allow late endorsement of witnesses by the State.
The purpose of endorsement is to prevent surprise to the defendant and to allow the defendant the opportunity to interview the prosecution’s witnesses prior to trial. State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 (1993). The test with regard to the late endorsement of witnesses is whether the defendant’s rights have been prejudiced. State v. Kendig, 233 Kan. 890, 891, 666 P.2d 684 (1983). Factors in making this determination include whether the defendant was surprised and whether the testimony was critical. State v. Coleman, 253 Kan. 335, 856 P.2d 121 (1993). The record does not indicate Mann’s counsel was surprised by the testimony of these two witnesses. Grant testified as to Mann’s close relationship with Little B and that she had given Little B a ride home, supposedly at Mann’s request, the night of the shooting. Winfield testified that Mann was waiting for Walter Coleman when she returned home after picking Coleman up from jail. Although this testimony circumstantially supported Mann’s having committed the crime, the evidence was not critical to Mann’s conviction.
(11) Trial counsel failed to file any written request for instructions before trial, never requested any additional instructions orally, and failed to request a cautionary instruction on eyewitness identification. As previously discussed, the failure to instruct the jury on eyewitness identification was not clearly erroneous. It must also be noted that in addition to Artis’ eyewitness identification, Deborah Allen identified Mann as being the individual she observed standing outside her neighbor’s house at the same time she observed Diaz’ car drive down the street. Allen only saw an outline of the individual’s face from a distance in the dark. Any request for a cautionary instruction on eyewitness identification could have potentially resulted in the jury giving less credence to Allen’s testimony in favor of Mann.
Mann also challenged trial counsel’s failure to request an instruction on voluntary manslaughter; however, as previously discussed, failure to give this instruction was not clearly erroneous. Mann fails to identify any other specific instructions that defense counsel failed to request either orally or in writing or identify how he was prejudiced.
(12) Trial counsel did not object to hearsay evidence — the Firestone invoice indicating Diaz’ car was being repaired the entire day of the shooting. The State points out that Mann does not cite any legal basis for his conclusion that this receipt was hearsay evidence. Furthermore, the State contends the receipt was a business document which would have been admissible with testimony from a Firestone employee. During closing argument, trial counsel for Mann noted that no one knew for sure where Diaz’ car was on the day of the shooting, pointing to the fact that all they had was a piece of paper (the receipt). The decision to not object, as the State hypothesized, was most likely a part of defense counsel’s strategy to ensure the accuracy of the receipt was not legitimized by employee testimony.
(13) Trial counsel failed to closely examine the State’s file and was unaware of the existence, until after trial began, of two witnesses that saw Artis near the scene of the shooting. The State cites to the fact these witnesses desired to remain anonymous, contending there was nothing in the record that would have allowed for these witnesses to be readily identified. Thus, the State contends there is nothing to indicate that anything different could have been done if trial counsel would have been aware of these witnesses.
It must be noted that upon hearing about these two witnesses and how they had led the police to Artis, trial counsel immediately objected on the grounds it was confidential informant testimony. On cross-examination, trial counsel for Mann discovered the witnesses were two African-American females, one in her mid-20’s and the other in her mid-40’s who were driving a brown four-door Ford Escort. The police report concerning these two anonymous witnesses was available to defense counsel.
Defense counsel then moved for a mistrial on the grounds these witnesses were confidential informants. The substance of the anonymous witnesses’ statements was that they observed what they believed to have been an accident and saw a man, later determined to be Artis, wearing a jacket with glitter on it that they thought might have been glass. The women told police they believed the man might have been involved in the accident; that the right side of the man’s jacket, front and back, appeared to be wet; and that the man was holding his right arm as if he was injured. The judge denied the motion for mistrial. The judge also ordered the detective who testified as to the existence of these witnesses to provide as much information as possible to defense counsel so that these witnesses could be subpoenaed. No additional information was available and the witnesses never testified.
(14) Trial counsel for Mann did not speak with Deborah Allen, the defense’s key alibi witness, until 9:30 or 10 the night before she testified; did not speak with Allen’s son, who served as a part of the basis upon which Allen concluded she had observed Mann standing across the street; and did not call Walter Coleman or Larry Anderson (who was with Allen outside her house that night). The State contends Allen did not provide an alibi for Mann and that there is nothing to suggest an earlier interview with Allen would have changed the result of the trial. The State also notes that the evidence at trial did not clearly show that Allen’s son saw Mann that evening; thus, there is nothing that would indicate that subpoenaing him would have changed the result of the trial.
After reviewing the record, we find Mann’s trial counsel was effective. Mann was not denied effective assistance of counsel or a fair trial.
RIGHT TO SPEEDY TRIAL
Mann contends that he was denied his statutory right to a speedy trial. The State asserts that this right was not violated because Mann had other charges pending against him while awaiting trial on this matter. A violation of statutory and constitutional rights to a speedy trial is a question of law over which this court has unlim ited review. State v. Smith, 271 Kan. 666, 681, 24 P. 3d-727, cert. denied 534 U.S. 1066, 151 L. Ed. 2d 582 (2001).
Pursuant to K.S.A. 22-3402(1):
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of application or fault of the defendant, or a continuance shall be ordered by the court. . . .” (Emphasis added.)
From the record on appeal, it appears that Mann was arrested on or about June 30, 2000. Mann was arraigned on August 21, 2000, and held in custody until trial. Trial did not begin until January 29,2001,161 days after Mann was arraigned. The record does not indicate any request by the defense for a continuance, nor does it indicate Mann waived his right to a speedy trial.
On November 29, 2000, 100 days after Mann’s arraignment, defense counsel filed a motion to dismiss the case on the grounds Mann had not been brought to trial within 90 days as required by K.S.A. 22-3402(1). A hearing on the motion to dismiss was held January 2, 2001. At the time of the hearing, Mann was being held in custody on charges in two separate cases. Mann had been arraigned in the first case, 99 CR 2395, on July 13, 2000, for aggravated battery. According to defense counsel, the trial in 99 CR 2395 was originally set for October 9, 2000, but was continued at the defense’s request due to defense counsel’s unavailability. The case was not reset for trial until January 29, 2001. According to the record, the second case, 00 CR 1047A, the subject of this appeal and for which the arraignment was held August 21,2000, was never set for trial. The prosecutor stated at the hearing that trial was set as soon as possible after discovering this error. The trial was set for January 29, 2001, in that case as well.
The prosecutor contended at the hearing that because Mann was being held in jail on 99 CR 2395 and not solely as a result of 00 CR 1047A, the statutory speedy trial period did not apply. The district judge noted that this case, 00 CR 1047A, had not been brought to trial within the statutory speedy trial period and determined that the trial date set in 99 CR 2395 was not reasonable because it exceeded 90 days from the date of the continuance. The judge noted that the only thing that would justify the trial date set in either of the cases is the fact Mann was being held on the other case. The judge took the matter under advisement and allowed the parties to submit briefs. The record does not contain the briefs, if any, that were submitted to the court on this issue.
Prior to jury selection, the trial judge made the following statement:
“I’ve told counsel informally that the defendant’s motion to dismiss on speedy trial grounds was denied. I’ve not had an opportunity to write an order or decision. What I will do is just state on the record at some convenient point early on in the trial the reasons why the motion to deny was entered or why the motion was denied rather.”
The record does not appear to contain, nor do the parties cite to, any subsequent reference to the denial of the motion to dismiss.
Mann concedes that the statutory right to speedy trial does not apply to a criminal defendant being held in custody for any reason other then a criminal charge. Mann contends, however, that the statutory right to speedy trial still exists when the defendant is being held on only criminal charges. Mann asserts that to hold otherwise would relieve the State of the requirement to bring a defendant to trial within a specific time frame when a defendant is faced with more than one charge.
The State asserts that the provisions of K.S.A. 22-3402 do not apply when there are other charges pending against the accused, citing for support Smith, 271 Kan. at 682, and State v. Strong, 8 Kan. App. 2d 589, 663 P.2d 668 (1983). The State contends Mann’s constitutional right to a speedy trial was also not violated.
This court has clearly established that the statutory right to speedy trial does not apply to criminal defendants who are held in custody for any reason other than the subject criminal charge. State v. Ruff, 266 Kan. 27, Syl. ¶ 3, 967 P.2d 742 (1998). The statutory right to a speedy trial has been found not to apply under the following circumstances: Smith, 271 Kan. at 682 (when defendant was also being held on federal detainer); Ruff, 266 Kan. at 31 (where at time of arraignment and until trial defendant was incarcerated on prior conviction); State v. Abel, 261 Kan. 331, 334, 932 P.2d 952 (1997) (where defendant was being held in jail for a parole violation); State v. Hill, 257 Kan. 774, 778, 895 P.2d 1238 (1995) (where prior to defendant’s arraignment defendant’s parole officer placed a state arrest and detain order against defendant); State v. Sanders, 224 Kan. 138, 140, 578 P.2d 702 (1978) (where between time of arraignment and trial defendant was in custody by virtue of sentences against him); and Strong, 8 Kan. App. 2d at 593 (where there were numerous other charges pending against defendant and where defendant was convicted of felony during period between arraignment and trial and was being held in custody pending his sentencing).
The application of K.S.A. 22-3402(1) to a defendant held in custody simultaneously on charges in another case was specifically addressed in State v. Goss, 245 Kan. 189, 777 P.2d 781 (1989). In Goss, the defendant was arraigned on February 27,1987. The jury trial did not commence until October 14,1987. On March 6,1987, while in jail on the charges in that case, defendant was served with a second criminal warrant involving unrelated burglary and theft charges. The Goss court held that, therefore, the defendant was held solely on that case for only 1 week between arraignment and trial and that the defendant did not meet the requirement of being “ ‘held in jail solely by reason thereof ” pursuant to K.S.A. 22-3402(1). 245 Kan. at 191.
The plain language of K.S.A. 22-3402(1) provides that the 90-day right to be brought to trial applies only when the defendant is charged with a crime and held solely on the basis of that charge. Mann was not held solely on the basis of the murder charge against him in this case. Therefore, K.S.A. 22-3402(1) did not apply.
The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Section 10 of the Kansas Constitution Bill of Rights guarantee an accused the right to a speedy trial. Ruff, 266 Kan. at 31. The Kansas Legislature adopted K.S.A. 22-3402 to define and implement these constitutional guarantees. Strong, 8 Kan. App. 2d at 591; see State v. Pendergrass, 215 Kan. 806, Syl. ¶ 1, 528 P.2d 1190 (1974). Where the statutory right to speedy trial does not apply, an accused is still guaranteed the right to a speedy trial under both the United States and Kansas Constitutions.
The United States Supreme Court set forth a balancing test for determining whether an accused has been denied his or her constitutional right to a speedy trial in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Kansas adopted this test in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). The following factors were set forth in Barker: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant. 407 U.S. at 530.
Until the delay rises to the level of being presumptively prejudicial, it is not necessary to inquire into the other Barker factors. Ruff, 266 Kan. at 32; Hill, 257 Kan. at 778. The delay between arrest and trial in this case was approximately 7 months. A delay of 7 months is not presumptively prejudicial. See Hill, 257 Kan. at 779 (less than 11-month delay between arrest and trial not presumptively prejudicial); Goss, 245 Kan. at 193 (little over 1 year between arrest and trial not presumptively prejudicial). Therefore, we need not consider the additional Barker factors. Mann’s constitutional right to a speedy trial was not violated.
Affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
The State appeals from the dismissal of a criminal complaint.
The facts may be summarized as follows. On May 19, 1999, two motorcycles were stolen from a Topeka cycle shop. On September 17, 1999, the State filed a complaint against John M. Hurla charging burglary of a nondwelling (K.S.A. 21-3715[b]), felony theft (K.S.A. 21-3701[a]), and criminal damage to property (K.S.A. 21-3720[a][1]). On October 18, 1999, the parties entered into a diversion agreement. The agreement had a 24-month term and was set on the court’s October 3, 2001, docket for “payment/dismissal of diversion.” On August 19, 2001, defendant filed a “Motion for Early Successful Discharge from Diversion.” The motion was heard on September 7, 2001. The State objected to the early termination and objected to the matter being heard on the ground the district court lacked jurisdiction to grant the sought for relief over the objection of the State. The district court dismissed the complaint. This appeal resulted therefrom. The case was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c).
Two issues are raised, both of which challenge jurisdiction:
1. Whether the district court had jurisdiction to dismiss the complaint; and
2. Whether the State’s notice of appeal is fatally flawed and, thus, does not invoke Supreme Court jurisdiction.
We shall first determine the challenge to this court’s jurisdiction.
SUPREME COURT JURISDICTION
Whether we have jurisdiction in a case is a question of law over which our scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997, P.2d 681 (2000).
The State’s notice of appeal provides:
“TAKE NOTICE PLEASE that the State of Kansas intends to and does hereby appeal to the Court of Appeals of tire State of Kansas all of the findings , orders and judgments of the District Court of Shawnee County, Kansas, in the above-captioned and numerically styled cause of action that were made and entered on or about the 7th day of September, 2001.”
Defendant contends the notice of appeal is fatally flawed as it does not set forth: (1) under what statutory authority the appeal is taken, and (2) specifically, what is being appealed. We disagree.
Defendant’s argument as to the failure to include statutory authority being a fatal flaw is premised on the mistaken belief that such was required herein. There are significant differences between the requirements of a notice of appeal to the Court of Appeals and a notice of direct appeal to the Supreme Court. The required contents of notices of appeal are set forth in Supreme Court Rule 2.01 (2001 Kan. Ct. R. Annot. 8) and Supreme Court Rule 2.02 (2001 Kan. Ct. R. Annot. 8). These rules in pertinent part are as follows:
“Rule 2.01
“FORM OF NOTICE OF APPEAL, SUPREME COURT
“When an appeal is permitted directly to the Supreme Court, the notice of appeal shall be filed in the district court, shall be under the caption of the case in the district court and in substantially the following form:
“NOTICE OF APPEAL
“Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Supreme Court of the State of Kansas.
“The appeal hereby taken is directly to the Supreme Court on the ground that (state ground on which direct appeal is considered to be permitted, including citation of statutory authority).”
“Rule 2.02
“FORM OF NOTICE OF APPEAL, COURT OF APPEALS
“In all cases in which a direct appeal to the Supreme Court is not permitted, the notice of appeal shall be filed in the district court, shall be under the caption of the case in the district court and in substantially the following form:
“NOTICE OF APPEAL
“Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Court of Appeals of the State of Kansas.”
All appeals from the district court go to the Court of Appeals unless there is statutory authority for an appeal to go directly to the Supreme Court. If a party is seeking to appeal directly to the Supreme Court, then the notice of appeal must identify the appealing party and “state [the] ground on which direct appeal is considered to be permitted, including citation of statutory authority.” Where a direct appeal is not permitted, and the appeal is to the Court of Appeals, only the identity of the appealing party and the designation of the judgment appealed from need be stated.
When the State filed its notice of appeal, it was not seeking to appeal directly to the Supreme Court. The notice of appeal specifically states the appeal is to the Court of Appeals. This case was later transferred to the Supreme Court on our own motion pursuant to K.S.A. 20-3018(c). This transfer did not affect the previously filed notice of appeal in any respect.
Defendant then argues that the notice of appeal is fatally flawed as the “state failed to specify what it was appealing.” The cases cited by defendant draw the State into a discussion which is really not applicable herein. However, before leaving this issue, a brief discussion thereon is appropriate.
First, we need to place this argument in context. K.S.A. 2001 Supp. 22-3602(c) provides:
“Procedures for appeals by the prosecution enumerated in subsection (b) shall be as provided in supreme court rules.”
Each of the permitted State appeals in subsection (b) is self-explanatory except for (b)(3), “upon a question reserved,” which has required judicial interpretation thereon. For an appellate court to entertain an appeal based upon a question reserved, certain criteria must be met. As we held in State v. Roderick, 259 Kan. 107, Syl. ¶ 1, 911 P.2d 159 (1996):
“An appeal on a question reserved under K.S.A. 1994 Supp. 22-3602(b)(3) is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to die State. Questions reserved generally presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.”
Further, questions reserved are limited to matters which would not otherwise be appealable. State v. Mountjoy, 257 Kan. 163, Syl. ¶ 3, 891 P.2d 3776 (1995). What is necessary to reserve a question is discussed in State v. G.W.A., 258 Kan. 703, 906 P.2d 657 (1995).
The appeal herein was from the “findings, orders and judgments of the district court entered on September 7,2001.” The sole action on that date was the dismissal of the complaint which was appeal-able as a matter of right pursuant to K.S.A. 2001 Supp. 22-3602(b)(1). The notice of appeal was sufficient to convey appellate jurisdiction to review dismissal of the complaint.
The parties, however, become mired down in their arguments, citing cases where a fail-back question reserved issue was raised in the attempt to save a flawed appeal. The first such case is G.W.A., 258 Kan. 703, wherein the State’s notice of appeal stated it was appealing from a judgment of acquittal. After noting that a judgment of acquittal was not a statutory basis for appeal, we stated that the only way the issue could come before us was on a question reserved. 258 Kan. at 705. In dismissing the appeal we held:
“Here, the State’s notice of appeal referred solely to an appeal from the judgment of acquittal. It contained no general reference which could be liberally construed to include an appeal on a question reserved. See Hess [v. St. Francis Regional Med. Center], 254 Kan. at 719-20. As in [State v.] Grant, 19 Kan. App. 2d at 691, there is no valid controversy as to whether the State complied with the statutory requirements. The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved. Because the only ruling referred to in the notice of appeal is one which is not subject to appellate review, this court lacks jurisdiction. See State v. Crozier, 225 Kan. 120, Syl. ¶ 4.” 258 Kan. at 707.
In State v. Kerby, 259 Kan. 104, 910 P.2d 836 (1996), the State filed a notice of appeal stating the appeal was pursuant to K.S.A. 22-3603, which pertains to interlocutory appeals. Later, in an effort to save the appeal, the claim was made that the appeal should be considered as a question reserved. The appeal was dismissed based on the holding of G.W.A. 259 Kan. at 106.
Finally, the State argues that the cross-appeal in State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001), was wrongly decided and should be overruled. In Verge, the State’s notice of cross-appeal stated it was appealing (1) the judgment of the district court on December 19, 1997, “ ‘that the initial indictment in [this] case charging two counts of Capital Murder based on the killing of two individuals was multiplicitous and violated the double jeopardy clause of the Fifth Amendment,’ ” and (2) the judgment of the district court on September 18, 1998, “ ‘that the State could not amend its complaint by adding one count of premeditated first degree murder.’ ” 272 Kan. at 521. The stated statutory authority upon which the State appealed was K.S.A. 22-3601(b)(l) (dismissal of complaint).
We determined this was a deficient notice of appeal. A claim was made that we should accept the appeal as a question reserved. We then held:
“Even if the recitation of the two specific dated orders is somehow deemed sufficient so this cross-appeal could be considered a K.S.A. 22-3602(b)(3) appeal ‘upon a question reserved by the prosecution,’ there was clearly no proper and timely objection or stated reservation of the right to appeal by the prosecution as is required by State v. G.W.A., 258 Kan. at 705-07.
“Finally as Verge argues, an examination of the trial court’s ruling of September 18, 1998, shows the State was not prohibited from filing a motion to amend and only held that if it did so, the issues would differ and another preliminary hearing would be necessary. The State elected to proceed based on the complaints as were then filed. This action gives no basis for appeal.
“We have no jurisdiction to consider the State’s cross-appeal and it is dismissed.” 272 Kan. at 522.
These cases are not germane to any issue before us. The notice of appeal herein was sufficient to invoke the jurisdiction of the Court of Appeals as a matter of right from the dismissal of the complaint. The matter is before us, as previously noted, on a valid transfer from the Court of Appeals. The defendant’s challenge to this court’s jurisdiction to hear this appeal is without merit.
JURISDICTION OF DISTRICT COURT TO DISMISS THE COMPLAINT
The State contends the district court lacked authority to dismiss the complaint. It argues that the dismissal interfered with the parties’ right of contract and was contrary to the statutory scheme relative to diversion agreements.
Defendant contends the district court had the ability to dismiss the case because it maintained jurisdiction over the case even though a diversion agreement had been signed. Although he cites to various provisions of the diversion statutes concerning the district court’s procedural involvement, the thrust of his argument is that even though the prosecutor possesses wide discretion in the diversion process, the district court retains the authority to review the exercise of that discretion for arbitrariness.
The document underlying this case is a multipurpose instrument which provides as follows:
“DIVERSIONARY AGREEMENT PRE-TRIAL RELEASE AND GENERAL CONTINUANCE ORDER
“Now on this-day of October, 1999, the defendant appears in.person and by Richard Schultz, his attorney. The State appears by Joan M. Hamilton, District Attorney. The matter comes on before the Court on the joint agreement of diversion of prosecution and continuance for approval by the Court.
“The Court, being fully advised in the premises, finds that the defendant was charged on the 17th day of September, 1999, with the offenses of Burglary as defined by K.S.A. 21-3715, Theft as defined by K.S.A. 21-3701, Criminal Damage to Property as defined by K.S.A. 21-3720 and that these charges are in full force and effect.
“The Court finds that:
“1. The defendant has voluntarily waived his/her right to a speedy trial, speedy arraignment, preliminary examination and hearing and/or waiver of the right to a speedy trial by jury, without the advice of counsel.
“2. That the defendant understands that the State must prove him/her guilty beyond a reasonable doubt and that he/she has the right to a trial.
“3. The defendant understands that during the period of diversion of prosecution, tire charge(s) pending against him/her will remain in full force and effect and that the said matter may be set for trial prior to the end of the diversion period upon termination of the agreement by any party to tire agreement.
“4. The defendant, by signing this agreement, states that he/she has not been convicted of any law of the United States, of any State or ordinances of any city; nor has he/she been on any other diversion programs;
“5. That he/she has read this agreement and agree and stipulate to the facts as set forth in the affidavit and complaint. He/she further acknowledges that any resumption of the criminal case, including any appeal, will be had only upon tire stipulation of facts contained in this Diversion Agreement pursuant to K.S.A. 1992 Supp. 22-2909 (d) as amended in the 1993 Session Laws of Kansas, Chapter 121, section (d).
“6. The defendant waives the right to present evidence if criminal prosecution is resumed.
“7. That upon successful completion of the diversion period, the Complaint will be dismissed by the State of Kansas.
“IT IS THEREFORE BY THE COURT ORDERED that defendant be and is hereby released pending trial for a period of 24 months conditioned upon the successful completion of the diversionary program and upon the following conditions:
“1. That he/she refrain from violating any [federal, State and local laws].
“2. That he/she report to this Court, the Shawnee County District Attorney’s Officer or any other person at any time that he/she may be ordered to do so by the Court, or anyone so designated by the Court.
“3. That he/she conduct himself at all times as a law abiding citizen.
“4. That he/she advise the diversion coordinator of any changes in address or employment during the period of his/her diversion.
“5. That he/she pay court costs in the amount of $134.50 within 24 months.
“6. That he/she pay Diversion Maintenance Fee of $75.00 within 24 months.
“7. That he/she pay the cost of collecting any court debt or restitution not paid during the duration of the diversion, including but not limited to, court costs, restitution and attorney fees.
“8. That he/she pay any restitution resulting from this case, jointly and severally hable with the co-defendant in this case.
“The Court, the defendant or the State of Kansas reserve the right to terminate this agreement at any time prior to the successful completion of the term of the diversion program and demand that the matter be set for trial.”
The court did not sign the agreement, and there was no signature line for such signature. There was a signature line for the district attorney. Defendant and his attorney signed the document. Below the signatures the following appears:
“I, JOHN M. HURLA, the above named defendant, have read the above order and know the contents thereof and hereby agree to comply with the conditions as set forth therein.
/s/John Hurla DEFENDANT”
As in the previous issue, the parties present this issue as being far more complex than it actually is. Both parties rely heavily on State v. Greenlee, 228 Kan. 712, 620 P.2d 1132 (1980), in support of their respective positions.
In Greenlee, the district court held the basic diversion scheme to be unconstitutional as being violative of the doctrine of separation of powers. We disagreed therewith, but that issue is not germane herein. The factual background of Greenlee was that the Sedgwick County District Attorney s office had a policy of excluding drug offenders from the diversion program. Greenlee was charged with drug offenses and contended such exclusion denied him due process and equal protection. We agreed with the district court that such exclusionaiy policy was not violative of these constitutional protections. We held, however, that “the prosecutor, although possessing wide discretion, is not immune from judicial review of the exercise of that discretion for arbitrariness.” 228 Kan. at 721. Defendant herein attempts to use this language from Greenlee as authorizing the district court’s dismissal of the complaint. We decline to get bogged down in the Greenlee-based arguments of the parties, all of which are unnecessary to the resolution of the issue before us.
To resolve the issue of the propriety of the dismissal of the complaint, we need to examine the factual background and the nature of the proceeding before the district court. The following chronological sequence of events assists in putting the issue in focus:
5/19/99 Crimes committed
9/17/99 Defendant charged
10/18/99 Diversion agreement filed
8/19/01 Motion filed by defendant for early discharge of diversion
9/7/01 Motion heard and complaint dismissed
Defendant’s argument that his motion was properly before the court on a Greenlee test of whether the State had acted arbitrarily in opposing his request for early discharge has absolutely no basis in law or fact. There is nothing in the record to indicate the defendant ever sought early discharge from the district attorney. His motion for early discharge is premised on his having paid what was ordered and having completed all terms of the agreement except for the last few weeks of the 24-month diversionary term. The stated reason for the request was for the opportunity of improved employment.
The diversion agreement states that either party (or the court) may terminate the agreement prior to a successful completion of the term of the diversion program and demand that the matter be set for trial. There is nothing in the agreement authorizing a shortening of the term of the diversion agreement except to go to trial. Defendant would be very hard pressed to assert that objecting to his motion for early successful termination was an arbitrary act on the part of the State justifying judicial review.
Indeed, the district court did not grant the requested relief. The first journal entry stated that “in the interest of justice” the motion was granted for “early successful discharge from the diversion agreement.” The State refused to sign this journal entry, which was filed without the State’s approval. The State then filed a motion to set aside the journal entry and for reconsideration. At the hearing therein, the State pointed out that the journal entry did not accurately reflect what the court ordered on the record at the court’s September 7, 2001, hearing. On the record the court ruled it was dismissing the complaint rather than granting early successful discharge from the diversion agreement. The court agreed that the journal entry was in error and and a nunc pro tunc order was filed showing: (1) defendant’s motion for early successful discharge had not been granted; and (2) the court had dismissed the complaint.
Clearly, the district court had no jurisdiction to dismiss the complaint over the State’s objection where the 24-month term of the diversion agreement had not been successfully completed. Perhaps the court was led astray by defense counsel’s statement at the September 7, 2001, hearing that defendant “was deferred in May of 1999, over two years ago.” This was incorrect. The underlying crimes occurred in May 1999; diversion did not commence until October 1999.
The dismissal of the complaint must be reversed and the case remanded with directions to reinstate the diversion agreement and for a hearing to determine whedier defendant had successfully completed the term of the diversion agreement as of October 19, 2001, and other action as appropriate herein.
The judgment is reversed and remanded with directions for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Allegrucci, J.:
Gaiy Hall appeals from the decision of the district court granting summary judgment in favor of Kansas Farm Bureau (Farm Bureau), a cooperative marketing association, and Kansas Farm Bureau Services, Inc. (Farm Bureau Services), ageneral corporation. Hall was removed as president of both Farm Bureau and Farm Bureau Services. He sued, alleging, that his termination violated tire Kansas Cooperative Marketing Act (KCMA), constituted retaliatoiy discharge, and breached an implied contract. He also alleged defamation resulting from statements made by defendant’s general counsel and that Farm Bureau Services negligently failed to instruct him in acceptable conduct for his employment.
In its order granting summary judgment in favor of Farm Bureau and Farm Bureau Services, the district court made findings of fact. On appeal, Hall has not challenged the district court’s findings. Determinations of fact which are not appealed from are final and conclusive. Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 165, 975 P.2d 1218 (1999).
The district court made the following findings of fact:
“1. Plaintiff Gary Hall filed suit against Kansas Farm Bureau and Kansas Farm Bureau Services, Inc. on or about August 14, 2000, alleging: (1) wrongful termination as an officer, (2) wrongful termination of employment; (3) breach of implied contract; (4) defamation; and (5) negligence.
“2. The Farm Bureau was formed, in part, to strengthen, develop, and correlate the work of the County Farm Bureaus in their efforts to promote the development of the most profitable and permanent system of agriculture.
“3. The Farm Bureau was organized pursuant to the Kansas Cooperative Marketing Act, K.S.A. 17-1601 et seq.
“4. The thirteen member Board of Directors is elected by the voting delegates at die annual meeting.
“5. Three of the thirteen directors are elected ‘at-large’ with die recommendation that he or she be elected President, Vice-President, or State Chairman of the Farm Bureau Women by the Board of Directors.
“6. The Board of Directors is charged with electing officers immediately following the annual meeting.
“7. Officers who must be elected by the Board of Directors include: a President, a first Vice-President and a State Chairman of Kansas Farm Bureau Women. The board may also elect an Executive Vice-President, additional Vice-Presidents, a Secretary, a Treasurer, Assistant Secretaries, Assistant Treasurers, a General Counsel, and any other officers deemed necessary.
“8. The duties of the Board of Directors of Farm Bureau are as follows:
The Board of Directors shall be responsible for conducting the affairs of the organization. They shall develop, promote and supplement the state Program of Work adopted by the Voting Delegates. The Board shall have the responsibility to review and appraise the service activities and programs of the Association with sufficient regularity to assure that said programs contribute to the overall goals and objectives of the Association.
“9. The Affiliated Companies of the Farm Bureau include: KFB Services, Kansas Farm Bureau Life Insurance Company, Inc., Farm Bureau Mutual Insurance Company, KFB Insurance Company, Inc., FB Services Insurance Agency, Inc. and FB Capital Management of Kansas, Inc.
‘TO. The Affiliated Companies were organized as for-profit entities pursuant to the Kansas general corporation code.
“11. KFB Services is the organization that services Farm Bureau and the other Affiliated Companies and their employees and employs many of the executive officers for all Affiliated Companies.
“12. The corporate powers, business and property of KFB Services shall be exercised, conducted and controlled by the Board of Directors of KFB Services.
“13. Farm Bureau and each of the other Affiliated Companies pays KFB Services for their respective share of the expenses. Farm Bureau s contribution to KFB Services for such expense is two and one-half percent (214%).
“14. Farm Bureau and KFB Services have a Board of Directors which elect their own officers every year ‘out of their number.’
“15. Certain officers, including the president, are required to be a member of the Board of Directors in order to hold these elected positions.
“16. It was the custom of the Board of Directors of Farm Bureau and KFB Services to abide by the officer recommendations of the membership.
“17. The president of KFB Services must be a present member of the Board of Directors of KFB Services.
“18. The president of KFB Services is a full-time employee.
“19. The officers of KFB Services seive on a full-or part-time basis and receive a salary as determined by the Board of Directors.
“20. Gary Hall was elected to a Director-at-Large position in Farm Bureau and KFB Services in 1994, 1996 and 1998 by the voting delegates.
“21. In 1995,1996,1997 and 1998, Hall was elected to the office of President by the Boards of Directors of Farm Bureau and KFB Services.
“22. Everything relative to Hall’s compensation came from KFB Services.
“23. The Board of Directors, not its members, voted Hall into office as President.
“24. Hall was terminated as President of Farm Bureau and its Affiliated Companies including KFB Services on August 17,1999 by a vote of eleven in favor to one against with one member absent.
“25. Farm Bureau and KFB Services board member Dale Roberds stated that the issues which led to the Boards’ decision to terminate Hall included the inability of Hall to work with management and staff and presenting his own legislative policy instead of the Farm Bureau policy.
“26. Farm Bureau and KFB Services board member Steve Baccus voted to terminate Hall because of the breakdown of relationships between Hall and the corporate officers and staff.
“27. Hall received a document which stated:
‘Reasons for Removal of Gary Hall as President Presented at Board of Directors Meeting August 17, 1999
1. Inability to work with staff of the companies, as well as the President’s Team and Company Managers.
2. Intentionally not following the directives of the Board of Directors. This occurred in several areas of the organization, but most notably in the Public Policy and Legislative areas.
3. Criticizing staff of the companies outside of State headquarters.
4. Totally disregarding lines of authority and responsibility in the companies at all levels. Attempting to operate the companies based upon his personal agenda, rather than direction of the Board of Directors.
5. Failure to timely pay accounts payable.
6. Overall general problems with the direction and moving the companies forward. Placing road blocks to progress of the companies.’
“28. Farm Bureau was organized pursuant to the Kansas Cooperative Marketing Act (KCMA).
“29. In contrast, the Affiliated Companies, including KFB Services, are for-profit entities organized pursuant to the Kansas general corporation code.
“30. The provisions of the general corporation code are applicable to associations organized under the KCMA except in cases of conflict or inconsistency. K.S.A. 17-1628; K.S.A. 17-6001(c).
“31. The KCMA provides one method for removal of a director or officer. An association member who presents charges in conjunction with a petition signed by ten percent of the members may request removal of a director or officer. K.S.A. 17-1614.
“32. The KCMA does not prohibit other methods of officer removal as found in the general corporation code. Since the general corporation code governs associations organized under the KCMA to the extent it is not in conflict or inconsistent with the KCMA, the additional and alternative methods of removal of an officer are also available. K.S.A. 17-1626; 17-1628; 17-6001(c).
“33. Under the general corporation code, K.S.A. 17-6302(b) states that:
‘Officers shall be chosen in such manner and shall hold their offices for such terms as are prescribed by the bylaws or determined by the board of directors . . . Each officer shall hold office until such officer’s successor is elected and qualified or until such officer’s earlier resignation or removal.’ (Emphasis added.)
“34. K.S.A. 17-6302(b) and the Farm Bureau Bylaws provide in Article VI, § 4 of the Bylaws, that the Board of Directors is responsible for conducting the affairs of the organization.
“35. Hall owed $5,888.00 to KFB Services for unreimbursed expenses as of August 17,1999.
“36. Hall owed KFB Services $10,468.00 for unreimbursed expenses as of the audit report date of October 4, 1999.
“37. KFB Services has a policy that all employees are at-will employees.
“38. No special damages were suffered by Hall due to the alleged defamatory statement.
“39. The statement made at the 1999 annual meeting regarding a business and employment matter was given to only those persons who had an interest or duty in the subject matter of the statement.
“40. All persons who were not Farm Bureau Directors, District Administrators, or County Presidents or voting delegates were asked to leave the room before the statement was read to the voting delegates at the closed District Caucuses.
“41. Only the County Presidents, Farm Bureau President Baccus, General Counsel Arthur, and attorney Ed Bailey were present when the statement was read at the County President’s meeting.
“42. The District Administrators are employees of Farm Bureau who deal on a day-to-day basis with the County Presidents on Farm Bureau and county farm bureau business and affairs, and are members of a county farm bureau.
“43. The county presidents are those elected officials who represent their members in the Farm Bureau and on the local county farm bureau boards of directors.”
The relevant facts can be summarized as follows:
Farm Bureau is organized pursuant to the Kansas Cooperative Marketing Act (KCMA), K.S.A. 17-1601 et seq. Farm Bureau is at the top of an organizational chart that includes a number of affiliated companies that are organized as for-profit corporations, which are domiciled in Kansas and which include Farm Bureau Services. Farm Bureau owns 100% of the voting stock in Farm Bureau Services. Farm Bureau and the affiliated companies pay proportionate shares of Farm Bureau Services’ expenses.
Principal officers of Farm Bureau and Farm Bureau Services are elected from the boards of directors by the boards of directors. Hall was elected president in 1995. The president of Farm Bureau Services is a full-time employee.
Hall was terminated as president on August 17, 1999. He was given six written reasons for his removal. Most involved deficien cies in his management, especially inability to work with management and staff. One reason was his “[fjailure to timely pay accounts payable.”
Terry Arthur, who is general counsel for Farm Bureau and Farm Bureau Services, elaborated on the accounts-payable reason at the Farm Bureau annual meeting in November 1999. He told a select group of members that between January 1, 1996, and August 17, 1999, Hall received checks for reimbursement of expenses from Farm Bureau’s affiliated companies. Arthur further stated that an audit revealed that as of August 17, 1999, Gary Hall had received $10,467 but had not reimbursed Farm Bureau Services even though that company had paid those travel expenses.
Arthur’s statement was inaccurate in that Hall actually owed $5,888 to Farm Bureau Services as of August 17, 1999, and, as of the audit report date of October 4, 1999, he owed $10,467.
Hall first argues that the district court erred in granting summary judgment in favor of defendants on Hall’s claim that his termination as president of Farm Bureau violated the KCMA. The district court concluded that K.S.A. 17-1614, which provides for removal of an officer of an association organized under the KCMA, was not contrary to or inconsistent with its counterpart in the general corporation code and, therefore, not an exclusive remedy. The district court concluded that Hall’s removal as president of Farm Bureau was proper.
The district court found that Hall was terminated as president of Farm Bureau and its affiliated companies, including Farm Bureau Services, on August 17, 1999, by a vote of 11 in favor to 1 against, with 1 member not voting. The district court did not say who the voters were or what capacity they voted in, but we reasonably may infer from other findings of fact that it was a board of directors. It appears from the district court’s findings that on paper Farm Bureau and Farm Bureau Services have separate boards of directors, but in practice their memberships probably are identical.
K.S.A. 17-1614, a section of the KCMA, provides for the removal of an officer:
“(a) Any member or voting stockholder may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition signed by 10% of the members, requesting the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association and, by a vote of a majority of the outstanding shares of voting stock, or if the association is organized on a one person, one vote plan, then by a majority vote of the association s members or voting stockholders present and voting, the officer or director so charged shall be removed. A successor shall be elected to fill the unexpired portion of the term of such officer or director.
“(b) The director or officer against whom such charges have been brought shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses; and the person or persons bringing the charges against such director or officer shall have the same opportunity.”
This method is sometimes referred to as the “charge and petition method” of removing officers. Hall contends that it is the exclusive method for removal of an officer of a business entity organized under the KCMA and that defendants did not comply with the statute.
Farm Bureau and Farm Bureau Services contend that K.S.A. 17-1614 officer removal procedure is not the only method that could lawfully have been used in removing Hall. Defendants contend that another provision of the KCMA, K.S.A. 17-1628, sanctions removal of an officer by a simple vote of the board of directors, as provided in the general corporation code. K.S.A. 17-1628 provides: “The provisions of the general corporation code of this state and all powers and rights thereunder shall apply to the associations organized hereunder, except where such provisions are in conflict with or inconsistent with the express provisions of this act . . . .” K.S.A. 17-6302(b) of the Kansas corporation code allows officers to be removed without cause by the board of directors at whose pleasure an officer serves. K.S.A. 17-6302(b) provides: “Officers . . . shall hold their offices for such terms as are prescribed by the bylaws or determined by the board of directors or other governing body. Each officer shall hold the office until such officers successor is elected and qualified or until such officer’s earlier resignation or removal.” (Emphasis added.)
Applying K.S.A. 17-1628, the district court concluded that the KCMA’s charge and petition method of removal of an officer by the membership is not inconsistent with nor does it prohibit removal by the board of directors. Predictably, Hall asserts that the removal methods of KCMA and the general corporation code are patently inconsistent with one another. Farm Bureau argues that the provisions are different from one another but not incompatible.
The two statutory methods for the removal of officers are not consistent with one another. The KCMA provides that the membership of the association votes on removal of an officer. The membership votes only when an officer has been charged and a petition has been signed by 10% of the association members and only after the officer has had an opportunity to respond to the charge. In contrast, the corporation code permits a board of directors to remove an officer at any time with or without cause.
Relying on Consumers Cooperative Ass'n v. Arn, 163 Kan. 489, 183 P.2d 453 (1947), Farm Bureau argues that the court must resolve the apparent conflict between the provisions of the KCMA and the corporation code by giving precedence to the corporation code. The question in Consumers Cooperative was whether charter amendments had to be approved by the charter board. The KCMA provided that amendments to the charter of an association “shall be filed in accordance with the provisions of the general coiporation law of this state and be approved by the charter board.” G. S. 1935, 17-1608. The charter board approval requirement had been repealed from the general corporation code in 1939. Due to the express repeal of the requirement, the court concluded that it would be “inconsistent with the legislative intent to hold it was intended an amendment of plaintiffs articles of incorporation should be required to have the approval of the charter board.” 163 Kan. at 494. The court concluded that “the provisions of the present general corporation code with respect to amendments are not in conflict with or inconsistent with [the pertinent provision] of the marketing act when the latter statute is interpreted in accordance with the legislative intent.” 163 Kan. at 494. In other words, the two statutory provisions were harmonized on the basis of legislative intent. The court did not hold that the general corporation code in all cases of inconsistencies would control over the KCMA. Farm Bureau has not suggested to the court that there is legislative intent regarding the officer removal provision of the KCMA or that of the general corporation code that might serve as a basis for harmonizing the two.
On another tack, Farm Bureau offers policy reasons for permitting the association' to have an officer removed by the board of directors, as provided by the general corporation code. Farm Bureau contends that the KCMA procedure is cumbersome and time-consuming and would “hamstring” associations in circumstances requiring prompt action. No policy consideration, however, may trump the procedure plainly prescribed by the legislature in the KCMA.
We conclude that Farm Bureau wrongfully terminated Hall as president of Farm Bureau. However, as Farm Bureau points out, that conclusion does not entitle Hall to recover monetary damages from Farm Bureau because he was not compensated for services as president or director of Farm Bureau. For that reason, according to Farm Bureau, resolution in favor of Hall is “largely academic.” We agree. Hall’s termination as president of Farm Bureau does not entitle him to a judgment against Farm Bureau, nor does it impact the other issues raised by Hall. Although we find the district court’s reasoning for granting summary judgment to Farm Bureau to be faulty, it is not reversible error.
Hall next asserts that his termination as a paid employee of Farm Bureau Services constituted retaliatory discharge. Hall was removed from the presidency of Farm Bureau Services by a vote of the board of directors, which was authorized under the general corporation code, K.S.A. 17-6302(b). Hall contends, however, that his removal as the paid president of Farm Bureau Services constituted termination of employment. The district court concluded that although Hall received a salaiy as president of Farm Bureau Services, his employment was incidental to his election as a corporate officer so that Hall’s removal as an officer does not give rise to a viable cause of action under an employment theory of law. We disagree.
It literally is hornbook law that even though a board of directors may remove an officer with or without cause, removal at the pleasure of the board of directors is without prejudice to the right to recover damages for any wrongful removal in breach of an employment contract. Henn and Alexander, Laws of Corporations and Other Business Enterprises, §§ 210, 221 (3d ed. 1983). Although the district court’s view of an officer’s employment as incidental was incorrect, the denial of Hall’s retaliatory discharge claim was not.
Hall argues that his termination constitutes a public policy exception to the employment-at-will doctrine, as recognized in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988). The specific holding of Coleman is:
“[E]mployees covered by collective bargaining agreements who are wrongfully discharged in violation of state public policy, in this case the policy underlying the Workers’ Compensation Act, have a tort cause of action for retaliatory discharge. We stress that by recognizing this cause of action for Coleman and those like her, we do not hold that employees covered by collective bargaining agreements have a tort cause of action for wrongful discharge in general.” 242 Kan. at 815.
The public policy exception to employment-at-will for retaliatory discharge for filing a workers compensation claim had been recognized some years before Coleman. See Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). The significance of the Coleman decision was that it extended the exception to employees covered by collective bargaining agreements. Neither a workers compensation claim nor a collective bargaining agreement figure in the present case.
The other exception recognized by Kansas courts to the employment-at-will doctrine is for whistle-blowing. See Fowler v. Criticare Home Health Services, Inc., 271 Kan. 715, 26 P.3d 69 (2001). There is no claim of whistle-blowing in the present case.
Based on his misreading of Coleman, Hall argues that Kansas courts recognize another exception where the termination broadly contravenes public interest. Even if Kansas courts were to recognize such an exception, Hall’s allegations fail to embrace any matters of public, as opposed to corporate, interest. As Hall asserts in his brief, he was terminated “in retaliation for legislative and policy actions in the best interests of Defendants.” Hall further states in his brief that he was terminated despite his “attempting to act in the best interest of Farm Bureau’s members before the legislature” and that “the Board accused Mr. Hall of ‘micro managing’ and ‘going where he wanted, when he wanted, without Board approval.’ ” The district court did not err in denying Hall’s claim based on retaliatory discharge, but did so for the wrong reason. A trial court decision which reaches the right result will be upheld, even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision. Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).
Hall next alleged that an implied contract was created by the customary 2-year presidential term. The district court concluded otherwise:
“Hall served at the pleasure of his fellow board members until a new slate of officers were elected by the Board of Directors following the annual meeting and had no implied contract based upon these facts. The Board of Directors had the authority to remove Hall as a salaried officer pursuant to its Bylaws and the general corporation code. The implied contract claim is not viable.”
Kansas courts recognize that parties may become contractually obligated by their conduct as well as by their use of oral or written words. Atchison County Farmers Union Co-op Ass’n v. Turnbull, 241 Kan. 357, 363-64, 736 P.2d 917 (1987). Evidence of a contract implied in fact shows a mutual intent to contract. Mai v. Youtsey, 231 Kan. 419, 422, 646 P.2d 475 (1982). An implied agreement cannot be established solely by the employee’s subjective understanding or expectation about his or her employment. Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 133, 815 P.2d 72 (1991).
“Where it is alleged that an employment contract is one to be based upon the theory of ‘implied in fact,’ the understanding and intent of the parties is to be ascertained from several factors which include written or oral negotiations, the conduct of the parties from the commencement of the employment relationship, the usages of the business, the situation and objective of the parties giving rise to the relationship, the nature of the employment, and any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time said employment commenced.” Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, Syl. ¶ 5, 684 P.2d 1031 (1984).
As factual support for an implied contract, Hall directs the court’s attention to two paragraphs of the facts he proposed as uncontroverted in response to the defendants’ motion for summary judgment. The district court did not adopt Hall’s proposed paragraphs, and as we previously noted, Hall did not challenge the district court’s findings of fact.
As noted by the district court, there is a section of the Farm Bureau bylaws that seems to provide for annual election of officers: “The Board of Directors, immediately following the annual meeting and in accordance with Article VI, Section 1 of these Bylaws, shall elect out of their number, a President, a first Vice-President and a State Chairman of Farm Bureau Women. (Emphasis added.)” On the other hand, there is another section of the Farm Bureau bylaws that expressly provides for a 2-year presidency term:
“The Board of Directors shall consist of thirteen members and shall be elected by the Voting Delegates at the Annual Meeting. Three shall be elected Directors-at-large, one with the recommendation that he or she be elected President for a two-year term, one with the recommendation that he or she be elected Vice-President for a two-year term. (Emphasis added.)”
The seeming incongruity of the two sections of Farm Bureau’s bylaws need not be resolved because Hall was not employed as president by Farm Bureau, as we have noted. Hall was compensated as president of Farm Bureau Services but not as president of Farm Bureau. Thus, the bylaws that are material to this question are those of Farm Bureau Services, and the express provision of a 2-year presidential term in the Farm Bureau bylaws need not be considered.
The bylaws of Farm Bureau Services provide for a board of director consisting of 13 persons who serve terms of 4 years each. “The Board of Directors shall annually elect out of their number a President and a First Vice-President.” The election occurs “without unnecessary delay after the annual meeting of the stockholders.” And, “[ajfter each annual election of officers, their bonds shall be submitted anew for the approval of the Directors.” Examination of the Farm Bureau Services bylaws reveals one provision that indicates the directors may set the length of officers’ terms regardless of the annual election provisions. It provides that the president and other officers “shall each serve for the term fixed by the Board of Directors and until their successors shall have been elected or ap pointed and have qualified.” There seems to be nothing in the record that would link this latter provision with a 2-year presidential term.
The record does not contain evidence from which it may be inferred that the intention of the parties at the time Hall’s presidency commenced was for him to serve a 2-year term. In this circumstance, the district court did not err in granting summary judgment against Hall on his claim of a breach of an implied 2-year contract of employment.
Hall next asserts that the statements by general counsel for Farm Bureau and Farm Bureau Services constituted actionable defamation of Hall. In his petition, Hall alleged that Terry Arthur, counsel for Farm Bureau and Farm Bureau Services, made the following statement to the voting delegates and county presidents of Farm Bureau at their annual meeting in November 1999:
“The audit disclosed that between January 1, 1996 and August 17,1999, Gary Hall received checks for reimbursement of such expenses from FBL, Financial, and American Farm Bureau. The audit revealed that, as of his date of termination, $10,467.00 had been received by Gary Hall and not reimbursed to Kansas Farm Bureau Services, Inc., even though that company had paid those travel expenses.”
The district court found that “Hall owed $5,888.00 to KFB Services for unreimbursed expenses as of August 17, 1999,” and that “Hall owed KFB Services $10,468.00 [should be $10,467] for unreimbursed expenses as of the audit report date of October 4, 1999.” The complained-of aspect of Arthur’s statement was that he said Hall owed $10,467 as of August 17, 1999, when he actually owed $5,888 on that date and owed $10,467 on October 4, 1999.
The district court also found that “[n]o special damages were suffered by Hall due to the alleged defamatory statement.” As the court stated in Moran v. State, 267 Kan. 583, 598-99, 985 P.2d 127 (1999), the term “special damages” in a defamation context means nothing more than actual damages.
The district court gave several reasons for granting summary judgment for defendants and against Hall on Hall’s defamation claim. The district court stated that Hall had neither alleged nor come forward with evidence of actual damages other than lost wages, which were due to termination from his employment rather than from defamation. In the alternative, the district court concluded that summary judgment was justified on the ground that the communication was privileged. The district court concluded that “Hall’s defamation claim is not viable in that Hall has not produced any evidence that he has been injured by the misstated date or that the misstated date was defamatory.”
The elements of defamation include false and defamatory words, communicated to a third person, which result in harm to the reputation of the person defamed. Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 620-21, 683 P.2d 1292 (1984), affd 236 Kan. 710, 695 P.2d 1279 (1985). In Moran, the court discussed and quoted from Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), regarding damages and proof:
“In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), the United States Supreme Court ruled: ‘It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.’ 418 U.S. at 349. Gertz changed the law in Kansas. Damages recoverable for defamation, whether per se or not, could no longer be presumed but must be proven. The issue raised by defendants in this cross-appeal is best answered by Justice Powell, speaking for the majority in Gertz:
“We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.’ 418 U.S. at 349-50.” 267 Kan. at 599.
In his petition, Hall alleged that as a result of the defamation he suffered “damage in the form of injury and harm to his reputation in an amount exceeding $75,000.00.” Regarding evidence that Hall had come forward with, the district court stated: “[Hall] testified in a deposition that there are no special damages due to the alleged defamatory statement and that his only damages were lost wages . . . .” Examination of the portions of Hall’s deposition that the defendants attached to their motion for summary judgment confirm the district court’s statement about Hall’s deposition tes timony. Hall was asked about his answer to an interrogatory about damages due to the alleged defamatory statements, and he agreed that his damages for damage to reputation were the same as his damages for lost income for the remainder of his expected 2-year term. He sought $11,000 per month for 15 months for a total of $165,000. An affidavit by Hall also found in the record further illustrates that Hall equates the damage to his reputation with the loss of his employment:
“The statements by Terry Arthur at the Farm Bureau s annual meeting in November, 1999 resulted in a negative view of my service as President by the County Presidents and delegates hearing the statements, which was contrary to the view previously expressed by those persons. Thereafter, several of the County Presidents advised me that they intended to support the Board’s action in terminating me, and it was suggested that I resign as a Director of Kansas Farm Bureau. These County Presidents advised that they wanted the Annual Meeting to focus on policy issues rather than personnel issues.”
In these circumstances, the only damages were the result of his termination as president of Farm Bureau Services.
As the district court concluded, Hall’s real problem would seem to be his lack of any evidence that the damage to his reputation was due to Arthur’s falsely stating that according to an audit, in August 1999 Hall owed $10,467 in accounts payable instead of stating that in August 1999 Hall owed $5,888 in accounts payable. If Hall’s reputation were damaged by the inaccurate statement that he owed $10,467 as of August 1999, where is the showing that his reputation as president of Farm Bureau Services would not have been equally or nearly equally damaged by the accurate statement that he owed $5,888 at that time? The gravamen of the statement is that Hall owed thousands of dollars for unreimbursed expenses in August 1999, and that core message was the same whether the figure given by Arthur was $5,888 or $10,467. The lack of any fundamental difference in the core message between Arthur’s statement and the accurate statement is what the district court referred to in concluding that Hall had not shown that he was injured by the misstated date or that the misstatement was defamatoiy. The difference between the dollar amount stated by Arthur and the actual dollar amount owed by Hall in August 1999 is not what is denigrating about the communication. What is- denigrating is the message that in August 1999 Hall owed thousands of dollars in unreimbursed expenses, and that message is accurate. Thus, the wrong dollar amount, which is the only false information communicated by Arthur, was not shown to result in harm to Hall’s reputation.
A party opposing a summary judgment may not rest merely on allegations, but must set forth specific facts to support its position. K.S.A. 2001 Supp. 60-256(e). In this case, Hall provided no evidence that would tend to support his position that the dollar figure given by Arthur, rather than the fact that he owed thousands of dollars in unreimbursed expenses, caused harm to his reputation. Where there is an absence of evidence necessary to support an essential element of the plaintiff s claim, defendants are entitled to summary judgment. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). In this case, the district court’s entry of summary judgment in favor of defendants on the ground that there was an absence of evidence to support the harm-to-reputation element of Hall’s defamation claim was appropriate.
In. the alternative, the district court concluded that Arthur’s communication was privileged. In Luttrell, the Court of Appeals noted that “the law in this state has already extended protection to comments made within a work situation by means of a qualified privilege.” 9 Kan. App. 2d at 622. The Court of Appeals defined a qualifiedly privileged communication as one
“made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, if it is made to a person having a corresponding interest or duty. The essential elements of a qualifiedly privileged communication are good faith, an interest to be upheld, a statement limited in its scope to the upholding of such interest and publication in a proper manner only to proper parties.” 9 Kan. App. 2d at 622 (citing Dobbyn v. Nelson, 2 Kan. App. 2d 358, 360, 579 P.2d 721, affd 225 Kan. 56 [1978]).
Discussing Dobbyn, the Court of Appeals stated that it “held that a letter written by an employee of the Kansas State University library concerning the conduct of another employee and transmitted to the second employee’s superior was qualifiedly privileged. Dobbyn, 2 Kan. App. 2d at 361.” Luttrell, 9 Kan. App. 2d at 622. Liability for defamation can be based on a qualifiedly privileged communication only where the plaintiff can prove defendants acted with knowledge that the communication was false or with reckless disregard for the truth. 9 Kan. App. 2d at 622 (citing Scarpelli v. Jones, 229 Kan. 210, 216, 626 P.2d 785 [1981]).
If for no other reason, summary judgment on the ground that Arthur’s communication was qualifiedly privileged would be inappropriate in this case because the district court made no factual findings germane to the good faith element. The district court made several findings about the interested nature of the audience Arthur made his statement to, but none about Arthur’s state of mind in giving it.
Finally, Hall asserts that Farm Bureau and Farm Bureau Services committed actionable negligence by failing to provide guidance to Hall regarding acceptable conduct in his employment. Hall alleged that defendants breached a duty they owed to him “accurately to disclose all material facts and information concerning his employment with Defendants.” Hall’s theory, as stated in his brief, is that the breach consisted of defendants failing “to identify to him the standard upon which he would be judged as Farm Bureau President.” As a result, Hall states in his brief, he did not know how to behave as president. He cites no authority for this novel theory.
To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Hesler v. Osawatomie State Hospital, 266 Kan. 616, Syl. ¶ 2, 971 P.2d 1169 (1999). Whether a duty exists is a question of law. Nero v. Kansas State University, 253 Kan. 567, Syl. ¶ 1, 861 P.2d 768 (1993). In this case, the district court concluded that Hall failed to articulate the existence of a duty owed to him that is recognized in law. It follows that Hall also was not able to identify a breach of that duty or injury suffered as a result of a breach.
The district court’s conclusion is correct. Kansas courts do not recognize an employer’s duty to tell an employee, especially an established employee, how to maintain his employment.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Arlando Tolson was convicted by a jury of shooting Austin Garza during a drug transaction. Tolson appeals his conviction of felony murder. Tolson raises two issues on appeal:
1. Was it error for evidence of Tolson’s prior criminal acts to be admitted pursuant to K.S.A. 60-455?
2. Did the trial court err by denying Tolson’s motion to suppress evidence seized after issuance of a search warrant from his resi dence, which earlier had been entered without a warrant by police officers looking for Tolson?
On September 15, 1999, Austin Garza (referred to hereafter as Garza, to be distinguished from Ector Garza) bled to death as a result of a gunshot wound to his right leg that severed the femoral artery. An eyewitness identified Tolson as the gunman, and another witness placed Tolson with Garza at the time of the shooting.
Approximately a week before Garza was shot, Tolson and two other men were in the neighborhood where Garza lived. They asked 16-year-old Randall Simmons where they could find a woman named Mae. Simmons took the men to the apartment of Halley Stephenson, who knew Mae. Tolson told Simmons that he was looking for 20 pounds of marijuana. Later, after the men had gone, Simmons told Stephenson that Tolson was looking for a large quantity of marijuana. Simmons contacted Garza, who lived a couple of houses away from Stephenson. Garza said that he would tiy to find some, and later he told Simmons that he had 20 pounds he could sell. Simmons contacted Tolson.
Tolson was going to pay Garza $13,500 for the 20 pounds of marijuana. Garza was going to give Simmons $1,500.
On September 15, 1999, Simmons went to Garza’s residence and called Tolson to tell him to come over and pick up tire marijuana. After Simmons made the call, Garza’s cousin, Ector Garza, showed up. Tolson arrived in a black Corvette. Garza, Simmons, and Tolson went downstairs, and Garza showed the marijuana to Tolson. Simmons saw approximately 20 packaged “bricks” of marijuana. Simmons got a trash bag from a closet in the upstairs hallway. Tolson put the marijuana in the trash bag and started up the stairs. Tolson told Garza that his money was in a box in his car.
Garza and Tolson went outside. Garza told Simmons to stay inside. When he heard the vehicle start, Simmons looked out a window. Tolson and Garza were struggling and pulling on something. Tolson was in the driver’s seat; Garza was on the passenger side with the door partly opened. Simmons heard a gunshot. Garza fell back. Simmons ran out the back door.
From her living room window, Stephenson was approximately 20 feet away and could look directly through the windshield of the Corvette Tolson was driving. She saw Tolson leave Garza’s residence carrying a black trash bag with Garza following him. She saw Tolson get into the car, put the bag in the middle, and start the engine. Garza got part way in the car on the passenger side. He and Tolson engaged in a tug of war with the trash bag. Tolson pulled out a gun with his right hand, aimed it between Garza’s hips and knees, and fired one shot. Garza got out of the vehicle, and Tolson sped away toward the 87th Street exit off of Noland Road.
A bystander saw a black male driving a black Corvette with Missouri license plate number 072 KJH away from the area where Garza was shot. The Corvette was being driven north on Noland Road in Lenexa, Kansas, at a high rate of speed.
The Missouri license plate number was broadcast, and several officers spotted and pursued the vehicle. The dispatcher informed officers that a vehicle matching the description had been seen southbound on Antioch Road crossing over 1-435 at approximately 100 miles per hour. The vehicle was seen going through a red light at or near 119th and Nall Avenue. The vehicle was leaving a smoky haze hanging in the air along its entire route. Using the haze and confirming tips from bystanders, the Lenexa officers followed the vehicle into Missouri. At a ramp that was barricaded for construction, the officers were told by another driver that the black Corvette struck the barricades and drove north on the closed road.
A Kansas City, Missouri, helicopter and investigative units were in the area looking for the vehicle. A Kansas City, Missouri, police officer found the Corvette parked behind a residence at 8118 Paseo. It had scuff marks on the front that were consistent with the car striking a barricade. While some officers surrounded the residence to prevent die suspect’s escape, others conducted a “sweep” of the interior of the residence to see if the suspect was inside. He was not in the house.
When a search warrant was obtained for the premises at 8118 Paseo, officers found clothing on the floor that appeared to have been left by someone hurriedly changing clothes. There was a framed photograph of Tolson and two children on a table. A large trash bag found on the dining room floor contained individually wrapped “bricks” of a green, leafy substance that proved to be marijuana. The bag contained 20 bricks, which equaled approximately 20 pounds of marijuana. Fingerprints found on the plastic bags matched those of Tolson and Garza. A Tupperware container with plastic baggies of a rock-like substance was found in the kitchen area. A Smith and Wesson .40 caliber handgun was recovered from the bedroom. There was a bullet in the chamber and additional ammunition for the gun.
A search of the black Corvette revealed that a bullet had gone into the inside of the car door just below the armrest, hit a bracket, and ricocheted into a little storage compartment. The bullet was retrieved by opening the storage compartment. It was a .38 caliber bullet, which could have been fired by a Smith and Wesson revolver or semiautomatic pistol.
Tolson first argues that it was error for evidence of his prior criminal acts to be admitted pursuant to K.S.A. 60-455. The trial court granted the State’s pretrial motion to admit evidence of specified prior criminal acts. Although Tolson complains on appeal that the trial court admitted evidence of prior criminal acts, his record references are to the transcript of the pretrial proceedings on the State’s motion rather than to the trial transcript.
In its brief, the State discusses trial testimony about two prior criminal acts that were included among those listed in the State’s pretrial motion. Officers Devalkanere and Jennings testified that they were involved in the April 1997 arrest of Tolson in a hotel in Joplin, Missouri. Officer Cook testified that she made a controlled buy of crack cocaine from Tolson in Kansas City, Missouri, in December 1992. Each witness’ testimony was admitted over the defendant’s objection. The juiy was instructed to limit its consideration of the evidence to proof of the defendant’s motive, plan, and knowledge.
April 1997. Devalkanere was assigned to the fugitive apprehension unit of the Kansas City, Missouri, police department. In 1997, Tolson was a target of Devalkanere’s unit and was tracked to a hotel in Joplin, Missouri. Tolson, who was alone, was arrested in a room in the hotel. Objects recovered from the hotel room included a 9 mm. handgun with a round in the chamber and six rounds in the magazine, an electronic scale, a small bag of what appeared to be marijuana seeds, razor blades, plastic sandwich bags, and two neat stacks of cash — one containing $1000, the other containing $703. Jennings testified that the seized items indicated drug activity.
December 1992. Cook worked as an undercover narcotics officer in Kansas City, Missouri. Acting on information obtained from surveillance and informants, she went to apartment 708 at 300 East Armour Road. Cook was admitted to the apartment by Teresa White, who made Cook raise her shirt in order to check for a wire. Tolson was there. Cook asked for a “20,” which is a $20 “rock” of crack cocaine. Tolson removed from his coveralls pocket a baggie that contained several “rocks” of crack cocaine. He removed two and handed them to White, who kept one and handed the other to Cook. Cook paid with a $20 bill whose serial number had been recorded. Tolson told Cook to come in the back door the next time, and White told her not to bring the police. Later, when defendant was arrested, Cook’s $20 bill was found on him along with a loaded semiautomatic handgun and an additional clip for the gun. Crack cocaine, marijuana, and razor blades were found in the apartment. Cook testified that the evidence showed that narcotics were being sold from the apartment.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
In this case, the State urged and the trial court found that the evidence of prior criminal acts was relevant to prove motive, plan, and knowledge on the part of the defendant. The trial court stated that it was
“struck by the similarity here between die prior instances and the events of the Complaint where the defendant has involved himself in drug transactions and has been fully armed, well-armed, and prepared for problems in connection with the drug sale or transaction, which is certainly the allegation in this case.”
Our Supreme Court has stated:
“There are three requirements which must be satisfied for evidence to be admitted under K.S.A. 60-455. The trial court must find that ‘(1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice/ State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).” State v. Rucker, 267 Kan. 816, 824, 987 P.2d 1080 (1999).
If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether die trial court abused its discretion. State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).
Tolson was charged with felony murder. The complaint states that Tolson shot and killed Garza with a handgun in die commission of or attempt to commit or flight from an inherently dangerous Telony, sale of marijuana, which includes possession of marijuana with the intent to sell, deliver, or distribute it. See K.S.A. 21-3401; K.S.A. 2001 Supp. 65-4163(a)(3). Sale of marijuana is a statutory inherently dangerous felony. K.S.A. 21-3436(a)(14). Thus, the State was required to prove that Tolson killed Garza while committing, attempting to commit, or flight from the felony of possessing a substantial quantity of marijuana.
Plan. The trial court adopted the State’s argument, which would make die evidence of Tolson’s prior criminal acts relevant to show that his modus operandi was to have a loaded handgun available while engaging in drug transactions. The State relied on State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), in which the court described “modus operandi” as the “general method used by a defendant to perpetrate similar but totally unrelated crimes.” 245 Kan. at 682. Damewood’s method was to interest boys in his beekeeping, which allowed him to be alone with them so that he could sexually molest them. The court found no error in the admission of the testimony of a young man who had been drawn into beekeeping by Damewood and then sexually abused several years before the victim of the charged crime became involved with Damewood. 245 Kan. at 682.
In Damewood, there was a method of operation, and it was so distinct as to be a “signature.” Damewood was being tried for arranging to spend time alone with a boy by involving the boy in his beekeeping activities and then sexually molesting him. Precisely the same pattern of conduct or method of operation was shown by the prior acts evidence to have been followed on a previous occasion.
This case does not present such a clear picture. The method of operation, as determined by the trial court, was Tolson’s having a loaded handgun during drug transactions. Compared to the pattern of conduct in Damewood, there is very little method or operation involved in having a loaded handgun during illegal drug transactions. Moreover, even if having a loaded handgun during drug transactions can be said to amount to a method of operation, there is nothing very surprising in a drug dealer having a loaded weapon, so evidence that he had a gun on previous occasions has little tendency to prove that he did during the transaction with Garza. In addition, the similarity between Tolson’s conduct on previous occasions and his conduct during the transaction with Garza is not great. The evidence was that, when Tolson was arrested in the Joplin hotel room, there was a loaded handgun in the room. When he was arrested in an apartment for selling crack cocaine, he had a loaded handgun on his person. In neither instance did he fire the gun. In the present case, he fired a gun that seems to have been in his vehicle. Stephenson testified that Tolson and Garza were in the car in a tug of war with the trash bag of marijuana when “all of a sudden [Tolson] pulled out a gun with his right hand, either the seat or something in the middle, and went like that, and aimed anywhere between his hips and his knees, I’m not for sure where, and shot the gun one time.”
Motive. “Motive is the moving power that impels one to action for a definite result. Motive is that which incites or stimulates a person to do an action.” State v. Jordan, 250 Kan. 180, Syl. ¶ 8, 825 P.2d 157 (1992). An example of the proper admission of evidence of prior acts to show motive would be a showing of previous conduct that resulted in longstanding bad blood between an assailant and the victim he or she seeks out. See 250 Kan. at 191.
In the present case, the State contends that Tolson’s motive was to get 20 pounds of marijuana without paying Garza for it. The State’s position with regard to the relevance of the prior crimes evidence as stated in its brief is: “When his plan went awry, defendant responded with the use of deadly force, as he had been prepared to do in previous situations. The prior possession of the gun along with the drugs explained defendant’s motive for possessing the gun — in order to use it if problems arose.” The State’s theory of the case may explain what happened during the Tolson/ Garza transaction, but it does not establish that the evidence of prior acts was relevant to the motive for Tolson’s shooting Garza. The evidence of prior acts may show that Tolson was prepared for trouble, but it does not show he created the trouble by trying to steal a substantial quantity of drugs, nor does it show he shot a person he was trying to rob.
Knowledge. Knowledge, which signifies an awareness of wrongdoing, is an element in crimes that require specific intent. State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). The State’s reliance on United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997), and United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000), confirms the principle set out in Faulkner, that proof of knowledge is meaningful when a specific intent crime is charged. Logan was convicted of conspiracy to distribute, and to possess with intent to distribute, more than 1 kilogram each of heroin and methamphetamine. 121 F. 3d at 1173. Hardy was convicted of possession with intent to distribute crack cocaine and conspiracy to distribute and possess with intent to distribute crack cocaine. 224 F. 3d at 753. In those cases, the court admitted evidence of the defendants’ prior possession of drugs. The Eighth Circuit Court of Appeals has held that “ ‘evidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element.’ ” 224 F.3d at 757 (quoting Logan, 121 F.3d at 1178).
Tolson was neither charged nor convicted of an underlying felony. He was charged and convicted only of felony murder, which requires no proof of intent. The inherently dangerous felony that supports his felony-murder conviction is the commission of or attempt to commit or flight from the crime of the sale of marijuana, which includes possession of marijuana with the intent to sell, deliver, or distribute it. Applying the reasoning of the federal cases relied on by the State, the prior crimes evidence was relevant to show Tolson’s knowledge of the drug trade and, hence, his intent to distribute tire marijuana. The question of whether prior acts evidence is admissible when relevant only to an element of an uncharged predicate felony is not addressed by tire State. Our research discloses no cases in which this issue is directly addressed. However, we need not answer that question because in this case, tire prior crimes evidence was relevant to the charge of felony murder.
Pursuant to K.S.A. 60-455, evidence is admissible if it is relevant to prove one of the facts specified in 60-455 statute; that fact is a disputed, material fact; and the probative value of the evidence outweighs its potential prejudice. State v. Rucker, 267 Kan. 816, 824, 987 P.2d 1080 (1999). Here, the jury was instructed that the State had to prove beyond a reasonable doubt that Tolson killed Austin Garza and that he did so while in the commission of or attempting to commit or in flight from the crime of sale of marijuana. The jury was further instructed on the elements necessary to establish the crime of sale of marijuana. Because the jury is presumed to have taken the elements of the underlying felony into account, as demonstrated by the jury’s being instructed on those elements, relevance to an element of the predicate felony reasonably could be found to be sufficient for admissibility. In other words, the jury had to find that Tolson committed the predicate felony before it could find him guilty of felony murder. Thus, the prior acts were relevant to the charged offense and were admissible if the probative value of the evidence for the limited purpose for which it was admitted outweighed tire risk of undue prejudice. Here, there was no error in admitting the prior acts for the limited purpose of showing Tolson’s knowledge and intent relative to the commission of or attempt to commit or flight from the crime of sale of marijuana.
Tolson next argues that the trial court erred by denying his motion to suppress evidence seized from his residence. During trial, Tolson filed a motion to suppress the physical evidence that had been seized from the house at 8118 Paseo. On the third morning of trial, out of the presence of the jury, the trial court heard the testimony of several police officers on the subject of the warrantless entry of the house and the subsequent search pursuant to warrant. Announcing its ruling from the bench, the trial court denied the defendant’s motion to suppress. On appeal, Tolson, without setting out any facts on which he relies, argues that the trial court’s ruling was erroneous because the police did not articulate circumstances that would justify the warrantless entry.
As Kansas City, Missouri, and Lenexa police officers arrived at 8118 Paseo, the officer in charge believed that the suspect, Tolson, was in the house at that address. The officer did not know who lived there, but he did know that the person they were looking for was the suspect in a shooting, and he thought the suspect would be armed. The officer had a number of concerns about the circumstances — the suspect might have taken a hostage or hostages, the suspect could destroy evidence, and the people who lived nearby might be in danger. The officer in charge testified that, based on his experience, it was not safe to wait for a warrant before entering a house in such circumstances.
When there were enough officers to surround the house, two officers approached the front door. The officer in charge testified that the officers who approached the front of the house advised by radio that “the front door was ajar or open partially.” One of the officers who first approached the front door testified that the door was open and that seeing the open door made them “pretty suspicious of the residence.” One of the officers who participated in the sweep testified that the door appeared to be closed, but it was unlocked. The officers knocked, and there was no response. Announcing that they were police, four officers entered the house. They checked the house room by room, checking only spaces big enough to hold a person. The sweep, including two trips to the attic to check under insulation, lasted approximately 5 minutes.
The officers got out of the house, further secured it, and sought a search warrant. While in the house, they had seen in plain view a semiautomatic handgun, a small plastic bag of what appeared to be marijuana, and a trash bag containing what appeared to be marijuana. The affidavit for a search warrant stated that the police officers were applying to search the house at 8118 Paseo for “[a]n unknown black male, wearing T-shirt, and shorts. Firearms, ammunition, shell casings, bloody clothing.” The affidavit also stated the circumstances of tire shooting in Lenexa, noted that the victim had died, and described the suspect as “a black male wearing a blue ball cap, T-shirt, and shorts driving a black corvette.” The affidavit concluded: “A witness at the scene advised the officers that a subject matching the description of the suspect ran into the residence located at 8118 Paseo. The suspect vehicle, a black corvette, was located behind the residence. A blue ball cap was observed . . . inside the suspect vehicle in plain view.”
In the district court, Tolson argued that the warrantless entry was illegal because there were no exigent circumstances and, therefore, the subsequent search pursuant to a warrant was illegal. The trial court disagreed, stating:
“The Court does find in this case there are compelling exigent circumstances present here which require in the Court’s opinion the police to enter the subject . . . dwelling and conduct a sweep. I understand the defense, the pursuit was cold, broken off and no longer existed, but, quite frankly, I disagree. I think the pursuit was ongoing. It depended in large part on public information being gathered by passersby, pedestrians, and people who had seen die speeding Corvette automobile pass by.
“And so in large part, the success and the pursuit was guided by the information that was coming in. It was coming in on a fairly continuous basis. And that pursuit and that information finally led tire pursuit to the residence at 8118 Paseo. We had a police helicopter from Missouri involved, and we had a number of Missouri units canvassing and collecting tire area. I’m confident here that we had a pursuit that was still under way which led to the residence at 8118 Paseo.
“Upon entering that or arriving at tire residence, officers were confronted by the fact what appeared to be the suspect vehicle in the backyard, suspect who was known to have been involved in a shooting. There was real prospect of a hostage situation taking place in that residence. The Court feels tire law enforcement officers involved would have been remiss had they not entered the residence to make sure the residence there was safe and determined whether tire suspect was [sic] involved was in the residence.
“I note that the door at the time of entry was at least unlocked, if not partially ajar. There is some question and dispute here as to whether it was open, but in any event it was unlocked, the entry was peaceful. Police made an effort to notify the occupants before they made entry; therefore, I believe the entry here was appropriate and reasonable under the circumstances. The search here was, as I said, a protective sweep. It was limited in its scope, it was limited in its time. Police did not go rummaging through small areas and drawers. During the sweep, they did find in plain view a firearm, ammunition, what appeared to be narcotics, and contraband in plain view.
“So under these circumstances, and in the need for perhaps to protect evidence as well that may have been located in the residence, I do find it was compelling and sufficient exigent circumstances to justify the warrantless entry into this residence.”
Tolson concentrates on convincing this court that the circumstances did not justify the officers’ warrantless entry into the house. He relies heavily on Colorado and federal cases. We need not consider cases from other jurisdictions because State v. Weas, 26 Kan. App. 2d 598, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000), which the State cites, is a well-reasoned opinion with circumstances comparable to those of the present case.
In Weas, officers were dispatched to talk to a woman who had called 911 to report a possible sexual assault. The victim appeared to have been badly beaten. She was wearing only jeans and a jacket, both turned inside out. She said that she had been kidnapped outside a bar the previous evening, forced into a small vehicle, beaten during the ride, and threatened with death. She believed that she lost consciousness. She woke the next morning in an unfamiliar house and noticed a man in a bedroom. She fled, obtaining assistance and calling 911 from a nearby house. 26 Kan. App. 2d at 599.
Officers went to the house the victim described and noted a small vehicle on the premises. There was no response when one officer knocked on the locked back door and another tried the locked front door. Believing there was probable cause that serious, violent crimes had occurred and trying to prevent destruction of evidence as well as identify and apprehend the perpetrators, the officers decided that immediate entry into the house was necessaiy. One climbed through an open window and opened a door for the other. They searched the house for suspects, but no one was there. While in the house, the officers saw in plain view drugs and drug paraphernalia. 26 Kan. App. 2d at 599-600.
The Court of Appeals concluded that exigent circumstances existed, permitting a warrantless entry into the house. The Court of Appeals cited State v. Flatten, 225 Kan. 764, 769, 594 P.2d 201 (1979), in which the court relied on the nonexclusive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978):
“ ‘(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry. It is also recognized that the possible loss or destruction of evidence is a factor to be considered. [Citations omitted.]’ 225 Kan. at 770.” Weas, 26 Kan. App. 2d at 601.
For the following reasons, the Court of Appeals in Weas viewed the action taken by the officers as objectively reasonable under the Reed criteria:
“The crime of kidnapping is a severity level 3 person felony with a presumptive sentence that includes incarceration. In addition, there is evidence the perpetrators threatened to kill the victim and did beat her. Although it is true that the victim did not relate to the officers that her attackers were armed, the serious nature of the alleged crimes would give rise to ‘an ever-present potential for exploding into violent confrontation.’ People v. Escudero, 23 Cal. 3d 800, 811, 153 Cal. Rptr. 825, 592 P.2d 312 (1979). The officers had ample evidence of probable cause to believe one or more individuals who had committed these violent crimes were in the residence and would be alerted to detection and apprehension as a result of the victim’s escape. Finally, the entry into the residence was during daylight hours and made peaceably. Another important factor noted in Platten is whether an immediate entry is necessary so that a perpetrator can be disabled from destroying or concealing evidence. In this case, the officers knew the perpetrators very probably were alerted by the victim’s escape and given the opportunity could destroy physical and trace evidence. It is not unreasonable for the officers to believe hair, blood, and other bodily fluids could be washed off the body easily.” 26 Kan. App. 2d at 601-02.
In the present case, the crime was a shooting. The police knew either that the victim’s life was in grave danger or that he already had died. They knew that the suspect was armed, and they had evidence of probable cause to believe that the suspect was in the house at 8118 Paseo. In addition to the factors considered in Weas, in the present case the officers were concerned because they did not know who lived in the house and that the suspect might have taken a hostage or hostages. The officers also were concerned for the safety of neighbors. As in Weas, the officers in this case did not want to give the suspect an opportunity to destroy evidence of the shooting. In these circumstances, it is objectively reasonable to conclude that exigent circumstances existed that permitted a warrantless entry into the house. The district court did not err in finding exigent circumstances existed to justify the warrantless entry into the residence. In light of this holding, we need not consider Tolson s argument that the warrantless entiy was illegal, thus rendering the evidence seized pursuant to the search warrant inadmissible.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
This case presents the question whether the Kansas Juvenile Justice Code (KJJC), K.S.A. 38-1601 et seq., authorizes the imposition of consecutive sentences in an appropriate case. We conclude that the legislature enacted a comprehensive sentencing scheme in the KJJC and did not by its silence on this issue imply that consecutive sentences may be imposed. For the reasons set forth in this opinion we, therefore, vacate the sentences imposed by the district court, reverse the Kansas Court of Appeals affirming the imposition of consecutive sentences, and remand tire case for sentencing consistent with this opinion.
W.H. was born February 21, 1983. He was charged with five offenses, four of which occurred after July 1,1999, and one which occurred May 7, 1999: Felony obstruction of legal process, felony theft, criminal deprivation of property, domestic violence batteiy, and conspiracy to commit forgery. W.H. pled guilty to all charges and was sentenced January 3, 2001, under the provisions of K.S.A. 38-16, 129. As noted by the Court of Appeals, K.S.A. 38-16,129 applies to offenses committed after July 1,1999. Thus, W.H.'s sentence under K.S.A. 38-16,129 for the offense of criminal deprivation of property occurring on May 7,1999, was an illegal sentence. The Court of Appeals, in In re W.H., 30 Kan. App. 2d 326, 41 P.3d 891 (2002), correctly decided that W.H/s sentence for criminal deprivation of property was illegal, and we affirm this portion of the Court of Appeals’ opinion.
All other charges occurred after July 1,1999, and do not present a similar problem. At the time of W.H.’s sentencing, tire district court noted that he had been twice adjudicated as a juvenile offender for offenses which, if committed by an adult, would have constituted felony convictions. Based upon the provisions of K.S.A. 38-16,129(a)(3)(A)(i), W.H. was identified for sentencing purposes as a Chronic Offender I. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of 6 months and a maximum term of 18 months.
In addition, the district attorney had filed a motion under K.S.A. 38-1636 requesting that the court designate the proceedings as an extended jurisdiction juvenile prosecution. Upon hearing, the court designated the proceedings as an extended jurisdiction juvenile prosecution calling for sentencing in accord with the provisions of K.S.A. 38-16,126:
“(a) If an extended jurisdiction juvenile prosecution results in a guilty plea or finding of guilt, the court shall:
(1) Impose one or more juvenile sentences under K.S.A. 38-1663, and amendments thereto; and
(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense.”
W.H. was sentenced both as a juvenile and as an adult under the extended jurisdiction juvenile prosecution. For his juvenile sentences as a Chronic Offender I, the district court, considering the minimum term of 6 months and a maximum term of 18 months under K.S.A. 38-16,129(a)(3)(A)(i), sentenced W.H. to 10 months for felony obstruction, 10 months for felony theft, 6 months for criminal deprivation of property, 6 months for domestic violence battery, and 8 months for conspiracy to commit forgery. The district court ordered the terms to be served consecutively. The adult sentences imposed by the district court were identical to the juvenile sentences imposed. W.H. filed a timely appeal. The Court of Appeals affirmed the consecutive juvenile sentences, and we granted W.H.’s petition for review.
The Court of Appeals’ Decision
In dealing with the question of consecutive terms of commitment, the Court of Appeals noted the KJJC neither provides for nor prohibits consecutive sentences. The court acknowledged W.H.’s argument — summarized by the legal maxim, expressio unius est exclusio alterius — that the inclusion of one implies the exclusion of another. Based upon this maxim, W.H. points out that the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., grants judges die power to impose consecutive sentences, but the KJJC is silent on this issue. According to his argument, if the legislature intended to permit judges to order consecutive terms of commitments for juveniles, the legislature would have enacted provisions similar to those in the KSGA.
The court then turned to case law in New Jersey, citing State in Interest of J.L.A., 136 N.J. 370, 643 A.2d 538 (1994), and State v. Horton, 45 N.J. Super. 44, 131 A.2d 425 (1957). The court derived two concepts from the New Jersey cases: (1) The imposition of consecutive sentences is an inherent power of the judiciary, and (2) tire imposition of consecutive sentences will be upheld as long as doing so is consistent with the objectives of the juvenile code.
The court examined the goals of the KJJC and determined that consecutive sentences did not conflict with the primary goals of the KJJC: (1) promotion of public safety, (2) holding juvenile offenders accountable for their behavior, and (3) improving the ability of the juveniles to live more productively and responsibly in the community. K.S.A. 38-1601. Rejecting W.H.’s expressio unius est exclusio alterius argument, the court noted that “if the legislature wanted to prohibit consecutive sentences for juveniles, it could have done so.”
The Court of Appeals also cited Juvenile Justice Authority Policy Number 4-701. Paragraph 18 of the policy was relevant to the issue:
“18. Multiple cases. When sentences in multiple cases are ordered by the court, the JCF [Juvenile Correctional Facility] shall calculate release dates based on whether the court orders sentences to run consecutively or concurrently. The facility shall determine the beginning date for each case. From that date, the JCF shall calculate die EPRD [earliest possible release date] for each sentence.”
Based upon the following analysis, we conclude that the Court of Appeals’ reliance upon J.L.A., 136 N.J. 370, was misplaced. The New Jersey Supreme Court held that their juvenile code authorized consecutive sentences even though it was silent on the subject, primarily based upon its unique state history. 136 N.J. at 374-75, 382-83.
J.L.A. was charged with acts of delinquency which, if committed by an adult, would have constituted attempted armed robbeiy and second-degree aggravated assault, first-degree armed robbery, and second-degree possession of a weapon. Upon hearing, the court adjudicated J.L.A. a delinquent, merged the adjudications of attempted armed robbery and possession of a weapon for an unlawful purpose with the armed robbery adjudication, and ordered that J.L.A. serve an indeterminate term of incarceration not to exceed 4 years for the armed robbery and a consecutive indeterminate term not to exceed 3 years for aggravated assault.
In its analysis, the New Jersey Supreme Court began with the common law and found that the inherent authority to order consecutive sentences was based upon the common law. 136 N.J. at 374. The court then considered two cases permitting consecutive sentences in cases of “young adult offenders.” 136 N.J. at 374-75. In reversing the appellate division, the court relied upon the common law inherent power of the judiciary to impose, absent a statutory prohibition, consecutive sentences for separate offenses, a power consistently recognized by New Jersey courts:
“ ‘In the absence of a statute expressly prohibiting the sentencing judge from exercising such discretion, we find that the power to impose consecutive life sentences resides in the trial judge.’ Id. at 69,198 A.2d 768; see also State v. Mahaney, 73 N.J.L. 53, 56, 62 A. 265 (Sup. Ct. 1905) (‘[T]he great weight of authority in this country is that, without any statutory provision for consecutive sentences, the power to impose them resides in the court.’), affd, 74 N.J.L. 849, 67 A. 1103 (E. & A. 1907).” 136 N.J. at 374 (quoting State v. Maxey, 42 N.J. 62, 198 A.2d 768 [1964]).
The history in Kansas differs from that of New Jersey. From its early beginnings, Kansas relied upon statutory authority to impose consecutive sentencing even though Kansas may recognize that a court had the common-law authority to impose consecutive sentences. Beck v. Fetters, 137 Kan. 750, 751-52, 22 P.2d 479 (1933); see State v. Finch, 75 Kan. 582, 89 Pac. 922 (1907). The common-law rule was abrogated by statute in 1855:
“When any person shall be convicted of two or more offences before sentence shall have been pronounced upon him for either offence, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.” (Emphasis added.) 1855 Laws of tire Kansas Territory, ch. 54, § 9.
This law, though codified at various places, remained unchanged until 1963:
“Section 62-1512 of the General Statutes of 1949 is hereby amended to read as follows: Sec. 62-1512. Whenever a person is convicted of two or more offenses charged in one or more informations, indictments, or complaints, whether such convictions take place at the same or at separate times, it shall be the duty of the sentencing judge to prescribe whether the sentences shall be served concurrently or consecutively. Whenever sentences are pronounced in two (2) or more separate oases upon the same day and it is the order of the judge that the sentences shall be served consecutively, the journal entries shall reflect the sequence in which the sentences were pronounced: Provided, That whenever the record is silent as to the manner in which two (2) or more sentences are to be served, they shall be served concurrently, each commencing on the date it was imposed.” L. 1963, ch. 306, § 1.
More importantly, New Jersey has a young adult offenders code which does not expressly authorize consecutive sentences; yet consecutive sentences have been imposed under the New Jersey young adult offenders code with legislative acquiescence over a period of years. Kansas has no such young adult offender code and no history of court decisions with legislative acquiescence supporting an implied power to impose consecutive sentences where the statute is silent.
Given the disparity between New Jersey and Kansas, we conclude that J.L.A. provides little support for implied consecutive sentencing power under the KJJC. The remaining similarity is contained in the goals of juvenile justice. We note, however, that the goals for juvenile justice in Kansas are very broad and would provide a basis for concluding that the imposition of consecutive as well as concurrent sentences is consistent with the expressed goals. Promotion of public safety and accountability as well as improving the ability of juveniles to live more productively and responsibly in the community, taken together would support both consecutive and concurrent sentencing. Basing a conclusion that such goals alone provide for an implied statutory power to impose consecutive sentences would be a weak conclusion at best. We must consider not only the goals but the entire KJJC for an answer.
The Question and Our Standard of Review
The question of whether the KJJC empowers a district court to impose consecutive terms of commitment is one of first impression in this state. It is a question of law involving the interpretation of provisions of the KJJC, and our standard of review is unlimited. State v. Becker, 264 Kan. 804, 808, 958 P.2d 627 (1998). In applying our standard to this case, we follow familiar rules of statutory interpretation:
“The fundamental rule of statutoiy construction is that the intent of the legislature governs when that intent can be ascertained from the statute. [Citation omitted.] The general rule is that criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citations omitted.] In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
Kansas Tuvenile Justice Code
The answer to the question posed lies in the KJJC itself if the statutoiy language is sufficiently clear. The KJJC has changed substantially over the past 5 years. See Stovall, Justice and Juveniles in Kansas: Where We Have Been and Where We Are Headed, 47 Kan. L. Rev 1021 (1999); Note, The Worst of Both Worlds: How the Kansas Sentencing Guidelines Have Abandoned Juveniles in the Name of “Justice,” 35 Washburn L. J. 308 (1996).
Kansas Sentencing Scheme
The most important change and the one that bears direcdy upon the question raised by this appeal involves sentencing. The KJJC sets forth a comprehensive system addressing many, if not most, of tire problems encountered by a sentencing judge. For those situations where it would be unproductive to continue with the juvenile system outlined in the KJJC, K.S.A. 38-1636 authorizes, after hearing, a move to the adult criminal procedure. Moreover, in those situations where there is a great risk that the alternatives available under the KJJC may not work, K.S.A. 38-1636 authorizes the county or district attorney to file a motion requesting that the court designate the proceeding as an extended jurisdiction juvenile prosecution as described in K.S.A. 38-16,126, thus providing the sentencing judge with additional available sentencing alternatives.
The KJJC incorporates a detailed placement matrix based on the unique history of a juvenile’s past offenses and his or her present offense, providing guidance and alternatives to the sentencing judge for confinement as set forth in K.S.A. 38-16,129. Offenders are classified according to the seriousness of their particular Crimes, with the most serious being the violent offenders. K.S.A. 38-16,129(a)(1)(A) provides:
“(1) Violent Offenders. (A) The violent offender I is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute an off-grid felony. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of 60 months and up to a maximum term of the offender reaching the age of 22 years, six months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of the offender reaching the age of 23 years.”
K.S.A. 38-16, 129(a)(1)(B) provides:
“(B) The violent offender II is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute a non-drug level 1, 2, or 3 felony. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of 24 months and up to a maximum term of the offender reaching the age 22 years, six months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of the offender reaching age of 23 years.”
We note that in the above two categories, given the minimum and maximum sentences possible and understanding that juvenile jurisdiction terminates at age 23, absent extended juvenile jurisdiction, consecutive sentences under either classification would be superfluous.
The remaining provisions of K.S.A. 38-16,129 regarding sentencing provide:
“[(a)] (2) Serious Offenders. (A) The serious offender I is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute a nondrug severity level 4, 5 or 6 person felony or a severity level 1 or 2 drug felony. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of 18 months and up to a maximum term of 36 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 24 months.
(B) The serious offender II is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute a non-drug severity level 7, 8, 9 or 10 person felony with one prior felony adjudication. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of nine months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 24 months.
“(3) Chronic Offenders. (A) The chronic offender I, chronic felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present nonperson felony adjudication and two prior felony adjudications; or
(ii) one present severity level 3 drug felony adjudication and two prior felony adjudications.
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of six months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 12 months.
(B) The chronic offender II, escalating felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present felony adjudication and two prior misdemeanor adjudications;
(ii) one present felony adjudication and two prior severity level 4 drug adjudications;
(iii) one present severity level 3 drug felony adjudication and two prior misdemeanor adjudications; or
(iv) one present severity level 3 drug felony adjudication and two prior severity level 4 drug adjudications.
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of six months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 12 months.
(C) The chronic offender III, escalating misdemeanant is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present misdemeanor adjudication and two prior misdemeanor adjudications and two out-of-home placement failures;
(ii) one present misdemeanor adjudication and two prior severity level 4 drug felony adjudications and two out-of-home placement failures;
(iii) one present severity level 4 drug felony adjudication and two prior misdemeanor adjudications and two out-of-home placement failures; or
(iv) one present severity level 4 drug felony adjudication and two out-of-home placement failures.
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of three months and up to a maximum term of six months. The aftercare term for this offender is set at a minimum term of three months and up to a maximum term of six months.
“(4) Conditional Release Violators. Conditional release violators may be committed to a juvenile correctional facility, youth residential facility, juvenile detention facility, institution, a sanctions house or to other appropriate community placement for a minimum term of three months and up to a maximum term of six months. The aftercare term for this offender is set at a minimum term of two months and up to a maximum term of six months, or the maximum term of the original aftercare term, whichever is longer.
“(b) As used in this section: (1) ‘Placement failure’ means a juvenile offender has been placed out-of-home on probation in a community placement accredited by the commissioner in a juvenile offender case and the offender has violated significantly the terms of probation in that case.
(2) ‘Adjudication’ included out-of-state juvenile adjudications. An out-of-state offense which if committed by an adult would constitute the commission of a felony or misdemeanor shall be classified as either a felony or a misdemeanor according to the adjudicating jurisdiction. If an offense which if committed by an adult would constitute the commission of a felony is a felony in another state, it will be deemed a felony in Kansas. The state of Kansas shall classify the offense, which if committed by an adult would constitute the commission of a felony or misdemeanor, as person or nonperson. In designating such offense as person or nonperson, reference to comparable offenses shall be made. If the state of Kansas does not have a comparable offense, the out-of-state adjudication shall be classified as a nonperson offense.
“(c) All appropriate community placement options shall have been exhausted before a chronic offender III, escalating misdemeanant shall be placed in a juvenile correctional facility. A court finding shall be made acknowledging that appropriate community placement options have been pursued and no such option is appropriate.
“(d) The commissioner shall work with the community to provide on-going support and incentives for the development of additional community placements to ensure that the chronic offender III, escalating misdemeanant sentencing category is not frequently utilized.”
Nowhere in this elaborate scheme did the legislature provide for consecutive sentencing. We believe this to be a significant point in addressing the Court of Appeals’ conclusion that if tire legislature wanted to prohibit consecutive sentences for juveniles, it could have done so. Our legislature has established in painstaking detail, a comprehensive sentencing scheme, essentially complete as written. In the face of such detail, silence fails to imply the existence of an alternative not expressed.
Adult and Tuvenile Systems Similar but Different on Sentencing
Adoption of the juvenile sentencing scheme follows upon the heels of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Some of the same philosophy which motivated adoption of the KSGA as to classification and definite terms is incor porated into the KJJC. W.H. makes a convincing argument based upon such similarities. W.H. argues that provisions of K.S.A. 38-16,129 are similar to the provisions of the KSGA. Both provide for presumptive sentences based on the offender’s criminal history and both provide that a presumptive sentence must be imposed unless a departure under circumstances set forth is approved. K.S.A. 38-lb, 132; K.S.A. 21-4716. Appeals may not be taken if the sentences fall within the presumptive range. K.S.A 38-1681(c)(2)(A); K.S.A. 21-4721(c)(l). In spite of these similarities, W.H. notes that there is a marked difference between the KSGA and the KJJC on the subject of consecutive sentences.
The KSGA expressly empowers a district court to impose consecutive sentences in K.S.A. 21-4720(b) and K.S.A. 21-4608: “The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently . . . .” K.S.A. 21-4720(b). “When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrendy or consecutively as the court directs.” K.S.A. 21-4608(a).
The KJJC provides no such power and is silent on the question of consecutive sentences. We agree with W.H. that expressio unius est exclusio alterius applies. Consecutive sentences are expressly permitted and provided for in the KSGA of the adult criminal code but that same power is not provided for in the KJJC. Compare State v. Adam M., 129 N.M. 146, 2 P.3d 883 (Ct. App. 2000); S.G.W. v. People, 752 P.2d 86, 90 (Colo. 1988); In re Christopher V., 207 Conn. 270, 276, 540 A.2d 700 (1988); but see In re Caldwell, 76 Ohio St. 3d 156, 666 N.E.2d 1367 (1996). We conclude that the Kansas Legislature by its exclusion regarding consecutive sentences did not authorize the imposition of consecutive sentences under the KJJC.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is reversed, the sentences are vacated, and the case is remanded for resentencing.
Larson, S.J., assigned. | [
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Per Curiam:
Appellant was convicted of the larceny of wheat, and appeals. The order of proof was a matter of discretion with the court, which was not abused in this case. The conclusions of witness Werhahn, identifying the wheat, were not objected to at the time. Facts, too, were stated which formed a chain of circumstances rendering the proof of value following competent. Identification of appellant by one witness was sufficient to carry the case to the jury. It was not improper for witness Clare to give his version of his talk with the county attorney, and the form in which it was given was not materially prejudicial.
The difference between the weight of evidence read to the jury by the stenographer and evidence which in the presence of the jury he read to himself and then stated to the jury is not sufficient to work a reversal of the case.
The word “should,” as used in the instructions to the jury, conveyed the sense of duty and obligation and could not have been misunderstood. The evidence in the case is sufficient to uphold the verdict.
Section 293 of the code of criminal procedure reads:
“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The demurrer is a general one, upon ■ the sole ground that no cause of action is stated. The petition is drawn with slight regard for grammatical construction and ignores the plain words of the statute which requires that the respective interests of the owners of the real estate shall be described, if known. (Code, §614; Gen. Stat. 1901, §5101.) Defendants urge that this omission is fatal. The allegations, however, bring the case within the reason of the statute, although the words of the statute are not followed, and, in view of the liberal construction of the rules of pleading as against a general demurrer, it must be upheld.
The main contention of the defendants is that the real estate, under the facts set forth in the petition, is not susceptible of partition; that there is no way by which equity can determine the value of the estate of the defendants. It is said that their estate consists of two life-estates — that of each defendant; that the life-estate of one is not necessarily of the same value as that of the other; and that, in the event the premises cannot be divided, the court cannot decree a sale, because there is no rule by which their interests can be satisfied by a division of the sale money. It is also said that the life-estate of the defendants cannot be satisfied by awarding them a part of the land because “they are entitled to the whole of the property during their lives.”
The case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, is relied upon. In that case Catherine Blauw sought to partition certain lands in which she held only a life-estate. Subject to her life-estate the lands belonged in fee simple to her children, who were made defendants. The trial court awarded partition and attempted to separate these indivisible estates by estimating the then present value of the life-estate of the mother, based upon her expectancy, and ordering a sufficient portion of the lands sold to raise the amount which was awarded to her, and the remainder of the lands in fée simple were awarded to the children. This was held to be an attempt to devest the children of a portion of their fee-simple estate and to give it to the mother. The proceedings were held to be absolutely void and subject to collateral attack. The decision rests upon the rule of- the common law, which still prevails in England and obtains generally here, that compulsory partition will not be awarded between tenants of a particular estate and those in remainder or reversion. The reason of the rule is that the remainder-man or reversioner is not concerned with the manner in which the estate of the tenant in possession is enjoyed. He cannot maintain partition. On the other hand, tenants in possession, claiming an estate for life or for a term of years, can compel partition only as to the particular estates held by them. They cannot compel a severance of the estate in remainder.
Under particular statutes which are in force in some of the states, and which do not require the complainant in a partition suit to be in possession or entitled thereto, it has been held that a reversioner or remainder-man may maintain partition against the owner of the remaining undivided interest in remainder or reversion although the whole premises are subject to a life-estate. (Scoville et al. v. Hilliard et al., 48 Ill. 453; Cook v. Webb, 19 Minn. 167.) This, however, would not disturb the possession or rights of the holder of the estate for life. Our statute has been held to authorize partition at the suit of one who is not in possession,' provided he claims to be entitled to immediate possession. (Scarborough v. Smith, 18 Kan. 399.)
In the opinion in the Blauw case, swpra, at page 502, it was said: “To confer jurisdiction upon a court for the partition of an estate, it is indispensable that co-tenancy exist between the parties.” Catherine Blauw was not a cotenant of her children. The children were not in possession, nor were they entitled to the possession of any portion of the lands until her death. The case, therefore, is easily distinguished from the case at bar. It was an attempt by the holder of the life-estate to obtáin partition of her interest from the interests of the remainder-men. It is true the court necessarily held that there was no way of determining the value of her life-estate or of satisfying her interest by a sale of the land and a division of the proceeds. There was nothing which the court could order sold. The land belonged in fee simple to the children.
In this connection we will notice one reason urged by defendants why partition cannot be awarded against them. It is said in their brief that to do so “would deprive them of a part of their rights, as they are entitled to the whole of the property during their lives.” Upon what theory it is claimed defendants took an estate for their lives in the whole estate is not clear. If they took anything under the will of the wife it was her undivided interest in the premises during their natural lives, with remainder tc Joseph Brown. Their interest was a life-estate in an undivided one-half of the whole. The other undivided half belongs absolutely, upon this theory, to plaintiff. How can a division of the lands deprive them, therefore, of anything? The property consists of two town lots. From the facts stated in the petition there is no apparent reason why the lots may not be divided — one set apart to plaintiff in fee, the other to the deféndants during their natural lives, provided the lots are of equal value. They may not be of equal value; still there is nothing in the petition from which it appears to be impossible to divide them in some mannér. Plaintiff claims an undivided one-half interest in the land in fee, and also claims that he is entitled to the possession and that he has the possession as a cotenant of defendants. He is given the right, under the statute, to have his interest in the premises set apart to him in severalty. It is no answer' to his claim to say that defendants may suffer inconvenience thereby.
No mention is made in the briefs of the fact that Joseph Brown, the remainder-man, is not made a party defendant. Under the will it would appear that he owns an undivided one-half interest in the premises, subject to the life-estate of defendants. In case plaintiff succeeds in his effort to have, his half set apart to him in severalty, it is clear that Joseph Brown would be vitally interested in the manner and character of the division. While, under the authorities, he could not maintain a suit to compel partition, either as against the holders of the life-estate or as against the other fee holder, for the reason that he has no present right of possession, still in a suit brought by the other fee holder a question might be raised as to whether he is not a necessary or at least a proper party. In Striker v. Mott, 2 Paige (N. Y.), 887, 22 Am. Dec. 646, Chancellor Walworth used the following language:
“Besides, I am not aware of any case in which a party who had a mere reversionary interest in an estate has been permitted to apply for a partition without the concurrence of the owners of the present interest. A reversioner is sometimes a necessary party to a bill in partition; but it is where the owner of a present interest in an undivided part of the premises has also an interest in an undivided part of the reversion. In such cases it is proper for such owner of the present interest to make the owner of the residue of the reversion, as well as those who are interested in the residue of the particular estate, parties to the suit; so that an entire share may be set off to the complainant in severalty. It is also necessary to make a reversioner a party to a bill filed by an owner of a particular estate, when some of the other parties interested in the residue of the premises are the owners of a present interest thereof in fee.” (Page 389.)
On the other hand, in the note at page 364 of volume 4 of Kent’s Commentaries, fourteenth edition, it is said that “it was the ancient doctrine under the statute of Henry VIII that no persons could be made parties to a writ of partition, or be affected by it, but such as were entitled to the present possession of their share in severalty.” (See, also, note to Nichols et al. v. Nichols et al., 28 Vt. 228, in 67 Am. Dec. 699, 703.) It is certain that until he is made a party any division of the fee title will not bind him or his heirs. (Gayle et al. v. Johnston, 80 Ala. 395; Bell v. Adams, 81 N. C. 118.)
We express no opinion, however, upon the question of the remainder-man’s being a necessary or a proper party. The petition, we are satisfied, stated a cause of action. The judgment is therefore reversed, and the cause remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
M. A. Brooks appeals from a conviction under the statute (Gen. Stat. 1901, § 2489) making it an offense for the owner of a building knowingly to permit its use in maintaining what the prohibitory ■law denominates a common nuisance.
Complaint is made • that the information was defective. There is nothing, however, to take the case out of the ordinary rule that in charging a statutory crime it is sufficient to follow the language of the statute, and that was substantially done in this instance.
The prosecution was instituted and conducted by an assistant attorney-general, appointed under the statute (Gen. Stat. 1901, §2476) authorizing such appointments whenever the county attorney fails to prosecute violations of the law referred to. The contention is made that this part of the statute is void because not covered by the title under which it was enacted. It first appeared as a part of section 11 of chapter 149 of the Laws of 1885, the title of which read: “An act amendatory of and supplemental to ... an act entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ ”
“A title fairly expressing the general subject covers provisions for all proper means and instrumentalities which will or may facilitate the accomplishment or enforcement of the purpose expressed, such, for instance, as a provision prohibiting violations of the act, or prescribing a penalty or other punishment for such violations.” (26 A. & E. Encycl. of L. 588.)
A provision intended to insure the prosecution of offenses against an act is as plainly adapted to the enforcement of its purpose as is one prescribing a penalty. The provision under consideration is of that character and is fairly within the scope of the title quoted.
The ownership of the building and its use for the prohibited purpose were expressly or substantially admitted. The vital question upon which the trial turned was whether the owner knew of the fact, the state relying upon circumstantial evidence to show such knowledge. The defendant did not testify. A motion for a new trial was filed upon the ground that his omission to do so was considered by the jury, and the denial of this motion is assigned as error. Upon the hearing of the motion each juror testified orally. The defendant claims that the evidence of misconduct of the jurors in this regard was as strong as that presented in The State v. Rambo, 69 Kan. 777, 77 Pac. 563, and that under that authority the decision of the trial court must be reversed. There it was held that the evidence compelled the conclusion that at least one juror had been influenced in his judgment by the fact that the defendant had not taken the stand in his own behalf. In the present case there was testimony that one member of the jury in the course of their deliberations used this fact as an argument in favor of conviction. This juror himself, while he did not in set terms deny having used the language attributed to him, swore that he had no recollection of having done so. This was a sufficient challenge of the truth of the testimony referred to so that an issue of fact was raised. For anything that appears in the record the trial court may have believed that the objectionable argument was not in- fact made. This belief would amount to a finding of fact, which cannot be reviewed here, for it depended upon the credence and weight to be given to oral testimony, and derived spme support from the probability that the juror charged with the misconduct would have remembered it if it had taken place. But even had the evidence in support of the motion not been contradicted, either directly or inferentially, no reason is apparent why the trial court was compelled to accept it as true; to determine its truth was one of the functions of the tribunal to which it was presented. '
Assuming, however, as an established fact that a juror did at one time in the course of discussion offer as a reason for believing the evidence against the defendant that he had not denied it, other considerations prevent this fact from necessitating a new trial. The court gave an instruction that the omission of the defendant to testify raised no presumption against him and could not be considered by the jury. The evidence upon the motion for a new trial was to the effect that at several times during the deliberations of the jury the failure of the defendant to testify was mentioned in such a way as to suggest an inference against him; but it further appeared that upon each of such occasions attention was called to the instruction referred to, and that thereupon the statement was made and acquiesced in by all that the matter was one to which _ no force could be attached. Whether this shows a violation of the law depends upon the precise meaning to be given to the word “considered” as used in 'the statute, which reads:
“The neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.” (Gen. Stat. 1901, § 5657.)
The prohibition cannot reasonably be construed as absolutely forbidding the court and jury to take any thought whatever regarding such omission of the defendant — to deny it entrance to the mind in any aspect. Such a requirement would be impracticable. The very reference to the matter in the instructions of the court would be a violation of the law under such a construction. The statute provides that the prosecuting attorney must not refer to the circumstance that the defendant has not testified, but the language with regard to the court and jury is different; they must not consider it — that is, give weight to it in arriving at a decision, attach to it the force of evidence, or draw any inference from it. -Whether in this case the prohibition was disregarded, whether the jury or any one of them did consider the defendant’s failure to take the stand in his own behalf — did permit that circumstance to weigh against him, was a question of fact to be determined by the trial court upon oral evidence which was not wholly harmonious and from which different inferences might reasonably have been drawn. Under such circumstances we cannot say that a wrong conclusion was reached or that a new trial should have been granted.
After abundant evidence had been introduced to prove that the defendant’s building had been used as a place where intoxicating liquors were sold in violation of law, the state was permitted over the defendant’s objection to show that such illegal use was a matter of general reputation in the community, and this ruling is complained of as error. Of course the state could not have been permitted to show that the place in question was commonly reputed to be a liquor nuisance for the purpose of establishing that it was such in fact; but when sufficient proof had otherwise been made of its real character evidence that such character was a matter of public notoriety was competent as bearing upon the probability of notice thereof having reached the defendant, who was engaged in business in a neighboring building. For illustrations of this method of proof see volume 3 of Wigmore on Evidence, section 1789; also, in volume 1, sections 245, 254, 255, and especially section 257, where it is said:
“Where a statute forbids the selling of liquor to a person of known intemperate habits, the reputation of the vendee for intemperance is relevant to show probable knowledge by the seller.”
In support of this statement the author quotes from Ward and Thompson v. Herndon, 5 Porter (Ala.) 382: “No man is presumed to be so much of a recluse as not to know what is generally known and talked of in his neighborhood.” (Page 385.)
Various other assignments of error have been made. All have been examined and are held to be not well taken, but only those already mentioned are thought to require discussion. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of ejectment to recover a triangular strip of land lying along the section-line between sections 2 and 3, in township 35 south, of range 4 west of the sixth principal meridian. Josiah Scott was the owner of what is spoken of as the northeast quarter of section 3, composed of the south half of the northeast quarter and of lots 1, 5 and 6 of section 3, and E. G. Williams was the owner of the west .half of the northwest quarter of section 2. It appears that Arthur Scott settled upon lots 5 and 6 and the south half of the northeast quarter of section 3 in 1876, and obtained a patent to the land from the United States in 1882; and that in 1877 George W. Scott settled upon lot 1, the patent for which was issued to him in 1882. In 1881, George W- Scott conveyed this lot to Arthur Scott, and in 1890 Arthur Scott deeded lots 1, 5 and 6 and the south half of the northeast quarter of section 3 to the plaintiff, Josiah Scott, in whom the title has since rested. When the Scotts settled on this land the corner-stone between sections 2 and 3 on the north line of the sections was not found. In 1878 Walton, a deputy county surveyor, undertook to survey a public road on the section-line between these sections, and laid it along the east line of the strip in question, but the corner-stone was not found. In 1879, upon an agreement of the landowners in that region, a survey was made by Smith, the county surveyor, for the purpose of finding and establishing the corners and division lines, and he found the section line to be on the west side of the strip in question. Between these surveys there was left the strip in controversy, which was about 160 rods long, four or five rods wide at the south end, and about twelve rods wide at the north end. The following sketch will serve to indicate the location and extent of the tract:
Notwithstanding the Smith survey, the Scotts occupied and farmed the land over to the Walton survey for more than fifteen years. In 1908 the county authorities opened the road on the Smith survey, when Williams took possession of the strip, and the present action was soon afterward brought by Scott. The yerdict of the jury was for the defendant, finding that the government corner between sections 2 and 3 on the north line of the sections was in accordance with the Smith survey, and that Walton, who made the first survey, did not find the government corner.
One of the points in the case, and in fact the principal one, wás, Where was the true section-line established by the government survey? Was it the one traced by the Walton survey, or by the later survey of Smith? The jury found, upon conflicting evidence, that the Smith survey was upon the true line; and that the strip in controversy is a part of the west half of the northwest quarter of section 2, claimed by the defendant, must be regarded as settled.
It is claimed, however, that' the possession and use of this strip of land for over fifteen years by the Scotts gave title by prescription or limitation. To have that effect the possession must be hostile and adverse as against the owner. If Scott only claimed title to the northeast quarter of section 3, and mistakenly occu pied land in section 2, believing it to be a part of his quarter when it was not, his possession was not adverse. In Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 37 Am. Rep. 138, it was held that a possession originating in and continuing under a mistake as to a boundary-line, with no intention on the part of the occupant to claim beyond the true line, will not give title by adverse possession. The rule was restated and applied in the recent case of Shanline v. Wiltsie, 70 Kan. 177, 78 Pac. 436, where it was said:
“As between the respective owners of adjoining lands, a physical possession held by one of them of a part of his neighbor’s ground, taken and held through a misapprehension of the location of the boundary-line, is not adverse, and, however long continued, will not ripen into a title or set the statute of limitations in operation, for the reason that there is no intention on the part of the occupant to exercise, or on the part of the owner to suffer, any dominion beyond the true line, wherever it may be.” (Page 181.)
Now, the testimony of the plaintiff and his grantors is to the effect that they claimed no more land than was in the northeast quarter of section 3; no more than they were entitled to under the patents and deeds conveying that quarter-section. They claimed the land to the section-line, as established by the government survey, and had no purpose to take or hold possession of Williams’s land, or of any land in section 2. Plaintiff did occupy a strip of Williams’s land for more than the statutory period, and, if he had intended to claim beyond the true line, there would be reason to call the occupancy adverse. It is clear, however, from his testimony that his occupancy was based upon a mistake as to the boundary-line, and because he believed the strip to be a part of his own quarter-section. According to his own testimony the possession was not hostile or adverse, and therefore none of the questions raised by him as to the application of the statute of limitations is material.
Plaintiff complains of the introduction of a record of the county surveyor. The objection was that the record appears to have been made up in part of the original papers of the survey, and it is argued that the statute contemplates that only copies of them shall constitute the record. That which was introduced was placed in a volume of the permanent surveys and kept among the permanent records of the county. The statement of the witness who presented it that the papers recorded in the book appeared to him to be the originals did not take from the record its official character or destroy its force as evidence. He stated that it was a permanent record of the county, and the fact, if it be a fact, that it included an original paper instead of a copy of such paper did not impeach the record or destroy its authenticity.
Some other objections are mentioned by counsel, but they appear to be immaterial, and as no error is seen in the record the judgment of the court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The appellant was convicted in the Allen county' district court of selling intoxicating liquor and maintaining a common nuisance in violation of the prohibitory liquor law. After conviction he filed a motion for a new trial as to the nuisance, which motion contained several grounds, but he relied solely upon the ground of newly discovered evidence. The motion was denied, and he brings the case here for review. The only error presented is the Refusal of the district court to grant a new trial. The showing made upon the application consisted of an affidavit of Charles Fisher, and the testimony given by one of the witnesses on the trial. Thé affidavit reads:
“Charles Fisher, being first duly sworn according to law, deposes and says:
“First, that he is at this time and has been for more than two years last past a resident of Allen county, Kansas.
“Second, that on the 1st day of January, 1904, he leased and rented the following-described property situated in Allen county, Kansas, from the agent of the owners for the period of two years, viz.: The one-story brick building situated on a tract of land in the southwest corner of the southwest quarter of section 25, township 24, and range 18, which property is more fully described in the eighth count in the information filed in the above-entitled action.
“Third, that your affiant took possession of said property on the 1st day of January, 1904, and retained possession and control of said property from January 1, 1904, to January 1, 1906, under the terms of a certain lease entered into between this affiant and the agent of the owners of said property.
“Fourth, that at no time during the life of the above-named lease did Frank Nimerick have anything whatever to do with the management or the operation of said place, nor did he work there during the time in any capacity whatsoever; neither did he sell or cause to be sold any intoxicating liquors in or around said place during the two years above named.
“Fifth, that your affiant was not in Allen county, Kansas, when the above cause came on for hearing; neither did he communicate to said Frank Nimerick or his attorneys any of the facts above set forth until your affiant had returned home and learned that said Frank Nimerick was charged, tried and convicted of operating and maintaining said described place, and further affiant sayeth not.”
The evidence of the witness was, in substance, that he had been at the place alleged to be a nuisance several times and had seen the defendant there, and that defendant acted as a patron of the establishment, but not as owner, keeper or helper. No showing was made that the defendant did not know all the facts stated in the affidavit of Fisher at the timé of the trial. No effort was made to have Fisher present as a witness. The statement by Fisher that he did not inform the defendant or his counsel of the facts contained in his affidavit is not equivalent to a statement that the defendant did not know, and by reasonable diligence could not have known, these new facts at or before the time of trial. There is no statement by Fisher that he will testify to the facts stated in his affidavit upon a further trial of the case, nor even that he will be present as a witness. It is suggested that if this affiant had been placed upon the stand by the defendant he would have refused to testify, upon the ground that his evidence would tend to criminate him. No assurance is given that he would not do so if a new trial should be granted, nor does the defendant say that his want of diligence in obtaining Fisher’s attendance at the trial was due to his belief that such refusal would be made. The showing is insufficient.
“Before a new trial will be granted upon the ground of newly discovered evidence, it must affirmatively appear, among other things,, that it was through no want of diligence on the part of those applying for the new trial that the new evidence was not earlier discovered and produced at the trial.” (Carson, Pirie, Scott & Co. v. C. M. Henderson & Co., 34 Kan. 404, 8 Pac. 727. See, also, Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890; Sexton v. Lamb, 27 Kan. 432; Clark v. Norman, 24 Kan. 515.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Charles R. Stevenson and John Tutt engaged in a personal encounter which resulted in Stevem son’s shooting and instantly killing Tutt. Stevenson was convicted of manslaughter in the second degree, from which conviction he prosecutes this appeal.
Appellant’s first contention is that the evidence was not sufficient to justify the jury in finding him guilty of manslaughter in the second degree. Upon this question suffice it to say that there was some very strong testimony of defendant’s guilt, from which the jury could very properly and justly return the verdict which they did.
His next contention is that he was prejudicially affected because a volume of the General Statutes of Kansas was in the room with the jury during their deliberations. Upon the motion for a new trial several of the jurors were sworn and testified that the statute-book was in the room during their deliberations, and H. F. Larsen, one of the jurymen, in his testimony said:
“I don’t remember who it was, but somebody asked what manslaughter in the first degree was. . . . Some one else said that we would find that in the statute of Kansas, and I mentioned then the statute of Kansas lay right there, but not with the intention that we want to use it. I remember Charley Brown said that we have no right whatever to use the statutes of Kansas in. deciding this case and the book was not touched at that time.”
Mr. Brown, .another juror, testified that before they had arrived at a verdict he saw D. W. Anderson, the foreman of the jury, open the statute-book and examine it about a minute; that he was “looking at the paragraphs along the front just like he was going to hunt something up.”
All of the jurors who testified concerning this fact stated that the-statute-book and its contents were not discussed by any of the jurors at any time, and there was no testimony tending to show that it was opened by any juror, except the testimony of Mr. Brown concerning Anderson’s examination, and no reference whatever was made to the statute-book during the deliberations, except the statement that the definition of manslaughter could be found in it.' It has been held in this court that the use by the jury of documents the contents of which might influence them is misconduct, and prejudice will be presumed. {The State v. Lantz, 23 Kan. 728, 33 Am. Rep. 215; The State v. Clark, 34 Kan. 289, 8 Pac. 528.) In the present case, however, no use appears to have been made of the statutes in the deliberations. The mere presence of the statute-book in the room where the jury were would not of itself be prejudicial to the appellant, although its use might be. The idea of examining it to ascertain what the definition of manslaughter might be, if such an idea was entertained by any member of the jury, was promptly suppressed by the statement of one of them that they could not examine it but must be governed solely by the instructions. The rights of appellant could not, therefore, have been prejudicially affected, by the mere presence of the statute-book in the room while the jury were deliberating.
Another contention is that the jury, while deliberating, were permitted to separate. The only testimony on this point was given by Charley P. Hill, one of the jurors, who testified as follows:
“Ques. You went out with the jurors and left the other jurors in some of the time? Ans. I think the jury was divided in going out a time or two, possibly three times.
“Q. So far as you know you don’t know what each juror did during the time you were not in the jury-room? A. Not all the time.”
There is no showing that these separations of the jury were not necessary to attend to the calls of nature, or that the bailiff was not with those absent. There is no claim that while out of the jury-room they came in contact with other persons. The jury were deliberating from five o’clock P. M. until the next morning. A mere suspicion that jurors might have been guilty of misconduct is not sufficient to justify a court in setting aside a verdict. The evidence in this case on that question does not even raise a suspicion of misconduct.
. The contention that the court erred in its instruction defining manslaughter in the second degree is not deserving of much attention. The instruction given follows :
“Next, as to manslaughter in the second degree, so far as any definition of manslaughter in the second degree is concerned, that can in anywise be deemed applicable to the evidence in this case, it is the unnecessary killing of another either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.”
It will be observed that the instruction is in the exact language of the statute, and is clear and easily understood, and the jury could not have misunderstood it. Where a statute defining a particular crime is couched in language easily understood the court may always quote such language in defining the crime. If such statute were so long and involved or so obscure that the jury might be misled or unable to understand it readily it might be the duty of the court to explain it, but such a rule can have no application to the statute under consideration. There was no error in defining manslaughter in the language of the statute.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
Appellant was convicted of maintaining and operating pool-tables in the city of Burlingame coiffeiary to an ordinance enacted August 21, 1905, vdtgdh reads as follows:
T “Section 1. It shall be unlawful for any person or persons to operate or maintain any billiard-table, pool-table, pool-room, pool-hall or bowling-alley for pay within the city limits of the city of Burlingame.
“Sec. 2. Any person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be fined not less than five nor more than fifty dollars for each and every offense.”
The statutory authority for this ordinance is found in chapter 125 of the Laws of 1905, section 1 of which reads as follows:
“That the city council of cities of the third class within the state of Kansas shall have the power to enact an ordinance restraining, prohibiting and suppressing pool-tables, pool-rooms and pool-halls, within the city limits.”
Appellant had been having trouble with the city before he was arrested in the proceeding from which this appeal is taken. He now asks this court to take into consideration “friendly assurances” of the city officials under which in 1902 he started his establishment at an outlay of some $600, the payment of $410 license fees from 1902 to 1905, the enactment in July, 1905, of an ordinance increasing his license, the fact that he secured a permanent injunction against the enforcement of that ordinance as unreasonable, and some other claimed facts not in the record but asserted in his brief, and from the whole story to conclude that the August ordinance was passed from bad motives and that he is prosecuted through malice and vindictiveness.' It requires no argument and no reference to precedent to show that this court cannot sit in judgment upon the motives actuating the municipal authorities in pursuing a course which the legislature expressly authorized them to take.
Appellant argues that the ordinance in question strikes down a business of profit, renders his property of little value and of no use, and hence that his rights under the federal constitution have been infringed.» If the statute under which the ordinance was enacted falls within the police power of the state appellant must submit, whatever the effect upon his property and business. All rights exist subject to that power. By allowing pool-halls once to run the state gave no assurance that they might continue, and did not estop itself from subsequently prohibiting them. This subject was fully considered in the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. The doctrine there announced was followed in the case of Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253, and no departure from it has since been made.
On the trial the city admitted that appellant always conducted his place in a quiet and orderly manner. He argues that, at common law the operation of billiard-tables (pool-tables being like them) was not a nuisance and that the legislature cannot make his pool-hall a nuisance unless it becomes disorderly. The legislature was not concerned with conditions of society in England when the common law was in process of making, but it had to deal with the morals of small cities in Kansas; and tumult and uproar are not indispensable to legislative interference for the public good. Many games and practices may be detrimental to the welfare of a community which are unaccompanied by boisterousness and cannot be classed with nuisances of the disturbing kind. Some of the most enticing are reported as “gentlemen’s games,” in playing which the nicest decorum is observed. So the constant tendency to become disorderly may be but one of the faults of the small-town pool-room. It may be vicious and not be loud.
The supreme court of Nebraska has said that a pool-hall in a village is apt to degenerate into a trysting place for idlers and a nidus for vice. (Morgan v. State 64 Neb. 369, 90 N. W. 108.) The supreme court of Missouri has expressed itself thus:
“It is very clear that those exercising useful trades and occupations do not occupy the same relation to society as those engaged solely in giving amusement to the public, and a much larger discretion should be given in regulating the latter than the former.
“Keepers of billiard-tables are not recognized by the state as exercising a useful occupation. They are subjected to police regulation by the state and by cities under powers granted them by the state. (R. S. ch. 16.) They are prohibited from allowing minors to play upon their tables. (R. S. § 715.) Villages may prohibit them altogether. (R. S. § 1672.) Public billiard-halls are regarded by many as vicious in their tendencies, leading to idleness, gambling and other vices.” (The City of Tarkio v. Cook, 120 Mo. 1, 10, 25 S. W. 202, 203, 41 Am. St. Rep. 678.)
In Freund on Police Power, section 193, it is said: “The legislative power to suppress the keeping of such places for hire does not appear to be subject to doubt.”
Appellant asks this court to substitute its judgment for that of the legislature and to declare that quiet pool-halls in small towns cannot be suppressed. The scope of judicial authority in such matters is discussed fully in the case of The Slate v. Durein, 70 Kan. 1, 19, et seq., 80 Pac. 987. This court is satisfied that the suppression of pool-tables is'a subject germane to the peace, order and good morals of cities of the third class in this state, and that neither the legislature nor the city council has transcended its power.
Finally it is argued the ordinance is void because it discriminates against' keepers of pool-tables for hire. The distinction made by the ordinance is merely that between public keepers and private owners, and is natural, reasonable and just. A private pool-table kept for the owner’s amusement and benefit, like a piano or an apparatus for taking exercise, cannot, according to the leading case of Stevens and Woods v. The State, 2 Ark. 291, 35 Am. Dec. 72, be interfered with. The legislature did not have such tables in contemplation when the statute was enacted. Only those which are opened to the general public for hire, and which therefore bear a relation to the public weal, are to be reached, and the ordinance merely carries out the purpose of the statute.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The only material error assigned was that the evidence did not sustain the verdict of the jury, but upon a careful reading of the record we are of the opinion that there was sufficient evidence to support the verdict.
The judgment is affirmed. | [
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Per Curiam:
It was determined in The State v. Lewis, 72 Kan. 234, 83 Pac. 619, that no time had been fixed for settling and signing a case-made in this case when the trial judge’s term of office expired, and that therefore he was without jurisdiction. Since that time the legislature enacted chapter 320 of the Laws of 1905, which it is contended vested the ex-judge with authority to settle and sign the case-made. The case-made was again presented to the ex-judge, and, under the authority of that act, he settled and signed it. The defendant challenges the validity of the case-made and the jurisdiction of this court. It has already been held that the act of 1905 does not operate retrospectively, and confers no power upon a trial judge who had prior to the passage of the act lost jurisdiction to settle the case-made. (Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028.) Nothing stated in the affidavits filed affects the validity of the case-made.
The proceeding is therefore dismissed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Christian Deuhn and Cecelia Deuhn, who were advanced in years, entered into a contract with William Koppa by which they conveyed to him a tract of land, the consideration being that he should assume and pay a mortgage on the land and should pay to them $400 per year during their lifetime, or pay that amount during the lifetime of either of them. The Deuhns had no children, and after both had died some of their heirs brought this suit, attacking the validity of the deed and contract upon the ground that at the time of their execution Mrs. Deuhn was mentally incapable and did not understand the nature and effect of her acts. In trying this issue the court called a jury and submitted to them the single question, “Was Cecelia Deuhn, on the 19th day of November, 1903, at the time said contract and deed were made and executed, mentally competent to know and understand the business or transaction in which she was engaged when making said contract and deed?” To this question an affirmative answer was made. The court took the same view of the facts and found that Mrs. Deuhn was sane and capable when she executed the instruments, and accordingly gave judgment against the plaintiffs.
The principal question presented here arises on the ruling permitting J. P. Adams to express an opinion as to the mental capacity of Mrs. Deuhn. The witness is an attorney who had an acquaintance with the Deuhns and had transacted business for them. When the condition of Mrs. Deuhn’s mind became a question Adams visited and conversed with her, observed her acts, declarations and manner, and later expressed the opinion in court that she was mentally capable. In addition he testified as to her conversation with him and her conduct in his presence. A wide range of testimony is allowed in cases where mental capacity is in question. It is a general rule that any and all conduct of the person is admissible in evidence. (1 Wig. Ev. § 228.) About the time of the execution of the deed in question the witness was with Mrs. Deuhn at dinner and talked with her about two hours. He related her conversation with him and testified in regard to her acts and statements at that time, as well as on other occasions when she was in town and called on him at his office. All this was competent testimony, and at the same time it served to show the opportunity which the witness had had to observe and judge of Mrs. Deuhn’s mental condition.
An unprofessional observer is competent to form a judgment and express an opinion on the sanity or insanity of one'he knows. A fundamental qualification is that the witness shall have had adequate opportunities of observing the conduct, declarations and appearance of the person whose sanity is in question. The weight and force of the testimony will depend upon the extent of the opportunity, as well as the power and habits of observation possessed by the witness, and a consideration of all the circumstances under which his opinion' was formed. The courts do not undertake to lay down a definite rule as to how closely the witness must have observed the person whose sanity is the subject of inquiry in order to be qualified as a witness, as even a casual observer may discover mental manifestations that would make his testimony valuable. Whether there is a fair basis for an opinion by a witness must be left largely to the trial court; and the jury, taking note of the opportunity and powers of observation of. the witness, must then decide what weight and effect shall be given to his opinion. (Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; The State v. Beuerman, 59 Kan. 586, 53 Pac. 874; Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92.)
The visit of Adams to the home of Mrs. Deuhn, his conversation with her after his attention had been called to her mental, condition, and his study of her mental manifestations at that time and on other occasions, warranted him in giving his judgment as to her mental condition.
'• The contention that he formed his opinion from what he learned from others and not from personal observation is not justified by the record. He expressly stated that he formed his opinion from his observation of, and experience with, her. Incidentally he did state that he had conversed with some of her neighbors' at the time of his visit, but when pressed for the basis of his opinion he said that it had been formed from his conversation with her.
Other errors are assigned, but they were not argued and hence are not entitled to consideration. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
In each of these cases the defendant was charged by information with giving intoxicating liquor to a minor. There was no evidence to sustain the charge of giving intoxicating liquor to a minor, but there was evidence, admitted over the objection and exception of the defendant, of sales by the defendant of intoxicating liquor to the minor named in the information. The defendant in each case was found guilty, his motion for a new trial was denied, and he was sentenced.
Each of these cases is reversed on the authority of The State v. Fletcher, ante, p. 620. | [
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The opinion of the court was delivered by
Greene, J.:
W. W. Harvey, as receiver of the Masonic Mutual Benefit Society of Kansas, a corporation, brought this suit against L. C. Wasson and others as directors of the society, and A. S. Andrews and others as individuals, upon a judgment previously obtained against the society in favor of Harry S. Moulton, to recover a personal judgment against the directors; to have certain lands purchased from the society and their grantees, and now owned by the other defendants, declared to be impressed with a trust to pay the Moulton judgment; to have such conveyances set aside and the land held to be trust property of the society for the payment of the Moulton judgment; and, also, for the possession of certain notes and mortgages which the society had sold and transferred and which are now held by some of the defendants.
It appears that at the time of his death, July 21, 1897, Horace Moulton was a stockholder in the Masonic Mutual Benefit Society and was insured therein in the sum of $2000; that Harry S. Moulton was his beneficiary; and that on January 24, 1898, the beneficiary commenced his action against the society on the beneficiary certificate, which resulted in a final judgment in his favor May, 1902, for $2560.
For several years prior to February 16, 1900, the society had been paying out considerable more money than it was taking in, and during the ten and one-half months immediately preceding this date there had been paid out over $10,000 more than was taken in. At this time the society was the owner of certain real estate, notes, mortgages, and bonds, mentioned in the petition, aggregating about $55,000. After proper notice thereof, the stockholders of the society held a special meeting, February 16, 1900, to determine what should be its further course. It was the expressed wish of a majority of the stockholders, and they requested the directors, to accept a proposition made to the society by the Northwestern Life Assurance Company (hereafter termed the “company”) of Illinois. Among many-others, this proposition contained provisions to accept the assets of the Kansas society; to.take over all its members into the company; to continue their policies in the company on the same terms and conditions as were originally agreed upon by the society;.and to assume and pay all of its other liabilities. The request of the stockholders was fully carried out by the . directors, and the assets then belonging to the society all passed to the company.
It is unnecessary in this case to determine whether the directors could enter into the agreement with the company. It is sufficient to determine whether they could part with the assets of the society without paying the Moulton benefit.
The assets of the society, according to article 9 of the by-laws, as amended, were divided into three separate funds — the benefit fund, the permanent.fund, and the expense fund. Under this article the expense fund could never exceed. $1000. Whenever it exceeded this amount the excess should be credited to the benefit fund. It is apparent, therefore, that the $55,000 of assets on hand when the directors transferred them to the company, with the possible exception of $1000 be longing to the expense fund, belonged either to the benefit fund or the permanent fund. Article 9 referred to provides that the benefit fund shall be used solely for the payment of benefits upon the death of a member. It also provides that the permanent fund may be used for the payment of benefits, in the event that receipts to the benefit fund shall fall short of meeting such claims as they mature. The by-laws made it the duty of the directors to pay such liabilities on demand, without waiting for an assessment, out of the benefit fund, if sufficient; if not, then out of the permanent fund. Mr. Pomeroy, in treating of the duties of trustees, says:
“Under the general obligation of carrying the trust into execution, trustees and all fiduciary persons are bound, in the first place, to conform strictly to the directions of the trust. This is in fact the corner-stone upon which all other duties rest, the source from which all other duties take their origin. The. trust itself, whatever it be, constitutes the charter of the trustee’s powers and duties; from it he derives the rule of his conduct; it prescribes the extent and limits of his authority; it furnishes the measure of his obligations.” (3 Pom. Eq. Juris., 3d ed., § 1062.)
The directors had no discretionary power to exercise in the payment of-benefits. So long as there were any assets in either fund it was obligatory upon them to apply such funds to the payment of benefits upon demand. Moulton’s claim had become a fixed liability against the society when the directors parted with the assets, and there were funds on hand to pay it which should have been applied thereto. The fact that the directors acted in good faith and in the manner which in their judgment was for the best interests of all the members will not relieve them from liability to Moulton, whose loss appears to have resulted from their unauthorized conduct.
Upon the proposition that the purchasers of the real and personal property formerly the assets of the Kan sas society took such property impressed with a trust in favor of Moulton, the judgment of the trial court must be affirmed. The by-laws of the corporation authorized the board of directors to invest the permanent fund, and left it to their discretion as to how or in what kind of property it should be invested. The directors were executing the purposes of the trust when they invested in the bonds, notes, mortgages and real estate involved in this .litigation. Implied in the authority to make such investment is the authority, if occasion demands, to sell the real estate and indorse and transfer the notes, bonds, and mortgages. It appears from the facts, as well as the findings of the court, that the indorsees of the notes and mortgages took them in the usual bourse of business, ofor a valuable consideration, and without notice, either actual or constructive, that they were not negotiated by the Kansas society under the authority of its charter. The owners of the real estate appear to have acquired such property by deeds 'in all respects formal, without actual notice that the Kansas society had not parted with such lands in the proper execution of the trust, and there is nothing in the record that gave them constructive notice to the contrary. It is contended that the owners of the land had constructive notice of the want of authority of the Kansas society to convey the land, which conveyance was by warranty deed, because the chain of title shows that the defendants’ grantor took title from the company by deed from its trustee. At- most such notice would only require the present owners to know that the trustee was vested with authority to convey, and whether he had such authority could only be litigated by a cestui que trust, or some person interested directly in a proper execution of the trust.
The judgment of the district court is affirmed so far as it held that the real estate is not impressed with a trust and that the plaintiff was not entitled to recover the notes, bonds, and mortgages, but so far as it held that the plaintiff could not recover a personal judgment against the directors the judgment is reversed, and the cause remanded with instructions to enter judgment against such directors. The costs in this court are taxed equally between the directors and the plaintiff in error.
All the Justices concurring. | [
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Per Curiam:
This was an action in ejectment, commenced in 1904, to recover possession of eighty acres of land. Plaintiff claimed and proved actual posses sion, with claim of title under a tax deed, for a period of more than fifteen years. The cause was tried to the court without a jury, and at the conclusion of plaintiff’s testimony the court found generally for defendant. Plaintiff brings error and claims that the evidence required a judgment in his favor.
The answer set up that the immediate grantor of defendant was a minor during the fifteen-year period of plaintiff’s possession; that, within two years after such disability was removed, and some thirteen years prior to the commencement of this action, he had brought suit against plaintiff and recovered a judgment in the district court forever barring plaintiff from any title to, or interest in, the land; and that such judgment had never been reversed or appealed from and was res judicata. On the trial plaintiff for some reason introduced the record of this former judgment, and also acknowledged that he had accepted and receipted for a certain sum of money adjudged in that action to be due him as a lien for taxes paid on the land. There is no merit in the claim that the fifteen years of possession under color of title gave him a title in fee, when the claim is accompanied by proof that during that period some one who was under disability had, within two years after the removal of such disability, successfully asserted a superior claim to the land. Besides, the court may have rested the judgment upon the former adjudication. Upon either ground it was right.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was tried, convicted and sentenced for the crime of robbery in the district court of Riley county, and appeals therefrom to this court. Our attention is first called to the information, and it is urged that it is bad for duplicity, in that it charges two felonies in one count — one of an assault with a deadly weapon with intent to commit robbery, under section 38 of the crimes and punishments act (Gen. Stat. 1901, § 2023), the other of robbery in the first degree, under section 73 of that act. (Gen. Stat. 1901, § 2064.) The objection is not well taken. An assault with intent to rob might be regarded as the first step, and an assault with an attempt to rob as the second step, toward the completion of the crime of robbery in the first degree. They are essentially crimes of the same character, if not logically grades of the same crime. Where only the higher degree of crime is specifically charged an information is not bad for the reason that it charges facts which would, if established, justify a conviction for another crime of like nature but of a lower grade, especially where such facts are ingredients of each crime. (The State v. Hodges, 45 Kan. 389, 26 Pac. 676.)
In complaining that the money alleged to have been taken was not described with sufficient certainty the appellant asks us to assume that the money said to have been in the possession of the county attorney at the time he drew the information was the identical money taken. The testimony of, the appellant and his whole contention was that there was no money taken. He does not seem to have been prejudiced.
The alleged variance between a “gold filled watch” and a “gold watch” is fully answered adversely to appellant in The State v. Alexander, 66 Kan. 726, 72 Pac. 227.
We have examined the complaint made as to the admission of improper testimony and find nothing to merit extended consideration. The evidence complained of was mainly intended to show the degree of force used, and on a trial for robbery this is a proper subject of proof. (The State v. Alexander, supra.)
Complaint is made of the giving of certain instructions and of the refusal to give others requested by appellant. No attempt is made to comply with the requirements of rule 10 of this court, and since attention has so frequently been called to this matter we would be justified in ignoring the objections. The great number of cases decided at each session render it impossible for each member of the court personally to read the entire record of each case, as there is only one copy of the record provided. Each member, however, is provided with copies of the briefs in each case, and if rule 10 be complied with each member may easily gain an intelligent understanding of the questions involved and the business of the court be thereby greatly facilitated. In a case of this importance, however, we are unwilling rigidly to enforce the rule, and have, in fact, examined all the instructions and requests to which our attention is called.
It is contended, in objection to instruction No. 4 given by the court, that it limits the consideration of the jury to one degree of the crime of robbery, viz., the first degree. It is said that the charge embraces an attempt to rob, larceny from the person, and grand and petit larceny. If it be admitted that the charge does embrace these crimes, it must be conceded that the evidence does not. The only evidence of larceny is connected with the assault, and is entirely circumstantial as to the identity of the thief. It is that when assaulted and beaten into insensibility the prosecuting witness had the money, and his assailant, the appellant, was the only person present, and that when the next person who is known to have come into the presence of the prosecuting witness arrived ’there the money and the watch were'gone. There is no evidence that appellant attempted to take the articles and failed, and no evidence that he took them, except the circumstances connected with the assault and the subsequent possession of like articles by him. ■ He was guilty of robbery in the first degree if guilty of any of the minor crimes specified, and hence the contention cannot be maintained.
We have examined all of the requests for further instructions submitted by the appellant and find that so far as they are correct statements of the law they are embodied in the instructions given by the court.
The appellant appears to have had a fair trial and to have had accorded to him every legal right, and the judgment of conviction is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
In March, 1900, Peter O’Connor, Mahlon Patterson and I. Patterson executed to the Drovers’ Live-stock Commission Company a mortgage upon a number of head of cattle to secure their note for $11,-293.40. Later in the year the mortgagors sold a number of the cattle to the Charles Wolff Packing Company, receiving the proceeds thereof, a part of which they turned over to the mortgagee and the remainder of . which, amounting according to the only evidence on the subject to $2073.14, they retained. The commission company, upon learning of this fact, on January 11, 1901, wrote to the packing company saying in substance that it was doubtful of its security and that unless otherwise protected it would at once sell the remaining cattle and look to the packing company for any deficiency if the property should fail to satisfy the debt, adding that it expected a shortage of about $1000. Negotiations were then entered into which culminated in a written contract between the two companies, reading as follows:
“This agreement made and entered into this 14th day of January, 1901, by and between the Charles Wolff Packing Company,- a corporation, of the city of Topeka, Kan., party of the first part, and the Drovers’ Live-stock Commission Company, a corporation, of Kansas City, Mo., party of the second part:
“Witnesseth, that whereas the party of the second part is the owner and holder of certain notes and chattel mortgages, said chattel mortgages being recorded in Pottawatomie and Wabaunsee counties, Kansas, and said cattle being now in Wabaunsee county, Kansas, to secure the same, made by Patterson & O’Connor, by M. Patterson, to the party of the second part, on about six hundred and eighty-three head of cattle, on which there is a balance of five thousand seven hundred and eighty-two dollars and eighty-eight cents ($5782.88) . due at this time; and,
“Whereas, the Charles Wolff Packing Company has heretofore bought a portion of the cattle described in said mortgages from Patterson & O’Connor, and it be ing doubtful whether the remainder of said cattle is sufficient to fully pay the balance due on said notes and mortgages;
“Now,' therefore, in consideration of the forbearance of the foreclosure of said notes and mortgages for the period of one hundred and twenty days from this date, and the settlement and adjustment of all matters existing between said parties to this contract, the said Charles Wolff Packing Company hereby guarantees the full payment of said balance of five thousand seven hundred and eighty-two dollars and eight-eight cents ($5782.88), with interest at eight per cent, from this date, to the said party of the second part.
“It being the understanding and agreement between said parties that the Charles Wolff Packing Company is to have the right to cause said cattle to be full fed and to then purchase the same itself or cause the same to be sold in the market and apply the proceeds of said sale to the payment and discharge of the aforesaid balance of indebtedness as the same are sold as aforesaid ; and upon pajunent of the said sum of $5782.88 and interest to the party of the second part by said first party, said notes and mortgages shall be assigned to and become the property of the party of the first part.”
Shortly after this agreement was entered into the-packing company took possession of the cattle. It exercised control over them for several weeks, during which time it made sales from them to the amount of $2342.66, which was applied to the mortgage debt. On February 25, 1901, the Pattersons filed a petition in bankruptcy. The trustee in bankruptcy sold the remaining cattle and paid the proceeds ($1580.70) to the commission company. The commission company then sued the packing company upon its guaranty for the balance due upon the mortgage debt — $1968.70. The packing company defended upon the ground that it had been induced to give the guaranty by false representations made by the commission company as to the number of mortgaged cattle and the quantity of feed the Pattersons had, and that upon learning the true facts in the case it had repudiated the contract and given notice to that effect. A jury trial resulted in' a verdict for the defendant, upon which a judgment was rendered, from which the plaintiff prosecutes error.
The plaintiff in error insists that the judgment cannot stand for the reason that, even admitting that a situation had once existed which would have authorized the defendant to rescind the contract of guaranty, it had lost the right to do so by failing to assert it in a proper manner and by timely action — especially in this, that it had omitted to disavow liability promptly upon the discovery of the alleged fraud. The defendant in error maintains, however, that this question is not in the case, because not raised by the pleadings; that in order to avail itself of this contention the plaintiff was required to plead ratification; that this was not done, and therefore no issue was joined on that subject. It is true that the plaintiff did not affirmatively and expressly plead ratification, waiver or laches. But the defendant in its answer alleged that upon the discovery of the fraud it “immediately refused to have anything more to do with said contract and repudiated and rescinded it and so notified said plaintiff.” The reply was a general denial. Whether under these pleadings the plaintiff was entitled to invoke the doctrine of equitable estoppel against the defendant need not be determined. The case was tried throughout and submitted to the jury upon the assumption that this matter was one of the vital issues; this not only without objection by the defendant, but with its positive approval, for it asked several instructions on the subject, some of which were given by the court. Under these circumstances this court cannot undertake to examine the pleadings for the purpose of deciding whether they formally presented the issue of ratification. A similar situation gave occasion for a similar holding in Edwards v. Sourbeer, 73 Kan. 224, 84 Pac. 1033.
The jury specially found these facts, among others: The packing company took possession of the cattle January 16 or 17, 1901; within a few days it learned just how much feed was on hand and was therefore ad vised of any misrepresentation that had been made to it in that regard; by January 19 it also learned that the fifty-nine head of cattle, upon the absence of which it chiefly relied to avoid the contract, were not with the rest of the herd and had not been brought to light elsewhere ; on January 26 it wrote to the commission company calling attention to the shortage of cattle, but not mentioning the feed, and asking what that company knew about the matter and how such a mistake could have happened; on January 28 the commission company answered thus: “We know nothing about the count of the cattle referred to, but yourselves and Mr. Wolff talked this matter over with Mr. Patterson and we had nothing to do with it. We do pot .believe Mr. Patterson can be short any cattle but assume no liability on account thereof”; the packing company made seven shipments of cattle, the first on January 24 and the last on February 18, the sales, amounting to $2342.66; up to February 22 or 23 it entertained hopes ■ that the missing cattle would yet be discovered, but at that time it became fully satisfied that the Pattersons' did not have them, and thereupon it abandoned possession of the cattle remaining on hand; on February 25 the Pattersons filed petitions in bankruptcy, and their trustee shortly afterward took charge of the cattle, which they later sold for $1580.70, paying the proceeds to the commission company; on April 3 the packing company wrote to the commission company that it did not consider itself bound by the contract of guaranty and would pay nothing on account of it unless compelled to do so by the judgment of a court.
It is strongly urged in behalf of the commission company that the conduct of the packing company in retaining control of the cattle, and especially in continuing to market them for so long a time after it had discovered the shortage, both in respect to the feed and the live stock, and after it had been notified that the commission company disclaimed all responsibility in the matter, absolutely cut off defendant from any right it might otherwise have had to repudiate the contract. This argument has much real force as well as obvious plausibility. Possibly, however, the lingering hope which the jury found that the packing company entertained until February 22 or 23 that the missing fifty-nine head of cattle might yet be discovered may be considered a sufficient excuse for its continuing to recognize the contract until that time. But when it became fully satisfied that these cattle did not exist, and determined on that account to disavow the contract, a duty devolved' upon it to do something more than merely passively to cease giving it affirmative recognition. It was charged with the further obligation to advise the commission company with reasonable promptness of its decision. Instead of performing that obligation, so far at least as the special findings declare or the evidence discloses, it remained silent from February 23 to April 3.
How much delay can be tolerated in giving notice of an election of a course to be pursued under analogous circumstances may ordinarily be a question of fact to be determined by a jury. Here the long period of inaction — thirty-nine days — is important, but. not necessarily controlling. The vital consideration is that during this interval all the remainder of the mortgaged cattle were disposed of by the trustee in bankruptcy. One reason for requiring the packing company to give early information to the commission company that it had concluded to deny liability under the contract is that the latter company should have had the opportunity, with the knowledge of that fact, to determine what course it would pursue with regard to the disposition of the cattle. It does not appear even that it knew the packing company had abandoned control of them. But even if it did, that fact was of no concern to it so long as it understood that its right was not denied to look to the guarantor for any part of the mortgage debt that should not be satisfied from the proceeds of the property. If it had been given timely notice of the repudiation it might have preferred to manage the cattle itself in its own way. Whether it could have made them bring larger returns is wholly beside the purpose. It was entitled to make the attempt if it saw fit, and to know the attitude of the packing company before making up its mind as to its own course. The packing company, by delaying to give notice of its conclusion to disavow responsibility until such notice was rendered wholly unavailing for one of the most important purposes it was adapted to serve, there being nothing whatever to excuse such neglect, was barred from any right it might otherwise have had to rescind the contract.
If it could be said that the special findings showed ■affirmatively that no notice of the attempted repudiation was given until April 3 a judgment for the plaintiff would have to be ordered. They do not do so in terms, although it is questionable whether they may not fairly be said to do so by inference. ' Another trial may develop a different state of facts. A judgment will not be ordered, but because there was no evidence of any notice given prior to April 3 of an intention to set aside the contract, or of any facts excusing such omission, a new trial will be granted.
Another consideratio'n forbids the judgment to stand. So far as the record shows, at the time the contract of guaranty was executed the packing company stood definitely charged with a debt to the commission company of about $2000. It had confessedly used cattle of that value upon which the commission company held a duly recorded mortgage, without accounting to the mortgagee in any way. A suggestion was made in the course of the trial of a claim by the packing company that the prior dealings between the parties had been, such as to alter the prima facie aspect of the case and provide it with a defense against a demand for the value of the cattle, but there was no testimony whatever offered in support of such a claim. There is nothing to indicate, at least from the standpoint of the packing com pany, that the cattle did not bring all that they were worth, and they fell short of satisfying the debt by approximately $2000; therefore its contingent liability to make up whatever indebtedness should remain after their sale, up to $2000, was practically a fixed obligation of that amount. All the loss it suffered by reason of the contract was the expense it incurred in caring for the cattle for a little over a month. This expenditure was presumably compensated in whole or in part by the increased value it gave the cattle and the consequently increased proceeds from their sale. At all events it could not have amounted to a sufficient offset for the preexisting obligation. The packing company therefore profited by the contract to the extent of being relieved from a fixed liability of substantially $2000. The effect of the judgment was to release the defendant from paying for $2000 worth of the plaintiff’s property which it had obtained without compensation —practically to take $2000 from the plaintiff and give it to the defendant.
That the defendant had paid full value to the mortgagors — had been defrauded out of the amount by them — does not affect its relations to the plaintiff. The defendant, in order to rescind the contract, was required to restore what it had taken under it — to reestablish the former status of the parties. It could not retain the benefits and reject the burdens. Unless it claimed the existence of facts which relieved it from liability for having used the mortgagee’s cattle it was bound to tender payment of their value. If it did make that claim it was equally bound to show that it was well founded. If the plaintiff was not entitled to recover on the written contract it was entitled to be reinstated in the right it had surrendered by reason thereof — the right to call the defendant to account for the loss it had already suffered by the misappropriation of the cattle which it owned as mortgagee. The defendant failed to make any provision for the protec tion of this right; it did not offer to pay the plaintiff in whole or in part for the cattle it had purchased of the mortgagor, or to have its liability in this regard examined or adjusted; for this reason it was not entitled to a judgment upholding its repudiation of the contract of guaranty.
(89 Pac. 465.)
These conclusions seem so plainly to accord with the principles of equity that it is not thought necessary to cite authorities. Cases more or less in point may be found in 14 A. & E. Encycl. of L. 159, 161, 24 A. & E. Encycl. of L. 620, 645, and 9 Cyc. 435.
The judgment is reversed, and the cause remanded for further proceedings consistent with the views here expressed.
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Per Curiam:
In this case it is contended that a tax deed which has been of record more than five years is void on its face because the day of sale is not stated. The blanks in the statutory form (“did on the —- day of-A. D. 189 — ”) were not filled, but immediately following it is stated that the sale was begun and held on the first Tuesday of September, A. D. 1896. The court will not presume that the sale extended beyond the day named, nor that the sale was made on any other day. The principle of law covering the case is announced in the first paragraph of the syllabus of Penrose v. Cooper (on rehearing), 71 Kan. 725, 84 Pac. 115.
Other claimed defects in the deed are pointed out. The answer contains several defenses, separately stated and numbered. The first consists of a general denial. The second is devoted to irregularities in the proceedings, beginning with matters preceding the sale and ending with the redemption notice. The third attacks, the deed as void on its face for the single reason stated. The judgment recites that the court finds that the tax deed is not void on its face because of any of the reasons alleged in the answer. Hence the court may have considered the question whether the consideration in the deed is shown to be excessive by the face of the instrument.
The purchaser at the tax sale paid the subsequent taxes. The years for which such payments were made' are stated, but the dates of payment are not given. Plaintiff in error assumes dates satisfactory to himself and makes a computation of interest which shows the deed to be bad. But the court will make no such assumption. Assuming other dates, the consideration may be accounted for to a penny, and the question is, Does the deed prove itself to be void? The principle to be applied in such cases is stated in Kennedy v. Scott, 72 Kan. 359, 83 Pac. 971.
It is claimed the description contained in the deed is defective, but nowhere in the pleadings is the description assailed, and the conduct of the trial court cannot be questioned concerning matters not submitted to it for decision.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff asks that a writ of mandamus be issued to compel the defendant to perform certain of its duties as a common carrier. The facts as found by a commissioner app.ointed to take the testimony and report findings of fact are as follow:
“(1) In the succeeding findings the Missouri Pacific Railway Company will be referred to as ‘the Mis- • souri Pacific’; the Atchison, Topeka & Santa Fe Railway Company as ‘the Santa Fe’; the Missouri Valley Car Service and Storage Association as ‘the car-service association’; and the plaintiff as ‘the mill company.’
“ (2) Stafford is a flourishing town of 1600 people, in Stafford county, Kansas, surrounded by a large scope of country productive of large annual crops of wheat. The Missouri Pacific and the Santa Fe each have a line of railroad running practically east and west through Stafford, with freight and passenger stations and sidetracks and station facilities thereat.
“The mill company has, and-for more than four .years has had, a flouring-mill of 1000 barrels daily capacity, and continuously operates this mill except on Sundays. This mill is located alongside the tracks of the Missouri Pacific and a short distance from its freight station. The tracks and freight stations of the two roads are separate a distance of one mile, and the Santa Fe station and station facilities are one mile from the mill.' The mill company ships from its mill over these two roads substantially its entire product, three-fifths of which is so shipped out of the state of Kansas and into other states, and two-fifths to points within the state of Kansas. The mill company purchases a large portion of its grain at Stafford, which is delivered in wagons at the mill; and purchases a large portion of its grain at points distant from Stafford, all of which is shipped to it in car-load lots over these two roads, and delivered to it at the mill by the Missouri Pacific. The mill company sells its product to dealers, and the larger portion of its output is shipped to customers most conveniently reached by shipping from Stafford by the Santa Fe, and a large portion is shipped to customers most conveniently reached by shipping from Stafford by the Missouri Pacific.
“(3) The Missouri Valley Car Service and Storage Association is an unincorporated voluntary association of a number of railroad companies, having a manager and other employees. The object and the duty of this association is to represent, serve, protect the interest and enforce the rights of the members thereof in the matter of the interchange of freight-cars, the prompt loading, unloading and return of cars interchanged or delivered to shippers for traffic purposes. This association has been in operation for many years, and from a time prior to any of the transactions mentioned in this investigation, and its objects and operations and methods have been generally understood by commercial shippers by car-load lots, and generally acquiesced in as a proper instrument for securing to the shipping public the greatest amount of service from the available car supply of the roads composing it. The association has adopted and had in effect since January 1, 1904, a body of rules, a printed copy of which accompanies these findings.
“ (4) The lines of the Missouri Pacific and the Santa Fe intersect at a point one mile distance westwardly from the mill and the Missouri Pacific station, and the same distance from the Santa Fe station. As near as practicable to the intersection the Santa Fe, in the year 1903, constructed at its own expense a transfer-track from a connection with its own to a connection with the Missouri Pacific line. At that point and for a half mile eastward the Missouri Pacific line is located in Prairie avenue, a public street of Stafford, and no part of the transfer-track is owned by the Missouri Pacific, or on its right of way or private ground. No express contract is shown to exist between the two railroad companies requiring either to use or to permit the other to use the transfer-track, or requiring either to place empty or loaded cars thereon to be taken away or returned by the other. In order for the Missouri Pacific to take cars from the said transfer-track which had been placed thereon by the Santa Fe, or return such cars thereto, it is necessary for it to go entirely off its own track and right of way, both in going after cars standing on said Santa Fe transfer-track and in setting loaded cars on the same; the Missouri Pacific not owning and having no control over any part of the said track or of the right of way over which it passes.
“(5) Immediately after the construction of the transfer-track the Santa Fe began to place thereon empty cars to be by the Missouri Pacific taken therefrom and placed for loading with flour at the mill company’s mill, or at such convenient position as to enable the mill company with its own force to place them at the mill for such loading. At the same time the Missouri Pacific began to take such empty cars from the transfer-track and place them for loading with flour at the mill, or in such position as to enable the mill company with its own force to place them at the mill for such loading; and, on notice that such cars were loaded ready for shipment, to return them to the transfer-track to be taken possession of by the Santa Fe. The practice in this matter was: When the mill company desired to ship flour from its mill by the Santa Fe it placed its order with the Santa Fe for the number of cars desired; the latter would place the cars on the transfer-track; the Missouri Pacific would place them at the mill, and when the cars were loaded return them to the transfer-track, charge the Santa Fe two dollars per car for the service, notifying it of the switching; the Santa Fe would take the cars, bill them to destination, collect all freight, and pay the Missouri Pacific its switching charges. In no instance did the Missouri Pacific issue bill of lading, way-bill, or receipt, or present or collect bills for freight or switching charges.
“ (6) When the Santa Fe received cars loaded with wheat consigned to the mill company it placed them on the transfer-track; the Missouri Pacific placed them at the mill; the mill company unloaded the wheat from them and reloaded them with flour, and the same prac tice was followed as in the case of empty cars brought in from the Santa Fe.
“ (7) In making its application to the Santa Fe for cars, in no instance did the mill company make a deposit of any part of the freight, and in no instance was a deposit of any part of the freight demanded. In receiving orders for furnishing, transfering or returning cars as hereinbefore outlined, in no instance was any distinction made between cars intended to be used in carrying-flour to points out qf the state and cars intended to carry to points within the state of Kansas.
“ (8) The custom and practice described in the fifth and sixth paragraphs prevailed as to both empty and loaded cars from the time the transfer-track was constructed uninterruptedly until August 29, 1906; and prevails to the present time in favor of the mill company as to cars loaded with wheat consigned to the mill company; and still prevails in favor of all industries located on the Missouri Pacific at Stafford making shipments in or out over the Santa Fe in car-load lots, except the mill company.
“ (9) I find as a fact that the Santa Fe and the Missouri Pacific hold themselves out and undertake to place for loading on the Missouri Pacific tracks located on the Missouri Pacific line at Stafford all cars furnished by the Santa Fe required for the shipment of freight in car-load lots out over the Santa Fe; and also hold themselves out and undertake likewise to place all loaded cars consigned over the Santa Fe to industries located on the Missouri Pacific at Stafford.
“(10) From December 12, 1905, to April 26, 1906, fifty-two cars, taken empty from the transfer-track by the Missouri Pacific and placed at or near the mill for loading, were detained after the expiration of forty-eight hours from seven A. M. of the day following their placing before they were loaded by the mill company and ready to be returned to the transfer-track. The total time of such detention was equivalent to the detention of one car eighty-six days. The agent of the Missouri Pacific, acting under the direction of the car-service association, which for this purpose represented both the Santa Fe and the Missouri Pacific, assessed against the mill company a car-service or demurrage charge of one dollar per day for each day each of said cars was so detained after the expiration of free time, which assessment amounted to a total charge of eighty-six dollars.
“From July 24 to August 14, 1906, twenty-nine cars loaded with wheat, taken by the Missouri Pacific from the transfer-track and placed at or-near the mill to be unloaded and reloaded with flour, were detained after the expiration of the free time allowed before they were 'reloaded and ready to be returned to the transfer-track. The total time of such detention was equivalent to the detention of one car 104 days.
“The agent of the Missouri Pacific, acting as above, added to the free time to be allowed these cars to the extent of twenty-six days, for the reason that the Missouri Pacific wholly failed to do any switching or placing of cars on July 26, when there were five cars, and on July 27, when there were six cars, and on July 30, when there were fifteen cars requiring switching and placing; and thereupon assessed against the mill com- . pany car-service charges on account of such detention amounting in the aggregate to seventy-eight dollars.
“(11) After the car-service charges on the loaded cars had been assessed the agent of the Missouri Pacific, under instructions from the car-service association, demanded of the mill company the payment of the whole of the car-service charges assessed, both the eighty-six dollars on account of empty and the seventy-eight dollars on account of loaded cars. Thereupon the mill company offered to pay the eighty-six dollars on account of the empty cars, and refused to pay seventy-eight dollars on account of loaded cars, basing its refusal on the ground that the delay and detention of the cars was not caused by its fault but was caused by the defective, insufficient and inadequate service of the Missouri Pacific in placing the cars for unloading and reloading.
“The agent of the Missouri Pacific, under the instruction of the car-service association, refused to accept the eighty-six dollars or any sum less than the whole of the two amounts, and demanded the payment of the whole of the two amounts with the understanding that the mill company might present a claim for the return of any excess charges it claimed had been made, which claim would be investigated by the car-service association and, if it found excess or unjust charges had been assessed, the amount so found would be refunded to the mill company. The mill company still refused to comply with that demand.
“(12) On August 29, 1906, and after the mill company had refused to make payment of the entire claim for' car-service charges, the Missouri Pacific, by the direction of the car-service association, ceased and refused to make further delivery to the mill company of empty cars placed on the transfer-track for the use of the mill company by the Santa Fe, and still refuses to make such delivery. The only object and purpose of the car association in directing and of the Missouri Pacific in the refusal to make such further delivery of such empty cars to the mill company is to compel it to pay the whole of both amounts of car-service charges under the understanding described in paragraph 11, by the enforcement of the rules of the car-service association. The refusal to make such delivery was not based upon a claim that the compensation paid for the service was not satisfactory, nor upon a claim that any part of such service constituted a part of interstate commerce, nor upon a claim that the Missouri Pacific did not undertake to perform such service.
“ (13) As a result of the refusal to make delivery of empty cars, as described in paragraph 12, the mill company, when desiring to ship any of its products from Stafford by the Santa Fe, is compelled to haul the same in wagons from its mill to the station of the Santa Fe and load into cars from wagons. This entails upon the mill company great inconvenience and great additional expense in the management of its business.
“(14) During the period covered by the car-service charges on loaded cars constituting the seventy-eight dollars so demanded, an unusual and heavy demand was being made upon the Missouri Pacific for the transportation to market of a newly harvested crop of wheat, then ready for market, along that portion of its line from Conway Springs to Larned in Kansas. The freight service on that portion of its line was performed throughout the year by a single engine and train crew, passing from Conway to Larned and return. The transfer and switching service performed by the Missouri Pacific, hereinbefore described, was performed by this single engine and crew. Ordinarily, and by the train schedule, this engine and crew passed through Stafford and performed such transfer and switching service once in the early part and once in the latter part of each day except Sunday; and when so performed with reasonable promptness and regularity this single engine and crew were capable of performing the service to the satisfaction of the mill company. The en gine so used was old, and frequently defective and out of repair. The single engine and crew were not sufficient or equal to meet the unusual demand of the business of that part of the line during the period mentioned and perform the transfer and switching service in question with promptness or regularity.
“During the period mentioned the mill company made its applications from time to time to the Santa Fe for such number of cars, in addition to the loaded cars consigned to it which it might reasonably anticipate would arrive at the same time, as it deemed necessary in its business, but not for a greater number of cars to be delivered at one time than, together with such loaded cars, it could load within the free time allowed if such empty and loaded cars were properly placed with reasonable promptness.
“ (15) The crowded condition of the business on the Missouri Pacific during that period and the general character of its motive power and train crew were well known to its agent; as well, also, to the Santa Fe and to the mill company.
“When the mill company placed its applications for cars with the Santa Fe it could not certainly know the day on which they would be placed on the transfer-track, or know with certainty on what day loaded cars consigned to it over the Santa Fe would arrive and be placed on the transfer-track; or know that at such times such cars could not be properly placed by the Missouri Pacific with reasonable promptness, and removed when reloaded with like promptness. The Missouri Pacific did not better or increase its motive power or train service to meet the increased and unusual demand of its business during the period mentioned.
“(16) I find as a fact that the detention of the loaded cars beyond the free time allowed, .on account of which the disputed car service to the amount of seventy-eight dollars was assessed against the mill company, was caused as much by the fault and defective motive power aiid insufficient train service of the Missouri Pacific as from' any fault or omission on the part of the mill company.”
Section 2 of rule 9 and section 1 of rule 10 of the Missouri Valley Car Service Association read as follow:
“Sec. 2. On deliveries to private sidings, should con signees or consignors refuse to pay or unnecessarily defer settlement of bills for car service, the agent will decline to switch cars to the private sidings of such parties, notifying them that deliveries will only be made to them oh the public delivery tracks of the company, after the payment of freight charges at his office. Agent will promptly notify manager of action taken.”
“Sec. 1. The manager is authorized to entertain claims and refund car-service charges in special cases. Claims should be made direct to the manager, with paid car-service bills attached, and each claim should carry with it a full statement of the grounds upon which reduction of the car service is requested.”
These findings narrow the controversy to the matter of taking empty cars from the transfer-track to plaintiff’s mill and returning them when loaded.
It is argued that no contract exists between the defendant and the Santa Fe relating to the use of the transfer-track, and that the court cannot make one for them; that the defendant cannot be compelled to leave its own rails and its own right of way and go upon the rails and property of others to perform carriage services ; and that the relief asked would indirectly require the defendant to devote a part of its main line to the use of the Santa Fe as a terminal. This argument does not reach the merits of the case. Under findings 8 and 9 the only question is if the plaintiff shall be given the same service afforded to other industries located at Stafford.
When the transfer-track was built the defendant was under no obligation to do switching over it or from it, either for the Santa Fe or for the shippers at Stafford. For the purpose of the discussion merely it may be conceded that it could not have been compelled to do so; that it had the absolute right to restrict its business to the operation of its own line, as it now restricts its service over the transfer-track to the handling of freight-cars. But it did not exercise its privilege. It voluntarily undertook to serve the public by switching, cars, just as it .voluntarily undertook, in the beginning, to serve the public by operating its own road. It held itself out as a switching company and undertook to handle all cars loaded and empty which the shipping interests of Stafford required should pass over the transfer-track, although compelled to leave its own track and right of way in order to do so. It relied upon the implied contract of the Santa Fe to pay the value of the service performed. The Santa Fe participated in this public profession and undertook to devote its property and resources to the proposed end. This conduct on the part of the two roads was in no respect ultra vires. It was in direct furtherance of the public purposes of their incorporation, and having held them-. selves out to the general public as ready and'willing to render the service described they assumed all the duties which the law imposes in view of the nature of the business and the customs incident to it. The defendant became, and under the findings still is, a common carrier of loaded and empty freight-cars to and from the transfer-track and its own station a mile away. (Mo. Pac. Rly. Co. v. Grocery Co., 55 Kan. 525, 40 Pac. 899.)
It is Hornbook law that a carrier cannot renounce as against some disfavored shipper the public duty which it assumed when it engaged in the kind of transportation business which it offers to conduct. Being a common carrier for all, the defendant must switch all cars tendered for that purpose, including those intended for the mill company. • It is equally elementary that a carrier may be compelled by mandamus to perform duties of this kind to an aggrieved shipper.
The findings of fact show that the plaintiff has not forfeited the right it claims. It is unnecessary to inquire if a carrier may discontinue all further service to a shipper on account of past infractions of reasonable rules adopted to secure better service to the public. Rule 9 of the car-service association does not provide for the infliction of any such penalty, but only re quires that further deliveries .shall be made on public delivery tracks and not at private sidings. Rule 10 in its application to this case and the special order issued for the purpose of coercing the plaintiff are not reasonable. A shipper ought not to be compelled to pay an unjust charge for car service with no redress but to submit a claim for the return of his money to the manager of the association promulgating the rule or order. The weight, of authority seems to be that the carrier has a lien for compensation for the use of cars beyond reasonable free time. If the lien be waived the courts are open. . But the car-service association holds no franchise to compel the payment of claims of this kind and then to decide for itself whether or not it will refund. And in any event a carrier cannot justly withhold its services when it is equally at fault in the matter of which it complains. (Finding 16.)
The defendant claims that an order restoring to the mill company the service it formerly received would regulate interstate commerce, so far as cars destined to points outside the state are concerned. It is plain that the taking of empty cars from the transfer-track and placing them at the mill is nothing more than preparation for the act of interstate traffic, which is to begin later. It needs a shipment of flour to initiate interstate commerce from the plaintiff’s mill, and so long - as the flour remains in the mill commerce has not begun. The mere.purpose to use the cars in the future.is not enough. They must be loaded with freight which is put in course of exportation before state control over them is suspended. (Norfolk & W. R. Co. v. Commonwealth, 93 Va. 749, 24 S. E. 837, 34 L. R. A. 105, 57 Am. St. Rep. 827.)
After a car has been loaded and returned to the transfer-track the Santa Fe may for lawful reasons decline to receive it. If it does receive it there is neither a consignee nor a destination for it until the mill company has given shipping directions. The' preliminary stage has still not been passed. The move ment from the point of origin necessary to interstate commerce not only has not begun, but may never begin. As remarked by Mr. Justice Bradley, in the case of Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715, “though intended for exportation, they may never . be exported; the owner has a perfect right to change his mind.” (Page 526.) The custody of the carrier is not impressed with the change which frees the goods from domestic control until after they have been finally released to it by the consignor for transportation to a destination fixed beyond the state line; and under the custom prevailing at Stafford this does not occur until the cars have been taken to the transfer-track, received by the Santa Fe, and finally billed. In the case of Coe ' v. Errol, already referred to, it was said:
“It is true, it was said in the case of The Daniel Ball, 10 Wall. 557, 565, 19 L. Ed. 999: ‘Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced.’ But this movement does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence is no part of that journey: That is all preliminary work, performed for the purpose of putting the property in a state of preparation and readiness for transportation. Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain. It may be sold or otherwise disposed of within the state, and never, put in course of transportation out of the state. Carrying it from the farm, or the forest, to the depot, is only an interior movement of the property, entirely within the state, for the purpose, it is true, but only for the purpose, of putting it into a course of exportation; it is no part of the exportation itself. Until shipped or started on its final journey out of the state its exportation is a matter altogether in fieri, and not at all a fixed and certain thing.” (Page 528.)
There is still another test which may be applied. The Missouri Pacific engine, for all practical and legal purposes, simply takes the place of the plaintiff’s teams in moving flour from the mill to the Santa Fe. ^Its work is that of switching cars. The service is purely local. It is independently contracted for. It has no relation to the contract of carriage by virtue of which the freight is removed beyond the borders of the state. It has no relation to the ultimate destination of the cars handled. It begins and ends before the destination of any car is fixed, and is in fact nothing but a preliminary incident to the interstate journey/ This being true, it is subject to state control (Pennsylvania R. R. Co. v. Knight, 192 U. S. 21, 24 Sup. Ct. 202, 48 L. Ed. 325, and cases cited in the opinion.)
The facts in the case of Chicago, M. & St. P. Ry. Co. v. Becker, 32 Fed. 849, are in all essential respects analogous to those- under consideration. The principles there applied are those which governed the decision of the supreme court of the United States in the Knight case, supra. The opinion reads:
“The case presented is this: In order to afford facilities to shippers, the complainant has constructed short lines of road, or side-tracks or switches, so called, from its yard or depot or main lines, running over and across the streets and highways to the various mills ■and manufacturing establishments in the city of Minneapolis; and its switches are so built as to enable it to take cars from the shippers at the mills, and deliver them to other lines of railway, or deliver cars to consignees received by it from other roads. When this service is performed, and the cars are to be transported from the city of Minneapolis over other roads, and when cars coming into that city over other roads are taken by the complainant over its own switches, and delivered to other roads or to consignees, a charge of one dollar and fifty cents per car is exacted for this switching service rendered, which is claimed to be reasonable and just; but if the cars are to be transported over its own line to the point of destination, or come into the city over-complainant’s main road, the service is free, and this separate and distinct charge, when made, is only for this local switching. This charge is not a part of the through rate fixed and determined beforehand, and has no reference to interstate shipment. The transportation of cars over the switches from the warehouses or mills to the depot, or from the depot to these mills, can be regulated in many respects by the com-missioners, and the rate for performing the service fixed by virtue of the police power of the state, in the same manner as the carriage by dray per load or distance is established for the public good. And I see no difference in the principle to be applied in such cases, although, incidentally, they may be connected with interstate commerce. The service is local, and there is nothing upon the face of the order of the comnfissioners indicating that it is intended to regulate interstate commerce. Even if it is conceded that this carrying of freight over the switches is an act of interstate commerce, it does not necessarily follow that the order of the commission affecting this traffic is in violation of the constitution of the United States. It is not every act that affects such commerce that amounts to a regulation of it, and this order fixing the price per car for service rendered,' and to which the order applies, is not related to the contract for carrying the freight outside the limits of the state of Minnesota, and is not a part of it.” (Page 854.)
The case of Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213, is cited by the defendant. The state of Kentucky attempted to seize upon shipments of live stock in the course of transportation by the railroad company from a foreign state and compel their delivery; to a connecting carrier, in order that they might reach a particular stock-yard, although the transporting company provided adequate facilities for the delivery and care of stock at another yard in the same-city. Manifestly that was an effort to regulate interstate commerce.
The case of McNeill v. Southern Railway Co., 202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142, also cited by the defendant, is of the same character. The state of North Carolina undertook to control the disposition of freight while in transit from a foreign state. Thé following extract from the opinion is sufficient to show the inapplicability of the decision to the facts under consideration:
“The cars of coal not having been delivered to the consignee, but remaining on the tracks of the railway company in the condition in which they had been originally brought into North Carolina from points outside of that state, it follows that the interstate transportation of the property had not been completed when the corporation commission made the order complained of. Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088.” (Page 559.)
The defendant insists finally that a writ of mandamus should not issue against it because the plaintiff has a plain and adequate remedy under 'section 4 of chapter 340, Laws of 1905, conferring certain power and authority upon the board of railroad commissioners. It is not enough that a party have a plain and adequate remedy in order to deprive him of the right to the writ of mandamus. The remedy must also be one “in the ordinary course of the law.” (Gen. Stat. 1901, § 5185.) A proceeding before the board of railroad commissioners is sufficiently out of the ordinary course of the law to distinguish it. Its characteristic feature is that it takes a mandamus suit in this court to complete the remedy. Otherwise it might not be adequate. Hence there is no reason why, in a case involving a right not of statutory creation and not depending upon any statute for its enforcement, the complainant may not apply directly to this court for the desired relief.
The peremptory writ of mandamus may issue, with costs to the plaintiff.
The court has authority to render judgment in favor of the plaintiff for any damage it has sustained. (Gen. Stat. 1901, § 5193.) The plaintiff is given ten days in which to file a claim for damages, stating separately the character and amount of each item. The defendant is given ten days after notice of the filing of the claim in which to except to any items which it may deem not recoverable. The court will then pass upon the exceptions, if any be taken, and make orders respecting a hearing.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Bob Fletcher was convicted upon a charge of having illegally given intoxicating liquor to a minor, and appeals. At the trial it was developed that the transaction complained of was a sale, and the question is therefore presented whether under such a charge a conviction can be had upon proof that the defendant sold liquor to a minor. The statute reads:
“The treating or giving of any intoxicating liquors to any minor by any person other than the father, mother, or guardian of such minor, or a physician for medical purposes, shall be unlawful; and any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in the last preceding section of this act for unlawfully selling intoxicating liquors.” (Gen. Stat. 1901, § 2481.)
The state relies largely upon the authority of Commonwealth v. Davis, 75 Ky. 240. That was a prosecution under a statute making it an offense to “sell, lend or give” intoxicating liquor to a minor. The evidence showed that the defendant, with money a part of which had been supplied by a minor for the purpose, bought whisky, some of which he later gave to the minor, who drank it. The trial court took the view that there was no gift because the liquor was the joint property of the defendant and the minor, and therefore discharged the jury and dismissed the indictment. On appeal the reviewing court reversed the judgment, holding that to carry out the purpose of the law the word “give” should be construed .to mean “furnish” or “supply.” Upon substantially the same statute and facts a contrary conclusion was reached in Young v. The State, 58 Ala. 358. In Kentucky, as mentioned in .the opinion referred to, the rule that penal statutes are to be strictly construed has been abrogated, whereas in this state it is still in force. (The State v. Chapman, 33 Kan. 134, 5 Pac. 768; The State v. Sutton, 53 Kan. 318, 36 Pac. 716.) These considerations impair the authority of the Kentucky decision; but even if it is given full force it does not necessarily control the present case. The question here is whether the word “giving,” as used in the statute quoted, was intended to include the furnishing of liquor for compensation. In Parkinson v. The State, 14 Md. 184, 74 Am. Dec. 522, it was held (the chief justice dissenting) that a title referring in terms only to the sale of liquor to certain classes was broad enough to cover a prohibition against its being given to them. It was distinctly shown in the opinion, however, that the words “give” and “sell” were not regarded as covering the same ground, the writer.saying:
“In ‘their ordinary and familiar signification,’ ‘in their accepted and known sense,’ the words, ‘sell’ and ‘give’ have not the same meaning, but-are commonly used to express different modes of transferring the right to property from one person to another; a sale meaning a transfer for a valuable consideration, a gift signifying a gratuitous transfer without any equivalent.” (Page 197.)
This language is quoted with approval in Holley v. The State, 14 Tex. App. 505, the court adding: “No subtlety of reasoning or ingenuity of argument can, in common acceptation, make the two words mean the same thing.” (Page 513.)
In Humpeler v. The People, 92 Ill. 400, a conviction under a statute making it an offense to “sell or give” liquor to a minor or to a person in the habit of getting intoxicated was set aside for reasons thus stated:
“While there is abundance of proof to sustain the finding as to the sale of intoxicating liquor, there is no proof whatever in the record that the defendant gave intoxicating liquor, as charged in the third and sixth counts of the indictment. The verdict and judgment, therefore, as to these counts, were erroneous. It was a violation of the statute to either sell or give intoxicating liquor to a person in the habit of getting intoxicated, but' an indictment for selling would not be sustained by proof that liquor had been given to a person in the habit of getting intoxicated, nor would an indictment for giving liquor be sustained by proof of a sale. A sale and a gift, under the statute, are distinct and sepárate offenses, and the proof of one will not sustain a charge for the other.” (Page 401.)
Granting that a statutory prohibition against the giving of liquor to minors might under some circumstances be construed to include a sale, or even that standing alone it should be given that construction, its meaning in the present case must be determined by the context. The section already quoted in full was passed as a portion of an act a large part of which was devoted to defining what sales of liquor were legal and what illegal. If it had been the purpose of the legislature that the section in question should apply to sales made to minors it is reasonable to suppose that the word “selling” would have been coupled with “giving.” The section immediately preceding this provides that whenever a relative of any person shall notify a druggist that such person uses intoxicating liquors as a beverage, “and shall forbid said druggist from selling, bartering, or giving to such person any intoxicating liquors, it shall be unlawful for any such druggist, after such notice, to let such person have any intoxicating liquors upon any terms or conditions whatever.” (Gen. Stat. 1901, § 2480.) The occurrence of such explicit language so near to it suggests the unlikelihood that the one word “giving” was intended to have the same sweeping effect as the entire phrase italicized. The use of the word “treating” in the' same connection also indicates that the mind of the draftsman of the bill was directed toward the idea expressed by “giving” in its usual and specific sense;
These considerations convince us that the legislature purposely omitted to include sales to minors among the acts denounced by this section. The reason for such course was obvious. It was not that selling liquors to immature persons was regarded as less pernicious than giving it to them outright, but because it was conceived that the whole subject of illegal sales had been covered by other provisions of the law. True, these other provisions as they then existed (when section 2481 was enacted — in 1885) contained no prohibition against the sale of liquor to minors, but such a prohibition was added to one of them by amendment in 1887 (Gen. Stat. 1901, § 2489), an addition which points to a legislative interpretation that the enactment of 1885 did not cover such sales.
It follows from the view stated that the judgment must be reversed.
.All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The defendant was convicted in the district court of Mitchell county of keeping and maintaining a nuisance in violation of what is known as the prohibitory law, and he appeals to this court. In the district court a motion of the defendant to require the state to make the information more definite and certain was denied. A motion was then made to quash the information, which was also.denied. The objec tionable features of the information will appear from the following quotations therefrom :
“Then and there unlawfully did keep and maintain and aid, abet and assist in keeping and maintaining a place where . . ., and where intoxicating liquors were and are kept ... on the 26th day of June, 1905, . . . did keep, . . . said liquors and property are kept ...”
It is contended that the defendant is entitled to- know whether he is to be tried for keeping and maintaining the nuisance or merely for aiding and abetting therein. It is also claimed that several offenses are charged in the same count. This- court has already decided these questions against the contention of the defendant in several cases, among which are The State v. Schweiter, 27 Kan. 499; The State v. Clark, 60 Kan. 450, 56 Pac. 767; The State v. Bush, 70 Kan. 739, 79 Pac. 657.
On the trial the court admitted as evidence, for the purpose of proving that the defendant was paying a special tax as a retail liquor dealer under the United States revenue law, a copy of the record' kept in the office of the United' States revenue collector for the district of Kansas, at Leavenworth, Kan., which was sworn to as a true copy by the witness who made it, but was not’ otherwise authenticated. As a foundation for this evidence it was shown that the officers having the custody and control of the records refused to give copies thereof or to certify to or authenticate them in any manner, but permitted the witness to make copies as desired.
By section 3238 of the Compiled Statutes of the United States, 1901, the commissioner of internal revenue is authorized tó make all needful regulations concerning the performance of the duties imposed by that section. In pursuance of this authority regulations were promulgated directing collectors and their deputies to refuse to produce the records of their offices,' or to give any information- in relation thereto, in liquor prosecutions in state courts. In the state of Vermont Arthur L. Weeks, a' deputy collector of internal revenue, refused to produce the records of his office when a witness in a state court, and was committed for contempt. The'United States district court released him on a writ of habeas corpus. In that case (In re Weeks, 82 Fed. 729) the court held:
“An instruction issued by the commissioner of internal revenue, directing collectors and their deputies to refuse to produce, in criminal prosecutions of liquor dealers in the state courts, the returns made to the collectors, or the lists showing payments of federal liquor ' taxes, or to give information derived from official sources as to the fact of such payments, is valid, and in accordance with the federal laws.
“A state has no right. to federal instruments of purely federal character for proof, unless they are left within its reach.” (Syllabus.)
Since these officers cannot be compelled to produce the original records, nor furnish certified copies thereof, it follows that the originals are not the best evidence which can be produced in a state court. We think this copy admissible. Neither the original nor a certified copy thereof was obtainable. Recourse to secondary evidence was therefore necessary, and under such circumstances secondary becomes the best evidence.
At common law such evidence, under such circumstances, was always admissible. In fact, sworn copies were generally regarded as of equal value with copies certified to by the legal custodian of the original document or record. The common-law rule in this respect has not been displaced by the statutes authorizing other methods of proof. These statutes are simply declaratory of the common law. (2 Wig. Ev. § 1273 (1) ; State v. Spaulding, 60 Vt. 228, 233, 14 Atl. 769; State v. White, 70 Vt. 225, 39 Atl. 1085; 1 Greenl. Ev., 16th ed., §485; Transit Co. v. Shacklet, 119 Ill. 232, 10 N. E. 896; Blackman v. Dowling, 57 Ala. 78; The State v. Pendleton, 67 Kan. 180, 72 Pac. 527; The State v. Schaeffer, post.)
The only way in-which the character of the business for which the defendant paid tax was indicated in the copy of the record admitted in evidence was by the use of the letters “R. L. D.” The state, for the purpose of showing what these letters indicated when used in the revenue records, offered a blank form of application, known as form No. 11, United States internal revenue, prepared by and used in the revenue department. To this blank is attached a memorandum explaining the meaning of letters and abbreviations which applicants are permitted to use, from which it appears that “R. L. D.” means “retail liquor dealer.” This blank was admitted in evidence without any identification or authentication,' and the defendant urges that this ruling of the court was erroneous. The blank shows on its face that it was printed to be used in the revenue service and is furnished by the revenue department to all persons desiring to use the same. It is claimed by the state that this blank is admissible under section 4824 of the General Statutes of 1901, which reads:
“Public documents, purported to be edited or printed by authority of congress, or either house thereof, shall be evidence to the same extent that authenticated copies of the same would be.”
Congress authorized the preparation of blank forms for use in the revenue service, and this one was evidently published in pursuance of such authority. In some cases this blank has been received in evidence to prove the fact to establish which it was here offered. (State v. Collins, 68 N. H. 299, 44 Atl. 495; State v. White, 70 Vt. 225, 39 Atl. 1085.) Whether admissible or not, no prejudicial error could have resulted from its having been admitted in evidence. We think these letters have been used in connection with the revenue business to such an extent that their meaning has become a part of our common knowledge and needs no proof. The significance of these letters, when used to indicate the business for which a person pays special tax under the internal revenue law, is as well known as the meaning of the letters “f. o. b.” when used in a shipping contract. The trial court might well have excluded the blank, taken judicial notice of the meaning of the letters, and defined them to the jury in its instructions, but having permitted this proof no material assignment of error can be predicated thereon.
On the trial the court gave to the jury an instruction which reads:
“The state is hot required to prove in the first instance that the defendant did not have a permit. If it has not been shown by the evidence that the defendant had a permit he is presumed not to have had such authority.”
In view of the way this case was finally submitted to the jury the question whether the defendant had a permit or not is immaterial. The instruction was unnecessary and inapplicable. The evidence did not require an instruction on that point. The objection to the instruction does not therefore raise the question whether it was good law or not, but it only presents the question whether, being immaterial, it was prejudicial to the rights of the defendant.
The information contained four counts, two of which were for keeping and maintaining a nuisance and two for unlawful sales. The court evidently prepared its instructions with the view that the case would be submitted upon the whole information, and when the state rested and was required to elect upon which count it would rely, and .the election was made upon the first count, which was for keeping a nuisance, and the parties both rested, the instruction objected to was overlooked in revising the charge to make it fit the case as then presented. Only druggists can hold permits. A druggist’s permit in the hands of a person whose only business is selling intoxicating liquors as a beverage, in a “joint,” is beyond the scope of legal contemplation. Under the evidence in this case the intoxicating liquors kept at the defendant’s house were kept to be used and sold as a beverage only, and, therefore, the question of permit cannot arise. We are unable to see how the instruction objected to could have been prejudicial to the rights of the defendant.
It is claimed that the jury, while in charge of a bailiff, and when going to a church to view the remains of a prominent citizen there lying in state, passed by the defendant’s place of business. The jury passed without stopping, investigating or discussing the appearance of the premises. The building was about twenty-five yards from the walk, and behind a large bill-board which practically hid it from sight. We see no error in anything shown to have transpired here.
It is further claimed that one of the jurors was coerced into voting for the defendant’s conviction on account of sickness and to avoid being kept out over night. The juror testified that he would not have voted guilty except for the purpose of being released. He did not send word to the court that he was unwell and unable to remain out another night. He made no complaint to the bailiff. He did not seek the advice of a physician or propose to get medicine of any kind. When released he walked about the streets for several hours, and then went to bed and slept well all night, and was about town the next day as usual. The only statements made by him that he was ill were made to his fellow jurors in explanation of his vote' for conviction. To them at that time he claimed that he was sick and unable to remain up all night and that he voted as he did to get out of the jury-box. When the jury were polled he stated that the verdict was his, and that he still agreed to it, and make no explanation concerning his illness. The trial court, after hearing the evidence produced on the hearing of the motion for a new trial, found that this juror requested the ballot to be taken which resulted in the conviction of the defendant at a time when word had been sent to the court that the jury could not agree, and when the jury were expecting to be called into court and discharged; and that the juror voted as he did voluntarily and not because of his illness. The motion for a new trial was properly denied.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered By
Porter, J.:
The main controversy is whether the orders given by the planing-mill company to the bank and accepted, by defendant are negotiable instruments. It is true that no specific time of payment is mentioned, but that does not affect their validity as such instruments; and, where no date is mentioned, they are payable on demand. (4 A. & E. Encycl. of L. 133, and note 3; Douglass v. Sargent & Bro., 32 Kan. 413, 4 Pac. 861.) Each of them, therefore, possesses all the essential elements of a bill of exchange, unless the words “on account of contract between you and the Snyder Planing-mill Company” make them payable out of a particular fund, and' conditionally, so that the acceptance is thereby qualified.
The law is well settled that a bill or note is not negotiable if made payable out of a particular fund. (1 Dan. Neg. Inst., 5th ed., § 50; White v. Cushing, 88 Me. 339, 34 Atl. 164, 32 L. R. A. 590, 51 Am. St. Rep. 402.) But a distinction is recognized where the instrument is simply chargeable to a particular account. In such a case it is beyond question negotiable; payment is not made to depend upon the sufficiency of the fund mentioned, and it is mentioned only for the purpose of informing the drawee as to his means of reimbursement. (1 Dan. Neg. Inst., 5th ed., §51; Tiedeman, Bills & Notes, § 20.) In Ridgely Bank v. Patton & Hamilton, 109 Ill. 479, it was said:
“A bill or note, without affecting its character as such, may state the transaction out of which it arose, or the consideration for which it was given.” (Page 484.)
“So, also, the insertion into a bill or note of memoranda explaining the nature of the business or debt for which the instrument is given will not make it nonnegotiable, for such' a memorandum does not make the ( payment conditional.” (Tiedeman, Com. Paper, § 26.,)
The test in every case is said to be, “Does the instrument carry the general personal credit' of the drawer or maker, or only the credit of a particular fund?” (4 A. & E. Encycl. of L. 89.) A promise to pay a certain sum “out of my next quarter’s mail pay, which becomes due January 1, 1883,” was held, in Nichols v. Ruggles, 76 Me. 25, to be an absolute promise to pay a certain sum of money. In Haussoullier v. Hartsinck, 7 Durn. & E. (Eng.) 733, it was held that an instrument promising to pay a certain sum, “being a portion of a value as under deposited in security fot the payment hereof,” was a promissory note payable. at all events. In Pierson v. Dunlop, 2 Cowp. (Eng.) 571, an order which was to be charged “to freight” was held negotiable. A note expressed to be in payment of certain tracts of land was held negotiable. (Bank v. Michael, 96 N. C. 53, 1 S. E. 855.) Likewise a note which stated that it was given in consideration of certain personal property, the title to which was not to pass unless the note was paid. (Chicago Railway Co. v. Merchants’ Bank, 136 U. S. 268, 10 Sup. Ct. 999, 34 L. Ed. 349.) This court held, in Clark v. Skeen, 61 Kan. 526, 60 Pac. 327, 49 L. R. A. 190, 78 Am. St. Rep. 337:
“A note for the payment, of a certain sum at a fixed date is not rendered non-negotiable by a stipulation that upon default in the payment of interest the whole amount shall become due at the option of the holder and then draw a greater rate of interest.” (Syllabus.)
In Corbett v. Clark and another, 45 Wis. 403, 30 Am. Rep. 763, an order to pay a certain sum “and take the sáme out of our share of the grain,” referring to grain harvested or growing on certain farms, accepted by the drawee, was said to be a valid bill of exchange, and the order and acceptance absolute, the words above quoted merely indicating the means of disbursement. In Redman v. Adams, 51 Me. 429, a bill directing the drawee to charge the amount against the drawer’s share of fish caught on a certain schooner was held valid and negotiable. One of the leading cases is Macleed v. Snee, 2 Stra. (Eng.) 762. There a bill of exchange was dated May 25, for the payment of a certain sum one month after date, “as my quarterly half-pay, to be due from 24th of June to 27th of September next, by advance.” This was held a negotiable bill of exchange. In Spurgin v. McPheeters, 42 Ind. 527, an instrument in the following form was said to possess all the requisites of a bill of exchange:
“Greencastle, Ind., August 22, 1870. “Mr. D. M. Spurgin:
“Sir — Please pay to Jesse McPheeters, or order, the sum of one hundred and nineteen dollars on said bill of lf-inch lumber, and oblige the firm of
Geo. W. Hinton & Co.”
In Whitney v. Eliot National Bank, 137 Mass. 351, 50 Am. Rep. 316, the drafts or bills of exchange were in the ordinary form, except that they contained the direction to “charge the same to account of 250 bbls. meal ex schooner Aurora Borealis.” The court said:
“This direction to charge the amount of the bills to a particular account, we think, does not make them payable conditionally, or out of a particular fund; they are still payable absolutely, and are negotiable, and do not constitute an assignment of a particular fund, or of a part of a particular fund. Macleed v. Snee, 2 Stra. 762; Redman v. Adams, 51 Me. 429; Corbett v. Clark, 45 Wis. 403, 30 Am. Rep. 763; Coursin v. Ledlie, 31 Pa. St. 506; . . . Spurgin v. McPheeters, 42 Ind. 527.” (Page 355.)
The rule with regard to words which refer to the consideration is well stated in Siegel et al. v. Chicago Trust and Sav. Bank, 131 Ill. 569, 23 N. E. 417, 7 L. R. A. 537, 19 Am. St. Rep. 51, as follows:
“The mere fact that the consideration for which a promissory note is given is recited in it, although it may appear thereby that it was given for or in consideration of an executory contract, or promise on the part of the payee, will not destroy the negotiability of the note, unless it appears through the recital that it qualifies the promise to pay, and renders it conditional of uncertain, either as to the time of payment or the sum to be paid.” (Syllabus.)
The following authorities are also in point: Matthews v. Crosby, 56 N. H. 21; Shepard v. Abbott, 179 Mass. 300, 60 N. E. 782; Schmittler v. Simon, 101 N. Y. 554, 5 N. E. 452, 54 Am. Rep. 737; Hillstrom v. Anderson, 46 Minn. 382, 49 N. W. 187; Bank of Kentucky v. Sanders & Wier, 3 A. K. Marsh. (Ky.) 184, 13 Am. Dec. 149; 4 A. & E. Encycl. of L. 89; 7 Cyc. 580.
Section 10 of our negotiable instruments law, which is merely declaratory of the common law upon the subject, reads as follows:
“When promise is unconditional. An unqualified order or promise to pay is unconditional, within the meaning of this act, though coupled with: (1) An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or (2) a statement of the transaction which gives rise to the instrument; but an order or promise to pay out of a particular fund is not unconditional.” (Laws 1905, ch. 310, § 10.)
Plaintiff and defendant agree upon the abstract proposition of lajv involved in the controversy. Counsel for defendant concedes that an instrument, negotiable in itself, is not changed in character or rendered non-negotiable “by a recital of the consideration or a direction as to how the drawee shall reimburse himself”; but insists that the insertion of the words “on account of” has the same effect as the words “out of the proceeds of.” The controversy is thus narrowed! down to whether the words “on account of contract! between you and the' Snyder Planing-mill Company” amount to a direction to pay out of a particular fund, or, on the other hand; are to be considered as simply indicating the fund from which the drawee, Lightner, might reimburse himself. Many of the cases attach but little importance to the words “account of” and give the same effect to them as to the words “out of.” (7 Cyc. 579:)
In the case of Pitman v. Breckenridge & Crawford, 3 Grat. (Va.) 121, cited by defendant, the phrase “on account of brick work done” on a certain building was held to be a direction to pay out of a particular fund. The case itself is of little value as an authority; it cites no cases, gives no reason, and simply holds the bill nonnegotiable. The language “and charge the same to. our account for labor and materials performed and furnished,” in Brill et al. v. Tuttle, 81 N. Y. 454, 457, 37 Am. Rep. 515, was held to be ambiguous, and other circumstances were considered as controlling. The bill was held not negotiable. The following order was held not negotiable, in Conroy v. Ferree, 68 Minn. 325, 71 N. W. 383, but the opinion merely states that the order is drawn upon a special fund, without any discussion of the reasons:
“Starbuck, Minn., September 14,1895.
“T. E. Thompson and C. L. Brevig:
“Pay to the order of A. G. Englund one hundred fifty dollars ($150) on earnings for the thrashing season of 1895, whatever they may be, and charge to the account of A. H. Ferree.
“$150. Accepted September 14, 1895.
“By C. L. Brevig.”
We are of the opinion that these orders cannot be construed as drawn upon a particular fund. Beyond question there are many authorities which hold similar expressions to indicate an intention to charge a particular fund. (See Banbury v. Lisset et al., 2 Stra. [Eng.] 1211; Averett’s Adm’r v. Booker, 15 Grat. [Va.] 163, 76 Am. Dec. 203; Rice v. Porter’s Admrs., 16 N. J. Law, 440; 7 Cyc. 578.) The weight of authority and reason supports the proposition that the Í words amount to no more than an indication of the fund from which the drawee is to reimburse himself. The words used are substantially the same as though the orders read “and charge to account of contract with Snyder Planing-mill Company,” or “credit to account of contract,” etc. The $1000 check we consider in the same light as the order for which it was substituted.
Defendant in error argues that certain collateral circumstances appearing in the evidence must be taken into consideration; among other things, the fact that the bank held these orders for a time after their execution as indicating the intention with which the orders were taken. It is argued that, there being an ambiguity in the language, we must consider the construction placed upon these orders by the parties themselves. This case is here upon a transcript which contains none of the evidence, but merely the pleadings, findings of fact and of law, the judgment, and motion for a new trial. Had the trial court rested the decision upon the existence of these outside matters the findings of fact, which are very complete, would doubtless have referred to them. The conclusions of law are so framed as to leave no doubt that the court held the instruments to be non-negotiable on account of the language used in the instruments themselves. In our view they were negotiable, and the language, moreover,'not even ambiguous.
It follows that defendant was not entitled to recoup his damages for the failure to complete the barn; and the findings of the court, therefore, require a judgment for plaintiff for the amount due upon the order and the $1000 check. The cause is therefore reversed and-remanded, with directions to enter judgment in favor of the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Joseph R. Robertson brought an action against the Rock Island Lumber and Manufacturing Company for the possession of a city lot.' The plead ings'were an ordinary petition in ejectment and a general denial admitting possession. A trial was had at which the plaintiff, having shown that title had been conveyed to seven persons as trustees of the “1st M. E. ‘ Church of Harper,” introduced in evidence a deed made about a year later to John B. Carey, signed by two of the individuals named as such trustees in the prior conveyance and by two other persons, these four being described in the deed to Carey as trustees of the “M. E. Church of Harper,” and professing therein to act for such church. He then proved by a series of deeds that he had succeeded to whatever title Carey had held, and rested. The court sustained a demurrer to this evidence, and the plaintiff prosecutes error.
For the purpose of establishing that the church referred to in the deed to Carey was presumptively the organization named in the prior conveyance, the plaintiff in error contends that the same designation is in fact employed in each case — that the marks occurring in the conveyance to the trustees preceding the words “M. E. Church,” which in the foregoing statement are assumed to be “1st,” or the equivalent of the word “first,” are in reality meaningless or unintelligible. To enable the court to judge of the force of this contention a photographic copy of the original instrument is incorporated in the record. From an examination of this copy it seems beyond question that the interpretation already adopted is the correct one. The variation in the name is trifling, and certainly no great amount of evidence would have been required to show that the same church was in fact intended. But whether from' the similarity of names employed and from the partial correspondence in the designation of trustees a presumption to that effect can be deemed to arise in favor of one who is out of possession, and who does not show that either he or any one through whom he claims ever had possession, and against one who is in the present occupancy of the lot, is at least doubtful. However, this question need not be determined. Granting that .the same church was intended, plaintiff’s showing of title failed at another place. The record does not indicate whether the church was a corporation or a mere voluntary association, but in either case the title was vested in trustees for its benefit and could only be devested by the action of persons who were in fact its trustees. Two of the persons who signed the deed to Carey were sufficiently proved to be trustees of the church by their having been so designated in the conveyance to the church or to the trustees for the church. But there is no evidence whatever that the other two signers- were such trustees or that the four together had any authority to pass the title. The recitals of the deed constituted no evidence, for the defendant was a stranger to it. (Kelley v. McBlain, 42 Kan. 764, 22 Pac. 994; Mordecai v. Beal, 8 Port. [Ala.] 529; 18 Cyc. 612; 24 A. & E. Encycl. of L. 60; 16 Cent. Dig. c. 327; 20 Cent. Dig. c. 1976.)
If the plaintiff had been in possession under the deed, or if any fact had been shown from which the authority of the grantors might have been inferred, a different question would be presented. The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
P. A. Johnston suffered severe loss from a fire which apparently originated upon or near the premises of John Marriage and spread over a large tract of country. He sued Marriage to recover compensation, alleging that his injury was occasioned by Marriage’s having “negligently and carelessly .set fire to the dry grass of the prairie” while engaged in charring posts. A jury trial was had, which resulted in a verdict and judgment for the defendant. The plaintiff prosecutes error.
The court took the view that a recovery might be-had upon either of two theories, upon each of which he gave full instructions: (1) That the defendant in person or by his employees intentionally set fire directly to the prairie; and (2) that the fire was occasioned by the negligence of the defendant, whether or not it was set to the prairie directly or otherwise. The plaintiff complains of the giving of any instruction whatever relating to a direct and intentional setting fire to the prairie, claiming that no such issue was tendered by the pleadings or involved in the case. It is true that the petition, as appears from the statement already made, was so drawn as to suggest a reliance upon proof of an unintentional but careless starting of the fire. But the allegations were broad enough to support a recovery under the statute relating to the firing of woods, marshes and prairies, for the averment of negligence may be treated as surplusage. (Jarrett v. Apple, 31 Kan. 693, 3 Pac. 571.) The statute reads:
“If any person shall set on fire any woods, marshes or prairies so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by civil action.” (Gen. Stat. 1901, § 8010.)
To recover under this statute, disregarding the element of negligence, it-is necessary to show a direct and intentional setting of fire to woods, marsh or prairie. “Of course, this ‘setting on fire’ must be the direct, intentional act of the defendant.” (Hunt v. Haines, 25 Kan. 210, 213.) If the act is merely a negligent one, there is no occasion for its application. In such case the common law affords ample remedy. (Emerson v. Gardiner, 8 Kan. 452.) If the act is purely accidental no recovery can be had upon any ground. (M. K. & T. Rly. Co. v. Davidson, 14 Kan. 349.)
If the plaintiff had seen fit at the trial to rely wholly upon a claim of negligent conduct by the defendant he would doubtless have been entitled to insist that his petition should be construed accordingly. But in the opening statement to the jury made on his part the case was described as founded upon the' statute, and instructions were asked in his behalf to the effect that a recovery could be had apart from the question of negligence. By invoking the statute and by claiming a right to recover in the absence of negligence plaintiff invited instructions based fipon the theory of a direct and intentional setting fire to the prairie, for' that is the only character of act to which the statute applies, where negligence is not relied upon, and he cannot now contend that no such issue was involved.
Criticisms are made of specific instructions as not correctly stating the law of negligence. The instructions so complained of, however, had relation to the case viewed as an action on the statute irrespective of negligence, and the two aspects of the matter were separately and distinctly stated, so that no confusion was likely to result. Other instructions are objected to as having no support in the evidence, but upon an examination of the whole record we conclude that these objections are not well taken.
Complaint is made that the court in one instruction, in defining reasonable care in the handling of fire, omitted to refer to the circumstances under which it was claimed that the fire was started. This feature might well have been incorporated in the instruction, but it cannot be said that its omission was material' error, especially as the record does not show that it contains all the instructions that were given. This consideration also makes it unnecessary 4o examine an assignment of error with regard to instructions which were asked by the plaintiff and refused by the court.
Error is assigned with regard to the rejection of documents offered by the plaintiff to show his right or title to a part of the lands over which the fire extended. If there was any error in these rulings it was not material, since the evidence only went to the extent of the plaintiff’s damage and he failed of any recovery whatever. There was no substantial denial that he had suffered great loss by the fire. Complaint is also made of the exclusion of the testimony of a witness offered in rebuttal, and of a comment made by the court upon an answer given by another witness. No substantial prejudice appears to have resulted to the plaintiff, however, from either incident.
The only remaining specification of error requiring discussion relates to an attempt made by the plaintiff to impeach one T. M. Ellsworth, a witness called by the defendant, by showing that he had made a statement out of court inconsistent with his testimony. This witness was originally called by the plaintiff. He was an employee of the defendant, both when the fire occurred and at the time of the trial. There is nothing in the record, however, to indicate that this circumstance affected either his manner upon the stand or what he there said, or that the plaintiff was misled by him. He told, at the instance of the plaintiff, what he knew of the occurrences On the day of the fire, but showed no personal knowledge as to how it originated. Later he was called by the defendant and went over much of the same ground, giving additional particulars as to physical conditions observed by him before, during and after the fire. On cross-examination he was asked if he had not at a time and place specified told two persons tfiat Marriage had been charring posts and had let the fire get out. He answered that he had not. Upon rebuttal the plaintiff produced these two persons and offered to show by them that Ellsworth had made such a statement to them. An objection to the offer was made by the defendant, and the court sustained the objection.' This ruling is the one involved in the specification of error now under consideration. Manifestly the evidence offered was incompetent except as it might be deemed admissible for the purpose of impairing the credibility of Ellsworth — that is, of impeaching him. The question is therefore presented whether a litigant who first uses a witness may afterward attempt to impeach him if in the meantime he has been called upon to testify in behalf of the adverse party. This question is considered in Wigmore on Evidence, where the whole subject of the impeachment of witnesses is discussed historically with the painstaking thoroughness, and in the light of reason with the discriminating insight, characteristic of that work, i The conclusion is there reached that the usual rule which forbids a party to impeach his own witness operates to prevent an attempted impeachment by one who has first used a witness notwithstanding the opposite party afterward calls him. (2 Wig. Ev. § 913.) The rule referred to is enforced in this state where there are no special circumstances which would make its application work an injustice. (The State v. Keefe, 54 Kan. 197, 38 Pac. 302.) No such circumstances are here shown. We think that for the purpose of this rule Ellsworth was to be deemed the plaintiff’s witness, and that it was not error for the court to refuse to admit the impeaching evidence. The judgment is affirmed.
(87 Pac. 74.)
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Per Curiam:
The solution of the questions raised by this proceeding in error depends upon principles so well established that it is not necessary to promulgate them formally again. The plaintiff brought ejectment, relying upon a chain of conveyances from the government. The defendants interposed a judgment against one of the plaintiff’s grantors breaking this chain and starting a new line ending in defendant M. C. Sadler. The court found for the defendants on the strength of the judgment.
The plaintiff claims the judgment referred to is void because the affidavit for publication service upon which it was based did not use the precise language of the statute in stating that personal service could not be made within the state. The required fact did appear inferentially, however, from the statement that the parties to be served were absent from the state. Therefore the affidavit was voidable only, and the court was not deprived of jurisdiction to proceed. (Garrett v. Struble, 57 Kan. 508, 46 Pac. 943; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Long v. Fife, 45 Kan. 271, 25 Pac. 594, 23 Am. St. Rep. 724; Pierce v. Butters, 21 Kan. 124.) The delay in filing the affidavit was not such as to impair its validity.
The only other attack made upon the judgment introduced in evidence is that it was fraudulently obtained. The judgment of a court having jurisdiction of the parties and of the subject-matter of an action cannot-be attacked collaterally for fraud in obtaining it, and ejectment is a collateral attack. (O’Keefe v. Behrens, 73 Kan. 469, 473, 85 Pac. 555.) In the case of Priest v. Robinson, 64 Kan. 416, 67 Pac. 850, a decree quieting title was assailed in an action of ejectment. The court said:
“In this action of ejectment, the attack made upon this decree is purely collateral, and, unless absolutely void, as distinguished from voidable, the decree must stand as a perpetual barrier between plaintiff and a recovery.” (Page 420.)
In the case of Simpson v. Kimberlin, 12 Kan. 579, it was said:
“Every judgment, whether obtained through fraud or not, is valid and binding and conclusive as to all parties thereto, and their privies, until reversed, vacated, set aside, or perpetually enjoined by some proceeding instituted directly for that purpose. As to parties and their privies, a judgment cannot be held void and inoperative in one case, and still be allowed to stand and be held binding and effective in other cases. As to them, it must either be totally destroyed as a judgment, or else must have all the force and effect of a judgment. ... A judgment can never be impeached collaterally by any-person who was a party thereto. ... It can be impeached collaterally only by some stranger to the record. And even then it can be impeached only by such a stranger as holds some preexisting, independent, and conflicting right, that would be affected injuriously if the judgment were allowed to have full operation.” (Pages 588, 589. See, also, Larimer v. Knoyle, 43 Kan. 338, 344, 350, 23 Pac. 487; 1 Black, Judg., 2d ed., § 246.)
The testimony offered to impeach the judgment in question was properly stricken out, because the question raised can only be litigated in a direct proceeding.
Nothing else in the case requires special notice, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Shillings purchased a Columbia corn-harvester from D. M. Osborne & Co. for $115, for which they gave two promissory notes for $57.50 each. A dispute arose as to the quality of the machine, the Shillings complaining that it did not measure up to the representations of the company and that it was unfit for the purpose for which it was sold. Payment of the notes was refused, and this action to enforce payment was begun. The Shillings answered alleging that misrepresentations as to the machine were made; that because thereof they had rescinded the sale and returned the machine; and they asked damages by way of counter-claim for the loss occasioned by the wrong of the plaintiff. As an additional defense the defendants set up the fact that the plaintiff was a foreign corporation and that it had failed to make the required statements to the secretary of state or to obtain from that officer a certificate of authority to do business in Kansas, and that, therefore, it could not maintain this action. In connection with the testimony for the plaintiff it was admitted at the trial that D. M. Osborne & Co. is a foreign corporation; that it had not complied with the requirements of the statute as to such corporations, and had no certificate from the secretary of state authorizing it to do business in Kansas. Upon these admissions a demurrer to plaintiff’s evidence was sustained and judgment given for defendants.
It is argued that a single sale of machinery is not the doing of business within the meaning of the statute. (Gen. Stat. 1901, §§ 1260, 1261, 1283.) According to the testimony the business which plaintiff conducted in Kansas was more than a single or isolated transaction. It appears that the company had been carrying on the business of selling agricultural implements and farm machinery of various kinds at Paola, Kan., for many years, and, instead of the business of the company being merely casual or incidental, it was continuous, and appears to have been carried on as such a business is ordinarily conducted. It was the doing of business in the state within the meaning of the statute. (Deere v. Wyland, 69 Kan. 255, 76 Pac. 863. See, also, the annotation to cited case in 2 A. & E. Ann. Cas. 304.)
The next contention is that as defendants contracted with the plaintiff under a name which indicated that it was a foreign corporation they necessarily knew that the company was organized in another state, and therefore are estopped to plead non-compliance with the statute or to rely upon it as a defense. The fact that the defendants may have known that the plaintiff was a foreign corporation does not argue that they knew it was doing business in violation of law. Numerous corporations organized in other states are engaged in carrying on business in Kansas, and doing so legitimately. The statute provides how such corporations may legally conduct business within the state, and, as the conditions prescribed are not onerous, why should any one assume that a corporation engaged in business in the state has not observed the statutory conditions ? Besides, a corporation might have had authority when the contract was made, and by subsequently failing to make the required annual statements have lost its right to do business in Kansas or to maintain actions in the courts of the state.
Another reason why the defendants are not estopped is that the statute was enacted for the benefit of the general public and its purpose cannot be bargained away by individuals. The regulation of foreign corporations is for the purpose of subjecting them to inspection, so that their condition, standing and solvency may be known — the same sort of inspection to which domestic corporations are subjected. Another purpose likewise intended for the protection of the public was to subject foreign corporations to the jurisdiction of the courts of the state; and an incidental purpose was to provide revenue. Involved in the statute are these public considerations, which are of greater consequence than mere individual rights. It was not for defendants’ sake, therefore, that the provision was made, but it is a rule of state policy of which the defendants may inci-dentally take advantage. The method of enforcing the regulation and protecting the public is contained in the provision that no action can be maintained or recovery had in the courts of the state until there has been a compliance with the statutory conditions. As was said in The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041:
“While contracts are not invalidated, the binding force of obligations impaired, or the doing of business forbidden, the state is allowed to impose a bar to any relief until the proper certificate can be produced.” (Page 7.)
The fact that defendants pleaded a counter-claim did not operate as a waiver of the defense of abatement. According to the record on the first appeal of this case the counter-claim was dismissed, but it seems that the order of dismissal is not included in the record of this appeal. It appears from the record of the second trial, however, that no proof was offered nor reliance placed on the counter-claim originally pleaded. Under our system the defendant is entitled to set up as many defenses as he may have, but of course they should not be inconsistent. Defenses are said to be inconsistent when proof of one necessarily disproves the other. In this case proof of both defenses might be true. The evidence to sustain the counter-claim would in no way negative the defense that the plaintiff had failed to comply with the statute governing corporations. Again, if the defenses were inconsistent the defendants might have been required to elect between them, but no motion to require an election was made. The' inconsistency, if it existed, could not operate to waive or destroy the defense that the plaintiff had no right to maintain the action.
. The case of Deere v. Wyland, 69 Kan. 255, 76 Pac. 863, is an authority against the contention that the regulation or its application is violative of the clause of the federal constitution relating to interstate commerce.
No error appearing in the record, the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
In this case the findings of fact are supported by the evidence and justify the judgment of the court. The principal question was whether certain transactions, including the giving of instruments in the form of deeds, were intended as a transfer of the title to land or only as security for money loaned. The • court found, upon substantial testimony, that deeds absolute on their' faces were mortgages. It is insisted that the evidence in such cases should be clear, cogent, and convincing; that the testimony produced was not up to that standard; and that this court should now review and reweigh the evidence to determine its sufficiency. The district court was the trier of the facts, and presumably did apply the proper test in weighing the evidence. Its findings, when supported by substantial testimony, are binding upon this court. The existence of the rule requiring clear and convincing proof does not authorize this court to retry the facts. In this case, as in any other civil case, the credibility of the witnesses and the weight- of the testimony belong to the trial court, and its finding will not be.disturbed although we might arrive at a different conclusion from the evidence. Even in a criminal case, where the guilt of the defendant must be proven beyond a reasonable doubt, a verdict supported by substantial testimony is conclusive upon the reviewing court.'
There is nothing substantial in the objections to the rulings upon evidence, nor do we find any ground for the reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
William H. Pierce sued Edward I. Sloan and Henry J. Sloan for damages alleged to have been occasioned by their assaulting and shooting him. The’ defendants filed answers which besides denying the plaintiff’s allegations presented in detail their version of the conflict out of which the litigation grew, which was in effect that Pierce, his wife and son made an unjustifiable attack upon Henry J. Sloan, and that whatever the latter did was in self-defense; that Edward I. Sloan, the son of his codefendant, interfered to' protect his father, and that whatever he did was in defense of himself or of his father. Plaintiff recovered a judgment, from which the defendants prosecute error.
Complaint is made that the instructions of the trial court did not sufficiently advise the jury of the nature of the defense relied upon. If error was committed in this regard it was-rendered immaterial by the fact that special findings were made which were entirely destructive of the defendants’ claims. (Head v. Dyson, 31 Kan. 74, 1 Pac. 258; Mfg. Co. v. Nicholson, 36 Kan. 383, 13 Pac. 597; City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217.)
The assignment of error chiefly argued is the refusal of the court to give an instruction reading- as follows:
“If you find from the evidence that the defendant Edward Sloan, at the, time he shot at said Pierce through the south window of said dwelling-house, said Edward in the exercise of reasonable and proper judgment, in order to prevent the consummation of injury to his said father, believed it was necessary to fire such shot, then said Edward was justified in firing the same, and it was not necessary that his said father should have been in real danger of great bodily harm to justify such shooting; and if the jury believe from the evidence that the danger to said Henry was such as to induce a person, exercising a reasonable and proper judgment, to interfere in order to prevent the consummation of such injury and to shoot at or shoot said Pierce, your verdict should be for the defendant Edward Sloan.”
The answer of defendant Edward I. Sloan showed that his contention was that when he fired the shot referred to he had good reason to believe, and did believe, that such act was necessary for the protection of his father and to prevent his father’s being injured by the plaintiff and others. Upon this branch of the case the jury made the following finding:
“Was the danger to said Henry Sloan at the time said Edward shot through said south window such as to induce a person exercising reasonable and proper judgment to interfere in order to prevent the consummation of such injury? Ans. No.”
If this is in substance a determination by the jury that the situation as it was presented to Edward I. Sloan at the time he fired the shot in question was not such as to warrant him in believing that his interference was necessary to prevent injury to his father, the court’s omission to give the instruction requested became entirely immaterial. * A judgment cannot be reversed for the failure of the court to instruct the jury as to the effect of a condition which they find never existed. But plaintiffs in error maintain that the finding is not open to this construction; that it is not inconsistent with Edward’s claim that he acted in the reasonable belief that his succor was necessary to prevent injury to his father, although in fact there was no real danger. Clearness would have been promoted by the insertion of the word “apparent” before the word “danger,” but under the circumstances of this case the meaning must be held to be- the same. The reference in the finding to the exercise of a reasonable and proper judgment plainly has regard to the use of that faculty in deciding the reality of a danger as well as in estimating the severity of its possible consequences. The question submitted to the jury was prepared by the defendants’ counsel, and followed literally the language of the rejected instruction. This language was manifestly borrowed from that employed at page 1075 in volume 3 of the Cyclopedia of Law and Procedure in discussing, among other things, the right of one whose relative is assailed to act upon appearances. It is there said:
• “A person is justified in using sufficient force to protect his wife, children, or other members of his family, though the danger must be such as to induce one exercising a reasonable and proper judgment to interfere to prevent the consummation of the injury.”
This text was evidently borrowed in turn from Hill v. Rogers, 2 Iowa, 67, where the context shows beyond question that the word “danger” was used with the force of “apparent danger.” The second paragraph of the syllabus, substantially following the opinion, reads:
“In order to justify an assault by the father, in the defense of his son, or the protection of his own property, it is not necessary that such son shall be in real danger of great bodily harm, or that such property be in actual danger of material injury; but if the danger is such as to induce a person, exercising a reasonable and proper judgment, to interfere, in order to prevent the consummation of the injury, it is sufficient.”.
It is thus seen that the language of the finding under consideration has been used by careful writers to express the thought that a person’s conduct is to be judged by his situation as it reasonably appears to him. To give it a different meaning here — to interpret it as referring to an actual rather than to an apparent danger — would be to construe it too narrowly.
The court instructed the jury that “if the defendants, or either of them, without provocation, assaulted and beat the plaintiff as charged in the petition,” and "“such assault was a malicious, wanton and aggravated one,” and “justice and the public good require it,” they might “give exemplary or punitive damages, not only to compensate the plaintiff, but to punish the defendants and to deter others from the commission of like offenses.” This is objected to on the ground that it authorized the assessment of damages against both de fendants for the act of but one of them. We do not think it fairly open to that interpretation. The evident object'of the instruction was to explain the nature and purpose of punitive damages. The jury were elsewhere correctly told under what circumstances one defendant could be held responsible for a wrong committed by the other, and it does not seem probable that they could have been under any misapprehension on the subject.
Other 'rulings relating to instructions given and refused are challenged. They have been examined and are found not to be materially erroneous. Complaint is also made of the rejection by the court of evidence offered by the defendants to show the circumstances of a previous encounter between Henry J. Sloan and his daughter, who was Pierce’s wife. So far as the questions ruled out indicate the nature of the evidence sought to be elicited by them, the error, if any, seems to have been cured by permitting the substance of it to get before the jury at other times. No offer of proof was made otherwise than by asking these questions, and it cannot be said that any important right was denied the defendants in this regard.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued for the value of a team of horses, harness and wagon injured at a highway crossing over the defendant’s tracks. There is no-dispute about the material facts, and for the purposes of the decision it may be conceded the railway company was negligent.
The accident happened upon a main track running north and south. West of the main track twenty-one feet and six inches lay a side-track filled with box cars which encroached upon both sides of the highway, leaving a space some twenty feet in width for passage. The driver of the team'approached the crossing from the west. His last look for a train before the instant the accident occurred was taken at a point 120 to 160 feet distant from the side-track. From there to the side-track his view of both tracks toward the south was obstructed, and the cars on the side-track continued to obstruct his view of the main track in that direction. He did not stand in the forward part of his wagon-box, where he could more quickly have seen, but, without reason, so far as the evidence discloses, took a position over the rear axle, eighteen feet from his horses’ heads-. As the team crossed the side-track the near horse shied slightly at the box car on the north and drew plaintiff’s momentary attention in that direction. The team, however, was gentle and at all times under control. When he looked to the south a north-bound train was upon him. He said he was listening and heard no train; that he knew a train was likely to pass at any time; and that he was familiar with the crossing and its surroundings. The jury found specially that he knew of the obstructions and knew they cut off his view to the south; that he could have seen the danger of a collision before it took place had he stopped to look before driving upon the main track, and that he could have avoided the collision had he stopped to look and listen, but that he did not do so. The jury also found that the employees of the railway company in charge of the train discovered the driver’s peril too late to avert the injury. Notwithstanding these findings a verdict was returned for the plaintiff.
A series of parallel railroad-tracks constitute a series of separate dangers to a traveler upon a highway intersecting them. Peril succeeds peril until all are crossed, and caution must be exercised in the presence of each one. To look and listen once for all is not enough if there be opportunity to make further observations as the journey proceeds. Even though the view be obstructed until the first track is reached, if the second can then be scanned for danger ordinary care requires that the occasion be improved. Ordinary care further requires that a man driving a team across a railroad-track or a series of railroad-tracks shall not deprive himself of the opportunity of a prompt view by unnecessarily lagging behind while the team proceeds unguarded into danger. He must be vigilant in trying to see.
The findings of the jury in this case make it obvious that if-the driver had stood in the forward part of his wagon he would have seen the train and would have avoided the collision. Instead of this he projected the team ahead of him almost the entire distance across a place of safety and into danger before the line of his vision cleared the obstruction to the south. Situated as he was, the jury found that if instead of driving on he had stopped to look he could have seen the train and could have prevented disaster. Having disabled himself from making timely use of his sense of sight, he ■should have offset the voluntary handicap by stopping to look. The fact that the driver was listening as he drove along does not exculpate him. When, in addition to listening, he could have looked and saved himself, he should not have abused the opportunity. Whenever there is a field for the exercise of both sight and hearing both faculties must be employed.
The facts found specially by the jury require consideration in the light of other facts not found, but merely admitted by the plaintiff’s testimony; therefore judgment cannot be ordered upon the findings. The judgment of the district court is reversed, and the cause remanded.
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The opinion of the court was delivered by
Johnston, C. J.:
Margaret Weltsch, for herself and as administratrix of the estate of Joseph Weltsch, her deceased husband, brought this action against Anthony Straub to recover $500, with interest thereon from January 1,1902, at the rate of six per cent, per annum. In substance, she alleged in her petition that in 1892 she and her husband were then growing old and had more money than they needed for immediate use, and they gave Anthony Straub, who had married their daughter Mary, $500, under an agreement that it was to be repaid to them on demand; that it was the intention of the parties that the money should be and remain a trust fund, to be drawn from by the Weltsches in ease of need at any time during the lifetime of either of them, on demand, but if not needed by either of them it was to b.e treated as a gift, and should finally become the property of Straub and wife. Afterward the daughter, Mary Straub, died, and later, in December, 1898, Joseph Weltsch died. It was also alleged that at various times during the years 1902, 1903 and 1904 Margaret Weltsch, the widow, needed the money and demanded the payment of it from Anthony Straub in accordance with his agreement, but that he refused to pay her any part of it. The agreement, which was in writing, was pleaded by her, and is as follows:
“This agreement, entered into this 18th day of October, 1892, witnesseth: That Joseph Weltsch and Margaret Weltsch, his wife, parties of the first part, have given unto Anthony Straub and Mary Straub, his wife, parties of the second part, five hundred dollars ($500), said five hundred dollars to be used by the parties of the second part until all or any part of said $500 is needed by the parties of the first part, and when said parties of the first part need or demand all or any part of said $500, then the parties of the second part hereby agree to pay said amount so demanded to the parties of the first part.
“And it is hereby agreed that if no demand is made by the parties of the first part for any or all of said $500 within the lifetime of the said parties of the first part, then said $500 or the part thereof still remaining in the possession of the parties of the second part is to be and remain the property of the said parties of the second part. Anthony Straub.”
On a demurrer to her petition, it was held that plaintiff had not stated a cause of action, and that there was no liability, to return the money unless demanded by both of the Weltsches and while both were alive. In addition, it is contended that the promise ran to the Weltsches jointly, and that one of them is not entitled to maintain an action on it.
No good reason is seen why the plaintiff may not maintain her action. The money was placed in the possession of Straub, subject to be reclaimed by the Weltsches during their lifetime, and it was therefore not an absolute gift. The purpose of the parties is apparent from the writing. The Weltsches intended that Straub should have the use of the money for a time, at least, and if they did not need it while living he might then have it as his own. To provide for the maintenance and comfort of the Weltsches during their lives it was agreed that if it became necessary the money should be returned to them on demand. Manifestly it was a provision for the protection of both of the Weltsches so long as either should live, and not for their protection only until one of them should die. Protection was just as important and necessary for Mrs. Weltsch after, as before,, her husband’s death, and nothing in the writing, or in the circumstances under which it was made, indicates that anything less than protection for both of the Weltsches was intended. Nothing in the language of the agreement indicates that the death of one of the Weltsches would make the gift to Straub complete or discharge him from the obligation to repay the money when demanded.
There would have been less room for cavil if it had been written that Straub might use the money until it was needed by the Weltsches, or either of them, but, considering the circumstances of the case, the relation of the parties, and the purpose for which provision was being made, there is no doubt of an intention that the fund should be available to either of the Weltsches . so long as either of them should live. It was a lifetime provision, and the son-in-law, who .had enjoyed the use of the fund for years, could hardly have contemplated that his benefactors would pass from life simultaneously. Each of the Weltsches had the same interest in the fund; each joined in placing it in Straub’s hands; and obviously it was intended that it might be reclaimed by either of them, if either needed it.
This view disposes of the contention that Mrs. Weltsch alone cannot maintain the action. If both were alive, of course both should have united in the action. A joint obligee, however, does not lose the benefit of a contract because all the obligees do not unite in its enforcement. Our code provides for an adjudication of the rights of all obligees united in interest, if any interest they have, by permitting those to be made defendants who refuse to unite as plaintiffs. (Code, § 37; Gen. Stat. 1901, § 4465.) Mr. Weltseh’s' necessities, had ceased, and no part of the fund could be used for his benefit. The only one who had an interest in the fund was Mrs. Weltsch, and to meet her necessities she had a right to demand and reclaim the money. Being the only party in interest, no one else need be joined with her. (9 Cyc. 655.)
The judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
The city of Kansas City, Kan., in violation of law, enacted an ordinance providing for the granting of licenses to gamblers to violate the law in certain portions of the city. Ben Levy, the plaintiff in error, was a gambler. He paid to the city treasurer $5000, and procured a license to run a gambling-house in the city. He opened a place of business within the prohibited district and commenced negotiations with the public, for which he was prosecuted and fined. He then filed in the district court of Wyandotte county a petition alleging these facts and that the city intended and would cause him to be arrested if he again opened his place of business at this place, and asked for an injunction restraining the city from again interfering with him or his business. Notice was served on the city, and upon its default the district court granted a temporary injunction enjoining the city from in anywise interfering with or preventing the plaintiff from conducting his business under and pursuant to the license issued to him, and also enjoining the mayor, the chief of police and the city counselor from arresting him or prosecuting him for conducting his business, unless he should be found to be conducting it in a disorderly manner. To the petition the city then filed an answer, and in the same suit filed a petition alleging that Levy was violating the ordinance of the city by conducting his business in the city within the prohibited district, and asked that he be perpetually enjoined therefrom. After a hearing the court dissolved the temporary injunction issued in favor of the plaintiff in error, and granted a perpetual injunction restraining Levy from conducting his gambling-house within the prohibited limits. To reverse the order setting aside his temporary injunction and the order granting the city a perpetual injunction he prosecutes this proceeding.
This is probably the first instance in the history of the state that a professional criminal, .confessing to a daily violation of the law, has had the effrontery to apply to a court of equity for protection from arrest and public prosecution while he pursues his criminal vocation. It would indeed be a sad commentary on our jurisprudence if a justification could be found for holding that a license to commit crime, issued by a city administration, could be made the basis of equitable interference for the protection of the holder from public prosecution while he continues to violate the law. The conduct of the parties is equally culpable, and neither deserves any consideration at the hands of a court.
The proceeding is dismissed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The district court sustained a demurrer to the petition of L. A. Bunker and others, who sought to enjoin the city of Hutchinson from providing for assessments and taxes to pay for the paving and curbing of Main street in that city. On a petition of property owners asking for the construction of a bitulithic pavement an ordinance was passed providing for the building of such pavement, and in pursuance of that ordinance a contract to curb and pave the street was awarded to the Kansas Bitulithic Paving Company, which proceeded with the work. Property owners contested some of the preliminary proceedings, but these were sustained by the courts. (Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721.) In their petition in this case the plaintiffs allege that the contract and other' steps taken were unwarranted and illegal because bitulithic pavement is a monopoly, owned by Warren Brothers, who have an interest in the Kansas Bitulithic Paving Company; that portions of the material, process and machinery are covered by letters patent and trade-marks, which practically give Warren Brothers and those with whom they act a monopoly of the contracts for bitulithic pavement. It is also averred that their pavement is not superior to that made out of similar material by others, which may be had at less cost. • It is further alleged that the monopoly mentioned, and the combination of the parts covered by the patent with those not so covered, practically prevented competition or the letting of the pavement to the lowest responsible bidder, and that in this respect it violated a city ordinance. The ordinance in terms provides that the mayor and council shall let such contracts “to the lowest responsible bidder, as determined by the mayor and council, the right being reserved by said mayor and council to reject any and all bids.” The petition set out the proceedings of the mayor and council relating to the matter, including the ordinances authorizing the paving, as well as the levying of special assessments to pay for it.
The defendants first contend that plaintiffs had no right to maintain the suit when it was brought; that 'if they had a right of action this one was prematurely brought; and that the state was the only party which could then institute a proceeding. This contention is based upon the theory that the owners of abutting property affected by the illegal tax proceedings may not institute a suit to enjoin an assessment against their property until the amount chargeable against it has been ascertained. Until the passage of a recent statute it was held that such an owner of property was not so far affected by preliminary proceedings which had not been brought up to the ascertainment of an assessment against his property as to give him a right of action to enjoin the progress of a proposed improvement. (Bridge Company v. Comm’rs of Wyandotte Co., 10 Kan. 326; Challiss v. City of Atchison, 39 Kan. 276, 18 Pac. 195; Mason v. Independence, 61 Kan. 188, 59 Pac. 272.) The legislature of 1905, however, expanded the remedy of injunction against the levy of an illegal tax, charge or assessment by permitting a person whose property might be affected .by such a tax, charge or assessment “to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment.” (Laws 1905, ch. 334, § 1; Gas Co. v. Railway Co., post.)
Defendants call attention to a part of the act authorizing cities of the second class to levy assessments for the improvement of a street which provides that “no suit to set aside the said assessments shall be brought after the expiration of thirty days from the time the amount due on such lot liable for such assessment is ascertained.” (Gen. Stat. 1901, § 1016.) It is contended that this section specially applies to the matters of improving streets and must control in suits of this character. The provision, as will be observed, gives no remedy. An owner must look elsewhere for the remedy of injunction. But in it is found a limitation on the remedies which the code provides. It is no more than a statute of limitation which prohibits the bringing of a suit of any kind to annul an assessment more than thirty days after the amount due on the assessment is ascertained. The plaintiffs were, therefore, entitled to the benefits of the act of 1905, and could challenge by injunction any step taken or the doing of any act by the city council not authorized by law which might result in the levy of an illegal tax or assessment against their property.
On the merits of the case the principal contention is that there was in fact no competition in the letting of the contracts for the bitulithic pavement. If it were assumed that the law required competitive bidding for such work, the fact that the material which entered into it was covered by letters patent, and therefore under the control of a single party, would not necessarily defeat a contract nor prevent the city from obtaining the use of the patented article. (Yarnold v. City of Lawrence, 15 Kan. 126; The State, ex rel., v. Shawnee Co., 57 Kan. 267, 45 Pac. 616.) But is com petitive bidding required? There is no charter provision or statute governing cities of the second class which requires the mayor and council to let contracts for paving or other like improvements to the lowest bidder. In other statutes providing for public structures or the making of public improvements competitive bidding is required; but for some reason no such provision is made for the letting of such contracts in a city of the second class. The mayor and council are, therefore, vested with full discretion as to the kind of pavement which shall be used and also as to how the contracts for it shall be let.
It is generally regarded that competitive bidding for public work is a measure of safety which prevents excessive or fraudulent allowances for such work; but, as counsel have said, combinations between bidders have been known to be made so that there was in fact no competition, and instead of being a protection the plan was used as a method of obtaining extravagant allowances from the public treasury. ,The legislature may have concluded that to compel the mayor and 'council to accept the lowest bid would not be the wisest or safest plan, and might not secure the best material for the paving nor the highest skill in constructing it. As a safeguard for the public interest provision was made for a detailed estimate of the cost of a street improvement by the city engineer, and that no contract should be let for the work in excess of the estimated cost. This is substantially the only limitation upon the discretion of the mayor and council in contracting for such an improvement.
In this case, as we have seen, the mayor and council passed an ordinance providing that the work should be let to the lowest responsible bidder, and it is argued that the ordinance is the law of the case and is binding upon that body. Can that tribunal thus tie its own hands? It was given the discretion to contract for any material, and with or without competitive bidding, as it might deem wise or best. Can it limit a discretion which, it must be presumed, was vested in it for the public good ? We think not. The limits of the powers and duties of the mayor and council are found in the charter act. They cannot exercise a power not conferred therein, nor surrender or shirk a duty or responsibility which it places upon them. The discretion was lodged in them for the protection and benefit of the people. They cannot surrender that discretion any more than the legislature can devest itself of the discretion placed in it. The passage of an act by the legislature does not tie its hands or limit the legislative discretion which the people have conferred upon it. The passage of an act has no binding effect upon the same or any subsequent legislature, unless contracts or vested rights have arisen under it. (Gilleland v. Schuyler, 9 Kan. 569.)
This question was before the supreme court of California, in the case of Thompson v. Board of Trustees, 144 Cal. 281, 77 Pac. 951, and it was there expressly held that the board of trustees of a city may not, by ordinance or otherwise, devest itself, for any length of time, of legislatiye and discretionary powers vested in it by the general law. In the case of City of Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 51 L. R. A. 335, the validity of an ordinance adopted by the mayor and general council, requiring the union label on all city printing, was in controversy. The charter did not require the mayor and general council to let contracts for public work to the lowest bidder, but, under its provisions, the municipal authorities were invested with a wide discretion. In holding the ordinance to be invalid the court remarked:
“The vice of the ordinance now under consideration is that it cuts off the power to fully and freely exercise that very discretion which the public good requires the mayor and general council to exercise in making contracts. It effectually ties their hands and prevents their availing themselves of opportunities to make advantageous agreements in behalf of the city, which it is idle to say would not be presented were this ordinance out of the way. We cannot, therefore, escape the conclusion that in adopting this ordinance the mayor and general council exceeded their authority.” (Page 792.)
The case of Fineran, &c., v. Central Bitulithic Paving Co., &c., 116 Ky. 495, 76 S. W. 415, is cited as an authority that an ordinance requiring competitive bidding is as binding on the council that passed it as if the provision had been inserted in the charter. There the ordinance was based on a charter provision, not that competitive bidding for contracts was absolutely required, but that the council should adopt a uniform system to govern street construction. This provision was legislative authority to the council to limit its discretion. When the uniform system was adopted, as the charter provided, it was of course binding on the council until it was modified or repealed.
Since the statute does not limit the discretion of the mayor and council, nor authorize its limitation, the ordinance enacted does not control their discretion and is without binding force. Their discretion is not an arbitrary one, but must be exercised honestly and in good faith. They are to act on the dictates of their own judgment and conscience, and not on the judgment of others; and the fact that their judgment may not accord with that of the court, or that their discretion was not exercised as the court would have exercised it, is no ground for nullifying their action. Fraud or corruption is not charged against the mayor and council, but so far as appears they exercised an honest discretion and did what they deemed to be for the best interests of the city.
Counsel seem to contend that, even if there is no requirement of law for competitive bidding, it was still the duty of the city officers, in the interest of the public, to let the contract to the lowest bidder. In Yarnold v. City of Laturence, 15 Kan. 126, it was held that, in the absence of an express direction of law to let contracts to the lowest bidder, no letting or competition is necessary. In volume 1 of Spelling on Extraordinary Relief, section 718, it is said:
“Where no conditions or restrictions are imposed upon municipal officers in the matter of letting contracts they are not obliged to let the work to the lowest bidder, and cannot be enjoined for a refusal to do so unless guilty of fraud. They may exercise an unlimited discretion so long as they are not guilty of gross abuse of discretion and do not pervert their powers to such an extent as to amount to a fraudulent misappropriation of the public funds.” (See, also, Schefbauer v. Kearney, 57 N. J. Law, 588, 31 Atl. 454; Elliot v. Minneapolis City, 59 Minn. 111, 60 N. W. 1081; Riehl v. City of San Jose, 101 Cal. 442, 35 Pac. 1013; Kingsley v. City of Brooklyn, 5 Abb. New Cas. [N. Y.] 1; 20 A. & E. Encycl. of L. 1165.)
There are no limitations to prevent the mayor and council from obtaining and applying a patented article and process in paving a street of the city, nor is there anything alleged or shown why the contract for bitulithic pavement made by the defendants should be annulled or enjoined. The judgment of the district court is therefore affirmed.
All the Justices concurring. | [
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Per Curiam:
W. E. Bailey was prosecuted under an information charging him in several counts with the illegal sale of intoxicating liquor, and in an additional count with the maintenance of a place where liquor was unlawfully sold. He was convicted upon the nuisance count only. Upon appeal he contends that inasmuch as the state, on being required to elect upon what evidence it would rely for a conviction upon the various counts, filed a written statement of such election in which no mention was made of the nuisance count, the prosecution upon that count was thereby abandoned. The contention is not good. The election had reference only to those counts charging specific sales.
On the trial the defendant offered in evidence two documents described as government liquor licenses, and complaint is now made of their rejection. The record does not show the contents of the documents, so that no review of the ruling is possible, but it is not apparent how the defendant could have been in any way prejudiced by it.
Complaint is also made of the refusal of the trial court to allow a witness to testify to having heard one Blair say that he was the owner of the place. This would have been competent evidence against Blair if he had been on trial, but was not competent when offered in behalf of Bailey.
The judgment is affirmed. | [
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Per Curiam:
This action was commenced in the district court of Miami county to recover damages on account of injuries sustained by a car-load of fat cattle, shipped over the railroad of plaintiff in error from Kansas City and negligently carried beyond the point of destination. The controversy will be understood by a consideration of the following facts:
In 1901 the defendant in error, W. E. Hayes, resided near Norman, Kan., which is a small station on the line of the Missouri, Kansas & Texas Railway Company, a short distance south of Paola. Norman has a switch and stock-pens, but neither agent nor station-building. Persons shipping from this place transact the business relating thereto with the company through its agent at Paola. Hayes, wishing to ship two carloads of cattle from Norman to Kansas City, made arrangements to do so with the agent of the plaintiff in error at Paola. In pursuance of such transaction the company placed the necessary cars on the switch at Norman, where they were loaded by Hayes. During the night of July 10, 1901, a passing freight-train took the loaded cars to Paola, where the business relating to the shipment was completed. When the train stopped at Paola Hayes requested the agent to make proper shipping-bills for the cattle while he got something to eat at a 'lunch-counter. The agent inquired of Hayes the name of the consignee and the number of cattle to be shipped. He then proceeded to prepare the necessary papers. By mistake Sinkey was written in the shipping-bill as the point from which the cattle were shipped. Sinkey is a small station about seven miles south of Norman, at which there is no agent or building. When Hayes returned from taking lunch the train was ready to start, and he hurriedly received the papers without reading them.
There is a sharp conflict in the evidence as to. whether the word “Sinkey” was erroneously inserted in the shipping-bill on account of the negligence of Hayes or the agent, but as the jury found in favor of the plaintiff we accept the conclusion that it was the result of the negligence of the agent.
The cattle were consigned to Greer, Mills & Co., a commission firm in Kansas City. When Hayes unloaded the cattle he found the market such that he determined to ship one car-load of fine fat cattle back home. Being in a hurry he sent one of the salesmen at the stock-yards to the Missouri, Kansas & Texas, agent to order the reshipment. This salesman informed the agent that Hayes wanted the cattle then in a certain pen shipped back to the place whence they came. Afterward, and before the cattle were loaded, Hayes went to the agent to get his shipping contract, signed, so it could be used as a pass on his return trip home. When the agent examined the contract the following conversation took place between them, as shown by the testimony of Hayes:
“Ques. Did you have any talk with him as to where the cattle were going? Ans. Yes, sir.”
“Q. Did you tell him . . . anything about Norman? A. I walked in and throwed down my contract to have it signed up so I could ride home on it.
“Q. That is the contract — pass? A. Yes, sir.
“Q. That you used on your shipment going up? A. Yes.
“Q. Go ahead. A. That was my business — to get it. signed up; and I throwed it down for him to sign it, and he says: ‘Where did you get on at?’ And I says: T got on at Norman.’ And he says: ‘Your contract says Sinkey, and I told him I didn’t. He wanted to know where this Sinkey was and I told him I did n’t know of any place called Sinkey. That was the first time I ever heard the name Sinkey and I don’t now remember just the conversation exactly, but he wanted to know where it was and I told him the first station south of Paola; and finally he says: ‘Well, you want these cattle billed back to the place they were loaded at?’ And I says: .‘That' is all I want.’”
“Q. And the cattle were loaded at Norman, you say? A. Yes, sir; the cattle were loaded at Norman.
“Q. No question about that? A. No; I live right by there and I know.”
“Q. Did you make any explanation to this Mr. Maxwell about the station of Norman? A. Yes; he wanted to know where I got on at and I told him I got on at Norman, and he says: ‘Your billing says Sinkey.’ I told him that I was satisfied it was n’t Sinkey; that it was a mistake if it was, because I knew it was Norman. He says: ‘Do you live close by?’ I told him I did. He wanted to know then how far it was from Paola and I told him. He wanted to know where Sin-key was and I told him I did n’t know of any place that they called Sinkey at that time.
“Q. How far did you tell him that this place Norman was from Paola? A. I told him about two miles south of Paola on the hill — the first station.”
“Q. I will ask you what he said, if anything, to you about being a new man? A. After he asked me those questions he says: T am a new man and I am not acquainted with all those little stations.’ ”
Notwithstanding this conversation with the owner of the cattle, to whom the shipment was consigned, the agent sent the cattle to Sinkey. Whether this mistake was due to the negligence of Hayes dr the agent is a question of fact which has been answered by the jury upon the evidence submitted, and we are concluded thereby. We must assume, therefore, that it was negligence in the agent to make such shipment after the instructions received from the owner and shipper in person, even though .it appeared from the way-bill in his possession that the cattle had been shipped from Sin-key. The plaintiff in error, having been negligent in these respects, is liable for the damages sustained thereby.
No question is made as to the amount of recovery. The case seems to have been tried upon the theory that the contract of shipment was in writing, and that damages had been waived by failure to give certain notices which are usually required by the ordinary shipper’s contract, but it is clear that the, only contract upon the subject was the oral direction given to the agent at Kansas City by the salesman acting for Hayes, and the conversation of Hayes himself with the company’s agent, as hereinbefore stated. Other assignments of error depend upon questions which got into the case because of this erroneous theory, and therefore need not be considered.
We are unable to find any sufficient reason for disturbing the judgment of the district court, and it is affirmed. | [
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Per Curiam:
This case is dismissed upon the authority of Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028. | [
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The opinion of the court was delivered by
Mason, J.:
Carrie Crane was the owner of 320 acres of land in Chautauqua county, Kansas, which she exchanged for three lots in an addition to Los Angeles, Cal., owned by Abba Clair McCready. Later she brought a suit in Chautauqua county to have the transfer set aside upon the ground that she had been induced to agree to it by false and fraudulent representations concerning the Los Angeles property by which she had been led to .believe that it was.more desirable than it in fact was. A trial resulted in a judgment in favor of the plaintiff, from which the defendant prosecutes error.
One of the principal grounds upon which a reversal is asked is that there was no substantial evidence of any fraud having been practiced upon the plaintiff. It is unnecessary to review the testimony in detail. It would be difficult to sift out the part that is really important, and much of it bears only remotely if at all upon the controversy. But this fact is beyond dispute: There was competent oral evidence tending to show that a representation was made that the lots were near West Lake park; that their situation with reference to -that park might reasonably be regarded as a material consideration affecting their desirability; that the plaintiff believed such representation and acted upon it; that the lots in fact were not in the vicinity of the park at all. The plaintiff claims that there was also evidence of misrepresentations in other respects, but for present purposes this claim may be ignored. The testimony already indicated was enough to challenge the consideration of the trial court — to raise an issue of fact — to compel the overruling of a demurrer to the evidence, and consequently it is enough to prevent this court from setting aside the judgment as being without support.
It is true that it was substantially admitted that the plaintiff’s husband, acting in her behalf, was taken to the locality of the lots by the defendant’s father, acting for her, before the bargain was made; and it is argued that he thus had an opportunity to discover, and must have discovered; that they could not be situated near the park named. Mr. Crane, however, testified that Mr. McCready, while they were upon the ground, told him that they were but two or three blocks away from the park, and that the reason they seemed so far from it was because they had come by a circuitous route. This court cannot undertake to say that his familiarity with the local topography made it im possible that he should be imposed upon in this manner. There is nothing therefore in this feature of the case inconsistent with the judgment’s being supportable upon the theory already outlined.
It is also urged that if the plaintiff ever had a right to claim the rescission of the contract she lost it by delaying action for too long a period. There was a considerable delay on her part in this respect, but its effect had to be determined in view of all the circumstances of the case, including her own knowledge of her rights and capacity to decide upon a proper course to enforce them — elements concerning which the conclusion of the trial court is not subject to review. We cannot say. that the defense of acquiescence was conclusively established.
Complaint is also made of the admission of incompetent evidence. There is no occasion to state its character, for it is not necessary to pass upon the question of its competency. The cause was tried without a jury, and as only a general finding was made we cannot know that the evidence complained of had any influence whatever upon the decision. As was said in Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R. A 271:
“It is a familiar fact that, especially in matters presented for the determination of a court [without a jury], evidence is often admitted tentatively, the decision being held subject to reconsideration upon the submission of the whole matter. In such a case it is not essentia] to a review of the result that a definite final ruling be indicated upon each objection made. The court is supposed to consider so much of the testimony as is competent and to disregard the rest.” (Page 409. See, also, Olathe v. Cosgrove, 71 Kan. 885, 81 Pac. 1131.)
A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of the admission of incompetent evidence, unless the record discloses that there was no competent evidence to support it or in some other way shows affirmatively that the improper evidence affected the result. In the absence of such a showing it will be presumed that the trial court was' influenced in its decision only by such evidence as was legally admissible. Abundant authority in support of this proposition will be found in the cases collected in volume 3 of the American Digest, Century Edition, columns 2149 to 2153, although not all of them go to the full extent indicated by the head-notes under which they are grouped. For instance, Robbins v. Sackett, 23 Kan. 301, is classed with cases holding that “the admission of improper evidence on a trial to the court without, a jury is harmless where there is sufficient proper evidence on which to base the decision,” whereas, like Osborne, Ex’r, v. Young, 28 Kan. 769, it merely decided that such error was rendered immaterial by the fact that the allegation in support of which the objectionable evidence was received was otherwise conclusively established.
A final objection made by plaintiff in error relates ■ to the admission of testimony, and is probably covered by the principle just stated; but as it also involves a matter of pleading it merits separate discussion. The only misrepresentations regarding the lots set out in the petition had regard to their, location. In the answer it was alleged that while the negotiations for the trade were pending the plaintiff’s husband, as her duly authorized agent, visited the- lots, inspected them, and selected them from other lots offered. An amended reply was filed, including a general denial and these special denials, among others:
“Plaintiff further specially denies that her husband, A. J. Crane, as her duly authorized agent visited the lots which were conveyed to the plaintiff; and plaintiff also denies specifically that her said husband as her agent personally inspected-the said lots; plaintiff also specifically denies that said A. J. Crane as the agent of plaintiff selected the lots which were conveyed to the plaintiff from other lots which were offered the plaintiff, as alleged in defendant’s answer.”
At the trial A. J. Crane, the plaintiff’s husband, was permitted to testify over objection that the defendant’s father, as her agent, had taken him to the vicinity of the lots in question, and had shown him, not these lots, but more desirable ones near by. The defendant urges with much force that this testimony should have been rejected because it related to a character of fraud not hinted at in the pleadings. As we do not know that it influenced in any degree the judgment of the court we cannot say that its admission was material error.
But the defendant contends further that the amended reply should be construed as an admission that the plaintiff’s husband did visit, inspect and select the lots, and a denial only that in doing so he was acting as her agent. Granting that this is true, in the plaintiff’s opening statement it was made evident that this was not the meaning intended, and the subsequent rulings may be construed as in effect permitting the language of the amended reply to be changed so as to express the real intention of the pleader. The defendant does not show how she suffered prejudice from such course. She did not ask time to produce further evidence, nor indicate in what respect her situation would have been bettered by an earlier knowledge of the plaintiff’s claim in this regard. Her father’s deposition in her behalf, used at the trial, was taken of course before she had notice of any claim that the wrong lots had been shown, but it was also taken before the amended reply was made, and while there was on file a reply which was practically a mere general denial, and which of course put in issue the question whether the plaintiff’s father had visited, inspected and selected the lots. Moreover, in this deposition the witness stated explicitly that he had pointed out the right lots, and other lots as well. The only injury which the-defendant appears to have suffered in the matter is in being deprived of the benefit of the plaintiff’s inadvertent admission resulting from pleading in the form of a negative pregnant, and of this no very serious complaint can be made. In view of these considerations we cannot say that any prejudicial error in this respect is apparent.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The only question involved in this case is whether the trial court erred in holding a certain tax deed conveying several disconnected tracts good upon its face. The first objection made to it is that after describing the property offered for sale it fails to give a description of the part that was actually bid for and sold, reliance being placed upon the statement in McDonough v. Merten, 53 Kan. 120, 35 Pac. 1117, that “the legislature intended that at least two descriptions should be included in every tax deed: First, a description of the property assessed, taxed, and offered for sale; and, following that, a second description, showing the least quantity bid for.” • (Page 124.) Here, however, the recital is that the buyer had offered to pay the amounts specified “for the whole of each of said parcels, tracts and lots respectively, which as to each of them was the least quantity bid for.” The deed is therefore good against this attack, within the authority of Gibson v. Hammerburg, 72 Kan. 363, 83 Pac. 23.
A further objection is that the draftsman of the deed, having once described the several tracts involved and having assigned to each tract a number, thereafter referred to them by number only, without repeating the description. It is argued that while the statute provides that certain abbreviations may be used in a tax deed it does not authorize this particular method of economizing time, effort and space. The want of express authority is immaterial. The method employed is one that involves no indefiniteness or uncertainty; it results in a concise, intelligible and exact setting forth of what was in fact done with respect to each tract and each step required to be shown. It therefore affords no ground for avoiding the deed. See cases cited in Gibson v. Hammerburg, supra.
The final objection is that as the description employed in the granting .clause is “the real property last hereinbefore described” the deed operates as a conveyance of only the last of the several tracts in the order of their enumeration, within the rule announced in Spicer v. Howe, 38 Kan. 465, 16 Pac. 825. Preceding the granting clause, however, the lands of the.entire list are referred to collectively as “said property” and “said unredeemed real property,” and nowhere in the deed is any one tract or part of a tract singled out from the rest so as to be identified by the phrase “the real property last hereinbefore described.” The case is therefore similar to, and must be controlled by, Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48, which is distinguished from Spicer v. Howe upon these grounds.
Counsel for the plaintiff in error attempt to point out but one feature in which the deed now under consideration differs from that upheld in Cartwright v. Korman. There the several tracts involved^ while not contiguous, were parts of the same city block; here they are widely scattered and presumably do not lie even in the same taxing district. We are unable to perceive that this circumstance has any relation to the principle involved or affords any ground for making a distinction between the two deeds with respect to their validity. In Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282, it was remarked that where several tracts are involved the addition of the words “and each and every separate tract and part thereof” to the statutory form “the real property last hereinbefore described” removed whatever doubt might otherwise exist as to the land conveyed, but it was not thereby intended to intimate that the additional words were necessary where the form employed was similar to that held to be sufficient in Cartwright v. Korman, supra, or to forecast any departure from the rule there announced. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The petitioner was charged with a felonious assault in striking one Jacob Burger in the pit of the stomach with a deadly weapon, commonly known as a beer bottle, with intent to maim, wound and kill. On his preliminary examination he was held under bond to answer to the district court.
It is claimed that th,e evidence of the preliminary examination shows that no offense was committed. The facts leading u£ to the charge upon which the petitioner was held are as follow: During the evening of August 4, 1906, the petitioner had an altercation with Jacob Burger in front of a hotel in the town of Randall. Burger was the city marshal. The petitioner was drunk and disorderly. He used abusive and threatening language toward the marshal, who made no attempt to arrest him at that time. He then challenged the marshal to go down to the railroad-tracks, a distance of about 200 feet from the .hotel. The challenge was accepted. When they got to the railroad they stopped. The evidence of-the marshal is that the-petitioner drew his knife and the marshal left suddenly and went home for the purpose of procuring a gun. Soon afterward he returned up town in search of the petitioner. He deputized one of the bystanders to go with him for the purpose of assisting in arresting Stilts. He went to another 'house some blocks away and procured a revolver for himself, giving his own gun to the deputy. Inquiries were made for Stilts and they were told that he had gone toward the blacksmith shop. They went and hunted for him. After a little while they learned that he had started home, and they went to his home for the purpose of arresting him for the disturbance. It was about eleven o’clock in the evening and the petitioner was in his house.
The marshal had no warrant. The testimony at the preliminary examination, so far as it concerns the acsault and the circumstances leading up to it, consists mainly of the evidence given by the marshal. He testified that he sent the. deputy'to the back door, and went himself to the front door and called to the petitioner; that the latter said, “What do you want?” and called him a vile name; that he said, “Now Jim, there is no use to act this way, I am going to arrest you,” and Stilts said, “Don’t come in”; that “finally I pulled the screen door back and stepped up on the floor and started in, and just then he threw and hit me, and just then I shot.” His testimony is that the petitioner threw a beer bottle at him, striking him .in the pit of the stomach; that he then fired four shots from a revolver, one of the shots taking effect in the arm of Stilts,'who then came out and gave himself up. The marshal took him to a physician, and, it appearing that his wound was serious, he was allowed to return home and no further attempt was made to prosecute him for the disturbance on the street; but four days afterward the marshal filed the complaint upon which the warrant for his arrest issued on the charge of assaulting the marshal and striking him with the beer bottle.
It is argued by the petitioner that the evidence conclusively shows that no offense was committed; that the attempted arrest was without authority of law, for the reason that the peace had been restored; that the disorderly conduct of the petitioner had ceased and he had gone to his own home and had the right under the circumstances to resist an arrest without a warrant.
The state contends, on the other hand, that the evidence shows a disturbance of the peace and a following up by the officer for the purpose of an arrest so closely in point of time that it was all one transaction.
“The arrest must be made at the time of the offense or immediately after its commission, or upon fresh pursuit, while the offender is fleeing from the scene of the crime.” (2 A. & E. Encycl. of L. 876.)
The law is well settled, however, that where an officer attempts to make an arrest for a misdemeanor committed in his view, after peace has been restored, the arrest is unlawful unless made with a warrant.
“When a policeman, after having seen a breach of the peace or a misdemeanor committed, departs, and afterward returns, he cannot arrest without warrant for such previous offense so committed in his view. The shortness of the interval does not affect the question.” (Meyer v. Clark, 41 N. Y. Super. Ct. 107, syllabus. See, also, 1 Chit. Crim. Law, 5th Am. ed., 23; Coupey v. Henley et al., 2 Esp. [Eng.] 540; 1 East’s Pleas of the Crown [Eng.] 305; Reg. v. John Marsden, 11 Cox’s C. C. [Eng.] 90; Regina v. Walker, 25 Eng. L. & Eq. 589.)
The evidence at a preliminary is not necessarily conclusive úpon any. point, and is generally sufficient to authorize a holding over if a probability appears that an offense has been committed. Whether the petitioner is or is not guilty can best be determined from a full hearing of all the evidence, and we do not feel warranted under the circumstances in discharging him. The writ is denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The contentions of plaintiff in error that the court should have rendered judgment upon the opening statement of counsel for defendant in error, and that the objection to the introduction of any testimony under the petition should have been sustained, will be considered together with the claim that the court erred in overruling the demurrer to the evidence. These three contentions all revolve about the proposition that the deceased was guilty of contributory negligence which prevented defendant in error from recovering.
It is urged that, being apt experienced miner, and familiar with the surroundings and situation, the deceased knew or should have known the thinness of the wall in the “Blossom” room, the location of the shot and its probable consequences, and, being charged with this knowledge, he should have sought a place of safety ' near one of the sides of the “company” room and away from the front of the entrance. The testimony of the experienced miners was to the effect that in an underground mine like this, where impenetrable darkness prevailed everywhere, except as dispelled for a short distance by the smoky lamps carried in the miners’ caps, it was impossible for any one, without the use of a compass and frequent measurements, to know with any certainty the direction a tunnel or room was being worked. None of them ever used a compass, because, as appears from the. evidence, it was the duty of the superintendent, Shinn, to give the orders to the others, including deceased, as to where and in what manner the work should be done. It was his duty, as a matter of law, to ascertain and know the thickness of the pillars, and to take reasonable precautions for the safety of the men. It was the duty of the superintendent to know the direction the “Blossom” room had been extended and the danger which would probably result to the men in the “company” room when the shot was fired. He represented the company. (A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632; Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856.)
The testimony of several of the miners was that the superintendent had told them that the “Blossom” room was being extended so as to break into the “Marcy” room on the north, and, indeed, every circumstance in the case warranted the jury in finding that this was true, and that no one was more astonished than Shinn himself when the shot broke through where it did. John Marcy, one of the miners, testified that the superintendent remarked when the accident oc-' curred, and Reedy was found to be injured:
“ ‘The company will just raise hell with me. . . . I ought to knew the strength of that pillow/
“Ques. What did you understand Mr. Shinn to mean’ by that pillow? Ans. Why, that pillow where the shot came through; said he oúght to knew the strength of it.”
It is incredible that the superintendent would-have ordered the men to go into the “'company” room directly across the main tunnel from where the shot was placed and expose them and himself to a danger so apparent if he had supposed the rib between the “Blossom” room and the main tunnel was so thin. He evidently thought the “Marcy” room was the point of danger, for he warned Marcy out of that and ordered him to a place of great danger. Marcy, when the explosion came, was standing beside Reedy, and was knocked down by the force of the explosion. The room he had just been ordered out of was, in fact, a place of safety. The evidence on the part of plaintiff was sufficient to support all the material allegations of the petition, and it is unnecessary to discuss the claim that the petition stated no cause of action.
We find no ground for the contention that there was error in the instructions. The court instructed the jury quite fully upon the question of the contributory negligence of the deceased, and the complaint that instructions Nos. 1 and 3, requested by plaintiff in error upon that question, were refused has no force. The same may be said of requested instruction No. 2, which referred to the knowledge of deceased of the thinness of the wall. The sixth instruction given by the court stated the law more favorably to plaintiff in error. Requested instruction No. 4 was properly refused. A portion of it reads as follows:
“That at the best the employment is a dangerous one, and the safety of the employment depends, possibly, more largely upon their own care and caution than the perfect condition of the mine.”
There was no contention that the company was required to keep its mine in perfect condition; in fact, the condition of the mine was not involved. The questions whether plaintiff in error was negligent in the operation of the mine, and whether that negligence, was the proximate cause of the death of Reedy, were involved; and, even if the condition of the mine had been the principal question in the case, there could have been no occasion for the court to draw a comparison showing the relative importance of those things which make for the safety of one employed in the dangerous business of mining. The general rules of negligence which apply to master and servant employed in any hazardous business apply to this case.
The theory of defendant in error is that the place where deceased stood in the “company” room would have been a place of absolute safety if the shot in the “Blossom” room had broken toward the “Marcy” room. That the force of the explosion would have been in that direction if the “Blossom” room was being pushed in the direction every one had been led to believe it was, is clearly established by the evidence. The question of contributory negligence was one of fact, and this defense was fairly presented. The jury had before them abundant evidence to warrant the finding, which is in volved in their general verdict, to the effect that deceased was not guilty of contributory negligence.
By their verdict they also found that the company failed to discharge a positive duty which it owed the deceased to provide him a safe place in which to work, and that this negligence of the company was the proximate cause of his death. The doctrine of assumed risk therefore has no application to the facts in the case. (Emporia v. Kowalski, 66 Kan. 64, 70, 71 Pac. 282; Schwarzschild v. Drysdale, 69 Kan. 119, 122, 76 Pac. 441.)
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
George W. White brought an action against the Atchison, Topeka & Santa Fe Railway Company for damages occasioned by the obstruction of the channel of the Neosho river by one of that company’s bridges, and to enjoin the maintenance of the bridge in its present form. A demurrer to the plaintiff’s evidence was sustained May 19, 1905. A motion for a new trial was at once filed, which was denied August 30, 1905, when a judgment was rendered against the plaintiff for costs, and time was given to make a case. Within the time fixed a case-made was settled, and a petition in error was filed in this court January 22, 1906.
A preliminary question arises upon a motion to dismiss. The defendant in error contends that the order sustaining the demurrer to the evidence was one capable of being independently reviewed by a proceeding in error that could be begun at once — in other words, that it was an “appealable order”; that no motion for a new trial was necessary or proper, and that the filing of one did not have the effect to extend the time for serving a case; that with the expiration of ten days from the time the ruling was made jurisdiction to make a case that should preserve such ruling for review was lost and could in no way be restored; and therefore that the case-made here- presented is a nullity.
The enumeration of appealable orders in the statute (Code, §542; Gen. Stat. 1901, §5019) includes: the sustaining or overruling of a demurrer, without limit- . ing the application of the word to demurrers to pleadings; a final* order, which is so defined (Code, § 543; Gen. Stat. 1901, § 5027) as to include “an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment”; and “an order that involves the merits of an action .or some part thereof.” There is no occasion to determine whether a ruling sustaining a demurrer to the evidence falls within more than one of these classes. It is enough to say that it is included within some one of them, and that it is an appealable order. This necessarily follows from what was said of its nature in Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299. It also follows from what was there said that a' motion for a new trial has no function to perform after such a decision and cannot enlarge the time within which a case may be made for its review.
The question for present determination therefore narrows down to this: Where a demurrer to evidence is sustained must, the party against whom such ruling is made, in order to procure a review of it by means of a case-made, within ten days from that time either serve a case or procure an extension of time for doing so, or may he wait until a final judgment is rendered against him and then by means of a case served within ten days from that date institute proceedings in error for the reversal of the judgment and therein have this court pass upon the question whether the sustaining of the demurrer was erroneous? It is a familiar rule of appellate practice that “interlocutory orders are ■reviewable, in the absence of a permissive statute, only on appeal from the final judgment that is rendered in the cause-.” (2 Cyc.- 586.) This implies that errors assigned with regard to such rulings may be examined on review of the final judgment, unless forbidden by statute.
“While, as a general rule, interlocutory orders and judgments cannot be directly appealed from, yet it is ‘ equally well settled that an appeal from a final judgment or decree brings up for review every interlocutory decision which has been properly excepted to and which substantially affects the merits of the case.” (2 Encyc. PI. & Pr. 90.)
Does our code, in authorizing the independent review of certain interlocutory decisions, limit the party aggrieved to that method, or may he wait until final judgment and in attacking that have all prior rulings examined? Section 542 reads, in part:
“The supreme court may reverse, vacate and' modify a judgment of a district court or other court of record, except a probate court for errors appearing on the record; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof.” (Gen. Stat. 1901, § 5019.) .
Of a similar provision it was said in Brown v. Willoughby, 5 Colo. 1:
“An ‘intermediate order,’ within the meaning of this section, is an order from which no appeal can be taken under the code, and which, therefore, but for this provision, could not be reviewed. It applies exclusively to non-appealable orders.” (Page 8.)
And in McCourtney v. Fortune, 42 Cal. 387:
“Upon an appeal from a final judgment an order made in the cause which is itself, by statute, made the subject of a distinct appeal, cannot be reviewed.” (Page 390.)
The same view is taken in Maynard v. Johnson, 2 Nev. 16. These cases, however, were decided without full discussion, and may have been influenced to some extent by other provisions of the statute not precisely like those of our code. On the other hand, in the following cases, in construing substantially similar statutes, it was held that the party against whom an appealable order is made during the progress of litigation has the option to institute proceedings in error at once, or to wait until final judgment, and, in an attack upon that, question the correctness of the preliminary ruling: Jones v. The Chicago and Northwestern R. R. Co., 36 Iowa, 68, 72; Lafferty v. Shinn, 38 Ohio St. 46; Hahn v. Heath, 127 N. C. 27, 37 S. E. 63; Granger v. Roll et al., 6 S. Dak. 611, 62 N. W. 970; Hackett and another v. Carter, 38 Wis. 394; Carroll v. Byers, 4 Ariz. 158, 36 Pac. 499; Buchanan et al. v. The Berkshire Life Insurance Company et al., 96 Ind. 510; Seeds Dry-Plate Co. v. Heyn Photo-Supply Co., 57 Neb. 214, 77 N. W. 660. Most of these cases turned upon the statute of limitations applicable to proceedings in error and adopted the view that upon an appeal taken within the period fixed by law after final judgment the appellate court may review rulings which would originally have supported an independent appeal, even although such method of attack had been barred by lapse of time. Upon this phase of the matter this court is committed to the proposition that whenever a year elapses after the making of an intermediate appealable order without a petition in error being filed the right is lost to review such order, either by a separate proceeding directed against that very ruling or in the course of an effort to procure the reversal of the final judgment. (Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591.) In other respects we prefer to follow the rule that seems to have the support of the majority of the courts that have passed upon the question, and to hold that upon proceedings in error brought to reverse a final judgment this court may inquire into the correctness of a prior ruling which would have supported an independent appeal, provided the petition in error is filed within one year from the time of the making of such ruling. This is the exact position taken by the court of last resort of West Virginia, as is shown by this extract from the opinion in Stout v. Philippi M. & M. Co., 41 W. Va. 339, 23 S. E. 571, 56 Am. St. Rep. 843:
“An appeal taken in time from a decree will bring up for review every former order or decree not itself appealable, no matter when entered, and every appeal-able order or decree entered not more than two years before the appeal; but it will not bring up for review any appealable order or decree entered more than two years before the appeal.” (Page 343.)
This conclusion accords with the expressions used in Blackwood v. Shaffer, supra, and in U. P. Rly. Co. v. Estes, 37 Kan. 229, 15 Pac. 157, and Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355, 27 Pac. 1006, 18 L. R. A. 113, bearing more or less directly on the matter. It is worthy of remark that the words “any intermediate order involving the merits of the action, or any portion thereof,” occurring in that portion of section 542 already quoted, cannot be treated as the equivalent of substantially the same phrase (“an order that involves the merits of an action or some part thereof”) when used later in the section to describe a class of appealable orders, for it could not have been the purpose of the legislature to confine the court upon an appeal from a final judgment to the consideration of one of the three classes of appealable orders and to cut off a’review of non-appealable orders entirely. We must regard them as intended to be understood in a broad sense, covering all decisions materially affecting the final determination of the cause, whether in themselves appealable or otherwise, and we conclude that a case-made, served within ten days after the final judgment, preserves for review all rulings of that character.
In what has been said we have assumed that the judgment rendered in this action was a final judgment. A doubt of the correctness of this assumption arises from the fact that in form it is a mere judgment in favor of the defendant and against the plaintiff for the costs of the action. Decisions and text statements are abundant which assert that such a judgment is not final and will not support an appeal or evidence an adjudication; that to be final a judgment against a plaintiff must formally declare that he shall take nothing by his action or that the defendant go thereof without day, or employ some equivalent expression. (See I Black, Judg., 2d ed., § 31; I Freeman, Judg., 4th ed., § 16; I Van Fleet’s Former Adjud. § 29; 2 Cent. Dig. cc.,1131, 1132.) Two illustrative recent cases are The People v. Severson, 113 Ill. App. 496, and Hall v. Patterson et al., 45 Fla. —, 33 South. 982. To apply such a rule in the present case would be to exalt shadow over substance. Want of technical form is not fatal to a judgment. (11 Encyc. Pl. & Pr. 926.) Entries substantially like that here involved have been held sufficient. (See Martindale v. Battey, 73 Kan, 92, 84 Pac. 527; H. D, Huntington v. J. W. Blakeney, I Wash. Ter. 111; Marsh v. Snyder, 14 Neb. 8, 14 N. W. 804; Flanagan v. Hutchinson, 47 Mo. 237.) Of course,- a judgment for costs is not necessarily a final judgment. But when a decision is made which if adhered to compels the determination of a controversy in favor of the defendant, and then he is given a judgment for the costs of the action, in the absence of anything to indicate the contrary this may and should be regarded as a filial judgment against the plaintiff, although nothing is said about the one party going hence or the other taking nothing by his action. These expressions are but conventional formulas; they are without effect save as a badge of finality; where without them finality sufficiently appears they serve no purpose. We doubt whether in practice in this state they are not omitted as often as they are employed. In the present instance the case-made recites that it contains the final judgment, but even without this recital we. should find no difficulty in so construing the record. The motion to dismiss is therefore denied.
Upon the merits little need be said, although the question presented is not easy of determination. It is' not necessary to review the testimony in detail. The action was an outgrowth of the extraordinary floods of 1902, 1903 and 1904. If the cause had been submitted for a final decision upon the evidence introduced, a finding against the plaintiff upon the ground that the injury he suffered was not occasioned or appreciably increased by the presence of the defendant’s bridge, but was due solely and entirely to the great rainfall in that watershed, would have seemed natural and proper. But we are unable to say that, considered in its most favorable aspect, with all contradictions resolved in favor of the plaintiff and with all reasonable inTerences made in his behalf, the evidence compelled such a finding. We are therefore of the opinion that the demurrer should not have been sustained.
The judgment is reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
B. H. Cornelius brought an action against the Atchison, Topeka & Santa Fe Railway Com pany to recover damages alleged to have been sustained by the failure of the company to deliver cattle shipped over its line from Augusta, Kan., to Chicago, 111., in accordance with the agreement of the parties and its duty in the premises. It was alleged that on September 5, .1903, twelve car-loads of fat export cattle were shipped from Augusta to Chicago over the defendant’s line, upon an oral contract that they were to be delivered at Chicago on the morning of the 7th of September, 1903, in time for the market of that day, but that the cattle were negligently and unskilfully handled and delayed at various stations on the line and failed to reach Chicago until the afternoon of September 7, and after the market of that day had been closed. The loss sustained by reason of the negligent delay was a decline in the market subsequent to the morning of the day when the cattle should have been delivered, shrinkage of the cattle while being kept until they could be marketed on September 9, and cost of keeping them during that time. It was alleged that some of the cars were negligently billed and delivered to the wrong parties by the company, by which an additional loss resulted.
The railway company in its answer admitted the receipt and transportation of the cattle over its line, but averred that they were shipped under a written contract which contained the following provision:
“That the live stock covered by this contract is not to be transported within any specific time, nor delivered at destination at any particular hour, nor in season for any particular market.”
In respect to loss or claims for damage by shippers, the contract contained the following stipulation: ■
“As a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading, thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before said stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockr yards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages.”
It was alleged by the defendant that no notice of loss was given to the company, as required by the quoted provision. Aside from a general denial the answer contained a specific denial that any oral contract was made of that defendant’s agent had any authority to make one.
Plaintiff replied admitting the signing of the written contract, but alleged that it was signed after the cattle had been placed in charge of the railway company, when the train was about to start, and there was no opportunity to read the contract. He also alleged that he was coerced into signing it by the declaration of the agent that the cattle would not be permitted to go on the train unless the papers then presented were signed.
It appears that Cornelius had negotiated with the local agent of the company in regard to obtaining a special train to start from Augusta on Saturday and to arrive.with the cattle at Chicago early Monday morning, but the agent declined to promise such a train without consulting his superior officers at headquarters. He agreed to write to Topeka and ascertain whether such a train could be had, and in'a few days reported to Cornelius that he had heard from Topeka and that the train requested would be furnished. It appears, too, that the cattle were export cattle, for which there was a market on Mondays but none on the following day, and that cattle not sold on Monday were necessarily kept over until the Wednesday market; and this was the reason given by Cornelius to the company for prompt shipment. There was considerable delay in the transportation of the cattle, and as a result they did not arrive in Chicago for Monday’s market. There was a decline in the market and a corresponding loss to the owner of the. cattle, and in addition the expense of holding the cattle until the sale could be effected. Testimony was offered in behalf of the defendant tending to. show that no oral contract was made, but that the cattle were shipped under a certain written contract, which was produced in evidence. The trial court submitted to the jury the question whether the cattle were shipped under the oral contract alleged by the plaintiff or under the written one set out by the defendant, and the jury found generally in favor of the railway company.
Complaint is made of the instructions of the court, and of rulings upon testimony. In its charge to the jury the court.instructed that if the plaintiff sustained his averment that the cattle were shipped under the oral contract he could recover for the loss resulting from the negligence of the company without regard to whether any notice was given to the company by the plaintiff of his claim for damages. The court then said to the jury:
“You are instructed that if the plaintiff in this case fails to prove by a preponderance of the evidence an oral contract between him and the defendant in substance such as is alleged in his petition, then, in that case, the plaintiff cannot recover in this action, and your verdict must be for the defendant. . . . You are instructed that if you find from the evidence that the written contract in evidence was signed by plaintiff, or his agent, after the oral contract claimed by plaintiff was made, that said written contract became thereby the only contract between the parties, and said oral contract claimed by plaintiff, if any such existed, became merged in said written contract, and plaintiff cannot recover in this action, unless you also find from the evidence that the signature of plaintiff, and his .agents, was obtained to said written contract by fraud or coercion.”
The peremptory direction to find for the defendant if it was found that the written contract was the controlling one cannot be upheld. Obviously it was based on the failure of the plaintiff to give written notice of his claim for damages within the time specified in the written contract. The plaintiff could not be denied a recovery because it was found that the damages must be measured by the written contract rather than a prior oral one. While the plaintiff alleged an oral contract, the pleadings of the parties when construed together were sufficient to warrant a recovery under whatever contract was found to have been actually made. The gist of the action was the negligence and wrong-doing of the defendant, resulting in injury to the plaintiff. The agreement of the parties is important in fixing the duties and liabilities of the railway company, but as the defendant admitted receiving and shipping the cattle, and itself pleaded the terms of the contract under which the shipment was made, it qannot urge that a recovery cannot be had for its negligence when measured by the agreement actually made, whether it was written or oral.
It may, and did, urge that the written contract was the binding one, and that under it the plaintiff is barred from recovering damages because he failed to comply with reasonable requirements included in that contract. The first stipulation relied on as precluding a recovery is that the cattle were not to be delivered within any specific time, at any particular hour, nor in season for any particular market. While under this provision the arrival of the cattle is not required at any fixed time, nor for any particular market, the company did not, and in fact could not, contract against its own ordinary negligence. ' While limitations upon its common-law liability are permitted, it is still required to transport the cattle with due diligence and care, and it must still be liable for losses resulting from its ordinary* negligence.
There was a limitation in the written contract which precluded a recovery for loss or injury to the cattle during transportation unless the shipper, or his agent in charge of the cattle, gave notice in writing of the claim to some officer or agent of the company before they were removed from the, destination or place of delivery, or had been slaughtered or intermingled with other stock. This limitation has been considered and sustained. (Goggin v. K. P. Rly. Co., 12 Kan. 416; Sprague v. Mo. Pac. Rly. Co., 84 Kan. 347, 8 Pac. 465; W. & W. Rly. Co. v. Koch, 47 Kan. 753, 28 Pac. 1013; Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438.) The provision, however, only covers loss or injury to the cattle during the transportation, and manifestly would cover any shrinkage of the cattle during transportation. It does not cover the loss of market, or injury arising from depreciation in the market. In Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465, the provision in question was interpreted, and it was held that it did not fairly cover the loss of a market. It was said:
“Here the claim specified in the contract of which notice is to be given is confined to.loss or injury to stock during transportation, and the notice was required to be given before the removal of the cattle from the place of the delivery or destination, and before they were, slaughtered or intermingled with other stock. A loss of market differs distinctly from a loss or injury to the cattle. Depreciation in the price or the loss of a market is not fairly embraced within the terms of the contract requiring notice of loss or injury to the cattle during transportation.” (Page 468. See, also, Kramer & Co. v. C. M. & St. P. Ry. Co., 101 Iowa, 178, 70 N. W. 119.)
The case of Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, is cited as an authority that the lack of notice bars a recovery of damages, but the contract involved -in that case made the claiming of damages within a fixed time a condition precedent to a recovery of any and all kinds of damage.
The case of Railway Co. v. Means, 71 Kan. 845, 80 Pac. 604, is also cited for the proposition that the giving of notice is essential to a recovery. That case followed the Kalina case in deciding that notice of the claim of damages was a condition precedent to a recovery, but no attention was given to the particular question involved here. It is said that the contract in that case was similar to the one in question here, and that some of the damages claimed belonged in the same class with those involved in this case. However that may have been, it is manifest that the distinction between loss and injury to the cattle during transportation and loss of a market or losses arising after delivery and resulting from the negligence of the railway company was not cbnsidered or determined. The Means case cannot therefore be regarded as an authority that loss or injury to the cattle during transportation is identical with loss of a market or other losses arising after transportation has ended.
If it turns out that the written contract is binding upon the plaintiff, he would still be entitled to recover damages other than for losses or injury during the transportation which were the result of the defendant’s negligence. The peremptory direction of the court cutting out any recovery under the written contract was therefore error. Testimony was offered tending to show losses for which a recovery may be had without giving the notice specified in the contract, and the jury should have been permitted to determine what, if any, damages should have been awarded.
Proof was offered by the plaintiff tending to show that the shipment was made under an oral contract. When Nevins, the station agent of the company, testified he was asked if in the conversations he had had with plaintiff in regard to shipping the cattle he had ever had in mind or undersood that he was making an oral contract, and, over objections, he stated that he had not. To allow him to give his unexpressed intent was manifest error, and the importance of the error was increased by an instruction to the effect that before plaintiff could recover on the oral contract the minds of the agent of the company and of the plaintiff must have met and agreed on the terms and conditions.
There is complaint of the sixth instruction, and as printed in the record it appears to be ambiguous and faulty, but that defect can be .corrected and cleared up in a future trial.
For the errors pointed out the judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
An Odd Fellows lodge owning a cemetery, the trees in which were injured by a fire, sued the Chicago, Rock Island & Pacific Railway Company for the amount of damage so occasioned, alleging that the fire was caused by the company’s negligence, and recovered a judgment, from which the defendant prosecutes error.
Complaint is made of the refusal to give an instruction requested by the- defendant to the effect that if the plaintiff allowed dry grass and weeds to remain on its premises, so that fire could readily start 'therein, that should be considered as a circumstance tending to prove contributory negligence. There was some evi dence of the accumulation of combustible material in the cemetery and the court might well have given an instruction referring expressly to that matter. This was hot done, but the jury were told in general terms that any contributory negligence of plaintiff — any negligence in its management and control of the cemetery by reason of which the fire was communicated thereto —would bar a recovery. There was no suggestion that the plaintiff' could have been negligent in any way affecting the case except by permitting the accumulations referred to, and the jury must have understood the instructions to relate to this feature of the evidence. Under the circumstances it cannot be said that material error in this regard is shown.
Error is also assigned on account of the refusal to submit to the jury a number of questions for special findings. All but two of these questions were propounded in a negative and leading form, a fact which of itself justified the court in rejecting them. (A. T. & S. F. Rld. Co. v. Butler, 56 Kan. 433, 43 Pac. 767.) The two exceptional instances were rendered unimportant by a finding that was made in answer to another question.
Complaint is further made that the instructions broadened the issues presented by the pleadings with regard to the character of the negligence charged against the defendant. This is immaterial, if true, for the jury specially found the existence of a form of negligence that was alleged in the petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The district court awarded the plaintiff' a divorce from his wife on the ground of abandonment, but deprived him of the custody of his child, and rendered a judgment against him for alimony in the sum of $3000. He complains of the .adverse portions of the judgment.
It would be unprofitable to enter into a full discussion of the facts, and the rules of law applicable to the case,, so far as there are any, are well understood. It is •sufficient to say that the child was unwelcome to its mother. It came, she asserts, in opposition to an ante-nuptial agreement. She feels that bearing it and caring for it seriously impaired her health. Without complaining to her husband of anything except his broken promise, and without endeavoring to harmonize their lives, as her duty to herself, to him, to the child and to society required, she left him, without warning, taking the child with her. Then she declared she would give up her baby, if necessary, to be free. He followed her, told her he wanted both her and the child, and wanted them both to come home. She led him to believe she would return in a day or so. Instead of going home she detached the baby’s helpless, nursing mouth from her breast and sent it back to its father by a messenger, with a note saying that if he did hot want it she would gladly take it and care for it. This was in May. The first alfalfa harvest was on and corn plowing and wheat harvest followed. Hands could not be procured, but the father did not for a moment neglect his child. He let the crops go and took care of his boy. He carried him safely through the weaning period, through the perilous summer months, through teething, and there is not a word in the record to show that anybody could give the child any better care than it has had and is now receiving. Not a syllable of testimony was offered to show that the situation of the child could be improved. It is bright and intelligent, sound and healthy, and is developing in a perfectly satisfactory manner. There are daughters in the family, the eldest now being about eighteen years of age.
The court fully appreciates the sentiments of the learned district judge who tried the case. Every child should have the care of its mother, but every child is also entitled to the care of both its father and mother at their own fireside. The mother has no home except that offered by her parents, who have been quite un settled for some time and have moved about from place to place in search of health. There is no risk whatever to the boy in leaving him where he is, and ordinarily this is equivalent to saying it is best to leave him where he is.
Besides what has been said it may be observed that the state is intensely interested in this controversy. It can lend no encouragement to the wilful breaking up of its families and homes; and to set the defendant free, as she determined to be regardless of consequences, to give the child to her and to mulct the father for their maintenance in an independent establishment would be to foster contempt for the sacredness and the solemn responsibilities of the marriage relation. It is true the husband was not by any means faultless. He was not sufficiently considerate' or sympathetic, but the evidence clearly shows the wife had no ground for divorce, as the court decided, and her desertion ought not virtually to be rewarded.
The judgment should be modified by giving the custody of the child to its father, allowing the mother abundant opportunity to visit it, and the privilege of taking it on frequent occasions, security being given for its return. Since under the decisions of this court the judgment rendered relieved the father from the support of the child, it is obvious the alimony awarded was in part for its benefit. Therefore, the amount should be reduced $1000, each payment as fixed by the court being reduced by one-third. The cause is remanded.
All the Justices concurring. | [
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The opinion of the court was' delivered by
Mason, J.:
John I. Miller was prosecuted upon an information charging him in one count with fraudulently concealing mortgaged personal property and in another with selling such property without the written consent of the mortgagee. He was convicted upon each count, and appeals.
The second count contained an allegation that the sale complained of was made with' the purpose of defrauding the mortgagee, but the instructions upon that branch of the case, in enumerating the matters necessary to be found by the jury in order to convict, omitted all reference to such fraudulent intent, so that the jury were authorized to find' the defendant guilty if he sold the mortgaged property without the written consent of the mortgagee, irrespective of his motive. The question is therefore presented whether the statute (Gen. Stat. 1901, § 4259) makes it a crime to sell mortgaged chattels under any and all circumstances unless authority to do so is given in writing. The language of the section involved upon its face seems to bear that construction. It reads:
“That any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee, or his executors, administrators, personal representatives, or assigns, shall be deemed guilty of larceny.” ' •
A somewhat similar statute was so construed in State v. Reeder, 36 S. C. 497, 15 S. E. 544, and the construction was approved in State v. Rice, 43 S. C. 200, 20 S. E. 986. The case of Beard v. State, 43 Ark. 284, is to the same effect, but is accompanied by a strong dissent. The case of State v. Bronkol, 5 N. Dak. 507, 67 N. W. 680, leans in the same direction, but there the use of the word “wilfully” in the statute affects the matter. On the other hand, expressions indicating a contrary view are to be found in the following cases, in none of which, however, was it necessary to decide the question: Foster v. The State, 88 Ala. 182, 7 South. 185; State v. Hurds, 19 Neb. 316, 27 N. W. 139; State v. Ruhnke, 27 Minn. 309, 7 N. W. 264.
A similar question was involved in The State v. Eastman, 60 Kan. 557, 57 Pac. 109. The statute there under consideration declared it to be embezzlement for an agent to fail to pay over money to his principal under certain circumstances, nothing being said with regard to his motive. Complaint was made of the failure of the trial court to instruct the jury that no conviction could be had unless they found that the defendant-intended to convert the money to his own use. The court said:
“The general rule, of course, is that a guilty intent is -a necessary ingredient of crime. (Bishop, Stat., Crime, §§ 132, 231, 351, 362.) We do not understand it to be disputed in this case as a general proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There are some cases which hold that unless made so by statute a guilty intent is not necessary to the commission of offenses mala prohibita; that is, not inherently bad, only bad because prohibited. The offense charged against the defendant in this case is not bad merely because prohibited, but it is malum in se — bad in itself. It is a species of embezzlement, and is classified by the statute in immediate connection with the common-law forms of embezzlement, and the punishment ordained for its' commission is the same as the punishment for embezzlement proper. We feel quite clear that the prin- . ciple upon which The State v. Brown, 38 Kan. 390, 16 Pac. 259, was decided applies- in this case, and that the court should have instructed as the defendant requested.” (Page 559.)
The argument seems equally applicable here, for the . law calls the crime larceny, and that is what it is in effect. Whatever doubt there might otherwise be regarding the true interpretation of the statute is removed by an examination of its title, which reads as follows:
“An act relating to chattel mortgages, providing punishment for the selling, destroying, or disposing of chattel-mortgaged .property or any part thereof, with intent to defraud, and repealing chapter 167 of the Laws of 1899.”
Apart from any consideration of whether under such a title any sales could be denounced excepting those made with intent to defraud, the language shows a legislative purpose to penalize some that were of that character; and inasmuch as only one kind of sale is described in the act it is a fair inference that what the legislature had in mind in that connection was a sale made with a fraudulent design. It is of course competent to have recourse to the title for whatever light it may shed upon a doubtful meaning. (26 A. & E. Encycl. of L. 627, 628.) We conclude that it was error to omit an instruction regarding the intent of the defendant, and the conviction upon this count must therefore be set aside.
This conclusion does not affect the proceedings based upon the other count (The State v. Guettler, 84 Kan. 582, 9 Pac. 200), and it remains to determine whether any of the assignments of error which affect that count are well founded. In the information the mortgage involved was described as having been executed by the defendant and his wife to secure a note signed by them. The evidence showed that both had signed the mortgage, which included an assumption of liability for any part of the debt remaining unpaid ¿ifter the property •should be exhausted, but the defendant alone signed the note. It is strenuously urged that this was a fatal variance. There is nothing substantial in the contention. The essence of the offense charged was the fraudulent concealment of the property to the prejudice of another’s rights. The form of the mortgage had little to do with it — that of the note still less. There was no conceivable way in which the defendant could have suffered any embarrassment or injury or have been in any way misled by the recital in the in formation that his wife as well as himself had executed the note which the mortgage secured.
“The strictness of the ancient rule as to variance between'the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put in jeopardy for the same offense.” (Harris v. People, 64 N. Y. 148, 154. See, also, State v. Thompson, 28 Ore. 296, 42 Pac. 1002; Kruger v. The State, 135 Ind. 573, 35 N. E. 1019; Oats v. State, 153 Ind. 436, 55 N. E. 226; The State v. Wilson, 73 Kan. 334, 80 Pac. 639, 84 Pac. 737.)
Complaint is also made of a variance between the allegation and the proof of the date of the mortgage. There was no variance. The allegation was of the time the mortgage was made, and the evidence corresponded with the allegation, although the mortgage bore an earlier date.
A plea in abatement was filed and overruled. As a reason why this should be regarded as error it is argued that since there were two counts in the information there should' have been two in the complaint and warrant. There was no such necessity. The practice does not require the separate statement of different offenses in these preliminary proceedings.
The forms of the verdicts are criticized, but they seem to be sufficient. Other specifications of error have been made, but no discussion of them is thought necessary. No error being found affecting the first count, the conviction based upon it is affirmed. The judgment upon the second count is reversed for the reasons given, and the case remanded for such further steps as may be found proper under the decision.
All the Justices concurring. | [
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Brazil, J.:
This is an interlocutory appeal filed by the State from the trial court’s order suppressing the results of an alcohol test of the blood of Charles L. Doeden done with his consent.
Doeden is charged in Barton County District Court with one count of driving on a suspended license, K.S.A. 1986 Supp. 8-262, and one count of driving under the influence of alcohol and/or drugs. K.S.A. 1986 Supp. 8-1567. He filed a motion to suppress the results of a blood alcohol test (BAT) that was performed on him.
At the suppression hearing Bruce Green, a deputy sheriff in Barton County, testified he was sent to investigate a one-car accident at about one-thirty in the morning on January 11, 1986. Ambulance attendants already on the scene were helping a man into their ambulance. The man told Green that his name was “Chuck,” and he had been alone while driving the car that had run into a bridge structure. Green could see the man was injured and also noticed the odor of alcohol on his breath. The man was taken to Central Kansas Medical Center, and Green followed him there.
The doctor at the medical center allowed Green to question the man. Green discovered the man had a driver’s license in his wallet and from that learned his name was Charles Doeden. Green told Doeden he could smell alcohol on Doeden’s breath, and Doeden admitted he had been drinking whiskey and beer. Without arresting Doeden, Green requested a BAT, and Doeden indicated he understood, but made no objection. Green told Doeden he would take the blood, send it to the State for analysis, and charge Doeden with DUI if the results came back .10 or higher. Doeden said he understood. A nurse had Doeden sign a hospital consent form for the blood withdrawal.
Green admitted he did not have Doeden complete an implied consent, or Standish, form. Green testified on direct examination that he did not go over the form because he felt it would take too long and interfere with Doeden’s treatment. On cross-examination, Green admitted his report filed shortly after the events stated he did not use the implied consent form because he did not feel Doeden would understand the questions due to his condition, described by Green as “semi-conscious.” The nurse who drew the blood sample testified that she read the hospital’s consent form to Doeden by pointing the words out to him as she read them, and she believed he understood the form or she would not have had him sign it. The form states that Doeden gives consent for hospital staff to draw blood from him for testing for blood alcohol content and agrees the hospital will incur no liability to him by taking the sample.
At the close of the hearing, the trial judge said:
“Well, seems we’ve got a consent and we have an implied consent advisory procedure which was not followed because the person was not coherent enough to understand it, yet the nurse on duty felt that he was coherent to understand. The Court is going to order the suppression for failure to have the defendant under arrest at the time of the withdrawal of the blood.”
The State’s first issue regarding our jurisdiction to hear this appeal under K.S.A. 22-3603 has been conceded by Doeden and need not be addressed. The remaining issues involve the construction of K.S.A. 1985 Supp. 8-1001; the events in this case occurred before the effective date of the 1986 amendment of this statute.
The State contends the trial court erred in suppressing the test results because Doeden was not under arrest at the time of the withdrawal of the blood. We agree.
K.S.A. 1985 Supp. 8-1001(b) provided that tests to determine the presence of alcohol or drugs in a person’s blood, breath, urine, or other bodily substances
“shall be administered when a law enforcement officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death.” (Emphasis added.)
Clearly the test was authorized under subdivision (2).
The final issue raised on appeal is whether a trial court must suppress the results of a BAT done with the defendant’s consent because the law enforcement officer requesting the test failed to provide the defendant with the notices listed in K.S.A. 1985 Supp. 8-1001(f)(l).
As noted by the State in its brief, the trial court did not base its decision to suppress the BAT on Green’s failure to provide Doeden with the notices contained in K.S.A. 1985 Supp. 8-1001(f)(1). However, the question was raised by Doeden’s attorney at the suppression hearing; therefore, we will consider it now.
Doeden argues that the taking of his blood violated the Fifth and Sixth Amendments and that the results of the BAT must be suppressed to protect his constitutional rights. We disagree.
In State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983), the court discussed the application of the Fifth Amendment to K.S.A. 8-1001 and followed South Dakota v. Neville, 459 U.S. 553, 562-64, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), by holding:
“The taking or the refusal to take the test is an option provided by the legislature. Both the results of the test, if taken, or the refusal to take it, if declined, are admissible in evidence, and the admission of such evidence does not offend the Fifth Amendment privilege against self-incrimination or the right to due process.” 233 Kan. at 694.
The court then went on to say: “Since the refusal is not the exercise of a constitutional right, but merely a matter of grace bestowed by the legislature, we hold that there is no requirement that an explanation of the accused’s right to refuse the test or of the consequences of that refusal be given.” 233 Kan. at 695. Thus, the Fifth Amendment poses no barrier to admission of the BAT results in this case.
Doeden’s Sixth Amendment claim, presumably of a right to counsel prior to submitting to the blood alcohol test, has been rejected by our supreme court. State v. Bristor, 236 Kan. 313, 691 P.2d 1 (1984); Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984).
Since admission of the BAT results is not barred by the Constitution, the question becomes whether K.S.A. 1985 Supp. 8-1001 barred their admission.
“At the time a test or tests are requested under this section, the person shall be given oral and written notice that: (A) There is no right to ,consult with an attorney regarding whether to submit to testing; (B) refusal to submit to testing will result in six months’ suspension of the person’s driver’s license; (C) refusal to submit to testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; (D) the results of the testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; and (E) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from hospitals, medical laboratories and physicians. After giving the foregoing information, a law enforcement officer shall again request the person to submit to the test or tests. The selection of the test or tests shall be made by the officer. If the person refuses to take and complete a test as requested, additional testing shall not be given and the person’s driver’s license shall be subject to suspension as provided in K.S.A. 8-1002 and amendments thereto. The person’s refusal shall be admissible in evidence against the person at any trial arising out of the alleged operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both.“ K.S.A. 1985 Supp. 8-1001(f)(l).
Doeden argues the word “shall” has no other meaning but that the law enforcement officer must follow what is set forth within the statute. If so, Green clearly violated the statute by failing to give Doeden the notices listed in K.S.A. 1985 Supp. 8-1001(f)(l). We disagree. “Shall” is sometimes held to be directory and not mandatory. State v. Costa, 228 Kan. 308, 315, 613 P.2d 1359 (1980); State v. Turner, 223 Kan. 707, 708, 576 P.2d 644 (1978). As indicated by the court in Paul v. City of Manhattan, 212 Kan. 381, 385, 511 P.2d 244 (1973), statutory provisions using the word “shall” might be held not mandatory where (1) not accompanied by negative words indicating the specific acts can be done in no other manner; or (2) no consequences of noncompliance are included. K.S.A. 1985 Supp. 8-1001 stated no consequences of noncompliance with (f)(1).
The general rules of statutory construction have been recently restated by our supreme court:
“Where the interpretation of a statute is a question of law, it is the function of the court to interpret the statute to give it the effect intended by the legislature. [Citation omitted.] The purpose and intent of the legislature governs when that intent can be ascertained from the statute. [Citation omitted.] Words in common usage are to be given their natural and ordinary meaning in arriving at a proper construction of the statute. [Citation omitted.] When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, though such construction is not within the strict literal interpretation of the statute. [Citation omitted.]” Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 634-35, 694 P.2d 462 (1985).
We note that K.S.A. 1985 Supp. 8-1001(b) stated that the BAT “shall be administered” when the officer had reasonable grounds to believe the person committed DUI and the person either (1) was in custody or (2) was involved in a motor vehicle accident, yet (f)(1) stated in part that “[i]f the person refuses to take and complete a test as requested, additional testing shall not be given.” If “shall” meant that the test must be administered, then necessarily there was no right to refuse it. Since the statute did permit a refusal, “shall” in (b) could only be directory. Since the legislature used a directory “shall” once in K.S.A. 1985 Supp. 8-1001, it does not seem unreasonable to think it might have done so more than once.
A consideration of some relevant cases decided shortly before the 1985 amendments and the purposes of the implied consent statute as expressed in those cases leads to the conclusion the legislature intended the language in (f)(1) to be directory only.
Standish v. Department of Revenue, 235 Kan. 900, involved the administrative suspension of a driver’s license for refusal to submit to a BAT. 235 Kan. at 901. Departing from the issue raised by the appealing Department of Revenue, the court concluded the driver’s refusal was reasonable because he had just been given the Miranda warnings which included the right to have an attorney, and he refused to submit to the test until he had exercised that right. 235 Kan. at 903-05. The court gave the following advice to police officers:
“In the future, when an officer in making a DUI arrest gives the suspect the Miranda warnings, he or she should also tell the person arrested:
“ ‘Kansas law provides that a person who drives a motor vehicle shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood, whenever the person is arrested or taken into custody for operating a motor vehicle when under the influence of alcohol.
“ ‘Your right to consent or refuse to take a chemical test is not a constitutional right. You have no constitutional right to consult with an attorney as to whether or not you will take the test.’
“Also, and although not required to do so by our earlier cases, the officer could well add:
“ ‘If you refuse to take the test, the fact of your refusal can be used against you in any trial for driving under the influence of alcohol.
“ ‘Also, if you refuse to take the test, your driver’s license will probably be suspended for a period of not less than 120 days and not more than one year.’ ” 235 Kan. at 904-05.
By giving this warning, the police officer could avoid the result reached in Standish, and the driver’s license could properly be suspended. A comparison of these suggestions and K.S.A. 1985 Supp. 8-1001(f)(l) shows that subdivisions (A), (B), and (C) of the statute were drawn from the Standish case. The legislature presumably intended those portions of this statute to avoid the Standish result.
Four months after Standish, the court decided there was no Sixth Amendment right to counsel to help a driver decide whether to take a BAT. State v. Bristor, 236 Kan. 313. In the course of that decision, the court explained the aim of K.S.A. 8-1001 as it stood at that time.
“The very purpose of the implied consent law (K.S.A. 8-1001) is to coerce a motorist suspected of driving under the influence to ‘consent’ to chemical testing, thereby allowing scientific evidence of his blood alcohol content to be used against him in a subsequent prosecution for that offense. [Citation omitted.] For drivers who refuse, the purpose of the statute is to provide an effective means short of physical force to overcome the refusal. State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980). The nonphysical means consist of the statutory penalties of license revocation and the admission into evidence in a DUI proceeding of the fact of the refusal. K.S.A. 8-1001(c). Under Standish, the arrested defendant is to be informed of these consequences. This is a departure from our earliest cases. [Citations omitted.] Thus, the consent envisioned by the statute is to be implied and if submission is not forthcoming it is to be coerced by knowledge and fear of adverse consequences.” 236 Kan. at 319.
Coercion still seems to have been the main purpose of K.S.A. 1985 Supp. 8-1001 after the 1985 amendments. Given this purpose, the notices contained in subsection (f)(1) became important only after the driver refused to consent to the BAT, since only then was coercion necessary. This conclusion is bolstered by K.S.A. 1985 Supp. 8-1002, which established the procedure to be followed where a driver refused the BAT. The driver’s license would be automatically suspended unless the driver requested a hearing. If such a request was made,
“The scope of the hearing shall be limited to whether: (1) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both; (2) the person was in custody or arrested for an alcohol or drug related offense or was involved in a motor vehicle accident or collision resulting in property damage, personal injury or death; (3) at the time of the request for a test the law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001 and amendments thereto; and (4) the person refused to take a test as requested by a law enforcement officer.” K.S.A. 1985 Supp. 8-1002(d).
Subdivision (3) is the only other reference we have found in the statutes to K.S.A. 1985 Supp. 8-1001(f)(l). Though it did not literally say as much, it seems clear subdivision (3) indicated that Standish could be followed where the additional warnings were not given, and the driver’s license would not be suspended in such cases because the refusal to consent to the BAT was reasonable. Thus, the notices were required not to protect the driver’s rights but to ensure the State would obtain either a BAT or license suspension. In our case, however, even had Doeden refused the test, Standish would probably not help him because, as he did not receive the Miranda warnings, he could not have been confused by them.
Subdivisions (D) and (E) of K.S.A. 1985 Supp. 8-1001(f)(l), however, appear to make the subsection something of an informed consent statute. That is, the driver was not merely to be coerced into consenting to a BAT as Bristor stated, but was to be informed of (1) the consequences of a consent and (2) a right to have additional tests done immediately to guard against errors in the State’s BAT. We believe that most, if not all, drivers would realize without the notice in subdivision (D) that the BAT results would be used against them at trial if they were charged with DUI or other offenses.
Subdivision (E), on the other hand, is more difficult to explain except as an attempt to help drivers understand the choices they had to make. K.S.A. 1985 Supp. 8-1004’s provision that the BAT must be suppressed if the officer refused to allow the driver to have his or her own tests done would seem to indicate that the K.S.A. 1985 Supp. 8-1001(f)(l) notices were mandatory since the driver probably would not know of this right if not given the notice. However, two other factors lead us to conclude this subdivision did not make the giving of the notices mandatory. First, K.S.A. 1985 Supp. 8-1004 contained the same penalty as before the 1985 amendments, when the legislature had not yet indicated any notices ought to be given. Second, K.S.A. 1985 Supp. 8-1001(a) provided that tests may be administered upon persons who were dead or unconscious in “the manner provided by this section.” Surely oral and written notice was not mandated in those cases.
Based on these considerations and given the public outcry against drunk driving, we conclude that the legislature intended to ensure the State would obtain either a BAT or license suspension, not to ensure that the driver was fully informed of the consequences of his response to the BAT request.
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Brazil, J.:
Stanley E. Larson appeals his conviction for driving with a blood or breath alcohol concentration of .10 or above. K.S.A. 1986 Supp. 8-1567(a)(l).
On February 3, 1986, Kansas Highway Patrol Trooper Robert Shows stopped Larson for driving 72 miles per hour on 1-470 in or near Topeka. While discussing this infraction with Larson, Trooper Shows noticed Larson’s speech was slurred and that he was slow in locating his driver’s license. Trooper Shows asked Larson to get out of his car and then had him perform several field sobriety tests. Trooper Shows also noticed Larson’s breath had “a strong odor of an alcoholic beverage.” He concluded Larson was under the influence of alcohol and arrested him for driving under the influence (DUI).
Larson testified that he told Trooper Shows before the field sobriety tests that he had had three beers. Trooper Shows testified this conversation occurred after he arrested Larson. Larson claimed he told Trooper Shows he had a defect in his left eye and that he would not do well on any coordination or depth perception test and would prefer some other field sobriety test be performed. Trooper Shows did not remember this at trial.
After arresting Larson, Trooper Shows read him his Miranda warnings and also an implied consent advisory. Trooper Shows asked Larson, and he agreed, to blow into a “crimper box” to take a sample for an alcohol concentration test. Trooper Shows placed the sample and a report form in a box with Larson’s name on it, sealed the box, and marked the seals with Trooper Shows’ own initials. When he took Larson to highway patrol headquarters and booked him, Trooper Shows put this box in the “GC room.” The “GC room” is apparently the room where the gas chromatograph intoximeter machine is kept. Trooper Raymond Gonzales broke the seals and tested the breath sample on February 4, 1986. The sample was held in three compartments in the crimper so each could be tested separately, and according to Gonzales, the results were .100, .104, and .100 on the three tests.
Larson moved to suppress the test results on the ground Trooper Shows did not have probable cause to request an alcohol concentration test. The district court denied the motion.
Larson testified that he went to highway patrol headquarters on February 5 and was told the sample had not yet been tested. He returned the following day and was told the results were .10.
Larson’s case was tried to the court. At the close of the State’s evidence, the district court granted a directed verdict of not guilty on the charge under K.S.A. 1986 Supp. 8-1567(a)(2) on Larson’s motion because the State had not shown Larson was incapable of driving safely. However, at the end of the trial, the district court found Larson guilty of speeding and of driving under the influence of alcohol as defined in K.S.A. 1986 Supp. 8-1567(a)(l), that is, with an alcohol concentration in his breath of .10 within two hours after driving.
I. Constitutionality of K.S.A. 1986 Supp. 8-1567(a)(l).
On appeal Larson first contends K.S.A. 1986 Supp. 8-1657(a)(l) is unconstitutional because (a) it creates an irrebutable presumption of guilt; (b) it is impermissibly vague; (c) it establishes a standard which is arbitrary, capricious, and unreasonable; or (d) the act adopting it contained more than one subject.
The 1985 legislature amended K.S.A. 1984 Supp. 8-1567 to read in pertinent part as follows: “(a) No person shall operate or attempt to operate any vehicle within this state while: (1) The alcohol concentration in the person’s blood or breath, at the time or within two hours after the person operated or attempted to operate the vehicle, is .10 or more.” K.S.A. 1986 Supp. 8-1567. The court of appeals recently held, “The clear language of 8-1567(a)(l) makes the fact of driving with such blood or breath alcohol concentration a crime without any further showing being required.” State v. Zito, 11 Kan. App. 2d 432, 434, 724 P.2d 149 (1986). Larson argues this change in the law is unconstitutional for several reasons.
(a) Irrebuttable Presumption
Larson asserts that the amendment “grants the State the benefit of an evidentiary device which enables it to prove one factor by proof of another distinct factor.” He cites and discusses various United States Supreme Court cases considering the constitutionality of certain presumptions. In McCormick on Evidence, the following pertinent definitions are stated:
“[A] presumption is a standardized practice, under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts.
“Certainly the description of a presumption as a rule that, at a minimum, shifts the burden of producing evidence is to be preferred, at least in civil cases. ... In criminal cases, however, there are rules that traditionally have been labeled presumptions, even though they do not operate to shift even the burden of producing evidence. The jury is permitted but not required to accept the existence of the presumed fact even in the absence of contrary evidence.
“There are rules of law that are often incorrectly called presumptions that should be specifically distinguished from presumptions at this point:
“Conclusive presumptions. The term presumption as used above always denotes a rebuttable presumption, i.e., the party against whom the presumption operates can always introduce proof in contradiction. In the case of what is commonly called a conclusive or irrebuttable presumption, when fact B is proven, fact A must be taken as true, and the adversary is not allowed to dispute this at all. For example, if it is proven that a child is under seven years of age, the courts have stated that it is conclusively presumed that he could not have committed a felony. In so doing, the courts are not stating a presumption at all, but simply expressing the rule of law that someone under seven years old cannot legally be convicted of a felony.” McCormick on Evidence § 342, pp. 965-66 (3rd ed. 1984).
The cases cited by Larson all involve true presumptions as defined in McCormick. See, e.g., Francis v. Franklin, 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985); Ulster County Court v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). See also McCormick on Evidence §§ 347-48 (discussing the Supreme Court decisions). By enacting K.S.A. 1986 Supp. 8-1567(a)(l), however, the legislature created at most a conclusive presumption as defined in McCormick, that is, anew rule of law that someone who drives with a blood or breath alcohol concentration of .10 or above has driven under the influence of alcohol and may not present evidence to rebut this rule. Actually, being under the influence of alcohol is not an issue at all under K.S.A. 1986 Supp. 8-1567(a)(l). As the court held in Zito, 11 Kan. App. 2d 432, the fact of driving with an alcohol concentration of .10 or above is now a crime, even in a case like ours where the State cannot prove the driver was under the influence of alcohol to the extent he or she is incapable of driving safely. 11 Kan. App. 2d at 434.
We suspect that much of the confusion regarding this new crime as defined in K.S.A. 1986 Supp. 8-1567(a)(l) arises because the title to the statute remains “Driving under influence of alcohol or drugs.” The title or caption prefacing the text of a statute is prepared by the revisor of statutes (K.S.A. 77-133[b]) and “forms no part of the statute itself.” State v. Logan, 198 Kan. 211, 217, 424 P.2d 565 (1967).
Notwithstanding the statute’s title, K.S.A. 1986 Supp. 8-1567(a)(1) constitutes a new rule of law, not a presumption.
(b) Vagueness
“In determining whether a statute is void for vagueness two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement.” State v. Robinson, 239 Kan. 269, 273, 718 P.2d 1313 (1986). Larson attacks the statute only on the first ground, arguing a person cannot determine through his own senses whether his alcohol concentration has reached the impermissible limit.
It is common knowledge that a machine or process must be used to test blood or breath to determine whether a person’s alcohol concentration exceeds the statutory limit. It is also common knowledge that one must drink more than a little alcohol to reach the limit. Furthermore, the standard of 8-1567(a)(l), in our opinion, is more precise than 8-1567(a)(2), “under the influence of alcohol,” and the latter was held not to be unconstitutionally vague in State v. Campbell, 9 Kan. App.2d 474, 475, 681 P.2d 679 (1984). Finally, if Larson’s argument is accepted, it seems that speed limits would also be too vague (or at least could not be enforced against anyone whose speedometer was broken), since no one can tell simply by use of their own senses the precise speed they are traveling.
K.S.A. 1986 Supp. 8-1567(a)(l) is not unconstitutionally vague. c. Arbitrary, capricious, or unreasonable
Larson argues that “[t]here is no legal or scientific basis for the legislative determination that .10% blood alcohol content constitutes a dangerous level of alcohol.” In other words, Larson argues that the legislature’s choice of .10 alcohol concentration as the legal limit is arbitrary, capricious, and unreasonable. We disagree.
In studies involving driving simulators and actual driving tests, “it was seen that with an alcohol content in the blood of .10% or more, some degree of impairment of performance was discernible in virtually all individuals.” 4 Gray, Attorneys’ Textbook of Medicine ¶ 133.52(2) (3d ed. 1969). A 1964 study evaluated the effect of increasing blood alcohol levels on the probability of causing an accident and found, “Above [.05 per cent] the probability of causing an accident rises increasingly more sharply. At .10 per cent alcohol in the blood the probability is six- or seven-fold; at .15 per cent it is more than twenty-five-fold.” 4 Gray, ¶ 133.52(3). Gray also includes an extensive bibliography of studies, articles, and other research on the effects of alcohol on the body and driving ability. See 4 Gray, ¶ 133.90, pp. 133-25 to 133-40 and ¶ 133.90, pp. 139-42 (1986 Supp.).
Furthermore, a government publication states that a provision like K.S.A. 1986 Supp. 8-1567(a)(l) was added to the Uniform Vehicle Code in 1971, using .10 as the standard, and that by 1983, at least 25 states had adopted a similar provision, apparently all but one of them using .10. National Committee on Uniform Traffic Laws and Ordinances, Traffic Laws Annotated, § 11-902, pp. 254-55 (1979) and § 11-902, pp. 63-64 (1983 Supp.). We cannot conclude that Kansas and at least one-half of the state legislatures in the country have acted arbitrarily, capriciously, or unreasonably in passing these statutes.
(d) Act contained more than one subject
Article 2, § 16 of the Kansas Constitution provides in part that, with certain exceptions, no bill passed by the legislature shall contain more than one subject. Although he did not brief this issue, at oral argument Larson claimed that Senate Bill No. 127 (L. 1985, ch. 48, § 9), which enacted K.S.A. 1986 Supp. 8-1567(a)(1), violated this provision. We disagree. As our supreme court said in rejecting the same attack on another bill, “[A]ll of the revisions to existing statutes and newly enacted provisions contained in the act relate in some way to the comprehensive subject of alcohol and drug-related traffic offenses and prosecution thereof.” State v. Reves, 233 Kan. 972, 979, 666 P.2d 1190 (1983).
II. Reasonable Suspicion and Probable Cause
Larson next contends that (a) Trooper Shows did not have a reasonable suspicion of intoxication to justify giving him the field sobriety test and (b) the test given by Trooper Shows failed to provide probable cause for Larson's arrest because Larson had told him that his defective vision would make the tests meaningless.
a. Reasonable suspicion
“Under appropriate circumstances, a police officer may approach and stop a person ... for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” State v. Boone, 220 Kan. 758, Syl. ¶ 3, 556 P.2d 864 (1976). The officer “ ‘must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime’ ” 220 Kan. at 763 (quoting State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 [1973]). When Trooper Shows asked Larson to perform the field sobriety tests, he believed Larson had been speeding. Also, Larson was slurring his words when he spoke and had some trouble locating his driver’s license. These factors were sufficient to cause Trooper Shows to reasonably suspect Larson had been driving under the influence.
b. Probable cause to arrest
Larson claims here that whenever a driver tells an officer that he has a physical impairment other than drunkenness which will cause him to fail field sobriety tests, the officer must have the driver perform tests which will not be affected by the impairment. Larson cites no authority for this proposition and we are aware of none. The assertion may be rejected for several reasons. First, the officer should not be required to believe everything a driver tells him or else drivers who are drunk might be able to escape detection if they can be inventive enough to avoid the tests. Second, the officer should not be free to devise new tests on the spot to try to avoid the asserted impairment. Such improvising could result in unreliable tests and would encourage discriminatory enforcement of the DUI laws. Finally, drivers who fail field sobriety tests due to impairments other than drunkenness will be protected by the results of the blood or breath testing performed following arrest.
III. Sufficiency of Evidence
Finally, Larson argues there was no substantial competent evidence to support the district court’s conclusion that the breath results were accurate and established Larson’s guilt beyond a reasonable doubt.
Larson’s argument on this issue seems to be that the fact he allegedly was told the alcohol test was not yet completed after Gonzales said it had been done conclusively establishes that Gonzales either mixed his test up with another or never performed it at all. By finding Larson guilty, the district court found that the test had been performed and performed on Larson’s breath sample and not someone else’s. Where a court’s findings of fact are attacked on appeal, the appellate court need only determine whether the findings are supported by substantial competent evidence. Holly Energy, Inc. v. Patrick, 239 Kan. 528, 537, 722 P.2d 1073 (1986).
Trooper Shows testified he took Larson’s breath sample, put it and a form in a box marked with Larson’s name, sealed the box, initialed the seal, and took the box to the GC room at patrol headquarters. Gonzales testified he broke open the seals, ran the samples through the testing machine, and then completed the rest of the form Trooper Shows had left in the box. Trooper Shows also testified the results of the test were in his basket when he returned to work on the same day Larson claimed he was told the test had not been done. This testimony is sufficient to support the district court’s conclusion the test was completed and the samples tested were of Larson’s breath.
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Abbott, C.J.:
L.H., the natural mother of Baby Girl H, appeals from the trial court’s order decreeing the adoption of Baby Girl H by Darrol and Deborah Thompson.
L.H. discussed with her doctor the possibility of placing her unborn child for adoption. The doctor stated he knew of a couple wishing to adopt a child, and suggested she meet with his attorney, Thomas Toepfer. She met with Toepfer, and claims he advised her of her “legal rights,” and arranged for the Thompsons to adopt the unborn child.
L.H. alleges she was placed on a drug to induce labor and delivered Baby Girl H at 11:52 a.m. on April 1, 1986. She also alleges that Thomas L. Toepfer and Judge Tom Scott appeared in her room during the hospital’s lunch hour, shortly after the birth of the child, and obtained her consent to the Thompsons adopting Baby Girl H.
The Thompsons commenced adoption proceedings, and L.H. then attempted to set the consent aside. The trial judge granted summary judgment, holding the consent was irrevocable under K.S.A. 1986 Supp. 59-2102(c), dismissed L.H.’s answer, and granted a decree of adoption to Thompsons.
L.H. contends that because she was under the effects of medication and pain associated with the birth, she did not freely and voluntarily consent to the adoption. She also contends a conflict of interest existed since Toepfer represented her, her doctor, and the Thompsons, thus voiding her consent. She also argues the consent portion of 59-2102(c) is unconstitutional for a number of reasons that will be more fully set out when we discuss those issues later in this opinion.
L.H. first contends the trial court erred in granting summary judgment because Thomas Toepfer’s conduct as an attorney was unethical, and that this vitiated her consent. This argument is premised on the assumption that she can attempt to revoke her consent on some basis other than a void consent. Obviously, it is possible to have a void consent that is acknowledged before a judge of a court of record. Would anyone doubt that a consent obtained at gunpoint by a judge of a court of record would be held void and of no effect? If so, then a consent obtained by fraud and duress should also be void. The issue L.H. raises on this point, however, is limited to whether she can attempt to revoke the consent because of the alleged conduct of Toepfer.
In the appeal of In re Adoption of Irons, 235 Kan. 540, 549, 684 P.2d 332 (1984), the Supreme Court stated:
“In adoption cases, such as this, the attorney can represent both the natural and adoptive parents. The attorney owes both sets of parents a duty to provide good faith advice concerning the legal consequences of their acts. This multiple representation can continue so long as no conflict develops between the parties. However, if a conflict occurs, the attorney must choose which conflicting interest he or she will represent. The best way to apprise the parties of the choice is by use of a frank discussion before representation commences, as was done by Ms. Klarfeld [attorney]. Since Lori Klarfeld’s relationship with Anjanette Irons [natural mother] was confidential, she owed Anjanette the duty of complete legal advice concerning the nature and consequences of adoption.”
In this case, the record does not indicate, nor does L.H.’s answer allege, that Toepfer did not inform her that he represented the adoptive parents or that he failed to provide legal advice to her. In fact, her answer states that Toepfer “advised her of her legal rights relative to the proceedings.” Toepfer initially represented both parties. However, he did not represent L.H. after the consent was signed and withdrew as attorney for the adoptive parents four days after L.H. filed her answer. Thus, in compliance with Irons, Toepfer did not represent either party after the conflict became apparent. The record does not demonstrate any conduct by Toepfer that could vitiate L.H.’s consent.
L.H. next argues that the consent is revocable because neither the judge who acknowledged the consent nor the consent form itself sufficiently explained to her the consequences of her consenting to the adoption.
Kansas statutes regarding adoption do not expressly indicate what should be contained in a consent form, nor do they indicate whether the judge should examine the consenting parent in order to insure that the parent understands the effect of the consent. L.H. presumes that the acknowledging judge made no effort to determine whether the consent was freely and voluntarily given. However, a record was not made when the consent was obtained. Nothing in the record on appeal indicates what transpired. L.H. has the burden of showing error. It was noted in In re Adoption of Chance, 4 Kan. App. 2d 576, 583, 609 P.2d 232, rev. denied 228 Kan. 806 (1980), that “[t]o be free and voluntary, a consent must be to all the legal consequences of the adoption with an understanding of the meaning and effect thereof. [Citations omitted.]” L.H. has failed to show error on this point.
We have examined the consent to adoption and compared it to the consent to adoption approved by the trial court in Trent and see no significant difference in the two. It is, however, significant that in Trent the Supreme Court was reviewing the trial court’s finding that the consent was freely and voluntarily given. The trial court had also considered oral evidence. Thus, the scope of review was entirely different from what we are faced with in the present case.
L.H. also contends that the legislative intent of K.S.A. 59-2102, as amended in 1968, be construed in pari materia with K.S.A. 38-127 and 38-128 to include the same requirements. They are as follows:
“The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child or children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other persons in loco parentis of such children of the consequences of the act of relinquishment.” K.S.A. 38-127.
“In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child.” K.S.A. 38-128.
The statutes govern the relinquishment of a child to the Department of Social and Rehabilitation Services. The two statutes were adopted during the same session. An article by then Sen. Robert Bennett states, in part:
“Two acts were passed in the last session of the legislature with reference to adoption. Under one [K.S.A. 38-127 and 38-128] a parent or parents or a person in loco parentis (an individual organization vested with the right to consent to adoption) may surrender a child to the state department of social welfare and if that department accepts the child in writing, the department thereupon stands in loco parentis to the child, and possesses all rights of a natural parent or a legal guardian, including the power to place the child for adoption and give consent thereto. The minority of the consenting parent does not invalidate relinquishment and surrender, which must be executed in writing and acknowledged before a court. It is made the duty of the court to advise the person executing the consent of all consequences of the act. In those cases where a relinquishment has occurred and the judge states on the relinquishment document that the party executing the same has been advised of his rights, and the relinquishment was voluntary, all rights of the parent or person in loco parentis are terminated, including the right to receive notice of a subsequent adoption proceeding. One of the purposes of this act is to make the consent and relinquishment irrevocable.
“To the same effect, Senate Bill 45 was adopted. Under this act [K.S.A. 59-2102] the consent of the parent or parents of the child must be in writing and acknowledged, and if it is acknowledged before the judge of a court of record, it is final and may not thereafter be revoked. If the consent is acknowledged before some other person authorized by law to take acknowledgments, and if it is subsequently filed of record in the probate court, it becomes irrevocable unless the consenting party, prior to final decree of adoption, alleges and proves that the consent was not freely and voluntarily given.” Bennett, The 1968 Kansas Legislature — How Did It Affect the Lawyers Practice? 37 J.B.A.K. 159, 212 (1968).
The rules for considering statutes in pari materia are summarized in Clark v. Murray, 141 Kan. 533, 537, 41 P.2d 1042 (1935):
“ ‘Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose, and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although they were enacted at different times, and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislation, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.’ [59 C.J., Statutes § 620, p. 1042.]
“ ‘Statutes in pari materia, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other, so as to give force and effect to each, as it will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms; nor will it be presumed that the legislature intended to leave on the statute books two contradictory enactments. But if there is an unreconeilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute.’ [59 C.J., Statutes § 621, p. 1051.]
“ ‘It has been held that, in the construction of a statute, contemporaneous legislation, although not precisely in pari materia, may be referred to in order to ascertain the intent of the legislature in the use of particular terms.’ [59 C.J., Statutes § 622, p. 1056.]”
In the case of State v. Bradley, 215 Kan. 642, 647, 527 P.2d 988 (1974), the court considered K.S.A. 21-3416 (unlawful interference with a fire fighter) in pari materia with K.S.A. 21-3411 (aggravated assault of a law enforcement officer):
“Section 21-3411 and 21-3416 relate to public employees performing dangerous and vital duties; both statutes have a common purpose, protection of that class of persons. Having these characteristics, the statutes are in pari materia and they must be read together when interpreting section 21-3411 [Citations omitted.] Since the statutes were enacted at the same session of the legislature and have the same effective date, [citations omitted] the rule of in pari materia ‘applies with peculiar force.’ (Citation omitted.]
“In section 21-3416 the legislature expressly included scienter as an element of the offense. Therefore, it may be concluded the term ‘knowingly’ would have been used in section 21-3411, if the legislature had intended that scienter also be an element of aggravated assault on a law enforcement officer. Its absence is compelling evidence that the legislature did not intend to require scienter.”
In the case before us, as in Bradley, the two statutes have a similar purpose: governing procedures for relinquishment of a child for adoption. They were also enacted in the same session of the legislature. Thus, the fact that the legislature chose not to impose the same requirements in K.S.A. 59-2102 as those set out in 38-127 and 38-128 is compelling evidence of legislative intent. This does not mean, however, that the legislature did not intend that the consent to adoption be anything less than freely and voluntarily given.
L.H. contends the irrevocable consent “unconstitutionally removes from courts their inherent constitutionally created power to inquire into the truth by adducing evidence on material issues” or by precluding inquiry into the state of mind or intent of the consenting parent. However, the statute provides a consent is irrevocable only if acknowledged before a judge.
L.H. next argues the consent to adoption acknowledged before a judge of a court of record, pursuant to K.S.A. 1986 Supp. 59-2102, creates only a rebuttable presumption that the consent was freely and voluntarily given.
Prior to 1968, a consent to adoption given by the natural parent could be revoked at any time before the court took final action on the adoption. In re Thompson, 178 Kan. 127, 135, 283 P.2d 493 (1955). This case was effectively overruled by the legislature in 1968, when it added the following language to 59-2102:
“Whenever consent of a parent or parents is necessary it shall be acknowledged and may be acknowledged before the judge of a court of record, and when such consent is acknowledged before such a judge it shall be final and may not thereafter be revoked by the person or persons giving the same. In all other cases the written consent shall be acknowledged before an officer authorized by law to take acknowledgments, and when such consent has been given in writing and has been filed of record in the district court, the same shall be irrevocable, unless the consenting party or parties, prior to final decree of adoption, allege and prove that such consent was not freely and voluntarily given. The burden of proof shall rest with the consenting party or parties. Minority of a parent shall not invalidate his or her consent.” K.S.A. 59-2102 (Weeks).
In 1982, the legislature rewrote the above section as follows:
“(c) Consent in all cases shall be in writing and shall be acknowledged before the judge of a court of record or before an officer authorized by law to take acknowledgments. If consent is acknowledged before a judge of a court of record, the consent shall be irrevocable. If consent has been given in writing and has been filed of record in the district court, the consent may be revoked, but only if, prior to final decree of adoption, the consenting party alleges and proves that the consent was not freely and voluntarily given. The burden of proving that the consent was not freely and voluntarily given shall rest with the consenting party.” K.S.A. 1986 Supp. 59-2102.
No legislative history could be located to explain the reason for the change in 1982. On its face, it appears to be cosmetic only, as no substantive change is apparent.
A statute is to be interpreted so as to give it the effect intended by the legislature. The purpose and intent of the legislature governs when the intent can be ascertained from the statute. Words in common usage should be given their natural and ordinary meaning in arriving at a proper construction of the statute. When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, though such construction is not within the strict literal interpretation of the statute. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 634-35, 694 P.2d 462 (1985). Furthermore, the legislative intention should be determined from a general consideration of the entire act. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Kitzman, 240 Kan. 191, 727 P.2d 491 (1986).
The governing statute indicates that any acknowledgment before a judge of a court of record is irrevocable, and the consenting party cannot attempt to revoke his or her consent by attempting to prove the consent was not freely and voluntarily given. Generally, an acknowledgment only serves as prima facie proof that the written consent was freely and voluntarily given. In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981) (acknowledgment of consent by a notary public).
In the majority’s view, K.S.A. 1986 Supp. 59-2102 shows a legislative intent that the judge determine that the consent to adoption be freely and voluntarily given. Thus, a judge acknowledging a consent must make such a determination. The judge is not precluded by 59-2102(c) from making an inquiry of the consenting parent in order to determine his or her state of mind, intent, or whether the parent freely and voluntarily wishes to give the child up for adoption. The legislature has simply assumed a judge of a court of record would insure that the consent to adoption be freely and voluntarily given. We are tempted to hold the legislature intended to require the consent to be given on the record but cannot, in good conscience, do so, although we recommend that procedure be followed.
The problem, as the majority sees it, is whether the consent is void or voidable under the unique facts of this case. The natural mother had (or at least has made no valid showing that she had not) been informed of the legal consequences of adoption prior to the birth. This state has wisely determined that the natural mother should have an opportunity to rethink her decision after the child is born and she has had an opportunity, if she desires, to see and hold the child.
In this case the record indicates the birth occurred at 11:52 a.m. The pleadings contend the consent was signed in the mother’s hospital room “during the luncheon hour at St. Anthonys Hospital,” and that she had “not fully recovered from the effects of medication and stress.”
Since summary judgment was granted, L.H. was not given an opportunity to develop the record, and we are unable to tell whether St. Anthony’s Hospital’s lunch hour is the normal one of 12:00 to 1:00 p.m. If that is the case, the consent was signed within a time span of eight minutes to one hour and eight minutes from the actual birth of the child. The majority has considered adopting a “bright line” rule, that a consent signed within one hour of birth is void as a matter of law. Perhaps it is better left to the legislature to adopt a specific waiting period, if one is to be provided. The legislature has seen fit to provide a waiting period before a release can be validly executed. K.S.A. 60-2801. Surely an 18-year-old unmarried mother’s decision to give up a child for adoption deserves as much consideration.
The majority has no hesitancy in stating that a consent, acknowledged before a judge of a court of record in the delivery room seconds after the umbilical cord is cut, is void. What period is a decent and medically sound interval of time after birth before a mother can execute a valid consent to an adoption will obviously vary, depending upon the individual involved, the difficulty of the birth, and the medication given. This birth is the first child of an eighteen-year-old unmarried mother. We have some hesitancy in saying it is a medical issue, because we are sure all doctors have had the experience of a patient making sense and in apparent control of his/her mental processes, only to learn later that he/she has no recollection of the conversation, who was present, etc.
We hold that the natural mother must have the opportunity to prove that the consent is void or voidable because of her inability to understand and fully comprehend what she was doing when the consent was signed, due to medication and/or the stress and pain of having given birth to a child shortly before. The trial court should hear that issue and then make appropriate findings. Depending on what those findings are, the court must either deny the motion to set aside the consent, or set aside the adoption and consent and return the child to the natural mother.
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Per Curiam:
Robert Lambright appeals the trial court’s denial of his motion to terminate alimony payments to Ann Lambright.
The facts are known to the parties, and need not be repeated except as necessary in discussing the issues.
At the time of the divorce, K.S.A. 60-1610(d) (Weeks) empowered the trial court with authority to award alimony for any period of time it found to be fair, just, and equitable under the circumstances. The legislature amended 60-1610 in 1982. Under the 1982 amendment, the trial court could not award alimony for more than 121 months. Mr. Lambright argues that the legislature intended this amendment to be applied retrospectively to those divorce decrees entered prior to January 1, 1983, the effective date of the amended statute.
The general law regarding retrospective application of an amendment to an existing statute is well-established in Kansas. In Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981), the Kansas Supreme Court noted:
“ ‘The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively. This rule is normally applied when an amendment to an existing statute or a new statute is enacted which creates a new liability not existing before under the law or which changes the substantive rights of the parties.’
“ ‘The general rule of statutory construction is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties.’
“ ‘While generally statutes will not be construed to give them retrospective application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a savings clause as to existing litigation.’ ”
See Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324-25, 709 P.2d 983 (1985).
The language of the 1982 amendment does not indicate that the legislature intended it to operate retrospectively; therefore, it operates only prospectively. The change of law affected the substantive rights of the parties. Before the change of law occurred, an alimony recipient could be awarded an amount of money for life or until remarriage, if the trial court found that to be the fair, just, and equitable thing to do under the circumstances. In considering abuse of discretion issues, both alimony and property division were considered. Thus, a trial judge might have ordered a different property division if a 10-year limit had been applicable to alimony. After 1982, a recipient spouse could only expect to be awarded a maximum maintenance of ten years and one month, regardless of the circumstances. However, under the amendment, the recipient spouse could move the trial court to reinstate maintenance upon the expiration of the 121 months.
Mr. Lambright’s main argument is that the 1982 amendment was remedial in nature, and as such it should be construed liberally. He also argues that future payments of maintenance are not vested rights and do not prevent the retrospective application of the amendment. While these two statements are true, they do not address the question of whether the legislature intended the 1982 amendment to operate retrospectively.
In our view, the legislature did not intend the amendment to operate retrospectively, and since the change of law affected substantive and not procedural rights, the trial court did not err in holding that the 1982 amendment could not be applied retrospectively to extinguish Mr. Lambright’s duty to pay alimony after the expiration of 121 months.
Under K.S.A. 1986 Supp. 60-1610(b)(2), the trial court has the discretion to modify the amount of maintenance originally awarded that has not already become due. In the present case, the trial court heard the arguments of counsel on this point, and had before it the parties’ financial statements under Supreme Court Rule 139, 235 Kan. cvii. The trial court overruled Mr. Lambright’s motion to terminate alimony due to changed circumstances.
“ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men 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.’ ” Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984).
Mr. Lambright argues that the trial court’s decision not to terminate the award of alimony is unreasonable, given the expectations of the legislature and the public that maintenance is rehabilitative in nature. The trial court noted that the original alimony awarded was declining in nature, which indicated the original trial court recognized Mrs. Lambright would have to modify her lifestyle and acquire some job skills, but also noted the award was permanent in nature.
An appellate court’s review of a modification of an original alimony judgment is limited to “a determination of whether there is substantial competent evidence to support the holding of the trial court.” Jarvis v. Jarvis, 218 Kan. 679, 684, 544 P.2d 1384 (1976). Substantial competent evidence is “evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved.” Bell v. Tilton, 234 Kan. 461, 469, 674 P.2d 468 (1983).
At the time of the divorce, Mr. Lambright was earning $37,800. Mrs. Lambright was wholly dependent on Mr. Lambright for her maintenance and support. Mrs. Lambright was awarded the cash proceeds from the sale of the home in the amount of $14,286.53. Mr. Lambright was awarded the policies of insurance, a certifi cate of deposit in the sum of $3,348.83, a $100 refund check, and $3,000 earnest money on realty. The personal property of the parties was set over to each of them, and Mr. Lambright was ordered to pay alimony.
Mrs. Lambright’s Rule 139 pleading shows she is employed by the public school system of Tupelo, Mississippi, and earns $1,032.87 per month in take-home pay and $525 in other income. She estimated her total monthly living expense to be $1,938 per month. On the other hand, Mr. Lambright’s income has increased to $65,000 per year. He receives this salary as a lieutenant colonel in the United States Army.
There is substantial competent evidence to support the trial court’s finding that there has not been a change in circumstances which would warrant any modification of the prior order. Both parties’ financial circumstances have improved since the time of the divorce. However, Mr. Lambright’s financial circumstances have improved the most, and there is no clear-cut decreased need for the $400 per month alimony by Mrs. Lambright. The trial court did not abuse its discretion in overruling Mr. Lam-bright’s motion to terminate alimony due to changed circumstances.
Both parties request attorney fees and costs. Mrs. Lambright does so solely on the basis that Mr. Lambright’s requests are frivolous and for the purpose of harassment. Mr. Lambright’s request is based on the premise Mrs. Lambright’s request for attorney fees and costs is frivolous and filed for the purpose of harassment. We are unable to say any of the pleadings are frivolous or filed for the purpose of harassment. Thus, the requests for attorney fees and costs are denied.
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Davis, J.:
The defendant, Pete Bohm, appeals from the district court’s denial of a motion to quash orders of garnishment. The orders of garnishment were based upon a small claims judgment against Bohm in favor of Burton D. Cox, Sr.
Cox was granted a default judgment against Bohm in a small claims action. Bohm appealed to the district court. Neither party responded to the district court’s notice that the case would be dismissed for lack of prosecution, and the court dismissed the case without prejudice.
Following dismissal of the appeal, the district court issued orders of garnishment on the small claims judgment at Cox’s request. Bohm filed a motion to quash, contending that K.S.A. 1986 Supp. 61-2709 requires that a case appealed from small claims court begin anew (de novo) and that dismissal of the “new” case left Cox with no judgment to enforce.
The district court held that K.S.A. 61-2109 controlled and that, although the appeal had been dismissed, the original small claims judgment still provided a valid basis for the issuance of garnishment orders. We agree and affirm.
K.S.A. 61-2109 provides as follows:
“61-2109. Dismissal of appeal. If the appeal is dismissed by the judge hearing such appeal, the action shall be remanded to the judge from which such appeal was taken.”
Bohm argues that K.S.A. 61-2109 is part of the code of civil procedure for limited actions and does not apply to actions brought under the small claims procedure act. He, however, has overlooked K.S.A. 61-2702, which provides that “[e]xcept as otherwise specifically provided or where a different or contrary provision is included in this [small claims procedure] act, the code of civil procedure for limited actions shall be applicable to the processing of small claims and judgments under this act.” The small claims procedure act contains no specific provision dealing with the disposition of dismissed appeals and no provision that is different or contrary to 61-2109. Therefore, 61-2109 applies to small claims actions.
K.S.A. 61-2109 removes any doubt about the continued viability of a small claims judgment following dismissal of a de novo appeal. The Kansas Legislative Council, which drafted what became the code of civil procedure for limited actions, cited K.S.A. 61-1005 (Corrick) and K.S.A. 61-1008 (Corrick) as statutory sources for K.S.A. 61-2109. In a report to the legislature, the Council commented that 61-2109 “retains the justice code provision relating to the return of the case to the magistrate court when an appeal is dismissed.” Report and Recommendations of the Kansas Legislative Council on Proposal No. 44 — Proposed Code of Civil Procedure Before Courts of Limited Jurisdiction, Part II, December 16, 1968, p. 44.
K.S.A. 61-1005 (Corrick), repealed in 1970, stated that “[i]f the appeal [to the district court from the justice of the peace] be dismissed, the cause shall be remanded to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken.” (Emphasis added.)
K.S.A. 61-1008 (Corrick), also repealed in 1970, stated as follows:
“61-1008. Quashing for irregularities; proceedings. When an appeal taken to the district court shall there be quashed by reason of irregularity in taking or consummating the same, the cause for quashing shall be stated in the order of the court, and a transcript of such order shall be filed with such justice, who shall thereupon proceed to issue execution in the same manner as if no appeal had been taken.” (Emphasis added.)
See K.C. Ft. S. & G. Rld. Co. v. Hammond, 25 Kan. 208 (1881).
We have no hesitancy in concluding that the legislature enacted K.S.A. 61-2109 to ensure that dismissal of a de novo appeal to the district court would not affect the judgment entered by the magistrate, which would remain valid and enforceable “as if no appeal had been taken.”
In a small claims appeal, the district court assumes appellate, not original, jurisdiction. Armstrong v. Lowell H. Listrom & Co., 11 Kan. App. 2d 448, 725 P.2d 540 (1986). We held in Armstrong that “[t]he provision for de novo review does not alter the appellate nature of the district court’s authority, but rather specifies the procedure to be employed on appeal of a small claims judgment, directing the district court to make an independent determination of the facts.” Armstrong at 451-52. Dismissal by the district court was a dismissal of the appeal and left intact Cox’s small claims judgment.
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Parks, J.:
This is an appeal by the parents of K.J. and A.J. from an order of the district court terminating their parental rights. Each parent was originally found unfit in proceedings before a district magistrate judge. The parents appealed to the district court, which agreed with the judgment of the magistrate.
Initially, the parents raise a legal issue concerning the procedure followed by the district court. They contend they were entitled to a de novo trial in their appeal to the district court and that the manner in which the court heard the appeal resulted in prejudicial error.
K.S.A. 1986 Supp. 20-302b(a)(6) provides that a district magistrate judge is empowered to hear any action pursuant to the Kansas code for care of children. The code also recognizes the magistrate’s jurisdiction and further provides as follows:
“An appeal from an order entered by a district magistrate judge shall be to a district judge. The appeal shall be heard de novo within 30 days from the date the notice of appeal is filed.” K.S.A. 38-1591(b).
In this case, the district judge hearing the appeal determined the factual issue of parental fitness de novo but upon the evidentiary record preserved in the trial to the magistrate. The parents contend they were entitled not only to a redetermination of the issues but a re-presentation of the evidence. The district judge denied the request for a second evidentiary hearing on the basis of K.S.A. 1986 Supp. 20-302b(c), which states as follows:
“In accordance with the limitations and procedures prescribed by law, and subject to any rules of the supreme court relating thereto, any appeal permitted to be taken from an order or final decision of a district magistrate judge shall be tried and determined de novo by a district judge, except that in civil cases where a record was made of the action or proceeding before the district magistrate judge, the appeal shall be tried and determined on the record by a district judge.”
The State contends that 20-302b defines the nature of the appeal procedure to be followed by the district judge hearing an appeal pursuant to K.S.A. 38-1591(b). The parents argue that K.S.A. 38-1591(b) and its designation of a de novo appeal is solely controlling.
When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Wilson, 11 Kan. App. 2d 504, Syl. ¶ 1, 728 P.2d 1332 (1986); see State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985). While 20-302b(c) deals generally with the manner in which appeals from the decisions of district magistrate judges are to be considered, K.S.A. 38-1591 is a specific provision describing the procedure to be followed in an appeal from a magistrate’s order in a juvenile proceeding. However, the State contends that 20-302b(c) does not conflict with the juvenile provision but was intended to amplify and define the requirement of a de novo appeal. The State argues that while a de novo appeal is compelled by K.S.A. 38-1591, the meaning of “de novo” for the purposes of such an appeal is controlled by 20-302b(c). Thus, since a juvenile proceeding held pursuant to the code for care of children is a civil case (K.S.A. 38-1501), the State contends an appeal on the record was proper.
Historically, a de novo appeal to a district judge meant that the case was tried and determined as if it were originally filed for hearing before the district judge. See G.S. 1949, 61-1003; Reddington v. Rank, 176 Kan. 484, 488-89, 271 P.2d 807 (1954). Thus, any elicitation of evidence in the court of origin would be disregarded and the case would begin anew. With the unification of the court system and the technological advances which permit the creation of a record by tape recording, 20-302b recognizes that it has become possible for a district judge to redetermine the issues of fact without a complete repetition of the trial already held. However, the wording of the statute creates an exception to the requirement of a de novo appeal rather than redefining the meaning of the term de novo in certain cases. Since K.S.A. 38-1591 is the more specifically applicable statute and it requires that the appeal shall be de novo without reference to 20-302b, we conclude that the appeal should have been de novo as that term has been commonly and historically used.
We hold that in an appeal from the decision of a district magistrate judge in a proceeding filed pursuant to the code for care of children, K.S.A. 38-1501 et seq., the district court must both hear the evidence and decide the facts anew, as if the case had been originally filed in the district court. The district court’s resolution of this case on the record developed before the district magistrate judge was prejudicial error.
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Rees, J.:
This is a workers’ compensation case in which the Workers’ Compensation Fund (Fund) challenges that part of a district court judgment that, pursuant to K.S.A. 44-567(a)(A), relieved Sunflower Electric Cooperative (Sunflower) of liability for compensation awarded to claimant Ronald E. Denton and ordered that the Fund pay the entire award. Although a notice of appeal was served and filed by Denton, his appeal has been abandoned by his failure to docket it and to file a brief.
Underlying this litigation is an on-the-job accident experienced by Denton on May 21, 1983, at an electric power generating plant at Garden City, Kansas. Denton, an operating department shift foreman employed by Sunflower, the plant operator, suffered a herniated lumbar disc as a result of the accident. Post-accident medical examination and review of 1978 and 1980 x-rays resulted in physicians’ objective findings of preexisting lumbosacral degenerative disc disease that had afflicted Denton since at least as early as 1978.
In support of its first issue (see Supreme Court Rule 6.02[c], 235 Kan. lxviii), and without identification of focal points, the Fund broadly argues that Sunflower did not prove that when Denton sustained personal injury by accident arising out of and in the course of his employment on May 21, 1983, he was a handicapped employee Sunflower had retained in its employ after it had acquired knowledge that he was afflicted with a physical impairment. We do not see that the Fund argues that Denton did not sustain compensable injury or that he had no preexisting impairment. Rather, the Fund appears to argue that it was not proved that prior to the May 21, 1983, accident Denton was retained in Sunflower’s employ after Sunflower acquired knowledge that Denton was afflicted with an impairment of requisite character to support a finding that he was a handicapped employee. With no more than a scintilla of reasoned supporting argument, the Fund also argues there was insufficient proof to support a shift to the Fund of liability for Denton’s compensation for the reason that there was no evidence that Denton was retained by Sunflower with “mental reservation.”
As to the Fund’s first issue, we are to decide (1) whether there was evidence upon which the district court could conclude that, prior to May 21, 1983, Sunflower had retained Denton in its employ after acquiring knowledge of preéxisting impairment of such character that he was a handicapped employee; (2) whether it was essential to Sunflower’s claim for relief from liability for Denton’s compensation that Sunflower prove that it retained Denton in its employ with “mental reservation”; and (3) if retention with “mental reservation” was required, whether it was proved. If our answer to the second question is “no,” we need not address and answer the third and last question.
To be relieved of liability for payment of all compensation awarded to Denton, it was necessary that Sunflower come within the operation of the following language of K.S.A. 44-567:
“(a) An employer . . . who knowingly . . . retains a handicapped employee, as defined in K.S.A. 44-566 . . . shall be relieved of liability for compensation awarded ... as follows:
“(A) Whenever a handicapped employee is injured . . . and . . . the injury . . . probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the injury . . . shall be paid from the workers’ compensation fund.
“(b) In order to be relieved of liability under this section, the employer must prove . . . that the employer retained the handicapped employee in employment after acquiring [knowledge of the preexisting impairment]. The employer’s knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof with regard thereto.”
When K.S.A. 44-567(b) speaks of “the employer’s burden of proof,” reference is made to the employer’s burden “to persuade the trier of facts by a preponderance of the credible evidence that [the employer’s] position ... is more probably true than not true.” K.S.A. 44-508(g). Thus, it was Sunflower’s burden to prove its claim for relief from liability (Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 787, 529 P.2d 679 [1974]) by a preponderance of the evidence; it was not necessary that Sunflower prove its claim by clear and convincing evidence or beyond reasonable doubt.
Who is a “handicapped employee” as that term is used in K.S.A. 44-567? The definition is in K.S.A. 44-566(b), which states:
“ ‘Handicapped employee’ means [an employee] afflicted with or subject to any physical or mental impairment, . . . whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed . . . .”
Otherwise put, a “handicapped employee” is an employee who is at disadvantage in obtaining employment or reemployment because of physical or mental impairment with which he or she is afflicted or to which he or she is subject. An employee is not a handicapped employee if he or she is not afflicted with or subject to an impairment. An employee afflicted with or subject to an impairment is not a handicapped employee if he or she is not at disadvantage in obtaining employment or reemployment because of the impairment.
What is the meaning of the word “impairment” as it is used in K.S.A. 44-566(b) and K.S.A. 44-567? From the wording “physical or mental impairment . . . whether congenital or due to an injury” in K.S.A. 44-566(b), it is clear that “impairment” and “injury” are not synonymous. What is the distinction? Seeing that K.S.A. 44-508(e) directs that “injury” means a lesion or change in the physical structure of the body causing damage or harm thereto, we conclude that the word “impairment” in the phrase “physical or mental impairment” connotes limitation of function. See, for example, Rork v. Szabo Foods, 439 N.E.2d 1338, 1342 (Ind. 1982); Talas v. Correct Piping Co., Inc., 435 N.E.2d 22, 26 (Ind. 1982).
We pause to observe that reported Kansas appellate opinions in workers’ compensation cases display instances of imprecision in the use of certain words, among which are “injury,” “impairment,” and “handicap” or “handicapped.”
In summary, K.S.A. 44-567(a) dictates that shifting compensation liability to the Fund is authorized only if the compensation recipient was an employee hired or retained by the employer with knowledge that the employee was a handicapped employee. K.S.A. 44-567(b) emphasizes that liability shifting under the authority granted by K.S.A. 44-567(a) requires that it be proved that hiring or retention of the employee occurred after the employer acquired knowledge of (knew of) an impairment causing the employee to be a handicapped employee, that is, hiring or retention with knowledge of the employee’s functional limitation putting him or her at disadvantage in obtaining employment or reemployment.
Within the evidence before the district court in this case, there was particular testimony of one Don Erwin and Denton that we find to have controlling effect when considered together with, and in light of, the physicians’ objective findings. We will report the testimony as it appears in the record on appeal.
Erwin, Sunflower’s operations supervisor at the Garden City plant, testified as follows:
“A. [Denton] came to. work in 1960 ... I have known him ever since ....
“A. . . . He started out as a second operator . . . then went to first operator, and then I believe it was in 1973 . . . that he was promoted to shift foreman, and he stayed in that position until he was laid off August 31, 1984.
“Q. . . . [W]ere you his direct supervisor in May of 1983?
“A. Yes.
“Q. . . . [H]e didn’t answer to anybody else but you?
“A. Me or the plant superintendent. .
“Q. When [the May 21,1983] accident occurred, is that the first time that you ever knew of any problems that Mr. Denton had with his low back?
“A. No, he’s had low back problems for — my records show back at least five years.
“Q. Back to?
“A. 1978 was the first that I have records to show.
“Q. . . . Did he have other complaints of his back where he would have to miss time from work because of it?
“A. Yes, from time to time he would strain his back, always have a day or two off, and usually he would get over it and get back to work.
“Q. Do you know how many days, say in the five years prior to May 21, 1983, that Mr. Denton would have missed work because of back problems?
“A. I can total up eighteen days prior to the accident, going back to June of 1978.
. . . [Y]ou are referring to some notes . . . ?
Yes, these are notes that I took off of the shift foreman’s logs. There could have been more, but these are the only ones that were indicated as specific back trouble.
o Do you have any personal recollection of the fact that Mr. Denton had back problems prior to May 21, 1983?
Yes.
And that he missed work as a result of it?
Yes.
. . . [Y]ou say [your notes show] as far back as 1978?
I just have down here, ‘back trouble.’ These I got off the shift foreman’s logs, when he called in he was taking off sick for back troubles.
“Q. . . . [0]f your own independent knowledge, do you recall that Mr. Den-ton did have back problems prior to the May, 1983 incident?
“A. Yes.
“Q. Of your own personal recollection, how far back can you recall that Mr. Denton would have had back problems?
“A. I would personally say it went back further than ‘78. It seems like to me it’s been considerably longer than that, probably a ten year period, off and on.
“Q. ... As Mr. Denton’s supervisor, were you concerned as to whether he would be able to perform his job duties, or be more susceptible to injury because of his back condition?
“A. Yes, I think so. I think we were concerned about his back problem, but since it wasn’t consistent — you know, he would have a few days off and he would get back to work, and maybe for two or three months no problem, and then maybe he would strain himself again; and yes, I think we were susceptible to the knowledge that he could injure his back from doing certain things, you know.
“Q. That he was more susceptible to that type of thing?
“A. Yes, definitely.
“Q. Mr. Denton never told you there were certain things, such as bending or lifting, he couldn’t do, did he?
“A. Not specifically, no.
“Q. He never told you any doctor had told him not to do those things before May 21st of ‘83?
“A. Well now, there was some times there when he was having trouble with his back that. . . we probably did make some exceptions there from time to time, because this back thing went on so long.
“Q. During the time that he was employed under you, did he satisfactorily perform all of his duties?
“A. Pretty well.
“A. . . . [I]n spite of his physical disabilities, he done a pretty good job.”
Denton’s testimony included this:
“Q. . . . [Djescribe for me the injury you received prior to this accident?
“A. I never really received any injury. I just had muscle spasms in my back ....
“Q. Your employers out there, who were your supervisors?
“A. Jim Owens and Don [Erwin],
“Q. And they were aware you were having muscle spasms?
“A. Yeah, they’ve known it over the years that I’ve had back trouble.
“Q. [Over the years] you have taken sick leave as a result of the muscle spasms?
“A. Right.
“Q. . . . [Y]our supervisors out at Sunflower, Mr. [Erwin], they were aware of the fact that you were having back problems before, and you had taken off and seen a doctor?
“A. They sure did.”
Indisputably, Denton’s disc disease was an injury, that is, a damaging or harmful change in the physical structure of the body, that existed from at least as early as 1978, some five years prior to his May 21, 1983, accident. Due to that injury, was Denton afflicted with an impairment of such character that it constituted a handicap in obtaining employment or reemployment? Otherwise phrased, was Denton, due to his disc disease, afflicted with a functional limitation that put him at disadvantage in obtaining employment or reemployment? If he was, then, according to K.S.A. 44~566(b), he was a handicapped employee. Beyond any real doubt, these posited questions are fact questions which were for resolution by the district court, the trier of facts here.
The evidence discloses that throughout the five or more years immediately preceding the May 21, 1983, accident and throughout which Sunflower retained Denton in its employ, Sunflower knew Denton had functional limitation involving his back. Although describing the manifestations of his limitation as “muscle spasms,” Denton directly testified that his supervisors had known over the years that he had “back trouble” and had taken sick leave to obtain medical care. Business records of Sunflower’s corroborated that it had that knowledge. Sunflower’s knowledge also was established by the testimony of Denton’s supervisor. Based upon the record on appeal, it is beyond any serious doubt that Sunflower had knowledge Denton was afflicted with preexisting impairment when and while it retained Denton in its employ prior to May 21, 1983. The Fund-has proffered to us no thesis upon which to find to the contrary.
It is correct to note that even though the evidence established that Sunflower had knowledge that Denton had “low back problems,” “back strain,” “back trouble,” and “muscle spasms” for which he took sick leave on irregular occasions to obtain medical care, there was no evidence that Sunflower knew that Denton was afflicted with lumbosacral degenerative disc disease. Nonetheless, it is not necessary that the employer’s knowledge be of the particular and medically specific injury, that is, the lesion or physiological change, giving rise to the employee’s functional limitation. As shown by the language of K.S.A. 44-567, the requisite knowledge is knowledge of handicap causing functional limitation. The evidence abundantly established that Sunflower retained Denton in its employ after having acquired knowledge (knowing) of preexisting impairment.
Did Denton’s impairment put him at disadvantage in obtaining employment or reemployment? While there was no specific direct evidence that it did, we are satisfied that, as to this particular question of fact, the district court’s necessarily implicit conclusion that it did was a justified inference. There was no evidentiary suggestion to the contrary and the Fund has presented no reason to hold otherwise.
Trial court error is never presumed. To obtain appellate reversal of a judgment, it is an appellant’s burden to make it affirmatively appear that the judgment is erroneous. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982); Kohn v. Babb, 204 Kan. 245, 248, 461 P.2d 775 (1969). The Fund has failed to affirmatively establish that the evidence before the district court was insufficient to prove that, when Denton sustained personal injury by accident arising out of and in the course of his employment on May 21, 1983, he was a handicapped employee Sunflower had retained in its employ after it had acquired knowledge that he was afflicted with a physical impairment of requisite character to constitute a handicap in obtaining employment or reemployment.
Turning to the question whether it was essential to Sunflower’s claim for relief from liability for Denton’s compensation that Sunflower prove that it retained Denton in its employ with “mental reservation,” it is proper to bear in mind that the Workmen’s Compensation Act (K.S.A. 44-501 et seq.) is complete within itself; enlargement upon its plain terms is impermissible. Allen v. Mills, 11 Kan. App. 2d 415, 419-20, 724 P.2d 143 (1986) (Rees, J., concurring).
Nowhere in K.S.A. 44-567, K.S.A. 44-566(b), or elsewhere in the Act does there appear an expressed or implied requirement for shifting of compensation liability that the impairment be “demonstrably disabling” when the handicapped employee is hired or retained. Nothing is statutorily required beyond or other than that the employee be afflicted with or subject to a handicap causing impairment and that that be known to the employer.
Neither is there in K.S.A. 44-567, K.S.A. 44-566(b), or elsewhere in the Act an expressed or implied requirement for shifting of compensation liability that the employer’s hiring or retention of the handicapped employee be conditional or qualified. There is no requirement that the employer act with reservation when hiring or retaining the handicapped employee; there is no requirement that in deciding to hire or retain the handicapped employee the employer must have acted with a reservation in its mind.
By arguing in its brief that Sunflower s evidence was insufficient because it failed to demonstrate that Sunflower retained Denton in its employ with mental reservation, the Fund points to a supposed principle that some workers’ compensation practitioners have inferred from certain language in the text and syllabi of Ramirez v. Rockwell Int’l, 10 Kan. App. 2d 403, 701 P.2d 336 (1985); Hines v. Taco Tico, 9 Kan. App. 2d 633, 683 P.2d 1295 (1984); Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 621 P.2d 448 (1980); Oates o. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 594 P.2d 684 (1979), recent opinions of this court. Representative of the language of which we speak is this: “[An] impairment need not be demonstrably disabling as long as it gives rise to a reservation in the mind of an employer when deciding whether to hire or retain [an] employee.” (Emphasis added.) Carter, 5 Kan. App. 2d at 606.
It is a mistaken inference that we have announced the principle, or rule, that for an employer to be relieved of liability for payment of compensation as authorized by K.S.A. 44-567, it is necessary that the employer prove not only that when it hired or retained the employee it knew the employee was handicapped, but also that the employer had mental reservation when deciding to hire or retain the employee.
Johnson v. Kansas Neurological Institute, 240 Kan. 123, 727 P.2d 912 (1986), is the most recent Kansas appellate opinion of which we are aware where reference is made to the so-called mental reservation concept. It is the only Supreme Court opinion of which we are aware that refers to that concept. On its face and as indicated by the text of the Supreme Court’s syllabus, it is patent that that court’s chief concern was this court’s selection of the dispositive issue when the case was before us (see Johnson v. Kansas Neurological Institute, 11 Kan. App. 2d 161, 716 P.2d 598 [1986]). This is what the Supreme Court had to say about the mental reservation concept in its opinion:
“The Director ruled that there was not sufficient evidence to show that [KNI] had retained a handicapped worker. . . . [T]he district court . . . affirmed the Director’s decision. . . .
“. . . The Director found that . . . since Johnson’s preexisting disability was not demonstrably disabling, KNI had the burden of persuasion that it had a reservation when it retained the handicapped employee. [The Director found] no evidence of such reservation ....
“. . . KNI appealed the finding that it had not shown reservations about retaining the handicapped claimant. . . .
“[T]he Court of Appeals erred when it disregarded the ‘reservation’ issue ....
“KNI contends that the district court erred in holding that the Fund was not liable for any of the award, as KNI had failed to show a ‘reservation with respect to hiring or retaining the claimant.’
“. . . The record supports the finding that KNI had no reservation when it retained Johnson as an employee.
“Next, KNI argues that the court should overthrow the reservation concept .... This issue was not raised below and, therefore cannot be considered. [Citation omitted.].” 240 Kan. at 124-28.
The text of Johnson reveals that the “ ‘reservation’ issue” sought to be raised by the employer was whether “the district court erred in holding that the Fund was not liable for any of the award, as [the employer] had failed to show a ‘reservation with respect to hiring or retaining the claimant.’ ” Inasmuch as the Supreme Court determined that the employer’s appeal was from “the finding that [the employer] had not shown reservations about retaining the handicapped claimant,” the Supreme Court’s decision was only that “the record supports the finding that [the employer] had no reservation when it retained [the claimant] as an employee.” The Supreme Court did not decide whether it was essential to the employer’s claim for relief from liability for the claimant’s compensation that it prove that it retained the claimant with mental reservation. Further, the Supreme Court expressly declined consideration of an argument of the employer that the “reservation concept” should be overthrown. The Supreme Court resolved only one question: whether there was evidence to support the district court finding that the employer had no reservation in its mind when deciding to retain the claimant in its employ. The Supreme Court did not address itself to the propriety of the finding of the Director, adopted by the district court, that “[the employer] had the burden of persuasion that it had a reservation when it retained the [claimant].” Had it done so or had it considered the employer’s argument that the reservation concept should be overthrown, then, it would have been for the Supreme Court to determine whether there is a “reservation concept,” that is, whether in all cases, in no cases, or in some cases, for example, where the impairment is “not demonstrably disabling” (whatever that may be), it is essential to successful prosecution of a claim for shifting of compensation liability under K.S.A. 44-567 that the employer prove that in hiring or retaining the handicapped employee it acted with reservation. Our conclusion and holding, as we have expressed, is that in no case is it essential to compensation liability shifting that the employer had mental reservation when hiring or retaining the employee. Nothing said by the Supreme Court in Johnson is to the contrary.
The genesis of “reservation in the mind of the employer” opinion and syllabi language appears to be the director’s review order in Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337. In that case, a district court judgment shifting compensation liability was affirmed. Oates’ preexisting impairment was a congenital arteriovenous malformation previously manifested by a cerebral vascular accident. The Oates opinion gives no indication that either Oates or the employer had knowledge of the arteriovenous malformation; the opinion reveals only that by Oates’ employment physical examination report it was made known to the employer that Oates had recently suffered a cerebral vascular accident. In the opinion it is said that whether knowledge of a particular accident or injury is sufficient to serve as knowledge of a handicap causing impairment is a fact question to be decided on a case by case basis. 3 Kan. App. 2d at 339. Oates noted that “cerebral vascular accident” is listed in K.S.A. 44-566(b) as one of the specific diseases or conditions by reason of which a handicap causing impairment may be due. The dispositive substance of the Oates decision was that the employer’s knowledge that prior to his hiring the employee had suffered a cerebral vascular accident was sufficient knowledge to satisfy the requirement that the employer have knowledge of a preexisting handicap causing impairment.
In Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, the claimant had preexisting degenerative cervical disc disease. The essential question at issue on appeal was whether the employer’s pre-accident knowledge that the claimant was afflicted with a handicap causing impairment had been proved by evidence of the employer’s knowledge of past muscle spasms and past complaints of neck pain, numbness, blurry vision, and dizziness incidental to which the claimant had missed no work. The trial court’s finding that the employer failed to sustain its burden to prove that it had knowledge of an impairment of such nature as to constitute the claimant “handicapped” and its refusal to shift to the Fund liability for payment of the awarded compensation were affirmed.
Hines v. Taco Tico, 9 Kan. App. 2d 633, is a case in which the trial court’s finding that the employer hired the claimant knowing she was afflicted with a handicap causing impairment was reversed on appeal. Although Syl. ¶ 3 of Hines makes the statement that “[a]n impairment need not be demonstrably disabling as long as it gives rise to a reservation in the mind of an employer in deciding to hire or retain the employee,” that rule was of no materiality in the appellate disposition of the case. Instead, the appellate disposition of Hines is correctly described as follows: Where the employer knew of a prior accident and injury, but neither the employer nor the employee knew of the employee’s impairment existing when the employee was hired or retained, the Workers’ Compensation Fund could not be held liable. See 9 Kan. App. 2d 633, Syl. ¶ 4.
In Ramirez v. Rockwell Int’l, 10 Kan. App. 2d 403, the claimant was retained in the employer’s employ after having sustained an accidental fracture of his patella. Although nothing appears that reflects that either the claimant or the employer knew that after recuperation the patella remained unhealed and he therefore was afflicted with that particular physiological defect, it was held that the employer’s knowledge of handicap causing impairment was supported by evidence that the employer had knowledge of an orthopedic surgeon’s findings of permanent partial disability of the lower extremity and tenderness, discomfort, and pain from various activities as well as knowledge of complaints by the claimant of pain in his knee. The trial court’s shifting of compensation liability was affirmed.
Statements in judicial opinions or syllabi thereof always must be read and interpreted in light of the facts and questions involved in the case decided. Ellis v. Union Pacific R. R. Co., 231 Kan. 182, 185, 643 P.2d 158 (1982); McKinney, Administrator. v. Miller, 204 Kan. 436, 437, 464 P.2d 276 (1970); Wenzel Machinery Rental & Sales Co. v. Adkins, 189 Kan. 435, 438-39, 370 P.2d 141 (1962); Ives v. Kansas Turnpike Authority, 184 Kan. 134, 144, 334 P.2d 399 (1959); Steck v. City of Wichita, 182 Kan. 206, 209, 319 P.2d 852 (1958); State v. Six Slot Machines, 166 Kan. 361, 365, 201 P.2d 1039 (1949); Hartman v. Nordquist, 8 Kan. App. 2d 213, 214-15, 653 P.2d 1199 (1982). A statement appearing in an appellate court opinion or syllabus is dictum when the statement was not necessary to the appellate disposition of the case in which the statement appears. All reference or allusion to the so-called mental reservation concept appearing in our case law is dictum and of no materiality to our resolution of the case before us.
In accord with the foregoing, we conclude that the existence of “mental reservation” was not necessary to proof of Sunflower’s entitlement to the shifting to the Fund of liability for compensation owed to Denton. Thus, we need not decide whether “mental reservation” was proved.
As its second issue, the Fund complains that there was not substantial competent evidence to support the trial court’s shifting of all liability for the compensation owed Denton under the “but for” rule which is enunciated in K.S.A. 44-567(a)(A) as follows:
“Whenever a handicapped employee is injured . . . and . . . the injury . . . probably or most likely would not have occurred but for the preexisting physical . . . impairment of the handicapped employee, all compensation . . . shall be paid from the workers’ compensation fund.”
No sufficiently worthwhile purpose is to be served by our discussion of this issue in detail. It is enough to say that the relevant evidence appearing in the record on appeal is conflicting, and the trial court’s application of the “but for” rule is supported by the testimony of at least one of the testifying physicians. That is sufficient regardless of whether we might have held differently had we been the factfinder.
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Parks, J.:
Plaintiff, Douglas Keller, a former instructor at Coffeyville Community College, filed an appeal in district court from the action of the Board of Trustees (Board) of that institution upholding the administrative decision to terminate his teaching contract in mid-year. The district court upheld the Board’s decision and plaintiff appeals to this court.
Plaintiff was employed under a series of one-year teaching contracts from 1974 until his termination on March 20, 1984. On that date plaintiff received a letter from the president of Coffeyville Community College informing him that his teaching contract was terminated. The reason stated for the termination was that “you are incapable of performing your duties.” Plaintiff requested a due process hearing pursuant to his rights under K.S.A. 72-5438 and designated one member of the hearing committee. The Board designated a second member of the commit tee and these two members chose a third person to serve on the committee. The hearing committee convened, heard testimony, and issued its opinion concluding plaintiff was capable of performing his duties and was terminated unjustly. The committee’s opinion and recommendation that plaintiff be reinstated were submitted to the Board. The Board rejected the opinion of the hearing committee and voted to uphold the decision of the college administration to terminate plaintiffs employment. Plaintiff then appealed this action by the Board to district court.
The Due Process Procedure Act, K.S.A. 72-5436 et seq., describes the rights of a teacher whose contract is nonrenewed or terminated. Upon the request of the teacher, a hearing committee is established to hear evidence and determine whether the board in control of the institution has carried its burden of proving a justification for the termination or nonrenewal. K.S.A. 72-5442. The opinion of the hearing committee is then submitted to the board for final action. K.S.A. 72-5443. If the teacher is dissatisfied with the board’s final decision, he may appeal to the district court pursuant to K.S.A. 1986 Supp. 60-2101(d). The scope of review in the district court is the same as in any administrative appeal and the same scope of review applies in the appellate court. This three-prong standard is oft-stated as follows:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously and whether the order is supported by substantial evidence and within the scope of the tribunal’s authority.” Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, Syl. ¶ 1, 648 P.2d 225 (1982).
In this appeal, plaintiff raises issues bearing on both the sufficiency of the evidence and the authority of the Board. A challenge to the lawfulness of an action raises the issue of whether the action taken was within the authority of the agency. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. 149, 151, 652 P.2d 717 (1982).
During the pendency of the proceeding, K.S.A. 72-5443 (Ensley 1980) was amended to alter the effect of a unanimous hearing committee report. Under the law in effect when the committee was convened, the Board was free to accept or reject the com mittee’s opinion regardless of whether it was unanimous. However, on July 1, 1984, after the committee’s opinion was written but before it was considered by the Board, 72-5443 was amended in the following manner:
“(b) If the members of the hearing committee are unanimous in their opinion, the board shall adopt the opinion as its decision in the matter and such decision shall he final, subject to appeal to the district court as provided in K.S.A. 60-2101, and amendments thereto.” L. 1984, ch. 267, § 2.
The district court held the opinion of the hearing committee was unanimous and this holding has not been appealed. However, the court also concluded the Board was not bound by the amendment to 72-5443 and could render a final decision at odds with the hearing committee’s opinion. The court rejected plaintiff s argument that the amendment should apply retroactively, concluding the change in the law was a substantive change in the Board’s rights.
When the plaintiff was advised that the Board was terminating his contract on March 20, his right to a due process hearing accrued. Ordinarily, when a right accrues or proceeding is commenced under a statute which is subsequently repealed, the right is unaffected by the repeal. K.S.A. 1986 Supp. 77-201 First. Thus, plaintiff s due process rights should be controlled by the law in effect when his rights accrued unless the statute which repealed and amended that law may be construed to operate retroactively. The rules regarding retroactivity of a statute are summarized as follows:
“A statute operates prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively. Davis v. Hughes, 229 Kan. 91, 622 P.2d 641 (1981). This rule is normally applied when an amendment to an existing statute or a new statute is enacted which creates a new liability not existing before under the law or which changes the substantive rights of the parties. Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979).
“While generally statutes will not be construed to give them retrospective application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a savings clause as to existing litigation. Davis v. Hughes, 229 Kan. at 101; Lakeview Village, Inc. v. Board of Johnson County Comm’rs, 232 Kan. 711, 659 P.2d 187 (1983).” Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324-25, 709 P.2d 983 (1985).
The legislature did not state that the amendment to 72-5443 was to operate retroactively. Therefore, unless the changes effected by the amendment merely affect the remedy or law of procedure to be applied, this case is controlled by the old version of the statute. Thus, to determine retroactivity we must evaluate the nature of the changes made by the amendment.
The amendment to 72-5443 enacted by the legislature in 1984 reflects a recognition of the difficulty of the task of the school board in judging its own decision by taking away that task when the disinterested factfinding body has reached a unanimous opinion. The district court held this change was substantive because the board’s right to make the final decision is withdrawn in certain circumstances. However, the right sought to be protected under this act is the right of the teacher to due process. It is the absolute right of a school or community college board to terminate any teacher so long as it acts for good cause and the good faith basis for its decision is not arbitrary, irrational, unreasonable, or irrelevant to the board’s task of operating an efficient school system. Haddock v. U.S.D. No. 462, 233 Kan. 66, 69, 661 P.2d 368 (1983). This right is not altered or abridged by the amendment to 72-5443. The board’s right to terminate is completely preserved — only the remedy or procedure afforded to the terminated teacher to test the good faith and good cause behind that decision is altered.
The contention the board has a substantive right to make the final decision whether the teacher was terminated for good cause ignores the fact that the role of the board when it rejects or accepts the recommendation of the hearing committee is quasi-judicial, not adversarial. The board must abandon its role as prosecutor and strive for a high standard of detached objectivity when assuming this role. Haddock, 233 Kan. at 78. Thus, it should have no more interest in making the final decision on the issue than a court has in hearing a case.
In Olathe Community Hospital v. Kansas Corporation Comm’n, 232 Kan. 161, 652 P.2d 726 (1982), the Olathe Community Hospital filed an action in mandamus to resolve a disagreement with the KCC concerning the applicable appeal procedure for a decision by the Kansas Department of Health and Environment (KDHE). At the time the KDHE order was issued, the operative statutes indicated that the KCC was the proper forum for an appeal. However, within the time for an appeal to be filed, an amendment of the appeal procedure went into effect which shifted the site of a proper appeal to the district court. Appeals were filed in both forums and the mandamus action was filed to determine which appellate forum had jurisdiction, the KCC or the district court.
Our Supreme Court cited the rule that when a change of law merely affects the remedy or law of procedure, all rights of action will ordinarily be enforceable under the new procedure. The Court then concluded that the change in the venue of the appeal effected by the new statute was merely a change in procedure which should control the pending proceeding. The Court reasoned that administrative proceedings and appeals from those proceedings are governed by statute and are not afforded as a matter of right. Since the hospitals involved in the administrative proceedings had no right to appeal to one forum or another, the Court concluded the change in the identity of the body to hear the appeal was merely procedural and did not affect any substantive rights. Olathe Community Hospital, 232 Kan. at 166-67.
Unlike the hospitals in Olathe Community Hospital, a teacher has a constitutional right to a due process hearing to review the administrative decision of the board to terminate his contract. However, the teacher has no substantive right to a particular procedure so long as due process is satisfied. See Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 61, 652 P.2d 205 (1982). Thus, a change in the statute specifying a certain procedure to be followed in order to administer the right to due process is merely a procedural change insofar as the plaintiff is concerned. Furthermore, the board has no substantive right to be the body to review the decision to terminate any more than the KCC had a right to hear the appeal of the KDHE decision. The Court, in Olathe Community Hospital, did not specifically state that the KCC had no right to hear the appeal but, since it ruled the new statute was procedural and retroactive, it had to have concluded as much. The change effected in 72-5443 is closely analogous to that made in the appeal procedure considered in Olathe Community Hospital and, like the KCC in that case, neither the plaintiff, the Board, nor any other party has a vested right which would be affected by application of the new statutory procedure.
Since the district court ruled that the opinion of the hearing committee was unanimous, under the amended version of 72-5443, its decision would be final. We conclude that the amended provision should have applied to the pending proceedings in plaintiff s case and, consequently, the court erred in upholding a decision by the Board which departed from the unanimous findings of the hearing committee. The conclusion we have reached makes it unnecessary for us to consider the other alleged errors.
Judgment is reversed and the case is remanded with instructions to enter judgment for the plaintiff, Douglas Keller. | [
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Davis, J.:
John Wessling appeals the dismissal of his motion to reduce support payments to his former spouse, Nancy Wessling. Nancy Wessling cross-appeals the denial of her motion for attorney fees.
John and Nancy Wessling were married on June 8, 1974, and have two children. Difficulties arose, and the couple entered into a property settlement agreement, which was incorporated into a divorce decree on January 11, 1984. The agreement provides that John Wessling’s support obligations shall be reduced upon Nancy Wessling’s “continuous or continual cohabitation with an unrelated male.” The agreement does not define “cohabitation.”
In March 1985, Nancy Wessling began a relationship with an “unrelated male.” Based upon information obtained through a private investigator, John Wessling filed a motion to modify support payments. At the hearing on the motion, he called Nancy Wessling as his only witness. Nancy Wessling admitted that she was involved in a sexual relationship with an unrelated male and that she had spent the night with him on a number of occasions. She testified, however, that she and the man had an understanding that they were free to date other people, that they never had held themselves out as husband and wife, and that they had no plans to marry. She further testified that, although she and the man had done household chores and other favors for each other, they had maintained separate residences, had not owned joint savings or bank accounts or other joint property, and had not purchased groceries together or shared mortgage or credit card payments.
The trial court granted Nancy Wessling’s motion to dismiss, finding the evidence insufficient to establish cohabitation, which the court defined as “a full sharing of bed, board, household duties and tasks with a common goal of living together and sharing income and expenses.” The court denied Nancy Wessling’s motion for attorney fees.
On appeal, John Wessling contends that the trial court misinterpreted the language, “continuous or continual cohabitation,” in the property settlement agreement.
A property settlement agreement incorporated into a divorce decree is “a hybrid in the law having the characteristics of a judgment and retaining the contractual rights of the parties.” In re Estate of Sweeney, 210 Kan. 216, 224, 500 P.2d 56 (1972). “[T]he confirmation of the agreement and its merger into the decree does not abolish the contractual aspects of the agreement, but leaves the court in the position to construe the provisions of the agreement consistent with the facts and circumstances and the expressed intentions of the parties.” 210 Kan. at 224. A written instrument may be construed and its legal effect determined by the appellate court. Cornwell v. Jespersen, 238 Kan. 110, 116, 708 P.2d 515 (1985). “The primary rule of construction of a settlement agreement in connection with a divorce action is that, if possible, the court must, as in other contract cases, ascertain and give effect to the mutual intention of the parties at the time the contract was made.” Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 (1976). The intent of the parties to a separation agreement must be determined from the agreement alone if the terms are unambiguous. Dodd v. Dodd, 210 Kan. 50, 55, 499 P.2d 518 (1972).
John Wessling argues that the trial court’s definition of “cohabitation” ignores the realities of modern married life, in which “it is no longer uncommon for a married man and woman to live in different cities pursuing separate careers, maintaining separate households, separate finances, separate social lives, and living with each other on weekends or for extended vacations.” He contends that “[i]n a contemporary context,” cohabitation is “an exclusive sexual relationship with integration of . . . economic and social lives to the extent possible under the circumstances,” not a “de facto” marriage.
John Wessling further argues that “[t]he phrase ‘continuous or continual’ was used to eliminate a duration or permanency requirement from the concept of cohabitation.” He places great emphasis upon the distinction between “continual” and “continuous.” He argues that “[c]ontinuous cohabitation indeed implies an uninterrupted enduring relationship; continual cohabitation, on the other hand, implies successive recurrences of cohabitation which are very close together.” Thus, he concludes that “repeated short term instances of cohabitation or one continuous instance would be sufficient to result in reduction of [his] support obligation.”
Nancy Wessling argues that “cohabitation” means to live together as husband and wife and that the use of “continuous or continual” implies “more of a permanency of relationship than is already implied in the term cohabitation.”
We need not resolve the parties’ debate over the meaning of “continuous or continual.” The reduction clause requires “continuous or continual cohabitation.” (Emphasis supplied.) Even if John Wessling is correct that “repeated short term instances of cohabitation” trigger the reduction clause, he still must prove that Nancy Wessling cohabited with an unrelated male.
“Cohabitation” has an unambiguous, accepted legal meaning. In Biltgen v. Biltgen, 121 Kan. 716, 250 Pac. 265 (1926), the court rejected the husband’s contention that his wife had condoned his extreme cruelty by cohabiting with him. The court adopted the following definition of “cohabitation”:
“ ‘The act or state of dwelling together, or in the same place with another; living together as husband and wife; a living together as man and wife. A condition or status of the parties, a status resembling that of the marital relation. Cohabitation is not a sojourn, nor a habit of visiting, nor even a remaining with for a time; the term implies continuity.’ ” 121 Kan. at 721 (quoting 11 C.J. 952).
Other jurisdictions that have considered the meaning of “cohabitation” have arrived at similar definitions. In Edwards and Edwards, 73 Or. App. 272, 698 P.2d 542 (1985), the court concluded that “ ‘cohabitation’ has a sufficiently precise legal meaning; it refers to a domestic arrangement between a man and a woman who are not married to each other, but who live as husband and wife, in that, for more than a brief period of time, they share a common domicile and living expenses and are sexually intimate.” 73 Or. App. at 278. In Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986), the court considered the meaning of “cohabitation” in a statute providing for termination of alimony upon the petitioner’s cohabitation with an unrelated member of the opposite sex. The court noted that “ ‘ [cohabitation, although not defined statutorily, is defined by Webster’s New Collegiate Dictionary as ‘living together as husband and wife.’ Similarly, Ballentine’s Law Dictionary defines cohabita tion as ‘[a] dwelling together of man and woman in the same place in the manner of husband and wife.’ ” See Haddow v. Haddow, 707 P.2d 669 (Utah 1985); Taylor v. Taylor, 11 Ohio App. 3d 279, 465 N.E.2d 476 (1983); Quisenberry v. Quisenberry, 449 A.2d 274 (Del. Fam. Ct. 1982).
Perhaps the best definition of “cohabitation” is found in Black’s Law Dictionary:
“To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.” Black’s Law Dictionary 236 (5th ed. 1979).
Marriage is the standard by which the trial court must judge whether a couple has cohabited. Contrary to the declaration of the trial court, cohabitation does not necessarily require “a full sharing of bed, board, household duties and tasks.” (Emphasis supplied.) The circumstances of the relationship, including the realities of modern married life, may be considered by the trial court in determining whether the evidence establishes cohabitation.
Examined in light of the unambiguous, accepted legal meaning of cohabitation, the evidence supports the trial court’s finding that Nancy Wessling did not cohabit with an unrelated male. Nancy Wessling and the man have not held themselves out as husband and wife, and they have no plans to marry. They have never maintained a home together and have kept separate residences. They have not shared living expenses. They have not jointly owned any property. In short, they have never “live[d] together as husband and wife.” Biltgen v. Biltgen, 121 Kan. at 721.
In her cross-appeal, Nancy Wessling contends that the trial court abused its discretion by denying her motion for an award of attorney fees. K.S.A. 1986 Supp. 60-1610(b)(4) gives the trial court broad discretion to award attorney fees. The decision of the trial court will be overturned only upon a showing of abuse of diseretion. Neis v. Neis, 3 Kan. App. 2d 589, 594, 599 P.2d 305, rev. denied 226 Kan. 792 (1979). “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
Nancy Wessling’s sole contention is that the trial judge purportedly stated that her attorney fees were her “costs of having a slumber party.” This statement does not appear in the record, nor is there anything else in the record that suggests an abuse of discretion.
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Buchele, J.:
The defendant, Charles McQueen, appeals the sentence imposed following his plea of guilty to charges of sale of cocaine, K.S.A. 65-4127a, and possession of marijuana with intent to sell, K.S.A. 1986 Supp. 65-4127b(b)(3). It should be noted that the information and journal entry in the record reference the offense of sale of cocaine as a violation of K.S.A. 65-4127b, not 65-4127a. Defendant has not raised the issue on appeal and does not contend he was unaware of the crime with which he was charged. Error in citation is not ground for dismissal of a charge or reversal of a conviction if the error did not prejudice the defendant. K.S.A. 1986 Supp. 22-3201(2). We find no error in charging the defendant or his conviction under 65-4127a.
-Defendant entered into a plea agreement with the State in which he agreed to plead guilty to the two offenses and, in exchange, the State agreed to dismiss four other counts which it had filed against defendant. The plea agreement stated the following regarding sentencing:
“5. At the time of sentencing, the State agrees to make no specific recommendation with regard to sentencing, and specifically agrees not to seek consecutive sentences or enhancement of the penalties herein for any reason or [to make] any recommendation in excess of the minimum sentence authorized by law.”
At sentencing, the State made the following comment:
“I know Mr. McQueen works hard because I’ve witnessed it, but what I don’t understand is why they come into the court now and say, ‘Judge, Mr. McQueen works so hard and he has — he’s worked all these hours,’ and yet Mr. McQueen is involved in a continuing series of acts that lead him to the Court here today.”
Defendant contends the reference to “a continuing series of acts” is a direct reference to the charges which were dismissed as a result of the plea agreement, and the reference violates the State’s agreement not to seek enhancement of defendant’s sentence.
We find defendant’s argument is without merit. The State’s comment was ambiguous, at best. The two counts to which defendant pled involved a cocaine sale on April 4, 1985, and a marijuana sale on April 12, 1985. These incidents alone constitute “a continuing series of acts.” There is no indication that the State was referring to the dismissed charges, and there is no indication that the trial court considered the dismissed charges in sentencing. The trial court noted the criteria for fixing minimum sentences found in K.S.A. 21-4606. In considering defendant’s prior criminal activity, the court noted defendant’s previous convictions but did not mention the dismissed charges.
Defendant appears to confuse the trial court’s imposition of more than the minimum sentence with enhancement of sentence. The State did not seek enhancement of defendant’s sentence under 65-4127b or under the habitual criminal act, K.S.A. 1986 Supp. 21-4504. The State made no specific sentencing recommendation. The prosecutor did state that he could not, in good conscience, ask the court to impose probation. The State did not seek any of the sentencing alternatives set out in the plea agreement, e.g., consecutive sentences, sentence enhancement, or a sentence in excess of the minimum authorized. The plea agreement did not prohibit the State from opposing probation.
The trial court correctly noted that the judge, and not the parties to a plea agreement, sets the sentence. “The trial judge, of course, is not bound by a plea agreement; he or she is charged with the responsibility of reaching an independent decision on whether to approve the charge or sentence concessions.” State v. Compton, 233 Kan. 690, 698, 664 P.2d 1370 (1983). Defendant has failed to show that the State’s comment was contrary to the plea agreement or that it influenced the court, causing him prejudice.
The defendant next contends that K.S.A. 21-4606 prohibits the sentencing court from considering criminal activity not resulting in a conviction. As stated above, we find no indication in the record that the trial court considered the dismissed charges in imposing sentence.
In any event, it would not have been improper if the court had considered the dismissed charges in sentencing. K.S.A. 21-4606 allows the trial court to consider “the history, character and condition of the defendant,” “[t]he defendant’s history of prior criminal activity,” and “the defendant’s criminal conduct.” The terms used in the statute imply a broader range of appropriate considerations for the court than does the term “conviction.” The language of the statute is in marked contrast to sentence enhancement under 65-4127b and under the habitual criminal act, 21-4504, both of which require the trial court to make a finding from competent evidence that defendant has been previously convicted. See State v. Myers, 10 Kan. App. 2d 266, 274-75, 697 P.2d 879 (1985).
Consideration of criminal activity not resulting in a conviction is permitted under federal law. 18 U.S.C. § 3577 (1982) states:
“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”
This section “was enacted to permit the sentencing court to rely on information of alleged criminal activity for which the defendant had not been prosecuted. [Citation omitted.]” United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984). Federal law is consistent with Kansas law, which allows sentencing provisions to be “liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies.” K.S.A. 1986 Supp. 21-4601. The trial court did not consider improper factors in sentencing.
Affirmed. | [
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Regan, J.:
On September 25, 1974, the defendant, Philip D. Anderson, entered a plea of guilty and was convicted of one count of violating K.S.A. 21-3511, aggravated indecent solicita tion of a child. Defendant was released from probation on March 17, 1977.
Defendant appeals from the district court’s denial of his application for expungement. K.S.A. 1986 Supp. 21-4619. The sole issue on appeal is whether the district court’s application of 21-4619(c)(6) to the facts of this case violates the ex post facto clause of the United States Constitution.
Defendant’s contention was not directly presented to the trial court. It is well settled that issues not presented to the trial court will not be considered for the first time on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 (1984). However, if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court. State v. Baker, 11 Kan. App. 2d 4, 9, 711 P.2d 759 (1985) (citing Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 [1967]). This court will address the issue as we determine consideration of the issue necessary to prevent a denial of fundamental rights.
The expungement statute in effect at the time of defendant’s conviction, K.S.A. 21-4617(a)(Weeks), provided:
“Every offender who was twenty-one (21) years of age or older at the time of the commission of the crime for which he was committed and who has . . . fulfilled the conditions of his probation . . . may petition the court five (5) years after the . . . fulfilling of such conditions of probation . . . and may request that his record be expunged of such conviction if during such five (5) year period such person has exhibited good moral character and has not been convicted of a felony.
On July 1, 1986, K.S.A. 1986 Supp. 21-4619(c) went into effect, providing:
“There shall be no expungement of convictions for the following offenses: ... (6) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto.”
At the time he committed the offense and at the time he was convicted, defendant was eligible to apply for expungement after five years. However, subsequent amendments to the expungement statute have eliminated that opportunity.
Article 1, Section 9, of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” In addition, Article 1, Section 10, provides: “No State shall . . . pass any ... ex post facto Law.” In Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981), the court stated that, the ex post facto prohibition “forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” For a criminal or penal law to be ex post facto, two elements must be present: the law “must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29; Stokes v. Orr, 628 F. Supp. 1085, 1086 (D. Kan. 1985).
Here, the district court applied K.S.A. 1986 Supp. 21-4619(c)(6) to “events occurring before its enactment” (the 1974 conviction). By applying the statute to the 1974 conviction, the district court’s action clearly meets the first element of an ex post facto law.
As to the second element, defendant contends the district court’s application of the 1986 statute “disadvantaged” him in that it imposed additional punishment to that originally prescribed. The issue as to the second element then becomes whether elimination of the expungement remedy is a “punishment” within the meaning of the ex post facto clause. The Supreme Court noted in Weaver, 450 U.S. at 32 n.17: “The critical question ... is whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence.” In other words, the additional punishment prescribed by the ex post facto clause need not be in the form of a prolonged sentence; rather, the clause applies generically to all “punishments.”
Our Supreme Court has recognized that expungement is in fact an integral part of the sentencing process. Stephens v. Van Arsdale, 227 Kan. 676, 689, 608 P.2d 972 (1980); State v. Miller, 214 Kan. 538, 545, 520 P.2d 1248 (1974). In Miller, our Supreme Court recognized the significance of societal sanctions and suggested that merely having a criminal record is in fact punishment:
“Over the past 50 years American correctional law, turning away from the vengeance concept, has focused increasingly on the rehabilitation of the individual offender and the development of means and practices appropriate to that end. It has become common knowledge today that a criminal record is a serious handicap which works against the rehabilitation of the ex-offender. The consequences of a criminal conviction include not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society. Although the criminal offender has paid his debt imposed by law, society stigmatizes him with the ex-convict label.” 214 Kan. at 542.
We conclude that denying defendant the opportunity to expunge his criminal record constitutes a punishment and denying him the opportunity to remove his criminal record disadvantages him; applying K.S.A. 1986 Supp. 21-4619(c)(6) to defendant’s 1974 conviction to retroactively eliminate the opportunity to remove defendant’s criminal record violates the ex post facto clause of the United States Constitution. Accordingly, we reverse and remand for consideration of defendant’s motion based upon the law in effect at the time the defendant committed the offense of which he was convicted.
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Six, J.:
Defendant-appellant Board of County Commissioners of Butler County, Kansas, (County) appeals from the district court’s ruling granting judgment for plaintiff-appellee Susan B. Allen Memorial Hospital (Hospital). The Hospital was awarded $1,199.40 plus interest and costs for the medical bill of Robert L. Welch. Welch was taken to the hospital for medical treatment while in the purported protective custody of the Butler County Sheriff s Office. The trial court ruled that the County was responsible for Welch’s medical expenses and entered judgment for the Hospital.
We find no error and affirm.
The facts of this case, stipulated to by the parties, are as follows.
On the evening of February 28, 1985, officers of the Butler County Sheriff s Office responded to a call and found Robert L. Welch at the Stardust Motel in El Dorado, Kansas, passed out from intoxication. Welch had not paid his motel bill for a couple of days, so the officers, not knowing what to do with him, took him to the county jail.
During the night, Welch suffered an apparent seizure. The jailer at the sheriff s office summoned an ambulance which took Welch to the Hospital, where he was admitted at 7:43 a.m. on March 1, 1985. A Butler County Deputy Sheriff accompanied Welch in the ambulance.
The services rendered by the Hospital for Welch were reasonable and necessary, and the charges for those services totaled $1,199.40. Welch left the Hospital after he recovered, but did not return to the county jail. The Hospital has been unable to collect for those services it provided for Welch, who is indigent.
Welch was never charged with any crime and was free to leave the jail if he so desired. There is no evidence that the condition for which Welch was treated was brought about by virtue of his “arrest or custody.” Although the phrase “arrest or custody” was in the stipulation, Welch was never arrested.
The County stipulated that it is the Butler County Sheriffs Office’s common practice to accept homeless transients and provide them with food and temporary shelter. The Hospital stipulated that indigent patients are normally seen and treated by the hospital regardless of the patients’ financial means and regardless of whether they were in the custody of a law enforcement agency.
The trial court ruled that the County was responsible for Welch’s medical expenses and entered judgment for the Hospital.
The question for our review is whether under the facts of this case Welch was within the custody of the County to the extent necessary to obligate the County to provide and pay for medical treatment.
The law in Kansas is clear that “a sheriff has a duty to furnish medical attention to a prisoner in his custody who is in need thereof, at the county’s expense if the prisoner is indigent and no other source of funds is available.” Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 378, 566 P.2d 384 (1977); K.S.A. 1987 Supp. 19-4444. The County asserts that Welch was free to leave the jail whenever he wanted. Under the County’s analysis, Welch was not sufficiently “in custody” to impose the burden of paying his medical bills because he was not actually a “prisoner.”
K.S.A. 1987 Supp. 22-2202(9) defines custody as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.” K.S.A. 1987 Supp. 22-2202(4) defines arrest as “the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. The giving of a notice to appear is not an arrest.”
However, the statutory definition of custody is not necessarily controlling. K.S.A. 22-2201(1). Another definition of custody is provided in State v. Louis, 240 Kan. 175, 727 P.2d 483 (1986):
“ ‘A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by "some law enforcement agency.’ ” 240 Kan. at 181 (quoting State v. Bohanan, 220 Kan. 121, Syl. ¶ 2, 551 P.2d 828 [1976]).
We conclude that this broader definition of custody is more appropriate under the facts and circumstances of this case and should be applied here. See Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 732-33, 634 P.2d 163 (1981).
The Hospital argues that it is clear that Welch was in the custody of the County. Although it is true that the Hospital would have treated Welch if he had somehow managed to arrive on his own, Welch did spend the night in the jail. He was accompanied by a deputy sheriff during the ambulance ride to the Hospital. The Hospital argues that Welch was surrounded by the same prison bars as anyone charged to the sheriff s custody.
On the other hand, the County contends that prison bars are not unlike the walls of any mission or shelter that Welch would have been taken to if such a facility were available. The County argues that the fact that Welch was surrounded by prison bars rather than other inebriates, as he would have been if placed in a shelter or mission, is not determinative of its liability to the Hospital.
We conclude that the trial court did not err in accepting the Hospital’s analysis. The trial court noted that it was somewhat untenable for the County to argue that Welch could be placed in “protective custody,” and then suddenly, when something goes wrong and the County is going to have to pay for more than room and board, say, “[H]e’s his own boss and can go whenever he wants.” Nothing in the record indicates that Welch was formally released from the protective custody of the sheriff s office. The trial court also found that Welch was not free to leave “whenever” he wanted. Welch would only be released when the jailer was ready to let him go or when the jailer was not busy doing something else.
The County emphasizes the fact that Welch was not charged with a crime; consequently, the County argues Welch was not a “prisoner” in custody.
In Wesley Med. Center v. City of Wichita, 237 Kan. 807, 703 P.2d 818 (1985), the Supreme Court resolved a controversy between a county and a city as to which entity has the obligation to pay the medical expenses of a person arrested by the city’s police for violation of a state law but who was taken to the hospital before being delivered to county officers. The Court determined that a number of Kansas statutes indicate a legislative policy that the liability for the care of a prisoner, including medical expenses, should be the responsibility of the governmental entity whose criminal statute was the basis for the arrest. Wesley, 237 Kan. at 814. The County was charged with the responsibility for payment of the medical expenses.
The County contends that the failure to charge Welch with a crime indicates that he is not a “prisoner” and, therefore, the County’s custodial care of Welch did not rise to the level necessary to impose liability for his medical expenses as directed by Wesley. It is misleading to rely on the holding of Wesley in the resolution of this matter. In Wesley, the Supreme Court was faced with the question of which governmental entity should bear the medical expenses of a prisoner. In the case at hand, the liability for medical expenses is between a governmental entity and a private hospital. Wesley is not dispositive in this case.
The County claims that the case at hand is also dissimilar from the facts of Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731. In the Dodge City Med. Center case, the plaintiff doctors were able to recover medical expenses from Gray County for services performed on an individual shot by police while he was committing a felony. This court stated: “Had he not been injured there is no question but that pursuant to duty the sheriff would have taken him to jail and not to the hospital.” Dodge City Med. Center, 6 Kan. App. 2d at 732. The County claims that the sheriff had no duty to incarcerate Welch or take him into custody and absent that duty it is exonerated from liability.
We disagree with the County’s analysis.
Under the Alcoholism and Intoxication Treatment Act, K.S.A. 65-4001 et seq., a law enforcement officer “may” take an individual into custody without a warrant if the officer has a reasonable belief that the individual is intoxicated or incapacitated by alcohol and is likely to be physically injured or to physically injure others. K.S.A. 65-4027(A). Once a law enforcement officer takes an intoxicated individual into custody, the officer “shall” transport such individual to a treatment facility for examination by a physician or psychologist. If a treatment facility is not available, the law enforcement officer may detain such individual in any other suitable place until the close of the first day the district court is open for the transaction of business. K.S.A. 65-4027(A); K.S.A. 65-4027(B). K.S.A. 65-4027(C) states:
“A taking into protective custody pursuant to this section is not to be construed as an arrest and no entry or other record shall be made to indicate the individual has been arrested or charged with a criminal offense.” (Emphasis added.)
Welch was an individual “incapacitated by alcohol” (K.S.A. 1987 Supp. 65-4003[8]) and taken into protective custody by a “law enforcement officer.” K.S.A. 1987 Supp. 65-4003(23).
Although the County now contends that the officers were going to allow Welch to “sleep it off’ and release him the next morning, once Welch had been taken into custody as authorized by the Act, the officers had a statutory duty to take Welch to a treatment facility or other suitable place. The sheriff s office did not file a formal application with the district court as provided for by K.S.A. 65-4028. See K.S.A. 65-4027(B). However, this may have been due to the fact that Welch became sick before the court’s next business day. In any event, the intention of the officers is irrelevant to the resolution of this matter. The Act commands that law enforcement officers “shall” take an intoxicated individual, such as Welch, to a treatment facility or other suitable place once he is taken into custody.
Once the Butler County Sheriff Officers had taken Welch into “protective custody,” they had a statutory duty to take him to a treatment facility or other suitable place. Once a county law enforcement officer places an indigent, intoxicated person in protective custody and transports that person to the county jail because an alcohol treatment facility is not available, the intoxicated person is “in custody” and the county is liable for any medical expenses that person may incur while “in custody.” We hold that the trial court did not err in concluding that Welch was “in custody” and the County was liable to the Hospital for the payment of the charges incurred for services to Welch.
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Davis, J.:
The plaintiff, Jeff Bannon, appeals from an order of the Shawnee County District Court affirming an order of the defendant, Kansas Real Estate Commission (Commission), revoking Bannon’s Kansas real estate broker’s license.
Jeff Bannon, who was a licensed Kansas real estate broker, operated Jeff Bannon Auction and Realty, Inc. Bannon specialized in the sale of farms, ranches, and suburban real estate. He employed through his company two licensed real estate salespersons, Jeff Lange and Tim Moore. The circumstances giving rise to the formal charges before the Commission involve two separate sales referred to by the parties and in this opinion as the “Hattan” and “Coulter” transactions. Essential facts concerning both of these transactions are set forth below.
HATTAN TRANSACTION:
Bannon was contacted by Garland Moore Hattan concerning the sale of an 80-acre farm in Sedgwick County. On December 20, 1982, Jeff Lange obtained a listing agreement requiring Jeff Bannon Auction and Realty to use due diligence to find a buyer on terms and conditions acceptable to the seller and for not less than $100,000. No commission was to be charged to the seller.
Lange obtained two offers, one from Otis Melcher in an amount of $120,000, and another from Lawrence Girrens in an amount of $128,000. At about the same time, Bannon indicated he had an offer of $100,000 through his attorney and friend, John Callahan. Without disclosing the purchaser, this offer was taken to Hattan. Hattan was not informed of the outstanding offers for more than $100,000, although it was clear that Lange had informed Bannon of both the Melcher and Girrens offers. Lange did inform Hattan that the $100,000 offer was a conduit or “clearinghouse” for the ultimate purchaser. Hattan accepted the $100,000 offer and sold the property to Aero Capitol Investment, Inc., a company effectively controlled by Bannon. Within a few days, Aero Capitol Investment, Inc., sold the farm to Lawrence Girrens for $128,800. Bannon and his salesman, Lange, divided the profits equally.
COULTER TRANSACTION:
Ruby Coulter owned 834 acres of land in Greenwood County. In September 1982, Tim Moore contacted Mrs. Coulter. Bannon and Moore executed a listing agreement with Mrs. Coulter on October 6, 1982. Pursuant to this agreement, her property was listed for sale at $305,450. Mrs. Coulter informed Bannon she had attempted to sell the property to Glen Rupe, but was unable to consummate a sale.
After obtaining the listing contract, Bannon contacted Glen Rupe and became satisfied that Rupe would buy the property for $350,000. The initial conversation between Bannon and Rupe included some terms of payment. This information was not relayed to Mrs. Coulter.
Instead, Bannon presented to Mrs. Coulter an offer from Aero Capitol Investments, Inc., to purchase the property for $300,000. She accepted this offer on November 21, 1982. Two days later, Aero Capital Investments, Inc., contracted to sell the same property to Rupe for $350,000.
On January 24, 1983, Bannon persuaded Mrs. Coulter to sign another contract from Aero Capital Investments, Inc., for the sum of $270,000. The $30,000 difference represented the amount Mrs. Coulter paid to her tenant as a buyout of his lease agreement.
On April 18, 1983, the sale between Mrs. Coulter and Aero Capitol Investments, Inc., closed. Mrs. Coulter received $242,177.91; it is not clear what the additional $27,822.09 de duction represented. Bannon then had Aero Capitol Investments, Inc., close the sale to Rupe for $350,000.
A complaint-notice of hearing was issued by the Commission to Bannon May 1, 1984. The provisions of the licensing law and regulations at issue in the hearing were as follows:
K.S.A. 58-3062(a)(18): “No licensee shall: . . . Engage in fraud or make any substantial misrepresentation.”
K.S.A. 58-3062(a)(6): “No licensee shall: . . . Act in a dual capacity of agent and undisclosed principal in any transaction.”
K.S.A. 58-3061: “(a) Each broker shall maintain, in the broker’s name or the broker’s firm name, a separate trust account in this state designated as such, in which all down payments, [and] earnest money deposits . . . received in a real estate transaction by the broker ... or salespersons on behalf of a principal or any other person shall be deposited or invested unless all parties having an interest in the funds have agreed otherwise in writing.”
K.A.R. 1982 Supp. 86-3-15: “(a) Each licensee shall, within ten days, report in writing to the commission the following information:
“(1) Litigation involving the sale of real estate ... in which the licensee or the licensee’s real estate company is named as a plaintiff or defendant. The report shall include the nature of the allegations, or the licensee shall furnish a copy of the petition.
“(2) Disposition of litigation reported pursuant to this regulation.”
K.A.R. 1982 Supp. 86-3-9: This regulation sets out the duty to recommend that the parties retain an attorney to pass upon legal questions involved in the transaction.
After a full evidentiary hearing, the Commission made the following conclusions of fact and law:
“Sedgwick Property [Hattan Transaction]
“The Commission concludes that the evidence is clear and convincing that Jeff Bannon initiated and perpetrated a fraud upon Garland Moore Hattan, executor of the estate of Bertha M. Rudin, R. K. Moore, in the following respects:
“(a) Bannon was the agent of the seller Hattan and also the undisclosed principal of the Hattan/Aero transaction.
“(b) The offer from Callahan/Property Investment was not a legitimate offer but a deceit.
“(c) Bannon had a duty to disclose to Hattan both the Melcher offer and the Girrens offer as these were legitimate offers.
“(d) Failure to do so constitutes a breach of duty to seller Hattan, self-dealing at the expense of Hattan, and a fraud perpetrated upon him. This is a violation of K.S.A. 58-3062(a)(18).
“(e) Failure to disclose to Hattan that he was the principal in the transaction was a violation of K.S.A. 58-3062(a)(6).
“(f) The Commission concludes that Jeff Bannon failed to comply with the requirements of K.S.A. 58-3061 by depositing the Girrens’ down payment in Callahan’s trust account.
“(g) The evidence is clear and undisputed that Jeff Bannon violated Commission Rule 86-3-15.
“Greenwood Property [Coulter Transaction]
“The Commission concludes as follows:
“(a) Jeff Bannon acted in the dual capacity of agent and undisclosed principal in the transaction between Ruby Coulter and Aero Capitol Investment, Co., Inc. in violation of K.S.A. 58-3062(a)(6).
“(b) Jeff Bannon by engaging in self-dealing, perpetrated a fraud upon Mrs. Coulter by failing to inform her of Glen Rupe’s willingness to purchase her property for $350,000.00, representing by implication that $300,000.00 was the best offer he had, in violation of K.S.A 58-3062(a)(18).
“(c) Counsel admitted in his opening statement that his client, Jeff Bannon, failed to report the litigation as required. There is evidence that a case was filed by Glen Rupe on August 25, 1983. There is no evidence that this litigation was reported. However, there is no testimony in the records that it wasn’t. The Commission only has the comments of counsel to base a conclusion that Rule 86-3-15 was violated in respect to the Rupe litigation.
“(d) The Commission finds nothing in the record that addresses the issue of Rule 86-3-9. Mr. Rupe had counsel available to him and presumably used that counsel on other occasions, as well as the matter before this Commission. The Commission concludes the evidence as insufficient to show a violation of Rule 86-3-9.”
Based upon these conclusions, the Commission revoked plaintiff s Kansas broker’s license.
The district court reviewed the record on appeal. It upheld the findings and conclusions except for the conclusion that K.A.R. 1982 Supp. 86-3-15 was violated in the Coulter transaction. Bannon timely appealed, raising four issues: (1) Whether the district court applied the proper scope of review; (2) whether the order of the Commission was arbitrary and capricious on its face; (3) whether an agency relationship existed and, if so, whether the court properly interpreted the extent of any agent duties; and (4) whether reliance upon legal advice is a mitigating factor in a real estate broker’s disciplinary proceeding.
The parties agree that K.S.A. 58-3058(d) prescribes the scope of review for the Commission’s and trial court’s orders. Although the statute was amended in 1984 (L. 1984, ch. 313, § 89), the amendments are not applicable to this case. See K.S.A. 77-605. We, as well as the district court, apply the following limited standard of review:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of 'law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” Pioneer Container Corp. v. Beshears, 235 Kan. 745, Syl. ¶ 1, 684 P.2d 396 (1984).
Plaintiff s first contention is based upon the language used by the district court in its order affirming the actions of the Commission. Because the trial court used the term “sufficient evidence” in affirming three of the findings of the Commission, instead of the term “substantial evidence,” Bannon claims that it must have applied an improper scope of review. Bannon does not argue there was a lack of substantial evidence to support the Commission’s order.
We are charged with making the same review of defendant’s order as did the district court. Pioneer Container Corp. v. Beshears, 235 Kan. at 746. If there was substantial evidence to support the findings and conclusions of the Commission, it becomes immaterial whether such evidence is described as substantial or sufficient.
The term “substantial evidence” is defined as that evidence “which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved [citations omitted].” Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 459, 436 P.2d 828 (1968).
We have carefully reviewed the testimony, the Commission’s findings of fact and conclusions of law, and the order of the trial court. We conclude there was a substantial basis in fact for the conclusions of the Commission and the trial court. Plaintiff s contention that the trial court employed an improper standard in reviewing the order of the Commission is without merit.
Next, Bannon contends that the order of the Real Estate Commission was arbitrary and capricious on its face. This contention is based primarily upon the different penalties imposed by the Commission upon the salespersons and broker. Because Bannon’s license was revoked, while Lange received only a public censure and no action was taken against Moore, Bannon claims the Commission’s action is arbitrary and capricious. This contention is wholly lacking in merit.
Plaintiffs argument ignores the differing responsibilities be tween salespersons and brokers. See K.S.A. 58-3061(a); K.S.A. 58-3062(c); K.S.A. 58-3039(c); K.S.A. 58-3060. In Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 420, 581 P.2d 817 (1978), rev. denied 225 Kan. 843 (1978), this court observed: “Despite . . . seeming inconsistency, arbitrariness has not been shown. As long as its findings are supported by evidence and in turn support the conclusion, an administrative tribunal is free to emphasize different approaches in individual cases.” “Arbitrary, oppressive or capricious conduct is shown ‘where an order of an administrative tribunal is based upon findings which are not substantially supported by evidence in the record.’ ” U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980) (quoting Neeley v. Board of Trustees, Policemen's & Firemen s Retirement System, 212 Kan. 137, Syl. ¶ 3, 510 P.2d 160 [1973]). The findings of the Commission are supported by the evidence and unquestionably support revocation of Bannon’s broker’s license.
Bannon next contends that because of his unique position in effecting sales and subsequent sales of the properties involved, he was not an agent of the sellers. If deemed to be an agent, he claims the court improperly interpreted the extent of his duties with reference to the sales and subsequent sales of the properties involved. Bannon attempts to separate the two sales in each transaction. He claims that he acted not as agent for the sellers, but represented Aero Capitol Investment, Inc., as purchaser and seller of the properties involved. His legal arguments ignore the facts.
Bannon listed the property in both the Hattan and Coulter transactions. He knew of outstanding offers substantially higher than the amount for which he had listed the property, but failed to disclose them to the sellers. He or his agent then presented lower offers to the sellers from a corporation that he controlled, Aero Capitol Investment, Inc. He caused Aero Capitol Investment, Inc., to purchase the properties involved and resold the two parcels of property for a substantial profit based upon offers he received, but failed to communicate to the original seller.
Bannon also claims that, because he charged no commission to the original sellers, he had no fiduciary duty to the sellers and no obligation to disclose the other offers. We have no hesitancy in concluding that his responsibility throughout these transactions involved a fiduciary duty to the sellers. As a Kansas real estate broker, his statutory duties were crystal clear. He breached these duties for his personal gain at the expense of Mr. Hattan and Mrs. Coulter. The conclusions of the Commission and the affirmance of those conclusions by the district court clearly delineate the responsibilities of Bannon with reference to these transactions.
Finally, Bannon argues that his reliance upon the advice of John Callahan, a long-time friend and legal advisor, is a mitigating factor that should have been taken into consideration by the Commission in assessing the penalty. Bannon’s attorney, John Callahan, apparently advised him that there was no violation of any real estate law because there was no fiduciary relationship unless the seller was going to pay him for his services. Since he charged no commission to the sellers in these transactions, he claims that, in relying upon his attorney’s advice, he thought he had no fiduciary responsibility to the sellers of the property. He acknowledges that this does not excuse him from liability, but claims “he should not be punished for [his attorney’s] malfeasance” and “should not suffer the revocation of his license as a result of receiving poor legal advice.”
One has only to review the facts in this case to discover the lack of merit in Bannon’s argument. Based upon fraud and misrepresentation, Bannon and his salesperson split approximately $28,000 in profit at the expense of Mr. Hattan. In another instance Bannon, without informing the owner who listed the property with him of a $350,000 offer, helped close the sale for $300,000 and thereafter resold the property for $350,000. In both instances, Bannon used a sham corporation to accomplish the first sale, thereby enabling him within a short period of time thereafter to effect the final sale, resulting in substantial personal monetary gain. His reliance upon legal advice in no way diminishes his fraud.
It was not the attorney’s malfeasance, but rather the double-dealing and fraud of Bannon that concerned the Commission. We find that the evidence overwhelmingly supports the action of the Commission and the order of the district court.
The purpose of the real estate broker’s license act is “to protect the public from the fraud, misrepresentation, and imposition of dishonest and incompetent persons.” Thomas v. Jarvis, 213 Kan. 671, Syl. ¶ 1, 518 P.2d 532 (1974). Richardson v. Simpson, 88 Kan. 684, 687, 129 Pac. 1128 (1913), provides the rationale for the power of an administrative body to restrict the abilities of licensees to practice: “The revocation of a license by reason of such misconduct is not regarded as a punishment for a past wrong, but as a protection to the public for the future.”
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Benson, J.:
On July 26, 1985, Ronnell A. Carlock (defendant-appellant) was charged with two violations of Kansas City, Kansas, municipal ordinances upon the complaint of a city zoning inspector. Ordinance numbers cited were 27-41.2A and 27-41.3F. A third charge, violation of Municipal Ordinance 21-29, was apparently added by oral amendment. Carlock was found guilty of all three charges in municipal court and was fined $1,500. He filed a timely notice of appeal to the district court.
The district court found Carlock guilty of violating municipal ordinances 21-29-4, 27-41.2A(2), and 27-41.3F. He was fined $500 on each count and was sentenced to 90 days in the city jail. The court stated it would suspend the jail sentence if Carlock cleared his property within 30 days. Carlock appealed in a timely fashion contending there was not sufficient evidence for the trial court to enter a finding of guilty on all three charges and that the district court exceeded its statutory authority by ordering Car-lock to close his business.
Although Carlock has not argued that the complaint failed to charge a crime, and in effect by argument attempted to waive this question, such a defect is jurisdictional and we have a duty to address the issue. State v. Minor, 197 Kan. 296, 300-01, 416 P.2d 724 (1966).
The instrument charging Carlock with violating the city ordinances at issue is the misdemeanor summons and complaint ticket. The offenses committed by Carlock were not listed on the pre-printed ticket. The following printed language appears on the ticket followed by a blank space: “For violations city ordinances of Kansas City, Kansas, not listed above, use this section.” In this instance the blank was completed with the following: “27-41.2A [&] 27-41.3F; 21-29 cars oral amendment.” Nothing else relating to the charges is to be found in the misdemeanor summons and complaint ticket.
K.S.A. 1986 Supp. 12-4113(g) defines a municipal court complaint as “a sworn written statement ... of the essential facts constituting a violation of an ordinance.” K.S.A. 1986 Supp. 12-4205 states that the complaint and notice to appear may be made in the form of the uniform complaint and notice to appear provided in the statute. Such complaint and notice shall be deemed sufficient if followed substantially in the same form. The uniform complaint and notice to appear form as set forth in the statute is substantially similar to the misdemeanor summons and complaint ticket issued to Carlock.
“A complaint must be stated with enough detail to inform the defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 223, 579 P.2d 712 (1978), quoting State v. Williams, 196 Kan. 274, 285, 411 P.2d 591 (1966).” State v. Hanks, 10 Kan. App. 2d 666, 671, 708 P.2d 991 (1985), rev. denied 238 Kan. 878 (1986). In State v. Shofler, 9 Kan. App. 2d 696, 698, 687 P.2d 29 (1984), the court noted that a complaint must allege the facts which constitute a crime:
“A complaint that fails to allege facts constituting a crime is fatally defective and a conviction based upon it is void for lack of subject matter jurisdiction. State v. Robinson, Lloyd & Clark, 229 Kan. 301, 304-05, 624 P.2d 964 (1981); State v. Howell & Taylor, 226 Kan. 511, 513-14, 601 P.2d 1141 (1979); Wisner v. State, 216 Kan. 523, 524, 532 P.2d 1051 (1975); State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966). A complaint that omits a single essential element is fatally defective. See State v. Howell & Taylor, 226 Kan. at 513-14; State v. Minor, 197 Kan. at 299.”
As State v. Hanks demonstrates, these standards apply when a defendant is charged with violating a city ordinance. In State v. Shofler, the standards were applied to a highway patrol “uniform notice to appear and complaint” issued for a misdemeanor traffic violation.
The complaint issued alleged no facts and omitted all elements of the crime. Since the complaint charging Carlock was fatally defective, his conviction is void for lack of subject matter jurisdiction and no amount of ratification or acknowledgment can breathe any legal life into a void act or nullity.
Reversed. | [
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The opinion of the court was delivered by
Graves, J.:
This action was begun by plaintiff in error to recover damages for the breach of a contract for the sale of real estate. The defendant claims that the contract is merged in a subsequent conveyance of the land. Whether or not the contract of sale is still an independent and subsisting instrument is the only question presented. The contract sued on. reads:
“March 12,1903. This is to certify that Hiram Higgins and Annie M. Higgins, his. wife, have sold to George Hampe, for the consideration of five thousand eight hundred dollars, all that part of southeast quarter section eleven (11), township twelve (12) south, of range fifteen (15) east of the sixth principal meridian, lying'south of Shunganunga creek to the center of said creek, containing ninety (90) acres more or less, for which they have received fifty (50) dollars in cash on purchase-price, fifty-seven hundred and fifty to be paid April 1, 1903, or as soon as title and deed are made; if this lacks ninety acres the above-named people agree to make it to ninety (90) acres.
Anna M. Higgins. •
Hiram Higgins.
George Hampe.”
The course of the creek, which formed the northern boundary of the land, was so meandering as to make it quite difficult to determine the exact number of acres in the tract. Before April 1, 1903, when the deal was to be closed, a defect in the title was discovered and the intending grantors were unable to convey a clear title. The plaintiff went into possession of the land, and the defendant and her husband proceeded with the lawsuit in which their title was involved, which terminated against them. By the judgment in that suit it was determined that other parties had an interest in the land. In the meantime the husband of defendant died.
Afterward the plaintiff tendered the whole amount of the unpaid purchase-price, and demanded a warranty deed, which the defendant offered to give. It was refused, however, on account of the imperfect condition of the title. Subsequently the plaintiff commenced a suit for specific performance, which was pending when the deed was executed. The defendant bought in the outstanding interests, and on August 29, 1903, after considerable controversy, and consultation with attorneys, the matters were adjusted by the execution on the part of the defendant of a deed of special' warranty and by the payment of the full amount of unpaid purchase-money by the purchaser. The clause in the deed' involved in this controversy reads:
“Witnesseth: That said party of the first part, in consideration of the sum of fifty-eight hundred dollars, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the party of the second part, his heirs and assigns, forever, all of her right, title and interest in and to the following-described real estate lying and situated in the county of Shawnee and state of Kansas, to wit: All that part of the southeast quarter of section numbered eleven (11), township numbered twelve (12) south, of range number (15) east of the sixth principal meridian, lying, south of the Shunganunga creek, to the center of said creek, containing ninety (90) acres more or less.”
After the delivery of the deed the plaintiff had the land surveyed and ascertained thereby that there was only 81.51 acres in the tract, instead of 90, as had been supposed. He then brought 'this action to recover the value of- the difference. On the trial the district court instructed the jury as follows:
“You are instructed the plaintiff cannot recover in this action for any alleged deficiency of the land under the contract of March 12, 1903, as the same merged in the deed of August 29,• 1903, and plaintiff must recover, if at all, upon the provisions of said deed concerning the quantity of land conveyed and paid for by the plaintiff,- and as said deed described said land as containing ninety acres, more or less, plaintiff cannot recover at all in this action for any alleged deficiency in the quantity of land conveyed.”
This instruction was equivalent to a direction to find for the defendant, and it is assigned as error. The general rule that written contracts are presumed to take the place of all prior agreements covering the same subject is conceded by the plaintiff, but he insists that this case is an exception to that rule, for xthe reason that it relates to the consideration of the conveyance, which is always open to inquiry, and also because it is a collateral agreement in no way inconsistent with the terms of the deed. The defendant urges that the circumstances under which the deed was executed show that the parties intended it to be the end of all controversy and to extinguish all prior agreements.
In our view the evidence furnished by the face of the two instruments and also the extrinsic circumstances shown indicate that the parties intended the deed as a complete settlement of all further controversy concerning the sale and conveyance of the land. The transaction was initiated by the contract of sale and closed with the deed. It is apparent from the contract that the parties intended, when it was executed, that' all preliminary questions should be adjusted by April 1, 1903, and then the conveyance would be con summated with a deed. They were unable to adjust these preliminary questions by April 1, as anticipated, and did not do so until August 29, 1903, when the deed was executed and delivered, and all of the remaining purchase-money paid. It will be seen from 'an inspection of the two instruments that the amount of land to be conveyed and the purchase-price thereof, so carefully guarded in the contract of sale, were not overlooked in -the deed, but are fully covered by its terms, clearly indicating that nothing was left for future consideration.
The extrinsic circumstances show that when it was discovered that the intending grantors did not own the complete title to the land the plaintiff became alarmed, demanded a deed at once, tendered the whole amount of the purchase-price, and was apparently willing to-pay that sum for á good conveyance to the land described in the contract; and he began a suit to compel specific performance of the contract of sale. Conditions arose not contemplated by the parties when the contract of sale was executed — conditions which furnished ample reasons- for new and different stipulations. The fact that lawyers were consulted who managed the negotiations which led up to the deed; that a special instead of a general warranty deed was finally accepted; that no mention was made in the deed or other written instrument concerning the subsequent ascertainment of the exact number of acres conveyed, and the adjustment of the purchase-price accordingly, and that the exact number of acres was stated in the deed, thereby indicating that the purchaser took the land as it was, more or less, and paid the full consideration when the deed was delivered, shows that the parties then understood that the transaction was closed.
We are unable to see, in any view of the casé, how this defunct contract can be infused with new life and made to do service as a cause of action. The stipulations of the contract sued upon involve more than a mere inquiry into the consideration of the deed for the purpose of showing its true character, which is generally permissible. On the contrary, their- legal import is to modify and vary the material language of the deed as an instrument of conveyance. The language “in consideration of the sum of $5800, the receipt whereof is hereby acknowledged, . . . does . . . grant, bargain, sell and convey ... all of her . . . real estate . . . containing ninety (90) acres more or less,” is to be changed by adding thereto, in substance, the following: “If upon a survey the tract is found to contain more than ninety acres the grantee will pay for the excess at the rate of $82.22 per acre, and if it contains less than ninety acres the grantor will pay back to the grantee the value of the deficiency, at the same rate per acre.” We do not think this can be done.' To do so would violate a long-recognized rule of law, which is stated in the case of Van Syckel v. Dalrymple, 32 N. J. Eq. 233, as follows:
“What was said during the negotiation of the contract, or at the time of its execution, must be excluded on the ground that the parties have made the writing the only repository and memorial of the truth, and whatever is not found in the writing must be understood to have been waived and abandoned.” (Page 235.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The; opinion of the court was delivered by
BURCH, J.:
The principal question in this case is ' whether the reply departs from the petition. The petition charged that the plaintiff deposited hard and soft wheat in the defendant’s elevator, there to be stored and kept in separate bins and returned on demand; that immediately upon receiving it, however, the de- • fendant mixed the wheat with other grain, removed it ‘ from the elevator to defendant’s mill,' there manufactured it into flour, and then sold the flour as its own. Part of the deposit was accounted for. Unavailing demand was made for the remainder, and judgment was asked for its value, less a credit of $328.65, made •on June 25, 1897.
The defendant answered by a general denial. When the case first came on for trial the plaintiff’s attorney made a statement to the jury showing that the plaintiff had settled with the defendant for the wheat under the belief that it had been stored according to contract, and had allowed the defendant storage charges for the time he supposed the wheat had been on deposit; but that he had discovered the defendant had not kept the wheat in store at all, had converted it to its own use, and was not entitled to the storage charges which had been paid; and hence that the action was brought to recover the storage charges wrongfully charged and mistakenly paid. The case was tried on the theory of the statement instead of the theory of the petition, and verdict and judgment went for the plaintiff.
In a proceeding in error in this court it was properly held that the petition stated a cause of action for the conversion of wheat; that the statement of counsel presented a cause of action for the recovery of money paid by mistake as storage charges upon wheat which had not been kept in store; and hence that a departure clearly appeared. (Hunter v. Allen, 65 Kan. 158, 69 Pac. 159.)
When the cause was returned to the district court the petition was not amended. The defendant answered that on June 25, 1897, it purchased all of the plaintiff’s hard wheat, and had a settlement with him for storage charges upon both the hard and soft wheat; that the amount of the storage charges was deducted from the price of the wheat and a check for $328.65 was given in payment of the balance; that the soft wheat was on hand when demand for it was made and that defendant stood ready to deliver on payment of storage charges accruing subsequent to the settlement. The plaintiff replied denying the truth of the answer, admitting that upon June 25, 1897, he did agree to sell the hard wheat to the defendant for a stipulated price, and received $328.65 in part payment, and stating that he did not collect the full price and value of all the wheat sold the defendant on the day named because of his agreement to pay storage. But the reply further changed that “on said 25th day of June, 1897, the defendant represented to the plaintiff that it had kept all the wheat deposited with it by the plaintiff in accordance with said contract, and that by keeping said wheat had earned a sum of money equal to the full value of all the wheat sold to it by the plaintiff except the sum of $828.65, which representations the plaintiff then believed, but has since, and only a few days before this action was begun, ascertained, and alleges the fact to be that the defendant did not keep the plaintiff’s wheat at all, but used it for making flour, as it was deposited with it, as alleged in his petition, and had not earned any sum whatever for storing said wheat, and had no claim against the plaintiff for storing his wheat or upon any account at the time it bought his said hard wheat.”
The defendant refuses to see anything in this reply but the admission of a sale, failure to obtain the full amount of the price because of fraud, and a demand for the unpaid balance. The court reads it otherwise. The whole transaction of June 25, 1897, is avoided by the allegations quoted. The reply shows that the plaintiff acted upon the belief that his wheat had been kept in identifiable form, segregated from other grain in the defendant’s elevator, when in fact it had been ground into flour. This belief was induced by the defendant’s representations that the storage contract had been kept. These representations were false and fraudulent. The sale was therefore of no legal consequence because induced by fraud, and because the fundamental element of a sale — a thing in existence to be sold — was wanting. The settlement of accounts after the supposed sale was vitiated by the same fraud. There was in truth no price to be paid and there were no storage charges to be credited. The conversion of plaintiff’s wheat is distinctly reasserted with a reference to the petition for the full facts, and no relief is. askéd other or different from that prayed for in the petition. Fairly considered, therefore, the import of the reply is that the petition was not abandoned, but that all the facts relating to the dealings between the parties were disclosed for the fortification of the petition and the demolition of the answer.
The various statements in the reply by way of admission that the transaction of June 25 was a sale go far toward placing the plaintiff in the attitude of merely seeking the balance of the price, but since in' the same connection he denied the answer, detailed facts which made a sale impossible for lack of an indispensable element, made the settlement on the theory of a sale voidable for fraud, returned to the petition for the statement of his claim, and asked for no relief on the basis of a sale, it cannot be said that he shifted his ground.
The case of Neve v. Allen, 55 Kan. 638, 41 Pac. 966, goes part of the way toward a solution of the problem. There the plaintiff averred that he was the owner in fee simple and in the possession of certain land, the title to which he prayed might be quieted. The answer stated that the defendant was the owner in fee simple of an undivided one-third. The reply conceded that the defendant was the holder of the naked legal title to the share claimed, but advanced facts showing the equitable title to be in the plaintiff and that it would be unjust to allow the defendant to insist upon his legal title. The court said:
“We do not think, however, that this concession changes substantially the claim made in the petition, which need not have contained anything about the nature of the title, whether legal or equitable. The replies met fully the averments contained in the answers, substantially admitting their truth as to the legal title, but stating facts showing that it would be inequitable for the defendants to set up such naked .legal title to defeat-his full equitable claim to the.whole premises.” (Page 643.) „
So here the plaintiff was not required to . set out in the petition the facts relating to the credit of $328.65 allowed as of June 25, 1897. The reply met fully the averments of the answer by admitting whát occurred on the day named but stating facts showing the injustice of allowing the transaction to stand as an adjustment of the rights of the parties.
In the case of Cox v. Hayes, 18 Ind. App. 220, 47 N. E. 844, the defendant sought to force upon the plaintiff an unwarranted interpretation of his reply. The plaintiff sued upon an account. The defendant answered that he had paid the account by a check which was accepted by the bank upon which it was drawn and credited to plaintiff on his pass-book and on the books of the bank. The repiy was that the check was accepted and credited by the bank under an agreement that plaintiff would on the next day deposit cash to make good the credit; that he replaced the check with cash at the bank, took the check to the defendant and demanded that he take it up with cash, but that the defendant refused to do so. The court held that the plaintiff did not abandon the cause of action stated in the petition and set up another on the check, but merely showed by the reply that the payment charged in the answer was not in fact a satisfaction of the account.
So here the plaintiff cannot be held to say that he sues for a balance due on a sale of wheat when the reply distinctly asserts that the wheat was converted and ground into flour long before he attempted to sell it, and that the settlement made under the belief that the wheat was in existence and liable for storage was the product of the defendant’s unadulterated fraud.. The transaction of June 25, 1897, was repudiated by the petition, which grounded the right of recovery upon the original conversion of the wheat, and because the answer compelled the plaintiff to set up all the facts it cannot with justice be claimed, the petition was abandoned.
An analogous situation is disclosed in the case of Lamme v. Dodson, 4 Mont. 560, 2 Pac. 298. The complaint in an action of ejectment stated a good cause of action by pleading the legal title. ■ The answer denied the legal title and set up the statute of limitations. The reply denied the affirmative allegations of the answer and pleaded a parol agreement to defeat the statute of limitations. The defendant claimed the plaintiff had shifted his cause of action from the legal title pleaded in the petition to an equitable title disclosed by the reply. The court said:
“The parol agreement set forth in the replication is made in reply to the claim of the statute of limitations, contained in the answer. It is intended to rebut the allegation of the ■ answer, that the possession of the respondents was adverse. It is deemed to be denied without further pleading. The appellant by setting up this matter does not assume to rely upon this allegation, or abandon his claim to recover upon the legal title. Such matter, set forth in a replication rendered necessary by the answer, is not a departure in pleading.” (Page 589.)
The present case is clearly distinguishable from those of Johnson v. Bank, 59 Kan. 250, 52 Pac. 860, and Surety Co. v. Bragg, 63 Kan. 291, 65 Pac. 272. In Johnson v. Bank the petition alleged that the plaintiff was .the owner of personal property. The answer was. that the plaintiff was a mortgagee only. The reply admitted this fact. Both by statute and court decision in this state a clear distinction is made between absolute ownership and the special, qualified ownership of a mortgagee, and a mortgagee is always required to plead the facts relating to his title. The admission of the reply was therefore inconsistent with the claim of the petition, and a departure clearly appeared. In Surety Co. v. Bragg the plaintiff alleged performance-of all the conditions of an insurance policy. The de~ fense was non-performance of such conditions by failure to pay premiums. The reply pleaded a waiver of payment by failure to Collect an order. The plaintiff could not fail to perform and at the same time perform. Proof of one allegation was necessarily incompatible with the other, and the' matter set up in the reply constituted a departure.
In this case, when all the facts of the reply were narrated it still remained true that the defendant converted the plaintiff’s wheat as the petition alleged. The test of departure applied in the case of Johnson v. Bank, supra — Would evidence of the facts alleged in the reply contradict the facts alleged in the petition? —is satisfactorily met. The further test of departure applied when the facts in the two pleadings are not contradictory — Has the plaintiff abandoned the first position, and staked his right of recovery upon the second ? —is also met when the reply is construed, as it fairly seems to have been intended, as a defense to the new matter in the answer. The statement of such matter is expressly authorized. (Code, § 102; Gen. Stat. 1901, § 4536.)
One other consideration: The rules of law relating to departure must be observed in order that the issue may be clearly and accurately defined; that the defendant may not be forced to trail the plaintiff from one issue to another; that he may not be placed at the disadvantage of being compelled to meet suddenly and unexpectedly a new case after he has prepared himself against a different one; and that when he is through he may, if necessity should arise, plead the record with certainty as a former adjudication. In this instance the case was actually determined on the théory of the petition. The plaintiff’s opening statement to the jury, unlike the one at the former trial, adhered to the cause of action presented by the petition. The court in defining the issues to the jury stated that the plaintiff claimed the defendant had converted his wheat and was. liable for the value of it. The jury were instructed in clear and positive terms that the plaintiff’s right of recovery depended upon the conversion of his wheat by the defendant. The verdict, special findings and judgment are based strictly upon the petition, and not upon the reply as a cause of action. Therefore, the defendant has been obliged to meet no departure. He has been defeated upon nothing but the very issue which he insists was the proper one to try. His substantial rights have not been prejudiced.
“The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the ad-' verse party; and no judgment shall be reversed or affected by reason of such error or defect.” (Code, § 140; Gen. Stat. 1901, § 4574.)
Nothing else in the record requires a reversal of the judgment. Having delivered the wheat to the defendant, the plaintiff was prima facie entitled to its return or to its value.
After the plaintiff’s case had been stated to the jury counsel for the defendant outlined the facts constituting the defense to the court, announced that he desired to state such facts to the jury in his opening, and took the opinion of the court upon the question whether the facts stated were provable under the general denial. The court held they were not and required an answer embodying them. This ruling is assigned .as error. Having fully disclosed its defense to the court and to opposing counsel, the defendant lost nothing by the ruling but the time and labor of counsel in writing out the facts in an answer. The defense was not impaired in the least.
In the former case of Hunter v. Allen, 65 Kan. 158, 69 Pac. 159, the opinion commented upon the evidence. It is claimed the facts were therefore conclusively adjudicated here. This court has no such power in a pro ceeding in error. (In re Burnette, 73 Kan. 609, 85 Pac. 575.)
The evidence was sufficient to support the verdict. The special interrogatories refused were improper because pregnant with the contradiction of buying wheat not in existence and settling for it with storage charges never earned. When the court came to submit the cause to the jury it found that a single fact yvas decisive of the plaintiffs right to recover: Did the defendant convert the wheat instead of keeping it in store? If the wheat was converted the kind of settlement upon which the defendant relied was negatived, for it presupposed wheat in the elevator with storage charges against it. The defendant made no claim that it settled up a case of conversion for wheat taken for storage but ground into flour and sold. If the wheat was not converted the plaintiff could not recover at all. Therefore all the special interrogatories presented for submission might properly have been refused without prejudice to either party. The instructions to the jury were correct and sufficiently covered the case.
The judgment of the district court is affirmed.
Johnston, C. J., Mason, Smith, JJ., concurring. | [
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The opinion of the court was delivered by .
Smith, J.:
The appellant was arrested upon an information filed by the county attorney and tried and convicted in the district court of Labette county on eight counts charging diiferent publications of the following printed circular. The portions of the circular which are alleged in the information to be libelous are enclosed in brackets:
“[BUNCOED!
“Startling Exposure of the Methods Employed by the Farmers’
• Alliance Insurance Company,.-of McPherson, Kan.
“The Victim a Prominent Farmer Residing Near Parsons.]
“Parsons, Kan., June 28, 1905.
“A matter of vast importance to the insuring public, especially the farming classes, has recently developed in connection with the loss sustained by Mr. A. J. Higginbottom, a prominent farmer residing about three miles northeast of this city.
“Mr. Higginbottom purchased the John Brooks farm, and the insurance which Mr. Brooks carried on the property was transferred to Mr. Higginbottom, part of it being insured in the Farmers’ Alliance Insurance Company, of McPherson, Kan., a so-called ‘mutual’ company.
“In the month of March a wind-storm damaged the barn and dwelling to the amount of $170; at least that was the amount of damages as estimated by the adjuster for that company. Mr. Higginbottom expected pay to the full amount of his damages, naturally, and based his expectation upon the policy, as he understood it, in which he carried $800 on the dwelling and $200 on the barn.
“Mr. Higginbottom was dumfounded when he was informed by the adjuster that he could only draw pay for just one-half of the amount of his loss, but such was the case. This was brought about by the fact that his policy was subject to any changes that the company saw fit to make, and as it had been changed he was unable to obtain pay for more than one-half of his damages, consequently he received only $85, although his loss was estimated at double that sum.
“Over a year ago Mr. Higginbottom’s attention was called to that clause in his Alliance policy wherein the conditions could be changed on him, without his consent or knowledge, but Mr. Higginbottom deemed it of too little importance to consider, in fact thought it an impossibility. He has since discovered that A. B. Williams informed him correctly about having a changeable policy, as evidenced by the following statement:
“A. J. Higginbottom carried $1000 insurance against fire, lightning and tornado, in policy No. 39,467 of The Farmers’ Alliance Insurance Company, of McPherson, Kan.; $800 was on dwelling and $200 on frame barn. In the month of March, 1905, a wind-storm demolished the bam, and damaged the dwelling some. The adjuster for that company estimated the damage at $150 on the barn and $20 on dwelling. [According to the conditions in the policy held by Mr. Higginbottom he was entitled to the full amount of his damages, but he was compelled to accept one-half of the estimated damages, on account of the fact that the company had changed the conditions of his policy, after it had been issued several months. The conditions of his policy had been changed, and he was not aware of it until the adjuster informed him after the loss occurred.]
“Mr. Higginbottom found upon a close inspection of his policy that it was subject to be changed, at the option of the company’s directors, at least four times a year, without his knowledge or consent.
“State of Kansas, County of Labette, ss.
“I, W. W. Thompson, a freeholder, residing in Labette county, Kansas, declare that I heard the foregoing statement read to Mr. A. J. Higginbottom on this 7th day of June, 1905, and that Mr. Higginbottom declared that the statement was true, and that it set forth the facts in the case.
(Signed) W. W. Thompson.
“Subscribed and sworn to before me, a notary public, in and for Labette county, Kansas, this 7th day of June, A. d. 1905.
[seal.] Leila L. Wilson, Notary Public.
“My commission expires September 28, 1907.
“It develops that this company has been issuing policies of insurance which can be changed four times annually, even after being issued, and the assured is compelled to abide by the changes, which he has no voice in making, and no means of knowing anything about until he has a loss and settling time comes, then he is informed; at least that was as soon as Mr. Higginbottom had knowledge of a change in his policy.
“This company poses before the insuring public, especially the farming classes, as the benefactor of the Kansas farmers, claiming to be operated for the benefit of the insuring public, and on the ‘mutual interests’ plan, and instead of treating its members alike, as they should do, they seem to have no settled plan on which to write insurance, charging some of its members almost double the amount it charges others for the same kind of insurance. Some of its members are charged $2 per hundred for combined insurance for five years, while others are charged $2.75, $3 and $3.50 per hundred on the same kind of property. Some of its members are charged an advance cash payment of 20 per cent, of the full amount of their note, while others are charged 26, 27, 30, 35 and even 40 per cent, of the gross premiums, in advance.
“Policy No. 23,992 was issued to Isaac W. Galyen for five years, and he was charged only $2 per hundred for fire, lightning and tornado, while G. W. Guyton was charged $3.50 per hundred for five years for fire, lightning and tornado, in policy No. 24,846.
“G. W. Gruell was charged $1.50 per hundred for tornado for five years, in policy No. 28,565, while Isaac W. Galyen was charged $1 per hundred for tornado for five years, in policy No. 39,469.
“D. G. Daigh was charged $2.75 for fire, lightning and tornado, in policy No. 29,693, for five years, while Arthur Smith was charged $3.50 for fire, lightning and tornado for five years, in policy No. 31,225.
“Harry W. Lumm was charged a 35 per cent, advance cash payment on policy No. 42,047, while T. C. Joseph was only charged 27 per cent, advance payment on policy No. 31,591.
“S. R. Barker’s advance cash payment was 20 per cent, under policy No. 28,242, W. A. Oler’s 26 per cent, under policy No. 36,756, Arthur Smith’s'was 30 per cent, under policy No. 31,225, Chas. Bramer’s 31 per cent, under policy No. 33,835, N. D. Tower’s was 35 per cent, under policy No. 42,228, and Isaac W. Galyen’s was 40 per cent, under policy No. 39,469.
“Mr. Grant Hume, who owns a suburban home near this city, was charged $3 per hundred for combined insurance for five years, as was also Mr. E. E. Lugeanbeal, who resides in the village of Montana, this county.
“These two properties are what is known as detached risks; that is, no hazard from other property.
“Mr. J. S. McEntire, of South Mound, and Mr._F. M. Liston, of Altamont, Kan., both carried a policy in the Alliance on prop erty much more hazardous than was Mr. Hume’s or Mr. Lugeanbeal’s, yet they were charged a much less rate.
“This is only a few samples of what has been done by this Alliance company and its agents around Parsons, and there are scores of similar cases. They seem to have no settled plan on which to write insurance, charging all kinds of rates, issuing a changeable policy, having some of its members to pay more than others; in fact, doing business on a ‘happy-go-lucky,’ ‘hit- or-miss’ plan, and it is difficult to understand where all the members are getting the ‘mutual’ benefits, about which the agents of that company talk so much. Where do you come in on that, brother?
“The farmers have been woefully misled by this company. A close inspection of their policies and methods of doing business will show this, and it is no wonder that 4366 members quit that company in 1903. Look at your annual statement for that year and see if those figures are not right.
[“The ánnual statement of this company for the year 1902 shows at items 6 and 7, in ‘Resources,’ that ‘cash in office and in bank December 31, 1902,’ amounted to $1818.07.
“Their statement for the year 1903 shows in item ‘I’ in ‘Income’ that ‘cash in company’s office and deposited in bank December 31, 1902,’ amounted to $64,468.07, a discrepancy of $62,650 for the same items and the same time.
“The company made affidavit that each of these were correct. You men who are insured in the Alliance company, just get your statements and see if this is correct, and then make up your mind as to which one of these statements the company means to go by, as evidently their affidavit is wrong in one or the other.] Ask them to explain.
“For additional facts and figures in regard to \the methods employed by this ‘wonderfully constructed’ Farmers’ Alliance Insurance Company, and for the best farm insurance obtainable, call on or address A. B. Williams, Parsons, Kan.”
The first assignment of error urged is that the court erred in denying the motion to quash the information, for the reason that section 2271 of the General Statutes of 1901, which defines the crime of libel, does not make the defamation of a corporation a crime — that the word “person” does not include a corporation. Section 5759 of the General Statutes of 1901 provides:
“When the term ‘person,’ or other word, is used to designate the party whose property is the subject of an offense, or against whom any act is done with intent to defraud or injure, the term may be construed to include the United States, this state, or any other state or territory, or any public or private corporation, as well as an individual.”
The charge of criminal libel is the charging of an act done with intent to injure, and the word “person” as used in this section defining the-crime includes a private corporation as well as an individual. (The State v. Herold, 9 Kan. 194; The State v. Boogher, 3 Mo. App. 442.)
Again it is urged that the court erred in not requiring the prosecution to introduce all or none of the “bunco” circular in evidence. The portion enclosed in brackets was offered by the state and was admitted by the court over defendant’s objection that the whole, if any, of the circular should be read. The part of the circular relating to different charges for insurance to different policy-holders seems particularly to explain and qualify a portion of the caption, viz., “Startling exposure ■ of the methods employed by the Farmers’ Alliance Insurance Company, of McPherson, Kan.” These lines of the caption being included in the portion of the circular alleged to be'libelous, all matter in the circular relating to the same subject, or in any way qualifying the alleged libelous portion, should have been offered in evidence by the state and admitted by the court. The last paragraph, however, of the circular in no way explains or qualifies any portion thereof which is alleged to be libelous, and as there is a measure of discretion in the trial court in the matter we cannot say the court erred materially in overruling the objection as made.
Among the instructions complained of is the following :
“The circular introduced in evidence headed ‘Buncoed’ is libelous and contains various libelous charges: First, the word ‘bunco’ means to swindle or to rob by the.game bunco or in a similar manner; and the word ‘buncoed’ used at the head of the circular in question means that some one had been swindled, robbed, defrauded of his money or property, in the manner stated in the circular. Second, that the conditions of the policy of insurance held by A. J. Higginbottom issued by the Farmers’ Alliance Insurance Company had been changed by the company after the policy had been issued and by reason of such change the said A. J. Higginbottom had been defrauded of one-half the loss under his policy caused by a wind-storm. Third, . . . each of the three charges above mentioned contained in this circular is libelous of itself. . . . In order that the defendant may justify the publication of the circular it must appear from the evidence that each and all of the three charges above referred to are true.”
A reading of the circular will disclose that the part of the instruction headed “second” does not contain a fair statement of the portion of the circular to which it refers. The effect of that portion of the circular is that by the terms of the policy held by Mr. Higginbottom the company had a right to change the conditions thereof; that Higginbottom’s attention had been called to that fact over a year before; and that on close inspection of his policy he found this to be the fact. This does not charge a wrongful change in the policy, but a rightful change, and does not charge that Higginbottom was defrauded thereby. The instruction is materially erroneous in this respect.
A malicious defamation of a corporation, made public by any printing tending to expose it to public hatred, contempt or ridicule, or to deprive it of the benefits of public confidence, is a libel, and on the trial of a case where a printing of such a nature is introduced in evidence it is proper for the court to instruct the jury that it is libelous if not true. The portion of the circular referred to under the head of “second” is not libelous per se, as before indicated. And the instruction of the court that in order to justify the publication it must appear from the evidence that this part of the charge is true is erroneous.
It seems unnecessary to discuss the other errors assigned. The judgment of the district court is reversed, and a new trial ordered.
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one of ejectment, brought by the railway company for land claimed as a part of its right of way. Relief was denied on the ground that the railway company had never obtained title, while the defendant occupant held title both by chains of conveyance from the United States and by adverse possession.
The facts upon which the judgment is based are either found by the court or agreed to by the parties, and require consideration in the light of certain treaties between the United States and the Osage Indians, acts of the congress of the United States, and decisions of the federal supreme court.
The land in controversy as now surveyed is part of an even-numbered section of what áre known as the “Osage Ceded Lands,” lying in the southern part of the state. By the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians a reservation was established which the Indians were entitled to occupy for their own use as long as they chose to do so. On September 29, 1865, another treaty was made between the United States ánd the same Indian tribes, which was amended in 1866 and finally proclaimed on January 21, 1867. By the first article the Indians granted and sold to the United States a portion of their reservation some fifty by thirty miles in extent, including the land in controversy. The United States agreed to pay $300,000 for the granted territory, to place the purchase-fund to the credit of the Indians in the treasury of the United States, to pay interest upon it at the rate of five per cent, per annum, /and to expend the interest for the benefit of the Indians as the secretary of the interior might direct. The same article of the treaty contains the following provision:
“Said lands shall be surveyed and sold, under the direction of the secretary of the interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, but no preemption claim or homestead settlement shall be recognized; and after reimbursing the United’ States the cost of said survey and sale, and the said sum of $300,000 placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the ‘civilization fund,’ to be used, under the direction of the secretary of the interior, for the education and civilization of Indian tribes residing within the limits of the United States.” (14 U. S. Stat. at L. p. 687.)
On April 10, 1869, congress adopted a resolution authorizing any bona fide settler having certain qualifications and residing upon any portion of the lands ceded to the United States by the Osage Indians by virtue of the treaty of January 21, 1867, to purchase such lands within two years from the passage of the act, in quantity not exceeding 160 acres, at the price of one dollar and twenty-five cents per acre. The resolution contained the following proviso:
“That nothing'in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.” (16 U. S. Stat. at L. p. 55.)
The grantors of the defendant settled upon the quarter-sections which include the land in controversy in 1868, but it is agreed they purchased in the year 1870 under the treaty of 1867 and the congressional resolution of 1869. Patents were duly issued, which, however, contained no exceptions of the railroad right of way.
On July 26, 1866, the congress of the United States passed an act (14 U. S. Stat. at L. p. 289) granting lands to the state of Kansas to aid the Union Pacific Eailroad Company, Southern Branch, in the construction of a railway and telegraph line from Fort Eiley or near that military reservation down the Neosho river to the southern boundary of the state, with a view to the extension of the line through the Indian Territory to Fort Smith, Ark. The grant consisted of odd-numbered sections lying within certain limits on each side of the road as it should be definitely located, and' provided as follows:
“But in case it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or preemption has attached as aforesaid, which lands, thus indicated by the direction of the secretary of the interior, shall be reserved and held for the state of Kansas for the use of said company by the said secretary for the purpose of the construction and operation of said railroad, as provided by this act.” (§1.)
Section 4 of the’ act reads:
“And be it further enacted, that as soon as said company shall file with the secretary of the interior maps of its line, designating the route thereof, it shall be the duty of of said secretary to withdraw from the market the lands granted by this act, in such manner as may be best calculated to effect the purposes of this act and subserve the public interest.”
In addition to land granted to the state of Kansas by way of aid in the construction of the proposed road a right of way was granted to the company itself, not only through the ordinary public lands, but likewise through reserved lands, as appears by the following extracts from the law:
“That the right of way through the public lands be, and the same is hereby, granted to said Pacific Railroad Company, Southern Branch, its successors and assigns, for the construction of a railroad as proposed; and the right is hereby given to said corporation to take from the public lands adjacent to the line of said road material for the construction thereof. Said way is granted to said railroad to the extent of 100 feet in width on each side of said road where it may pass through the public domain; also all necessary ground for station-buildings, work-shops, depots, machine-shops, switches, side-tracks, turn-tables, and water-stations.” (§6.)
“That any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be, and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, 200 feet in width, is hereby granted, subject to the approval of the president of' the United States.” (§ 1.)
The entire grant was made upon the following conditions :
“And be it further enacted, that the grant of lands hereby made is upon condition that said company, after the construction of its road, shall keep it in repair and use, and shall at all times transport troops, munitions of war, supplies, and public stores upon its road for the government of the United States, free from all costs or charge therefor to the government, when required to do so by any department thereof.” (§3.)
“And be it further enacted, that the United States mail shall be transported on said road, and under the direction of the post-office department, at such price as congress may by law provide; provided, that until such price is fixed by law the postmaster-general shall have power to fix the compensation.” (§5.)
The grantee accepted the terms of the act, and by a change of name, duly authorized, the plaintiff, the Missouri, Kansas & Texas Railway Company, became entitled to its benefits and subject to its burdens.
It is agreed that the road was constructed, and that since its completion it has been used by the plaintiff in the discharge of its duties as a common carrier engaged in state and interstate commerce.
The court found that the road was definitely located prior to 1870, and it is not disputed that on January 8, 1868, the secretary of the interior transmitted to the commissioner of the general land-office a map showing the definite location of the plaintiff’s road through the land in controversy and ordered him to instruct the local land-officers to withhold, on account of the railway, lands falling to the grant within the country ceded by the Indians, and that on July 25, 1870, the secretary of the interior transmitted to the commissioner of the general land-office a map and a certificate of the governor of the state of Kansas showing that the road had been constructed and equipped as required by the act of congress.
No approval by the president of the United States of the route as definitely located was offered in evidence.
The defendant attempts to support his right to the land by the fact that it was occupied by the original patentees before the plaintiff’s road was definitely located. Before the act of April 10, 1869, the occupation of Osage Ceded Land gave no right to it whatever. Homestead and preemption settlements were expressly forbidden, and the only method of acquisition possible under the ‘treaty of 18.67 was by purchase for cash. These were valid restrictions upon the government’s power of alienation. (Wood v. M. K. & T. Railway Co., 11 Kan. 323, 346.) There being no law recognizing the rightfulness of the occupation by white men of the Indian land, settlement there was no better than a trespass. The purpose of the act of 1869 was to prevent speculators from acquiring the land and to preserve it for actual settlers who would cultivate and improve it; hence settlement was made a part of the purchaser’s qualification, precisely like citizenship in the United States. But until the purchase-price was actually paid in cash no recognizable claim accrued.
By the express terms of the act of 1869 no sale could be made contravening legal rights previously vested in other parties. What, therefore, were the rights of the railway company in 1870, when the defendant’s grantors attempted to acquire title? The section being an even-numbered one, it did not pass to the railway company as a part of the land grant by. way of aid. Furthermore, it was held by the supreme court of the United States that such grant did not apply to Osage Ceded Lands. (Missouri, Kansas and Texas Railroad Company v. United States, 92 U. S. 760, 23 L. Ed. 645; Leavenworth, etc., R. R. Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634.) But the majority opinions in those cases recognize the validity of the grant of a right of way, as distinguished from the grant of lands to aid construction, and this fact was commented on by the justices in the minority as showing the unsoundness of the conclusion of, the court relating to the land grant itself. Besides, this court is probably authorized to take notice, without proof, of an addendum to the court’s order in the cases cited, not printed in the published report of the decisions, to the effect that the decrees of affirmance in such cases shall not be construed as affecting the right of way of the railroad claimants through the Osage Ceded Lands.
In due time it became necessary for the supreme court of the United States to determine whether the act of July 26, 1866, did grant to the present plaintiff a right of way through the Osage Ceded Lands, and a decision in its favor was rendered in the case of Missouri, Kansas & Texas R’y Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, 38 L. Ed. 377. The opinion reads:
“Certain lands within the present state of Kansas were reserved whilst it was still a territory, and long previously, by the United States, for the use and occupation of the Osage Indians. Such reservation was made by treaty between them and the United States concluded as far back as June 2, 1825, and proclaimed in December following. (7 Stat. [Indian Treaties] 240.) From that time, and continuously thereafter, the reserved lands were occupied by those Indians until the treaty ceding the lands, or parts thereof, to the United States, concluded in 1866, and proclaimed in January, 1867 (14 Stat. 687), except such portion thereof as was appropriated and used as a right of way by the Missouri, Kansas & Texas Railway Company for its road under the grant of July 26, 18.66. Prior to June 6, 1870, that company located its railroad through these reserved lands in Kansas, with the approval of the president, and constructed its road in substantial conformity with the act of congress. The right of way for its road, 200 feet in width, was granted to the company unconditionally, subject only to such approval. The title to the land for the 200 feet in width thus granted vested in the company either upon the passage of the act of congress, July 26, 1866, or upon the construction of the road, and so far as the' present case is concerned it does not matter which date be taken.
“The United States had the right to authorize the construction of the road of the Missouri, Kansas & Texas Railway Company through the reservation of the Osage Indians, and to grant absolutely the fee of the 200 feet as a right of way to the company. Though the lands of -the Indians were reserved by treaty for their occupation, the fee was always under the control of the government; and when transferred, without reference to the possession of the lands and without designation of any usé of them requiring the delivery of their possession, the transfer was subject to their right of occupancy; and the manner, time and conditions on which that right should be extinguished were matters for the determination of the government, and not for legal contestation in the courts between private parties.” (Page 116.)
It remains to inquire when the grant to this right of way became effective against subsequent purchasers of land which it crossed. It would be easy to say in this case that after the map of definite location had been filed with the secretary of the interior all subsequent purchasers were obliged to take notice of the railway company’s rights. The grant which before identified no specific land then became definite and certain, and vested in the railway company all the rights contemplated by congress to every tract through which the route of the road passed, as shown by the map filed. But the railway company is entitled to the benefit of the law as it has been declared, which is that the unconditional grant of a right of way 100 feet in width on each side of the road through land subject to the dominion of the United States is a grant in prxsenti, and that any person subsequently acquiring a portion of such land takes it subject to that right.
The act of July 23, 1866 (14 Stat. at L. p. 210), granting a right of way to the St. Joseph & Denver City Railroad Company, and granting lands in aid of the construction of that road, is almost identical in language, and is identical in legal effect, with the act under which plaintiff claims. One Baldwin acquired whatever rights he possessed to a certain parcel of land in October, 1869. The road was not definitely located through that tract until October, 1871. After the road was built Baldwin sued for damages on account of the appropriation by the railway company, of a strip of his land 200 feet wide and 200 rods long. In denying relief the supreme court of the United States said, per Field, J.:
“The act of congress of July 23, 1866, c. 212, makes two distinct grants: one of lands to the state of Kansas for the benefit of the St. Joseph & Denver City Railroad Company in the construction of a railroad from Elwood in that state to-its junction with the Union Pacific via Marysville; the other of a right of way directly to the company itself. The lands consisted of alternate sections, designated by odd numbers, on each side of the line of the proposed road. The grant of them was subject to the condition that if, at the time the line of the road was definitely fixed, the United States had sold any section or a part thereof, or the right of preemption or homestead settlement had attached to it, or the same had been otherwise reserved by the United States for any purpose, the secretary of the interior should select an equal quantity of other lands nearest the sections designated, in lieu of those appropriated, which should be held by the state for the same purposes. The limitations upon the grant are similar to those found in numerous other grants of land made by congress in aid of railroads. Their object is obvious. The sections granted could be ascertained only when the routes were definitely located. This might take years, the time depending somewhat upon the length of the proposed road and the difficulties of ascertaining the most favorable route. It was not for the interest of the country that in the meantime any portions of the public lands should be withheld from settlement or use because they might, perhaps, when the route was surveyed, fall within the limits of a grant. Congress, therefore, adopted the policy of keeping the public lands open to occupation and preemption, and appropriation to public uses, notwithstanding any grant it might make, until the lands granted were ascertained, and providing that if any sections settled upon or reserved were then found to fall within the limits of the grant, other land in their place should be selected. Thus settlements on the public lands were encouraged without the aid intended for the construction of the roads being thereby impaired. The language of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in 'prsesenti. The act is a present grant, except so far as its immediate operation is affected by the limitations mentioned. ‘There is hereby granted’ are the words used, and they import an immediate transfer of interest, so that when the route is definitely fixed the title attaches from the date of the act to the sections, except such as are taken from its operation by the clauses mentioned. This is the construction given by this court to similar language in other acts of congress. Missouri, Kansas & Texas Railway Co. v. Kansas Pacific Railway Co., 97 U. S. 491, 24 L. Ed. 1095; Leavenworth, Lawrence & Galveston Railroad Co. v. United States, 92 U. S. 733, 23 L. Ed. 634.
“But the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designed. Nor is there anything in the policy of the government with respect to the public lands which would call for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby.
“The right of way for the whole distance of the proposed route was a- very important part of the aid given. If the company could be compelled to purchase its way over any section that might be occupied in advance of its location, very serious obstacles would be often imposed to the progress of the road. For any loss of lands by settlement or reservation, other lands are given; but for the loss of the right of way by these means no compensation is provided, nor could any be given by the substitution of another route.
“The uncertainty as to the ultimate location of the line of the road is recognized throughout the act, and where any qualification is intended in the operation of the grant of lands, from this circumstance, it is designated. Had a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that none exists.
“We see no reason, therefore, for not giving to the words of present grant with respect to the right of way the same construction which we should be compelled to give, according to our repeated decisions, to the grant of lands had no limitation been expressed. We are of opinion, therefore, that all persons acquiring any portion of the public lands, after the passage of the act in question, took the same subject to the right of way conferred by it for the proposed road.” (Railroad Co. v. Baldwin, 103 U. S. 426, 428, 26 L. Ed. 578.)
The decision in the Baldwin case was approved in the case of Bybee v. Oregon & California R’d Co., 139 U. S., 663, 11 Sup. Ct. 641, 35 L. Ed. 305, in the following language:
“The distinction between a right of way over the public lands, and lands granted in aid of the construction of the road, is important in this connection. As to the latter, the rights of settlers or others who acquire the lands by purchase or occupation between the passage of the act and the actual location and identification of the lands are preserved unimpaired, while the grant of the right of way is subject to no such condition; and in the construction given by this court to a' similar grant' in Railroad Company v. Baldwin, 103 U. S. 426, 26 L. Ed. 578, a person subsequently acquiring any part of such right of way takes it subject to the prior right of the railroad company.” (Page 679.)
The same case was cited with approval when called collaterally in question in the case of Missouri, Kansas & Texas Railway v. Cook, 163 U. S. 491, 16 Sup. Ct. 1093, 41 L. Ed. 239, to which, as the title indicates, the present plaintiff was a party. The opinion reads:
“The grant of the lands and the grant of the right of way were alike grants in prsesenti and stood on the same footing, so thát, before definite location, all persons acquiring any portion of the public lands after the passage of the act took the same subject to the right of way for the proposed road. The easement and the lands were afloat until by definite location precision was given to the grant and they became permanently fixed. Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578.” (Page 497.)
In the case of Northern Pacific Railway Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 639, decided February 20, 1905, the Baldwin case was again approved, as shown by the following quotation:
“It may be added that it was only as to some of the parcels that the filing of the map of definite location and the construction of the railroad preceded the filing of the entries. But we regard the case as falling within the rule holding the grant of the right of way effective from the date of the act. Railroad Company v. Baldwin, 103 U. S. 426, 26 L. Ed. 578.” (Page 4.)
The conclusion from these authorities, and there are others to the same effect, must be that the plaintiff’s title dates from the passage of the act of 1866, and that the defendant’s grantors purchased with notice of, and subject to, the plaintiff’s rights.
The grant was an absolute grant in present terms of a right of way, not only through the public lands generally, but also through all government reservations between the termini of the road. The railway company was entitled to a route somewhere through each body of reserved land it might encounter. But the public interest might require that the road should not pass through specific places. Hence, definite location was subjected to the approval of the president of the United States. When the railway company had filed its map of definite location with the secretary of the interior it had done everything required of it to obtain title to its right of way. Having performed on its part, it was the duty of the president to act in the premises and approve or disapprove. No method of indicating approval was prescribed. The railway company was permitted to enter upon the right of way it had chosen, lay its tracks and build its station-houses there, and to occupy it continuously for railway purposes without objection on the part of the government. Hence, in a suit against a party other than the United States, approval by the president must be. presumed.
It is argued that the land department of the United States is a special tribunal for determining preliminary questions affecting the rights of parties to_ enter land and receive patents, and that by issuing patents for the land in dispute without any reservation of a railroad right of way that tribunal adjudged that no such right existed in the plaintiff’s favor. When the act granting to the plaintiff its right of way was passed the land affected was not a subject of disposition by the land department of the United States. It was Indian land, and without the jurisdiction of the officials having power under the general land laws to convey portions of the public domain as much as if it had been a military reservation. Before the law authorizing sales to settlers was enacted title had passed out of the United States and was vested in the railway company. The land was then appropriated and dedicated to the special use of a railroad right of way. There was no preliminary question of fact to be investigated or adjudicated.
This case is analogous in principle to that of Burfenning v. Chicago, St. Paul &c. R’y, 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175. A soldier’s homestead was located upon a townsite, and a patent issued. The law provided that lands within the limits of any in corporated town or selected as the site of a city or town should be excluded from homestead and preemption entries. It was contended that by the issuance of the patent it was conclusively determined by the land department that the patentee’s rights were not initiated within the limits of any city and that the land was subject to homestead. In denying the validity of this argument the court, through Mr. Justice Brewer, said: ‘
“It has undoubtedly been affirmed over and over again that in the administration of the public land ■system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined. Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Smelting Company v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Steel v. Smelting Company, 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039; Heath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380, 34 L. Ed. 1063; McCormick v. Hayes, 159 U. S. 332,16 Sup. Ct. 37, 40 L. Ed. 171.
• “But it is also equally true that when by act of congress a tract of land has been reserved from homestead and preemption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of congress, or convey away public lands in disregard or defiance thereof. Smelting Co. v. Kemp, 104 U. S. 636, 646, 26 L. Ed. 875; Wright v. Roseberry, 121 U. S. 488, 519, 7 Sup. Ct. 985, 30 L. Ed. 1039; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, 31 L. Ed. 844; Davis’s Admr. v. Weibbold, 139 U. S'. 507, 529, 11 Sup. Ct. 628, 35 L. Ed. 238; Knight v. U. S. Land Ass’n, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974.” (Page 323.)
In the case of Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875, it was said:
“The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions, designating the persons who may acquire it and the terms of its acquisition. That the provisions may be properly carried out, a land department, as part of the administrative and executive branch of the government, has been created to supervise all the various proceedings taken to obtain the title, from their commencement to their close. In the course of their duty the officers of that department are constantly called upon to hear testimony as to matters presented for their consideration, and to pass upon its competency, credibility, and weight. In that respect they exercise a judicial function, and, therefore, it has been held in various instances by this court that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and, as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law. ... Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a base where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.” (Pages 640, 641.)
In the case of Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226, it was said:
“It need hardly be said that we are here speaking of a patent issued in a case where the land department had jurisdiction to act, the lands forming part of the public domain, and the law having provided for their sale. If they never were the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of action. In that respect the patent would be like the deed of an individual, which would be'inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale.” (Page 453.)
In the case of Lake Superior &c. Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. Ed. 183, involving a grant of lands to the state of Michigan to aid in the construction of a canal, it was said:
“Counsel for plaintiff in error cite several cases in which, power having been given to the secretary of the interior to determine a question of fact, his determination thereof, as expressed by the issue of a patent, was held conclusive. The latest of those cases is Barden v. Northern Pacific Railroad, 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. Ed. 992, in which the rule was thus stated, page 327:
“ ‘It is the established doctrine, expressed in numerous decisions of this court, that wherever congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to' inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.’
“That case fully illustrates the extent to which the rule goes. The grant to the Northern Pacific was of lands ‘non-mineral,’ and it was held that it was a question of fact whether lands were mineral or non-mineral, and that question of fact was for the determination of the land department, and, when determined by it, conclusively settled. But those cases are not pertinent, for here there was no question of fact to be determined. Long prior to any legislation respecting the canal grant the lands granted to the Ontonagon Company had been identified and set apart. The record thereof was in the office of the land department. By that identification and certification those lands were absolutely separated from the public domain, and as fully removed from the control of the land department as though they had been already patented to the state. And whether those lands were or were not returned to the United States, and released from the burden of that grant, was not a question of fact, but one of law, and depended upon the construction to be given to the resolution of the state of Michigan of February 21, 1867.” (Page 375.)
So in this case the plaintiff’s right of way had been granted to it, identified and set apart before the act of 1869 was passed. The record was in the office of the land department, and by the identification afforded by the plat filed there the land in controversy was as absolutely separated from the public domain and as fully removed from the control of the land department as though it had already been patented to the plaintiff.
From what has been said it must follow that the district court erred in sustaining the defendant’s claim of title under the patents issued to his grantors and in' denying the plaintiff’s claim of title under the act of congress of 1866.
The district court found that the plaintiff had, in effect, abandoned all claim to that part of its right of way lying more than fifty feet from the center of its track, and that the defendant had become the owner of such land by adverse possession of it under claim of title for more than the statutory period of fifteen years. The facts found, however, are insufficient to devest the plaintiff of its title and right of possession. In the case of Northern Pacific Ry. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, it was said:
“In determining whether an individual, for private purposes may, by adverse possession, under a state statute of limitations, acquire title to a portion of the right of way granted by the United States for the use of this railroad, we must be guided by the doctrine enunciated in Packer v. Bird, 137 U. S. 661, 669, 11 Sup. Ct. 210, 34 L. Ed. 819, and approvingly referred to in Shively v. Bowlby, 152 U. S. 1, 44, 14 Sup. Ct. 548, 38 L. Ed. 331, viz.: ‘The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the .government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee.’ ” (Page 270.)
The decision of this court must therefore be controlled by the views of the supreme court of the United States respecting the nature of congressional grants of the character of the one in question.
By the act of July 2, 1864 (13 Stat. at L. p. 365), congress created a corporation known as the Northern Pacific Railroad Company, and authorized it to locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph line from a point on Lake Superior to a point on Puget Sound. A right of way 400 feet wide through the public lands was conferred, and a land grant was made in aid of construction. Allowing for differences in the character of the country through which the proposed road was to run, the grant of a right of way and of lands to aid in construction was in all essential respects similar to that made to the Union Pacific Railroad Company, Southern Branch, by the act of 1866. In each case the grant of a right of way was made primarily to promote the general welfare of the people of the United States. It was contemplated that the right of way donated should be devoted to none but railroad uses in the proper sense of the term. But future needs were anticipated. The way was made wide enough to meet the demands of the road in future years, when its course should no longer lie through unbroken wildernesses, or through untilled Indian reservations, and when it should be burdened with the commerce of rich and populous states; and it was intended to secure to the grantee the permanent enjoyment of the entire width of the right of way so long as a railroad of the proper character should be maintained and operated upon it. While the proposed line of the Northern Pacific company was designated a post route and military road, subject to the use of the government for postal, military, naval and other government service, the obligations in these respects were less onerous than.those imposed upon the Union Pacific company, since compensation to the Northern Pacific company for its service to the government in matters besides the transportation of mail was contemplated. The nature of the title conferred, the specific duties to the United States and thé general public purposes to be subserved were the same for each company; and the fact that one corporation was created by a law of the United States while the other was organized under the laws of the state of Kansas furnishes no principle of discrimination in the interpretation of the two grants.
Patents based upon homestead entries were issued to lands crossed by the Northern Pacific road without excepting its right of way. The patentees cultivated up to the line of the company’s snow fences, situated fifty and one hundred feet from the track, and thus occupied portions of the right of way for a period of time sufficient to confer title by adverse possession under the laws of the state of Minnesota. The supreme court of Minnesota sustained a claim of title based upon such possession. (Northern Pacific Ry. Co. v. Townsend, 84 Minn. 152, 86 N. W. 1007, 87 Am. St. Rep. 342.) In reversing the judgment of the state court the supreme court of the United States said:
“Following decisions of this court construing grants of rights of way similar in tenor to the grant now being considered (New Mexico v. United States Trust Co., 172 U. S. 171, 181, 19 Sup. Ct. 128, 43 L. Ed. 407; St. Joseph & Denver City R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578) it must be held that the fee passed by the grant made in section 2 of the act of July 2, 1864. But, although there was a present grant, it was yet subject to conditions expressly stated in the act, and also (to quote the language of the Baldwin case) ‘to those necessarily implied, such as that the road shall be . . . used for the purposes designed.’ Manifestly, the land forming the right of way was not granted with the intent that it might be absolutely disposed of at the volition of the company. On the contrary, the grant was explicitly stated to be for a designated purpose, one which negated the existence of the power to voluntarily alienate the right of way or any portion thereof. The substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad, just as though the land had been conveyed in terms to have and to hold the same so long as it was used for the railroad right of way. In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. This being the nature of the title to the land granted for the special purpose named, it is evident that to give such efficacy to a statute of limitations of a state as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly, for, as said in Grand Trunk Railroad, v. Richardson, 91 U. S. 454, 468, 23 L. Ed. 356, ‘a railroad company is not. at .liberty to alienate any part of its roadway so as to interfere with the full exercise of the franchises granted.’ Nor can it be rightfully contended' that the portion of the right of way appropriated was not necessary for the execution of the powers conferred by congress, for, as said in Northern Pacific Railroad Co. v. Smith, 171 U. S. 261, 275, 18 Sup. Ct. 794, 43 L. Ed. 157, speaking of the very grant under consideration:' ‘By granting a right of way 400 feet in width, congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance.’ Neither courts nor juries, therefore, nor the general public, may be permitted to conjecture that a portion of such right of way is no longer needed for the use of the railroad and title to it has vested in whomsoever chooses to occupy the same. The whole of the granted right of way must be presumed to be necessary for the purposes of the railroad, as against a claim by an individual of an exclusive right of possession for private purposes.
“To repeat, the right of way was given in order that the obligation, to the United States assumed in the acceptance of the act might be performed. Congress having plainly manifested its intention that the title to and possession of the right of way should continue in the original grantee, its successors and assigns, so long as the railroad was maintained, the possession by individuals of portions of the right of way cannot be treated without overthrowing the act of congress as forming the basis of an adverse possession which may ripen into a title good as against the railroad company.
“Of course, nothing that has been said in any wise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.
“As our construction of the act of congress deter mines the question presented for decision, it becomes unnecessary to review the cases which have been called to our attention supporting oh the one hand or denying on the other the broad contention that title by adverse possession, under state statutes of limitation, may be acquired by individuals to land within the right of way of a railroad. None of the cases adverted to as holding the affirmative of the proposition even suggest that the rule would be applicable where its enforcement would conflict with the powers and duties imposed by law on a railroad corporation in a given case. As here we find that the nature of the duties imposed by congress upon the railroad company and the character of the title conferred by congress in giving the right of way through the public domain are inconsistent with the power in an individual to acquire, for private purposes, by limitation, a portion of the right of way granted by congress, the cases in question are inapposite.” (Northern Pacific. Ry. v. Townsend, 190 U. S. 267, 271, 23 Sup. Ct. 671, 47 L. Ed. 1044.)
In February, 1905, the supreme court of the United States reversed the decision of the supreme court of the state of Washington in the case of Northern Pacific Ry. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 526, 87 Am St. Rep. 766, which involved the precise question now at issue. The reversal was predicated solely upon the authority of' the Townsend case. The opinion reads;
“The facts on which the state supreme court proceeded are thus stated: ‘It may be conceded, we think, that the right of way which embraces the land in dispute was granted to the Northern Pacific Railroad Company by act of congress in 1864, and that, to the title to the right of way thus granted to the Northern Pacific Railroad Company the Northern Pacific Railway Company has succeeded. It may also be conceded, for the purposes of this case, that the Northern Pacific Railway Company has complied with all the terms and provisions of the act of congress aforesaid, and has constructed its railroad through the whole of'the line of road between the points named in the granting act; that a map of definite location was filed October 4, 1880, prior to the acquiring of the title to the land in question by the defendants or their predecessors or grantors; and that said railroad has been continuously operated since its construction. The defendants, answering, claim title by patent from the United States government. The land was acquired under the preemption and homestead acts, respectively, and all the defendants or their grantors have been in quiet, peaceful, undisturbed and undisputed possession of said land for more -than ten years immediately prior to the commencement of this action, many of them for nearly twenty years. Valuable improvements have been made by the defendants, the said land consisting of town lots in the city of Spokane, and having been platted and laid out as additions to the city of Spokane by the defendants or their grantors after acquiring title to the same from the United States government. During all these years no claipa whatever to these lands has been made by the appellant. It has stood by and seen improvements made thereon, and, in the case of defendant Brown, an agreement was entered into between him and General Sprague, who was then the general superintendent of the Northern Pacific Railroad Company, that they would plat their lots so that the streets of the addition which the railroad company was dedicating would correspond with and meet the streets which Brown was dedicating to the city of Spokane, and the agreement was carried out by arranging the streets in accordance therewith. These streets have been used by the public for from ten to eighteen years. The testimony shows that, in addition to the improvements which these defendants have' made upon their lots, many thousands of dollars have been paid by them for assessments levied upon abutting land for the improvement of streets running through this right of way; that the appellant has never paid these assessments; that they have never been assessed to the appellant and that no question has ever been raised by the appellant as to the right and obligation of the defendants to pay the same. While the record does not show that any of the lands owned by the defendants were deeded to them by the appellant, it does show that the Northern Pacific Railroad Company has deeded to other parties lots in the city of Spokane situated within the 400 feet of right of way, upon which valuable improvements have been made by its grantees.’ . . . The supreme court held that the action was barred by the statute of limitations; that the company was estopped from as serting title by reason of the circumstances; and that ‘where, through the negligence and laches of a railroad company, the occupancy by others of portions of the right of way granted to it by the government has ripened into title by adverse possession, the company cannot set up the defense that the right of way was granted for public purposes only and that it would be against public policy to permit either its abandonment by the company or the acquisition of adverse rights therein by way of estoppel or of the bar of the .statute of limitations.’
“As before stated, on the 4th day of May, 1903, the decision of this court in Northern Pacific Railway Company v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, was announced. We there ruled that individuals could not for private purposes acquire by adverse possession, under a state statute of limitatio'ns, any portion of a right of way granted by the United States to a railroad company in the manner and under the conditions that the right of way was granted to the Northern Pacific Railroad Company. At the same time it was not denied that such right of way granted through the public domain within a state was amenable to the police power of the state. And we said: ‘Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.’
“We are not prepared to overrule that decision, and, tested by it, the judgment in this case must be reversed.” (Northern Pacific Railway Co. v. Ely, 197 U. S. 1, 3, 5, 25 Sup. Ct. 302, 49 L. Ed. 639.)
The supreme court of the United "States being the final arbiter in cases of this character, its decisions in the Townsend and Ely cases are controlling. It may be remarked, however, that the doctrine of those cases is not materially different from that upon which 'the decision of this court in U. P. Rly. Co. v. Kindred, 43 Kan. 134, 23 Pac. 112, was made to depend. In the Kindred case the right of way granted by congress to the.Union Pacific Railway Company was under consideration. The opinion reads:
“The company does not own the fee. The validity of the act of congress is not contested, nor is it denied that the railway company obtained a grant of 400 feet through the Indian reservation for its right of way. All that is claimed upon the question of title by the defendants is that the abutting landowners, by cultivation and enclosures, have held adverse possession of * a part of the easement, or right of way of the railway company, for a greater length of time than that required by the statute of limitation.
“In Railway Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 19, this court decided that where the railway company has only an easement, the proprietor of the soil retains the fee of the land, and his right for every purpose not incompatible with the rights of the railway company. This rule is recognized everywhere. Although the abutting landowners have cultivated and enclosed part of the right of way granted by congress, this possession cannot be considered as hostile or ad- . verse. It must be regarded as permissive only. If the fee of the land belongs to the United States, then the abutting landowners can acquire’ no title or claim by possession or limitation. (Smith v. Smith, 34 Kan. 293, 8 Pac. 385.) If the abutting landowners own the fee of the right of way, they may use the land in any way not inconsistent with the paramount right's of the railway company; but such use will not give them adverse possession so as to confer title.” (Page 136.)
The term “easement” was not, perhaps, strictly accurate. The estate granted to the Union Pacific company is corporeal in character rather than incorporeal,
. and corresponds to the limited fee for particular uses, subject to reverter, described in the Townsend case. But the decision is that whatever the extent of the railway company’s ownership its right of way is not exposed to private appropriation by means of adverse occupation.
In view of the decisions quoted the district court ■erred in holding that the defendant acquired title to the portion of the plaintiff’s • right of way in controversy by adverse possession.
The contention of the defendant that the plaintiff’s ‘road was not built upon the line of definite location shown by the map filed with the secretary of the interior is contrary to an express finding of fact made by the trial court.
The judgment of the district court is reversed, and the cause remanded with direction to enter judgment for the plaintiff.
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The opinion of the court was delivered by
Porter, J.:
This was an action on a promissory note which it was claimed was executed by J. G. Arnold and Clara B. Arnold, his wife. At the time the action was begun plaintiff sued out an attachment, which was levied on certain real estate belonging to ■ the wife. From an order and judgment of the district court discharging the attachment plaintiff prosecutes error.
■ The affidavit for attachment contained the usual statutory grounds, but upon the hearing of the motion to discharge plaintiff relied solely upon the claim that Mrs. Arnold had made a conveyance of certain real estate, consisting of a house and several lots in the town of Ransom, Kan., with intent’ to hinder, delay and defraud her creditors. The note was executed May 4, 1903, and became due May 19, 1903. From the evidence it appears that J. G. Arnold abandoned his family a few days before the note became due, and'his whereabouts were and continued at the time of the trial to be unknown to his wife. The deed conveying the property was executed by Mrs. Arnold on May 23, 1903. It purported to convey the title to her brother, who testified that he paid no consideration but was to hold the title for his sister and aid her in finding a purchaser. Her testimony was that she intended, if a purchaser could be found who would accept the title, to take the proceeds and invest them in another homestead in Ness City, and that she still claimed the property as her homestead.
The action was not begun until April, 1905. She filed a verified answer denying the execution of the note, and on the hearing of the motion testified that at the time she conveyed the real estate to her brother she did not know of the existence of the note.
The grounds for the dissolution of the attachment were that the only property attached consisted of the homestead of Mrs. Arnold and that the facts stated in the affidavit for attachment were wholly untrue. From the journal entry of judgment it appears that the court found generally for defendant Clara B. Arnold and vacated the attachment. This finding is conclusive, for there was no lack of evidence showing that the property attached consisted of the homestead of Mrs. Arnold. It has been frequently held by this court that a debtor cannot commit a fraud upon his creditors by any conveyance or disposition of his homestead. (Hixon v. George, 18 Kan. 253; Sprout v. Atchison National Bank, 22 Kan. 336, 343.)
Notwithstanding this general finding in favor of Mrs. Arnold, plaintiff relies upon a statement inserted by the trial judge at the close of his certificate to the bill of exceptions, which statement is as follows:
“But it must be understood that the court did not pass adversely to defendant upon the additional grounds for dissolution of attachment stated in her motion, but simply held that the evidence showing that the defendant Clara B. Arnold did not even know of the indebtedness sued on at the time of making the conveyance complained of. There was no evidence of fraudulent intent, and consideration of other questions was unnecessary.”
Plaintiff concedes that a general finding upon the evidence would be conclusive, but insists that this statement narrows the judgment down to the effect of a single finding that no fraudulent intent was shown; that, because the conveyance was conceded to have been made without any consideration, it was not necessary to prove a fraudulent intent; and that the court should have sustained the attachment on the ground that the conveyance was in law and fact a fraud upon the creditors.
The reasons which control a court in the rendition of a judgment form no part of the judgment. (Butt v. Herndon, 36 Kan. 370, 13 Pac. 580; 11 Encyc. Pl. & Pr. 825.) “A party is bound by the judgments, but not by the logic, of courts.” (Sheffield v. Goff, 65 Tex. 354, syllabus.) Nor is it any part of a certificate to a bill of exceptions to limit the scope and effect of a judgment already entered. Where the journal entry of . judgment is complete it speaks for itself and controls. A general finding in favor of one party is a finding in his favor on every issue raised by the pleadings and supported by any evidence.
If the court in fact only decided that there was no fraudulent intent on the part of Mrs. Arnold, the judgment should have so recited. The statement in the certificate to the bill of exceptions cannot narrow the effect of the general finding in favor of defendant Clara B. Arnold, which was that the property sought to be taken by attachment constituted her.homestead,' as well as a finding to the effect that the only ground of attachment relied upon.was wholly untrue. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
Plaintiff in error Kelso insists that the recital in the judgment, “although personally. served with summons,” and the order of confirmation, together with the presumption which usually obtains in favor of the judgments of courts of general jurisdiction, constitute prima facie proof that a sealed summons was served upon the defendants in the foreclosure suit, which is not overcome by the evidence presented in this case. In view, however, of the op portunity which the trial court had to examine the original summons, and compare it with an impression “made by the seal of the court,in use at the time the summons was issued and near the date thereof, we feel bound by the court’s finding that the only writ served upon the defendants in the foreclosure suit had no seal affixed thereto.
Kelso also urges that, even if the summons was without a seal, the absence thereof is unavailing in a collateral proceeding. This court has held that a summons having no seal is void, and service thereof will not confer jurisdiction. (Dexter v. Cochran, 17 Kan. 447; Lindsay v. Comm’rs of Kearny Co., 56 Kan. 630, 44 Pac. 603; Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341; Taylor v. Buck, 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346; Stouffer v. Harlan, 68 Kan. 135, 137, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396.) It has also held that a judgment or other proceeding of a court not having'jurisdiction is a nullity, and may be attacked at any time, collaterally as well as directly. (Mastín v. Gray, 19 Kan. 458, 27 Am. Rep. 149; Meixell v. Kirkpatrick, 28 Kan. 316; McNeill v. Edie, Sheriff, etc., 24 Kan. 108; Amsbaugh v. Exchange Bank, 33 Kan. 100, 105, 5 Pac. 384; Olson v. Nunnally, 47 Kan. 391, 28 Pac. 149, 27 Am. St. Rep. 296.) We are unable, therefore, to say that the trial court erred in finding the foreclosure proceedings void, or in permitting the defendants in error to redeem.
We think the court erred, however, in allowing only six per cent, interest on the taxes paid by Kelso after the date of the sheriff’s deed. We do not concur in the contention of the defendants in error that these taxes were paid by Kelso as owner, and not as mortgagee. The defendants in error invoked a remedy purely equitable. They asked the court to set aside and ignore the entire foreclosure proceedings, including the sheriff’s deed, as void. They asked that an accounting be taken between them and Kelso, on the basis that he was in possession under his mortgage and not by virtue of a sheriff’s deed. To grant the relief prayed for it was necessary to adjust the rights of the parties upon the assumption that no foreclosure proceedings were ever commenced and that the relation of mortgagor and mortgagee had at all times existed between them. In this view the rights and duties of Kelso must be measured by his mortgage. The defendants in error offered to redeem the land by payment of the mortgage debt, and they should not be permitted to regard the foreclosure proceedings as-valid -for one purpose and invalid for another.
The statute relating to a' mortgagee’s right to pay taxes when the mortgagor neglects to do so was as much a part of the mortgage as if it had been written therein, and all payments of taxes made by Kelso should be regarded as payments by him as mortgagee, that being his only relation to the land. It would be inequitable to deprive him of any part of his security merely because he erroneously supposed himself to be the owner of the land.
In the case of McMurray v. Norton et al., No. 14,689, submitted with this case, we are unable to say that the district court erred in refusing to permit MeMurray to be made a party to this suit. He was not a necessary party to the complete determination of the controversy involved, and his rights could not be injuriously affected by the result of that suit. The-judgment under which MeMurray claims is a mere statutory lien upon whatever interest the Norton heirs may have, if any, in the land which they are seeking to redeem. If such an interest is uncovered and established in that suit, MeMurray can reach it with an execution. Otherwise, if he thinks such an interest exists, he can cause it to be sold at execution sale, and whoever buys at such sale will be the owner of such interest and possess all the rights of the original mortgagor. Such a person might be in a position to invoke relief in an equitable suit to redeem, but a mere lien-holder is not. The only function of an equitable suit to redeem is to adjust equities between a mortgagor and mortgagee, and these are the only necessary parties to such a case.
The judgment of the district court permitting the defendants in error in case No. 14,718 to redeem is affirmed. The court is directed to amend its judgment so as to make the aggregate amount to be paid by the defendants in error the sum of $3954.35, with interest from July 10, 1905, at the rate of eight per cent, per annum until paid. The costs in both courts will be divided between the parties equally.
The order of the court refusing to permit A. W. McMurray to be made a party is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action William Herman sought to recover damages from the Atchison, Topeka & Santa Fe Railway Company for the destruction of personal property which resulted from an overflow of water on his land. He alleged that Switzler creek, a natural watercourse, was negligently bridged by the railroad company; that the bridge was faulty in construction; and that the company in an attempt to strengthen it built a web of supporting timbers underneath it in such a way as to impede the flow of water and operate as a dam of the stream. In May, 1904, there was a heavy rainfall, causing an overflow of the stream, which Herman alleged was due to the improper construction and maintenance of the railroad bridge. The jury awarded Herman $229.95 as damages, which by remission was reduced to $200. The giving of an instruction is the principal error assigned. It reads:
“You are instructed that railroad companies in the construction and maintenance of their roads over watercourses are required to leave such waterways or openings as are sufficient to afford an outlet for all water that, may reasonably be expected to flow through such watercourses, and this must be with reference to such unusual and extraordinary freshets as might reasonably have been expected, after careful inspection of the size of the stream, the width of its bottom, the height of its banks, its capacity for carrying water and the surface of the country contributing to its flow, andif they fail to do so they are liable in damages to the full injury occasioned thereby.”
The use of the words “unusual and extraordinary freshets,” it is said, is a departure from the true rule of the law, and that the latter part of the instruction, at least, was misleading and erroneous: In. the same connection the court further instructed the jury as follows:
“A railroad company, however, is not bound to anticipate extraordinary changes of seasons, nor such unusual freshets or heavy fall of water as could not be detected by a skilful engineer after taking carefully the observations to.which I have just referred, nor to guard against every possible contingency, so that if you find that the damages sustained by the plaintiff, if any, were the result of such extraordinary rainfalls or freshets or inundations, or could not be apprehended in the manner hereinbefore referred to, and if you also find that the defendant was not otherwise at fault, the plaintiff cannot recover and your verdict should be for the defendant.
“It was the duty of the defendant railway company to keep the bridge in question in such condition as to provide for the free flow of such an amount of water as might reasonably have been- anticipated to flow in said stream, and, if by reason of the failure of said defendant company to perform such duty the plaintiff sustained loss and injury, the defendant would be liable therefor.
“You are instructed, gentlemen, that by the term ‘act of God’ is meant those events and accidents which proceed from natural causes, and which cannot be anticipated or guarded against or resisted, such , as unexampled freshets, violent storms, lightning and frosts. For losses occurring by any of these means individuals and corporations are not liable, provided they have not been guilty of any want of ordinary arid reasonable care to guard against such loss.”
There is no real dispute between the parties as to the law governing the obstruction of streams, nor in regard to the floods or flow of water which must be provided for in bridging watercourses. Both agree that it is only such a flow of water as may naturally and reasonably be -expected to pass through the channel. No one is required to provide for an unprecedented flood — a phenomenal one — which could not have been reasonably foreseen. The instructions, as a whole, indicate that the trial court held the same ' view, but its reference to the term “unusual and ex- . traordinary” was not happy, and approached close to the danger line. The trouble with the use of these words in defining the duty and responsibility of the railway company is.that they require definition and limitation. It should be noted, however, that the instructions given are an exact reproduction of those given and sanctioned in Union Trust Company v. Guppy, 26 Kan. 754. It is natural that the trial court should have thought that the instructions which had received the express approval of this court might be safely used in a similar case. The test of liability, however, is not whether the rainfall was unusual or extraordinary, but whether it was such as might have been reasonably foreseen by bringing to the building and maintenance of the bridge such engineering knowledge and skill as is ordinarily applied to such work. In the minds of ■some a freshet is neither usual nor ordinary, but since they do occur occasionally, and may reasonably be expected to occur, provision should be made for them. In Kansas City v. King, 65 Kan. 64, 68 Pac. 1093, it was contended that a flood which was unusual was not to be anticipated by the city. In the opinion it was remarked :
“It is true that the flood of 1892 may be said to have been an unusual one, but, although unusual, it was such as had occasionally occurred, and which the city should have anticipated and provided against. The testimony shows that such floods had occurred at irregular intervals, and that they would again occur might reasonably have been expected. It is true that floods unprecedented and so extraordinary as to have been beyond reasonable anticipation are not to be provided against, but while floods like the one which occasioned the injury were of rare occurrence in that vicinity, they had occurred so often in the past as to warrant the belief that the region was subject to them, and that, under the laws of nature, they would-occur again.” (Page 66.)
In text law and in decisions we frequently find recognition of degrees of the unusual and thé extraordinary in freshets and floods, but always qualified by the limitation that there can be no liability unless they are such as should have been reasonably anticipated. The instruction complained of, as limited and explained by other language of the charge, cannot be said to have been misleading or prejudicial.- As will be observed, the court in the instruction itself expressly told the jury that the railroad company was only required to provide outlets for such unusual and extraordinary freshets as might have been reasonably expected, and in the following instructions emphasized the view that the defendant was not liable for the result of such extraordinary rainfall or freshets as could not have been reasonably anticipated.
Attention is called to the features enumerated in the instructions which the court said must be noted by the engineers in determining the flow of water for which provision should be made. Although the court might very properly have included something as to the history and' habits of the stream, the elements enumerated are those ordinarily laid down in the books and fairly include the principal considerations. The jury were expressly admonished that in any event it was only such as might reasonably have been expected, and that this must be determined “after careful inspection of the size of the stream, the width of its bottom, the height of its banks, its capacity for carrying water and the surface of the country contributing to i'ts flow." In P. F. W. & C. Railway Co. v. Gilleland, 56 Pa. St. 445, 94 Am. Dec. 98, cited by plaintiff in error, the elements which entered into the determination of what provision should be made for the flow of water were stated, and are substantially the same as those named by the trial court. It was said:
“The apparent facts indicated the duty. The stream, though small, must find a vent, or overflow the adjacent land and undermine the railroad. Its size, the character of its channel, and the declivity of the circumjacent territory which forms the watershed, indicated the probable quantity of water to be passed through. Proper engineering skill should observe these circumstances, and supply the means of avoiding the injury which would result from locking up the natural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water.” (Page 452.)
There is a suggestion that the overflow of the stream is to be treated as surface-water, and that the company cannot be held liable for injury resulting from such water. If the water was thrown back upon the riparian owner because of the obstruction of the channel of the stream, it is immaterial by what name it is designated. The party who obstructs the flow and causes the injury is responsible. The testimony tends to show that the flooding of Herman’s property was due to the narrowing of the passageway for the water, and that, when the bridge timbers were carried away and the obstruction removed, the water quickly subsided, although the rainfall continued unabated for some time afterward.
Seeing no prejudicial error in the instructions given to the jury, nor in the other rulings of which complaint is made, the judgment is affirmed.
Greene, Mason, Smith, Porter, JJ., concurring. | [
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The opinion of the court was delivered by
Graves, J.:
No adequate reason has been presented ■ by the defendants for refusing to concur in the appointment of the appraisers designated by the superinten-. dent of public instruction. The lease expired January 3, 1905, nearly nine months before this application was made to have the land sold to an actual settler. The law which provides for the sale of leased land clearly, contemplates that such sales shall be made during the life of the lease, and “subject to existing leases.” Such is the language of the statute. Notice of the sale of leased land must be published at least one year prior to the sale. It was not intended that notice of such sales should be given immediately before the expiration of a lease, and thereby withdraw the land from occupancy and sale to actual settlers for a year. Such a proceeding tends to subvert the policy of the state, which has always been to encourage the sale of its land to actual settlers.
The plaintiff acquired possession of this land under a lease. He erected improvements thereon worth more than $1000. When the lease expired there was nothing to prevent a sale of the land to an actual settler. Public officers may not manipulate proceedings under, the laws committed to them for administration so as to frustrate the purposes for which they were enacted. The law providing for the sale of school-land to actual settlers and the procedure for the sale of land which has been leased must be construed together, so that they will harmonize with each other and so that neither will prevent the other from accomplishing the objects for which it was designed. The sale of leased land should always occur during the life of the lease. When any lease expires the land may then be sold to actual settlers. '
It is admitted that the appraisers appointed by the superintendent of public instruction are in all respects competent and unobjectionable. No question of official discretion, therefore, can arise. The whole case turns upon the proposition whether or not the land was then subject to sale to an actual settler. We think it was.
The proceedings in the district court and the appeal from the board of county commissioners, which are here plead in bar of this action, are unavailing. They lack the essential elements of res judicata. The original petition for the sale of the land, the appointment of the appraisers, the persons appointed, the act of the county commissioners in refusing to consent to the appointment, the condition of the land, and all the material considerations involved in the decision of those cases are essentially different here. It was clearly the duty of the defendants, upon their own answer and showing, to give their consent to the appointment in question. A peremptory writ is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Sedgwick county for the purpose of recovering damages on account of an alleged libel. The defendant filed a general demurrer to the petition, which was sustained. The plaintiff stood upon her pleading, and judgment was entered against her for costs. To reverse the ruling she brings the case here for review. The libelous matter complained of is contained in a letter which reads:
“I write to tell you we got home the 2 day of march with the horses all safe and well. We was 12 days comeing from boise city up hear threw snow and mud part of the way the mud was hub deep to the wagon and snow the other part we came over seven feet of snow on the divide of the big mountain I told you about we have four feet of snow here on our ranch now we got our steer calf drowned while george was gone to boise to meet me everything els was all right the horses stood the trip all rite and air looking fine and now in ' regard to the land we think we will not undo what the dead has done in grandfather will he says this in so much as I never helped my son William I give to him the home farm and I no much as my father loved his mother if she had needed that land he would have deeded it to her, why he loved his father and mother so well he deserted his wife and children to live near them, and if you had a showed me everything and not tried to keep some things hid as you did for instance the box of tools under the bed where I slept and the whip the fly nets and many other things that was my own property then you may talk to me about a parser and when you send me a draft on some bank for five thousand dollars you can have a deed to that land you kept everything hid from me that you could you never told me that your mother had released her dowery rite to that land did you I found that out after I came hear if you had told me everything I should have done something for you I want you to turn over to the probate court the money you got from Charley herman for fathers cook stove and that vice and I want you to sell that lumber and shingles and corn you have of mine and every thing you have and turn the money over to the probate court and if you dont do this I shall take steps to compel you to do so I love my grandmother but have no love for you melinda and if my grandmother wants to come and live with me I will come after her but as for you you can hoe your own way if you cant make a living on that land you have got you can work in some ladies kitchen for your living as I have had to do and I want you to write and tell me what agreement you made with charley herman about the rent of that 80 ackers of land this year for that land belongs to me and if you do not tell me I will find out.
Goldie E. Lash.”
The extrinsic circumstances explanatory of the language used in the letter, as nearly as they can be gathered from the allegations of the petition and the letter itself, are, substantially, that W. H. Lyon died, leaving an estate; Elmina Lyon is his widow, Melinda V. Lyon his daughter, and the defendant the daughter of his son William. The defendant believed that she was entitled to a part of her grandfather’s estate, and that her aunt, the plaintiff, who was administratrix thereof, was trying to keep her from sharing in the property.
The plaintiff insists that the letter is libelous per se, and therefore does not allege special damages. The defendant contends: (1) That the language used in the letter is not actionable per se; and (2) if it is, the publication thereof is not sufficiently alleged.
In the view we have taken, the case can be disposed of upon the defendant’s last contention. We are clearly of the opinion that the petition does not sufficiently aver a publication. The facts alleged are that the defendant enclosed the letter'in a sealed envelope and sent it-through the mail, directéd to the plaintiff. The plaintiff, after receiving the letter, opened it and read it to her mother, who was unable to read. The publication to the third person, therefore, was made by the plaintiff. We understand the rule to be well settled that a slander or libel is not published by the communication thereof to the defamed person alone. (Newell, Slander & Libel, 2d ed., 228; 18 A. & E. Encycl. of L. 1017; Spaits v. Poundstone, 87 Ind. 522, 44 Am. Rep. 773.)
Odgers, in the first American edition of his work on Libel and Slander, says (at *p. 150) :
“It is no publication when the words are only communicated to the person defamed; for that cannot injure his reputation. A man’s reputation is the estimate in which others hold him; not the opinion which he has of himself. The attempt to diminish our friend’s good opinion of himself, though possibly unpleasant to him, is yet generally ineffectual, and is certainly not actionable, unless some pne else overhears.” (See, also, Warnock v. Mitchell, 43 Fed. 428; Fonville v. McNease, Dudley Law [S. C.], 303, 31 Am. Dec. 556; Sheffill & Wife v. Van Deusen & Wife, 79 Mass. 304, 74 Am. Dec. 632.)
This rule is not questioned by any cáse to which our attention has been called.
. We have examined all the cases that have been cited, and many others, and wherever sending a libel to the person defamed has been held to constitute a publication thereof the facts show that the communication to the third person was caused by the act or procurement of the libeler, as where the letter was sent to the person defamed with knowledge that because of his illiteracy a third person would necessarily be called upon to read' it, or where the letter was directed to the person defamed and another, so that such other might, and did, by reason of such direction, open and read the libel.
To bring this case within the category of the above illustrations, it.was alleged that the defendant knew when she. sent the letter to the plaintiff that it would be read to her grandmother, and used her name in the letter for that purpose. The fact remains, however, that the letter was sent directly to the plaintiff, who received it unopened; she held it in her possession and under her control. The question of publication or suppression was a question for her to decide; she voluntarily disclosed the contents to her mother. She, and \\not the defendant, accomplished the publication, and jthe defendant is not responsible therefor.
> The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Plaintiff, a passenger on defendant’s road, sued to recover damages for personal injuries, but the jury found for the defendant. Two errors are assigned, but neither is good.
The objection to the appointment of a commission of physicians to make a physical examination was not sufficiently specific, and if it had been the court would have been warranted in overruling it. There was power in the court to require the examination. (Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252.)
The credibility and weight of the testimony were for the jury. There were circumstances shown tending to discredit the plaintiff’s testimony, and evidently the jury did not believe it. We cannot say that they should have done so, or that there are any grounds for a reversal.
The judgment is affirmed. ' | [
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The opinion of the court was delivered by'
Porter, J.:
Plaintiff seeks to compel defendant, as state auditor, to register certain bonds of the city of Belleville which, the authorities of that city .attempted to issue under the provisions of the act of the legislature entitled “An act authorizing certain cities to issue bonds for natural gas, water, light and heating purposes,” the bonds reciting on their face that they are issued in pursuance of the statute, which appears as. chapter 101 of the Laws of 1905. It is conceded that the proceedings are regular and in accordance with the provisions of the act of 1905, and the only questions to be decided are: (1) The validity of the law; (2) whether or not the amount of bonds issued, the registration of which it is sought to compel, is in excess of any statutory limitation. The questions are presented by a demurrer by plaintiff to defendant’s answer. The validity of the law is challenged upon three constitutional grounds:
First, that it appears affirmatively from the journals of the legislature that the statute was not passed in accordance with section 14 of article 2 of the constitution, in this: that the act as signed by the governor and as it appears in the enrolled bill was and is substantially different from the act as passed by the two houses of the legislature. This court has laid down the rule that before an enrolled bill can be impeached successfully by the journals of the legislature the latter must show affirmatively, clearly, conclusively and beyond all doubt that the bill as enrolled was not the bill passed. (The State, ex rel., v. Francis, Treas’r, 26 Kan. 724; Weyand v. Stover, Treas., 85 Kan. 545, 11 Pac. 355; In re Vanderberg, Petitioner, &c., 28 Kan. 243; The State v. Andrews, 64 Kan. 474, 68 Pac. 668.) Also, that the records of the legislative .journals import absolute verity, and are conclusive as to the facts there in affirmatively shown. (Division of Howard Co., 15 Kan. 194; County-seat of Linn Co., 15 Kan. 500.)
The legislative history of the bill in question shows that it was introduced into the senate with a certain title: “An act authorizing cities to issue bonds for water, light and heating purposes,” (Sen. Jour., 1905, p. 107.) By that title it passed the senate. (Sen. Jour., p. 524.) At the time it was recommended for passage by the committee of the whole the words “as amended” appear in the journal (p. 512), and also in the message transmitting the bill to the house. (House Jour., 1905, p. 822.) In all its subsequent career, until enrolment, the title remained unchanged. The message of the governor in reference to the bill follows:
“March 6, 1905.
“MESSAGES FROM THE GOVERNOR.
“Executive Department,
Topeka, March 4, 1905.
“To the Senate: I have this day approved the following senate bills: . . . No. 308, An act authorizing certain cities to issue bonds for natural gas, water, light and heating purposes.
E. W. Hoch, Governor.”
(Sen. Jour., 1905,.pp. 671, 672.)
The house journal, after reciting the title of the bill, states that “the title, as above, was agreed to.” (Page 912.) It is argued that the use of the words “as above” is an affirmative showing from which it conclusively and clearly appears that the words “natural gas” were not in the title when it passed the house, and that the subsequent report of the senate committee on enrolled bills stating that the committee had compared the engrossed bill and enrolled bill and that the latter was correct, instead of proving anything in favor of the bill, proves that the committee was mistaken. We are asked to say that, while the senate journal imports absolute verity, in this case it only imports that the committee had made a report — not that the report was true. A number of former decisions of this court are controlling. In The State v. Andrews, 64 Kan. 474, 67 Pac. 870, it was said:
“It cannot be claimed that such statement tends to show whether the title which was ‘agreed to’ was the original title or that which the bill, at some point on its journey, acquired, and which it ought to have taken then and there.” (Page 483.)
The language used in In re Taylor, 60 Kan. 87, 55 Pac. 340, is specially pertinent here. It was there said:
“While the journals of the two houses may be examined for the purpose of ascertaining whether the legislative branch has expressed its will in accordance with constitutional requirements, yet a legislative measure which has taken upon itself all the forms and appearances of verity which are involved' in its enrolment in the office of the secretary of state, its certification by the president of the senate and speaker of the house and its approval by the governor, may not be impeached by the legislative journals except when the proof furnished by them is of the clearest, strongest and most undoubted character. . . . Therefore, within the rule before declared and now reaffirmed, the mere silence of the legislative -journals as to whether amendments were made to a pending bill is not sufficient to impeach the measure which finally appears in the form of an enrolled, certified and approved enactment containing the amendments.” (Page 92.)
The history of the bill shows that it was amended at some time in its career, and, while the record does not affirmatively show that the title was amended, it does not appear conclusively, clearly and beyond all doubt that the bill as enrolled is not the bill passed. It does appear beyond question that the bill passed by both houses and known throughout its entire history as senate bill No. 308 is the bill signed by the governor.
In a case where the journals of the legislature are silent with reference to a change in the title, and it is possible to explain them upon the theory that the enrolled statute is correct and valid, it is the duty, we think, of the court to uphold the statute. (Homrig hausen v. Knoche, 58 Kan. 646, 50 Pac. 879; In re Taylor, 60 Kan. 87, 55 Pac. 340; The State v. Andrews, 64 Kan. 474, 67 Pac. 870.)
The second ground upon which the validity of the act is challenged is that it is in contravention of section 5 of article 12 of th'e constitution of the state of Kansas, which declares that “provision shall be made by general law for the organization of cities, towns and villages; and their power of . . . borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.” (Gen. Stat. 1901, § 214.) To the first branch of this objection it is only necessary to say that the act is a general one, and in express terms applies to “any city of the first, second or third class.” (§ 1.) As to the second branch of the challenge, it is sufficiently answered by the case of City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486, holding that it is a matter exclusively for the legislature to determine what are reasonable restrictions to be imposed upon the powers of cities with reference to taxation. .
Third, it is further insisted that the act in- question is in contravention of section 17 of article 2 of the constitution, requiring that “all laws of-a general nature shall have a uniform operation throughout the state.” (Gen. Stat. 1901, § 135.) The argument is that, because some cities under previous legislative authority have issued bonds for electric-light and water-works plants, to give them by this act new authority to issue bonds for such purposes creates a condition of inequality between those cities and such cities as may not have heretofore incurred any such indebtedness. This results, it is said, in destroying the uniform operation of the law. We fail to see the force of the argument. The law by its terms has a uniform operation, so far as it operates. It creates no indebtedness upon any city. It gives to the electors of all cities the power to vote bonds for certain purposes, if in their opinion the needs of their city require it. In some instances the growth of a city and the depreciation of its electric-light or water-works plant, bonded under the authority of previous acts of the legislature, may demand additional facilities. It is left for the electors of the city to determine. (C. K. & N. Rly. Co. v. City of Manhattan, 45 Kan. 419, 25 Pac. 879.) That some cities, after the law. is put in operation, may have a different percentage of bonded indebtedness for these purposes than other cities would result not so much from the operation of the law as from local conditions. A rainfall of one inch over the whole state might result in a flood in those sections where the soil was already saturated with previous rains, and produce a different result in those sections where drought happened to prevail, but the rain would be uniform in its operation. A law providing for the payment of a poll-tax of the same amount by all able-bodied men between certain ages would be uniform in its operation, within the meaning of this provision, although some of the very poor might find it a hardship which those in better circumstances would not notice. The constitutional requirement is satisfied when the law is made to apply to all cities and the amount of bonds issued under it fixed at the same percentage of the assessed valuation.
The validity of the act in questionbeing determined, there remains, after all, the principal objection to the registration of these bonds, which is that the proposed issue of bonds exceeds the limitations established by law. It appears that the city of Belleville is a city of the second class, with a population of over 2000; that its assessed valuation is $231,000; and that in addition to the proposed bonds it has outstanding bonds, issued under former acts of the legislature, for water-works and railroad aid, amounting to $40,000. It also appears that $28,000 of these outstanding bonds were issued for the purpose of providing water-works, which is one of the purposes mentioned in the act of 1905. Fifteen per cent, of the assessed valuation amounts to $34,650. It is the contention of defendant that, inasmuch as none of the previous legislative acts limiting the amount of indebtedness to be incurred for such purposes by cities of the second class has been specifically repealed, the power of the city of Belleville is limited by the previous acts, and it now has only power to issue bonds to the extent of $6650, which, it is said, together with the outstanding bonds, amounts to the fifteen per cent. Section 4 of chapter 101 of the Laws of 1905 reads as follows: “No bonds in excess of fifteen per centum of the assessed valuation of such city shall be issued under the authority of this act.” Section 5 reads: “All acts and parts of acts in conflict herewith are hereby repealed.”
It will be observed that, as was said in C. K. & N. Rly. Co. v. City of Manhattan, 45 Kan. 419, 25 Pac. 879, this “is the latest statute, and is complete in itself.” (Page 422. See, also, The State, ex rel., v. Studt, 31 Kan. 245, 1 Pac. 635.) Moreover, section 5 repeals all acts and parts of acts in conflict with the provisions of the act in question. It does not purport to be an amendment to any previous act, but is an independent measure. All bonds issued under its provisions are limited in amount by the provisions of section 4. The limitations in other statutes, therefore, do not control the amount of bonds authorized to be issued under this act. The plain words of the statute'speak for themselves, and the courts are bound by them. The writ is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The only question presented is whether a judgment in favor of a partnership becomes dormant on the death of one of the partners. Plaintiff in error concedes that if the case of Ballinger v. Redhead, 1 Kan. App. 484, 40 Pac. 828, is the accepted law of the state the judgment in this case must be affirmed. It is provided by section 439 of the code of civil procedure as follows:
“If either or both parties die after judgment and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.” (Gen. Stat. 1901, § 4889.)
It is contended that this statute does not require the revivor of a judgment when the whole right to enforce it passes by the death of one of several plaintiffs to another plaintiff. In Blaker v. Sands, 29 Kan. 551, it was held that upon the death of one partner the other becomes a trustee for all concerned. Counsel for plaintiff in error rely upon this and the case of Teney v. Laing, 47 Kan. 297, 27 Pac. 976, where it was held that until the .surviving partner had been cited to appear before the probate court and had neglected or refused to give the bond provided for in section -2817 of the General Statutes of 1901, and until the administrator had given the bond required of such administrator, the surviving partner was entitled to the possession of the partnership assets.
This court had previously decided, in Shattuck v. Chandler, 40 Kan. 516, 20 Pac. 225, 10 Am. St. Rep. 227, that the provisions of article 2 of chapter 37 of the Compiled Laws of 1885, which are the same as article 2 of chapter 37 of the General Statutes of 1901, preclude the settlement of partnership estates in any other manner. It cannot be questioned .that the surviving partner is entitled to the possession of the assets of the firm, as against the administrator, .until deprived of that right by due process of law provided for in this statute. But the question' here is not the right to the possession of assets; it is merely as to the status of a judgment upon the death of one of two parties plaintiff. As was held in Seeley v. Johnson, 61 Kan. 337, 59 Pac. 631, 78 Am. St. Rep. 314, upon the death of plaintiff in the judgment it becomes dormant and a revivor is necessary. Did the judgment here become dormant by the death of one of the partners who were plaintiffs ?
The case of Ballinger v. Redhead, 1 Kan. App. 434, 40 Pac. 828, decided by the court of appeals 'eleven years ago, has been recognized by this court as settled law. It was cited in Seeley v. Johnson, supra, followed in Denny v. Ross, 70 Kan. 720, 79 Pac. 502, and is cited as the law of this state in the following authorities: 22 A. & E. Encycl. of L. 221, 8 Encyc. Pl. & Pr. 327, and 17 Cyc. 996. There are no facts which distinguish that case from this. While opposed by some respectable authorities, its reasoning accords with our views and the policy of our statutes. We hold, therefore, that upon the death of one of the members of a partnership which is a party plaintiff in a judgment the judgment becomes dormant, and no execution can issue thereon until it has been revived.
The judgment allowing the motion to quash is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The appellants, Beez McCorckle and William Cutler, were jointly .tried and convicted of violating the prohibitory liquor law. In this case the state was entitled to two peremptory challenges and each of the defendants to four. The trial court ruled that in the exercise of peremptory challenges the state should first challenge one juror, and that each of the defendants should then peremptorily challenge three jurors, that the state should then exercise its second peremptory challenge, and each of the defendants should then exercise his last peremptory challenge. It is contended that this rule was erroneous and prejudicial to the appellants. The contention of the appellants is that each of them was entitled to exercise two peremptory challenges after the prosecution had ex- • ercised its first, and that it was error for the court to require each of them to exercise three of his four peremptory challenges at that time, thus depriving each of them of his right to exercise two of such challenges after the state had exercised its last challenge. Section 271 of the code of civil procedure provides:
“The plaintiff first, and afterward the defendant, shall complete his challenges for cause. They may then in turn, in the same order, have the right to challenge one juror each until each shall have peremptorily challenged three jurors, but no more.” (Gen. Stat. 1901, § 4718.)
Section 208 of the code of criminal procedure provides :
“The proceedings prescribed by law in civil cases in respect to the impaneling of jurors, the keeping them together, and the manner of rendering their verdict, shall be had upon trials on indictments and informations for criminal offenses, except in cases otherwise provided by statute.” (Gen. Stat. 1901, § 5650.)
The appellants read these two sections together, and ■ argue that they establish the rule that the prosecution should exercise its first peremptory challenge, that the defendants should then each exercise two peremptory challenges, that the state should then be required to exercise its second peremptory challenge, and that each of the defendants should then have his remaining two peremptory challenges; and that the court violated this statutory rule to their prejudice. We do not agree with appellants’ contention. This section of the civil code was not intended to furnish a rule for the exercise of peremptory challenges of jurors in the trial of criminal causes. By its provisions the parties to a civil' action have only three peremptory challenges each, and they are exercised alternately, the plaintiff exercising the first challenge. Under the criminal code the defendant has double the number of peremptory challenges that is allowed the prosecution. If the civil procedure should be followed, each side challenging alternately one juror, the defendants in this case would have had six challenges left after the state had exhausted its last. Perhaps the more orderly way would have been to have required the state to exercise its first peremptory challenge and then given each of the defendants two peremptory challenges, and pursued this method to the end. But in the absence of a statutory provision the order of exercising peremptory challenges is largely within the discretion of the trial court, and unless it can be said that it has abused its discretion this court will not disturb its ruling. Each of the appellants had one peremptory challenge left after the state had exhausted all of its challenges. It does not appear that any objection was made to the jury or to any member of it. No abuse of discretion is shown; therefore, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error insists that the district court erred in the manner specified in each of the sixty-nine assignments of error, but for the sake of reaching an early decision upon the more substantial' questions involved in the controversy it waives all of these errors except the findings upon the value of the property, the time when the sale became operative, and the adjustment of the purchase-price. We have, therefore, confined our examination of the case to these questions.
We think the district court erred in excluding from its estimate of the “fair and equitable” value of the water-works system the sum of $15,214.73, that being the amount found by the referee to be the value of the plant as a going concern, including the franchise. A system of water-works in a city, without the right to operate there, or without being connected with water takers, and not in a running condition, would be com paratively worthless. The water company was the owner of these important elements of value, and it seems reasonable that they should not be taken without compensation. Section 10 of the ordinance by which the franchise was granted to the water-works company, in defining the meaning of fair and equitable value, says: “Which shall be placed at the actual value of the works, lands, buildings, machinery and equipments, including the franchise hereby granted.” The parties evidently contemplated that the value of the plant should be fixed by the same standard that would be adopted if the purchaser were an outside party, instead of the city, in which case these elements would be included without question.
In the case of Brsitol v. Bristol & Warren Waterworks, 23 R. I. 274, 49 Atl. 974, the plaintiff granted a franchise to the defendant to operate a system of water-works in the city for fifty years, reserving the option to purchase the plant at any time after ten years and within fifteen years for a fair and reasonable price. The reservation as stated in the ordinance read:
“And that the town may at its option purchase the said water-works and all the pipes, reservoirs, and appurtenances connected, used, or belonging therewith at any time after ten years and within fifteen years herefrom for a fair and reasonable price.” (Page 283.)
In construing this language the court said:
“The res to be bought by the town under this option is exactly what would be the subject of purchase by a third party who should offer to buy of the defendant the Bristol water-works. It comprises the material plant and the rights possessed by the defendant and exercised in the use of the material plant. If the sale were to be made to some third party, could it be doubted that it would include the franchise derived from the town as well as the engines, pipes, and other property purchased elsewhere ? The town has the option to buy, not to extinguish, the rights they have given, which together with other property and rights make up what the defendant owns. Everything which the defendant can sell to another he can sell to the town. A fair and reasonable price to the town is what would be a fair and reasonable price to any one else.” (Page 283.)
In the case of the National Water-works Co. v. Kansas City, 62 Fed. 853, 10 C. C. A. 653, 27 L. R. A. 827, an elaborate and exhaustive opinion was delivered by Mr. Justice Brewer, in which these questions are fully' and clearly discussed. Each of the parties in this case, and' the district court in its opinion, quotes largely from Mr. Justice Brewer’s opinion, and we adopt a part of it as expressing our view upon the matters therein discussed. It reads:
“The original cost of the construction cannot control, for ‘original cost’ and ‘present value’ are not equivalent terms. Nor would the mere cost of reproducing the water-works plant be a fair test, because that does not take into account the value which flows from the established connections between the pipes and the buildings of the city. It is obvious that the mere cost of purchasing the land, constructing the buildings, putting in the machinery, and laying the pipes in the streets — in other words, the cost of reproduction— does not give the value of the property as it is to-day. A completed system of water-works, such as the company has, without a single connection between the pipes in the streets and the buildings of the city, would be a property of much less value than that system connected, as it is, with so many buildings, and earning, in consequence thereof, the money which it does earn. The fact that it is a system in operation, not only with a capacity to supply the city, but actually supplying many buildings in the city — not only with a capacity to earn, but actually earning — makes it true that the ‘fair and equitable value’ is something in excess of the cost of reproduction. The fact that the company does not own the connections between the pipes in the streets and the buildings — such connections being the property of the individual property owners — does not militate against the proposition last stated, for who would care to buy, or at least give a large price for, a waterworks system without a single connection between the pipes in the streets and the buildings adjacent? Such a system would be a dead structure, rather than a living and going business. The additional value created by the fact of many connections with buildings, with , actual supply and actual earnings, is not represented by the mere cost of making such connections. Such connections are not compulsory, but depend upon the will .of the property owners, and are secured only by efforts on the part of the owners of the water-works, and inducements held out therefor. The city, by this purchase, steps into possession of a water-works plant, —not merely a completed system for bringing water to the city, and distributing it through pipes placed in the streets, but a system already earning a large income by virtue of having secured connections between the pipes in the streets and a multitude of private buildings. It steps into possession of a property which not only has the ability to earn, but is in fact earning. It should pay therefor not merely the value of a system which might be made to earn, but that of a system which does.earn.” (Page 865.)
We think the district court was right in adjusting the rights of the parties as of August 1, 1904. The contract of purchase became fixed when the city notified the company that it had elected to take the plant and offered to close the transaction at once.
The proceeding to ascertain the value of the property was a mere formality, having nothing to do with the substance of the contract of sale. (Water Co. v. Cherryvale, 65 Kan. 219, 69 Pac. 176; Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076; Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663.)
The plaintiff in error insists that this is a misapplication of the law of relation, and inequitable in this case, as it requires it to remaip in the charge and management of the business and account for the profits. The situation may be peculiar, but the city had the right under the contract to become the owner of the plant when it elected to do so. The purchase-price could not be paid until the amount thereof was determined in the manner provided by the ordinance, and’the possession of the property could not be changed until payment was made. This situation is the direct and natural result of the contract made by the parties, and must have been contemplated by them.
This application of the law of relation seems to be the only way fully to protect the rights of the parties and to carry out their agreement. The criticism of the plaintiff in error, therefore, is not well taken.
The district court is directed to modify its judgment so as to fix the fair and equitable value of the property at the sum of $75,400, on August 1, 1904, and otherwise adjust the other matters on the same basis as in its former judgment, and extend the time of payment by the city a reasonable time. The costs in this court are equally divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to recover on a promissory note for $495, executed by C. M. Anthony to Laura Fish and five other payees, and to foreclose a mortgage given to secure the payment of the note. Default was made in the payment of the note, and J. Fl Brennan, who became the owner and holder of the note and mortgage shortly after they were executed, brought this suit. It appears that at the commencement of the suit he had obtained a written assignment of the mortgage from only one of the mortgagees. For this his original petition was attacked by demurrer and held to be insufficient, and he filed an amended petition setting forth assignments which he had subsequently obtained from the remaining mortgagees, executed after the suit was begun. The sufficiency of the amended petition was challenged by a demurrer, which the court overruled. A trial resulted in a judgment upon the note and a decree foreclosing the mortgage.
It is now insisted that the amended petition did not show a right of recovery in Brennan, and that the court ¿rred in overruling the demurrer. The argument is that as Brennan had not .procured all of'the assignments of the mortgage when the original petition was filed he did not then have an existing cause of action against Anthony, and that .the defect was not cured by obtaining and pleading them in the amended petition. These assignments were not essential to a statement of his causé of action. The- note in suit was •negotiable in form, and it and the mortgage were transferable without a written- indorsement and by mere delivery. A like question was raised in O’Keeffe v. National Bank, 49 Kan. 347, 30 Pac. 473, 33 Am. St. Rep. 370, and it was "held that the title to a note and the mortgage securing its payment passed by delivery, and that the possession of the instruments and their production at the trial by the plaintiff furnished prima facie evidence of his ownership. The payees of the note are not contesting Brennan’s title to the paper. Whatever the rule might be if the title and ownership were challenged by the payees, it is clear that delivery and possession were sufficient for Brennan’s purpose.
Plaintiff in error appears to concede this to have been the correct rule, but he claims that it has been changed by the act relating to the assignment of real-estate mortgages. (Laws 1899/ ch. 168.) That act does not undertake to limit the methods by which real-estate mortgages may be transferred, and it does not provide that the failure to make' a record of an assignment of a mortgage shall invalidate the security or the transfer. It was intended as a protection to mortgagors, and the only, penalty prescribed for not recording the transfer is that all payments made by the mortgagor to the mortgagee or to any one who appeared to be the owner shall be credited to the mortgagor, although the assignee never received such payments. This was the view taken of the statute in earlier cases. (Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956; Wheelock v. Myers, 64 Kan. 47, 67 Pac. 632.)
The ownership of the paper was sufficiently shown in the pleadings, and also in the proof that was offered to sustain it. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
GRAVES, J.:
■'This action was commenced in the district court of Allen county to recover damages for injuries resulting from a defective sidewalk in the city of La Harpe. The city demurred to the plaintiff’s petition on the ground that it did not contain facts sufficient to constitute a cause of action. The demurrer wás overruled, .and this, ruling is assigned as error. It is claimed by the plaintiff in error that the petition does not aver that the city had notice of the alleged defect in the sidewalk prior to the injury of which the plaintiff complains. The defendant in error claims that this allegation is contained in the paragraph of the petition which reads:
“It was thé duty of said city to keep the said sidewalks, streets, alleys and crossings in said city in good-repair and in a safe condition for persons passing along and over said streets, sidewalks and crossings without injury, yet the said defendant, the city of La Harpe, disregarding its duty in that respect, by its servants and agents, did, on or about the 17th day of July, 1904, so negligently and carelessly keep and manage its public sidewalks and crossings in said city that the same became dangerous to life and safety of persons passing thereon; that on the evening of the 17th day of July, 1904, plaintiff was lawfully walking upon the public sidewalk on McKinley avenue in said city on his way home in the northeast part of said city, and not knowing that said sidewalk was defective, and without fault or negligence upon his part, and when so 'walking upon said sidewalk, plaintiff was tripped by a loose board upon said sidewalk and was thrown with his entire weight and great violence upon the heel of his left hand and wrist-joint, thereby bruising, breaking and lacerating the tissues of the wrist-joint of his left arm.”
We are unable to find such an allegation in the petition. There does not appear to be any statement of fact which was intended by the pleader to cover this point. It was apparently overlooked. No motion to make the petition more definite and certain was filed, and therefore the statements of the petition should be liberally construed in favor of the pleader. (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; The Western Massachusetts Insurance Company v. Duffey, 2 Kan. 347; Stewart v, Balderston, 10 Kan. 147; Crowther v. Elliott, 7 Kan. 235; Park v. Tinkham, 9 Kan. 615.) But as no attempt was made to allege that the city had notice of the defect in the sidewalk before the injury occurred there is nothing to construe.
“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.” (Jansen v. City of Atchison, 16 Kan. 358, syllabus. See, also, Riggs v. City of Florence, 27 Kan. 194; City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893.)
The mere existence of a defect in a sidewalk does not constitute culpable negligence on the part of a city. Such negligence arises only when the city fails to repair the defect within a reasonable time after having notice thereof. The existence of such notice is therefore an important element in a' cause of action against a city for damages resulting from a defective sidewalk, and must be alleged in the petition. For want of such averment the petition in this case is fatally defective.
The judgment of the district court is reversed, with instructions to sustain the demurrer to the petition and proceed with the case in accordance with the views herein expressed.
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The opinion of the court was delivered by
Mason, J.:
Charles W. Dyerson was run into by an engine and tender of the Union Pacific Railroad Company and severely injured. He sued the company for damages, alleging that his injury was occasioned by the defendant’s negligence. At the trial the court rendered judgment against him upon his petition and his preliminary statement to the jury. He prosecutes-error.
The material facts disclosed by the plaintiff’s pleading and statement may be thus summarized: He had for some time been employed by the company in its Kansas City yards. - At the time of his injury he was known as a car-repairer, and one of his duties was -to supply cars with ice. Ice for this use was kept in a box four feet high, four feet wide and eight feet long, placed parallel with a double track, four or five feet north of the northernmost rail. Between the box and the track were three steps, each eight inches high, the edge of the lowest being about two feet from the rail. For a long time the custom had been to use the north track only for west-moving trains or locomotives, except when the south track, which was used by those going east, was obstructed. This custom was in accordance with a rule, of the existence of which the plaintiff knew by having some time before, while he was a car-inspector, seen in a switch shanty a bulletin in which it was incorporated. A short time before the injury complained of the rule and practice in this respect had been reversed, but the plaintiff was not notified of the change and had no knowledge of it.
On the day of the accident, at about eleven o’clock in the morning, he was told to get ready to ice a tourist car which would be in shortly.' He went to the east end of the ice-box, where there was a rack for the purpose, and crushed a quantity of ice, with which he filled a bucket, placing it in or near the box. He then walked to a point a little west of the box and waited for the car to arrive. While standing there his foreman beckoned him from a place south of the tracks and east of where he stood, and pointed to the car which was to be iced. He walked between the ice-box and the track to get his bucket of ice, reached it, took hold of it and started to carry it to the car, and while on the lowest step and about to proceed across the track he was struck by the tender of a locomotive which was backing east on the north track at the rate of fifteen or twenty miles an hour, without a signal of its approach being given and without a lookout along the track being kept. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked. It is therefore manifest that the plaintiff’s omission to exercise due caution in his own behalf was fatal to his recovery, unless there was something in the peculiar circumstances of the case to take it out of the general rule, which is thus stated in volume 23 of the American and English Encyclopaedia of Law:
“Any one who goes upon or near a railroad-track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains; and if, in disregard of this duty to his own safety, he steps upon the track without looking or listening, . . . he is guilty of such negligence as to bar an action for the injury.” (Page 765.)
One of the exceptions of the rule is stated by the same authority in these terms:
“Nor does the principle apply to employees whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains.” (Page 768.)
It is argued that the plaintiff in error falls within ■ this exception. If he had been injured while standing upon the steps and engaged in breaking ice this might be true, for the performance of that duty might have rendered it impracticable for him to keep a strict watch for passing trains, and if while so engaged any part of his body could come within the overhang of the cars or locomotives the place was not a safe one to work in. But such was not the case. Whatever danger he might have been subjected to while filling his bucket with ice had passed. He had moved to a place of entire safety west of the ice-box and was awaiting an order to carry the ice to a car. When the order came he had no duty for the time being but to get the bucket and carry it across the track to where the car stood. However great a degree of promptness or haste might have been expected of him, it was not essential that he should cross the track at any particular point, nor could his delaying until the engine and tender had passed have been material. He was simply in the position of one having occasion to get from one side of the track to the other. The necessity of his picking up the bucket before crossing did not preclude his glancing up the track to see if it was clear. The mere fact that he had habitually worked near the track and was under the frequent necessity of crossing.it did not justify any relaxation of vigilance on his part. The tendency of the authorities seems rather to be to regard such circumstances as calling for the exercise of a higher degree of diligence than is expected of a pedestrian who is not an employee. In The Wabash Railroad Co. v. Skiles, 64 Ohio St. 458, 60 N. E. 576, it was said:
“It has been laid down as the law that passengers who are required to cross railroad-tracks in getting upon or alighting from trains have the right, from the nature of their contract, to expect a safe place for that purpose and may govern themselves accordingly; but such immunity has never been conceded to travelers upon a railroad-crossing having equal rights there with the railroad company, and still less to employees in the yards or depots of the company. - The latter have no invitation or implied contract, as passengers do have, to perform their duties in a safe place. The very nature of employment about the tracks of a railroad involves notice of the danger of it, and nobody knows better than an employee that other employees are liable to be careless in the observance of rules and lax in the performance of duty. Therefore he cannot be permitted to shut his eyes to obvious dangers, and to act with ‘full reliance’ that rules will be observed, and a safe passage kept for him whenever his duties call upon him to cross the tracks. He cannot be excused from the rule that ordinary prudence requires that a person in the full enjoyment of the faculties of seeing and hearing should use them when about to pass over, a railroad-track, and that the omission to do so is contributory negligence when it immediately results in an Injury which might have been avoided if the injured person had looked or listened.” (Page 471.)
Among other cases bearing more or less directly upon this proposition may be cited: Grand Trunk Ry. Co. v. Baird, 94 Fed. 946, 36 C. C. A. 574; Loring v. K. C. Ft. S. & M. R’y Co., 128 Mo. 349, 31 S. W. 6; Elliot v. Chicago, M. & St. P. Ry. Co., 5 Dak. 523, 41 N. W. 758, 3 L. R. A. 363; Elliot v. Chicago, Milwaukee &c. Railway, 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068; Abbot and another v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910; Carlson v. Cincinnati, etc., R. Co., 120 Mich. 481, 79 N. W. 688; St. Jean v. Boston & Maine Railroad, 170 Mass. 213, 48 N. E. 1088; Roskoyek v. St. Paul & Duluth R. Co., 76 Minn. 28, 78 N. W. 872; Chicago, B. & Q. R. Co. v. Yost, 56 Neb. 439, 76 N. W. 901.
It is claimed that negligence cannot be imputed to the plaintiff for his failure to look along the track to the west because, having had no notice of any change, he had a right to suppose that the old rule of using it under ordinary circumstances only for west-bound trains was still in force and would be observed. This consideration, however, did not relieve him from the burden of watchfulness on his own part. It is doubtful whether there was an obligation on the part of the company to give notice to the plaintiff of such a change. The information he had regarding the former rule was shown to have been acquired incidentally, and not to have been officially communicated to him as an employee. Of a somewhat similar question it was said in L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529:
“In excuse for not using any precaution to ascertain whether there was any train approaching from the north, appellee urges the practice of the roads to run all trains south, from Chicago, on the Rock Island track, and all trains north, toward Chicago, on the Lake Shore track; and that, therefore, in going upon the Lake Shore track, he was only bound to look south to see if any train was coming from that direction. Appellee was not justified in relying upon any such practice, as the result showed. The companies had the right to change such practice at any time, and to ■ run their trains at all times in either direction, and any dependence upon such former practice was at appellee’s risk. This practice before did not excuse the exercise of caution and vigilance in looking for approaching trains in both directions.” (Page 534.)
But if it was negligence to reverse the method of using the tracks without giving notice the situation was no different from that presented by the company’s sending an' engine down the track in disregard of any existing rule, whether relating to direction, or speed, or lookout, or signal of warning, or of any precaution which a due regard for the safety of those about the yards might demand irrespective of formal regulations. If one about to cross a railroad-track could rely implicitly upon the company’s employees performing their full duty, and if such reliance would excuse the use of precaution for one’s own protection, then there could be no room whátever for the application of the doctrine of contributory negligence. It is only when it has been established that the company has been negligent — that is, that some agent has omitted to do something which he should have done and which in a sense every one has a right to expect him to perform— that any occasion arises to consider whether a person injured has himself been at fault.
Finally it is contended in behalf of the plaintiff that, even admitting his own want of care to have been such as would ordinarily bar a recovery, still he had a right to submit to the jury the question whether the employees in charge of the engine by the use of reasonable diligence could have discovered his negligence in time to avert the accident, and that an affirmative answer would have entitled him to a verdict. There is a general agreement in the authorities that where an engineer actually sees a person in a position of danger, and then fails to do what he reasonably can to prevent an accident, the railroad company is responsible for the resulting injury, irrespective of the question of contributory negligence. A logical and sufficient reason for this holding is that such conduct on the part of the company’s agent amounts to recklessness of wantonness, and is analogous to a wilful and intentional wrong, and like a wrong of that character establishes a cause of action to which negligence of the injured party is no defense. This reason is not always given in decisions upon the point, perhaps not even generally, but it sometimes is. For example, in Labarge v. Pere Marquette R. Co., 134 Mich. 139, 95 N. W. 1073, it was thus expressed:
“Where one wilfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to wilfulness, there is an opportunity for applying the same rule.” (Page 141.)
In a number of cases it has been held that if the I engineer by the exercise of reasonable diligence could have learned that danger was imminent but did not do so the liability of the company will be determined in all. respects as though he had in fact become aware of it, the constructive knowledge being apparently deemed the equivalent of actual knowledge. It is difficult or impossible to reconcile the decisions upon this and related questions, or to derive from them any generally accepted statement either of principle or result. Many of them are collected and discussed in chapter 9 of volume 1 of Thompson’s Commentaries on the Law of Negligence, especially in sections 222 to 247.
There seems, however, to be no sufficient reason why the mere fact that a defendant is negligent in failing to discover a plaintiff’s negligence, or his danger, should in and of itself exclude all consideration of contributory negligence. Take the not unusual situation1 of a train being negligently operated, let us say by being run at too high a speed and without proper signals of warning being given. Now, any one injured as a result of such negligence has prima facie a right to recover. But, if his own negligence has contributed to his injury, then ordinarily his right is barred. How is the situation altered if the railroad employees add to their negligence 'in regard to speed and signals the negligence of failing to keep a sufficient lookout? The negligence is of the same sort; and, if the contributory negligence of the person injured prevents a recovery when but the two elements of negligence are present, consistency requires that it should have the same effect although a third element is added. If in the present case the plaintiff was entitled to recover in spite of his own negligence it must be because the order of its occurrence with respect to that of the defendant made the latter the proximate cause of the injury.) This indeed is. his contention, and to support it reliance is placed upon the following text, which was quoted with approval in Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, and the substance of which is to be |ound also in volume 20 of the American and English Encyclopaedia of Law, at page 137:
“And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action ¡ involving the questions of negligence and contributory i negligence should, by the exercise of ordinary care, have discovered the negligence of the other, after its occurrence, in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of a following injury. (7 A. & E. Encycl. of L. 387.)”
' This may be accepted as a correct statement of a principle of universal application, according with both reason and authority, provided the words “after its occurrence” be interpreted to mean after the person concerned had ceased to be negligent. { The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary but a reasonable one. The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility, is his alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other.) As is said in the paragraph from which the foregoing quotation is made, “it is only when the negligence of one party is subsequent to that of the other that the rule can be invoked.” In a note printed in volume 2 of the supplement- to the American and English Encyclopaedia of Law, at page 64, many recent cases are cited bearing on the subject, and it is said:
“This so-called exception to the rule of contributory negligence (i. e., the doctrine of ‘the last clear chance’) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.”
(in the present case it may be granted that the negligence of the plaintiff began when he walked between the track and the ice-box on the way to get the bucket, and that the employees in charge of the engine were themselves negligent in not discovering this negligence on his part and the peril to which it exposed him and taking steps to protect him. But his negligence as well as theirs continued up to the moment of the accident, or until it could not possibly be averted. His opportunity to discover and avoid the danger was at least as good as theirs. His want of'care existing as late as theirs was a' concurring cause of his injury, and bars his recovery.) This determination is entirely consistent with what Mr. Thompson in his work above cited has styled the “last clear chance” doctrine,- as is obvious from a consideration of the terms in which it is stated. As originally announced it was thus phrased:
“The party who has the last opportunity of avoiding accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.” (1 Shear. & Red. Law of Neg., 5th ed., § 99.)
Mr. Thompson rewords it as follows:
“Where both parties are negligent, the one that'had the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it — his negligence being deemed the direct and proximate cause of it.” (1 Thomp. Com. Law Neg. § 240.)
Expressions are to be found in the reports seemingly at variance with the conclusion here reached, but for the most part the decisions holding a defendant liable for failure to discover and act upon the plaintiff’s negligence were made in cases which were in fact like Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, or were decided upon the theory that they fell within the same rule. There the plaintiff’s decedent while riding a bicycle was through his own fault run into by a street-car; he clung to the fender, was carried some seventy-five feet, then fell under the wheels and was killed. A judgment against the street-car company was upheld only upon the theory that after he had reached a position of danger from which he could not extricate himself — that is, after his negligence had ceased — the defendant’s employees were negligent in failing to discover his peril and stop the car.
In Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, the writer of the opinion said:
“I should hesitate to say that if it appeared that the want of ordinary care on the part of the plaintiff, at the very time of the injury, contributed either to produce or to enhance the injury, he could recover; because it seems to me that is equivalent to saying that the plaintiff, by the exercise of ordinary care at the time, could have escaped the injury.” (Page 223.)
The principle thus intimated was embodied in a decision in French v. The Grand Trunk Railway Co., 76 Vt. 441, 58 Atl. 722, where it was said:
“It is true that when a traveler has reached a point where he cannot help himself, cannot extricate himself, and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury, and will not preclude a recovery; but it is equally true that if a traveler, when he reaches the point of collision, is in a situation to help himself, and by a vigilant use of his eyes, ears and physical strength to extricate himself and avoid injury, his negligence at that 'point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. In such a case the negligence of the plaintiff is concurrent with the negligence of the defendant, and the negligence of each is operative at the time of the accident. When negligence is concurrent and operative at the time of the collision, and contributes to it, there can be no recovery.” (Page 447.)
To the same effect are these extracts:
“There is no testimony suggesting negligence on the part of the driver that does not convict Doyle of an equal or greater degree of negligence. One had no better opportunity to anticipate the accident nor any better means of preventing it than the other. If, therefore, there was negligence, it was concurring negligence, continuous and mutual up to the instant of the accident, which disentitles the plaintiff to recover.” (Consumers’ Brewing Co. v. Doyle, 102 Va. 399, 403, 46 S. E. 391.)
“In numerous cases it has been held that the plaintiff’s conduct is not contributory negligence if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened contact with some agency under the control of the defendant, when the plaintiff cannot, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of-them. . . . The rule does not apply where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof.” (Robards v. Indianapolis St. R. Co., 32 Ind. App. 297, 302, 66 N. E. 66, 67 N. E. 953.)
“The plaintiff must show that, at some point of time, in view of the entire situation, including the plaintiff’s negligence, the defendant was thereafter culpably negligent, and its negligence the latest in the succession of causes. In such case the plaintiff’s negligence would not be the proximate cause of the injury. . . . The plaintiff not only negligently put himself in a place of peril, but continued negligently to move on to the catastrophe until it happened. The language of the doctrine of prior and subsequent negligence implies that the principle is not applicable when the negligence of the plaintiff and that of the defendant are practically simultaneous.” (Butler v. Railway, 99 Me. 149, 159, 160, 58 Atl. 775, 105 Am. St. Rep. 267.)
In Green v. Los Angeles etc. Ry. Co., 143 Cal. 31, 76 Pac. 719, 101 Am. St. Rep. 68, it was said of the rule holding the defendant liable notwithstanding the contributory negligence of plaintiff:
“It applies in cases where the defendant, knowing of plaintiff’s danger, and that it is obvious that he cannot extricate himself from it, fails to do something which it is in his power to do to avoid the injury. It has no application, however, to a case where both parties are guilty of concurrent acts of negligence, each of which, at the very time when the accident occurs, contributes to it.” (Page 41.)
Of the same rule it was said in O’Brien v. McGlinchy, 68 Me. 552:
“This rule applies usually in cases where the plaintiff or his property is in some position of danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot and the defendant can prevent an injury. . . . But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.” (Pages 557, 558.)
In Smith v. Railroad, 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287, the general rule was thus concretely stated:
“Applying the rule which we have stated to accidents upon railroad-tracks, it may be illustrated as follows: First, there must be a duty imposed upon the engineer, as otherwise there can be no negligence to which the negligence of the injured party is to contribute. The duty under consideration is to keep a vigilant lookout . . . in order to discover and avoid injury to persons who may be on the track and who are apparently in unconscious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision, when he could have done so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence of the engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A, being on the track and after this decisive negligence, fails to look and listen and is in consequence run over and injured, his negligence is not concurrent merely but really subsequent to that of the engineer, and he cannot recover, as he and not the engineer has ‘the last clear opportunity of avoiding the accident.’ If, however, A is on the track . . . and while there, and before the dedecisive negligence of the engineer, he by his own negligence becomes so entangled in the rails that he cannot extricate himself in time to avoid the collision, and his helpless condition could have been discovered had the engineer exercised ordinary care, then the negligence of A would be previous to that of the engineer, and the engineer’s negligence would be the proximate cause, he, and not A, having the last clear opportunity of avoiding the injury. The same result would follow in the case of a wagon negligently stalled, when no effort of the owner could remove it, and there are other cases to which the principle is applicable.” (Pages 755, 756.)
The principle running through these cases is reasonable and is consistent with the general rules that have met with practically universal acceptance. Applied to the facts of this case it requires an affirmance of the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is a suit to cancel a gas lease on the ground that it is void. The particular defects which it is alleged vitiate the lease may be summarized as follow: (1) The lessees were unable when the lease was executed to perform the conditions thereof, having no right to lay pipes to lessors’ premises, which they might want to do, at the end of five years; (2) the lessors expected operations to be commenced before the expiration of the five-year limit; (8) the lease is ambiguous; (4 and 5) while the receipt of royalty is of the essence of the contract, the lease imposes no obligation upon the lessees to begin or continue work; (6) the provisions of the lease lack mutuality; (7) the design of lessees and assigns is to hold the land for speculative purposes only.
A general demurrer was filed to each of the several causes of action, which was sustained. The plaintiffs stood upon their petition, and judgment was entered against them for costs. They bring the case here alleging that the court erred in sustaining the demurrer. This is the sole question presented to this court.
We are unable to attach the importance to these alleged defects which has been given to them by the plaintiffs. We cannot agree with the contention that the lease is so inherently vicious as to be void. In support of their claim the plaintiffs cite the following cases: National Oil & Pipe Line Co. v. Teel (Tex. Civ. App.), 67 S. W. 545; Ray v. Natural Gas Co., 138 Pa. St. 576, 20 Atl. 1065, 12 L. R. A. 290, 21 Am. St. Rep. 922; Glasgow, Appellant, v. Chartiers Oil Co., 152 Pa. St. 48, 25 Atl. 232; Oil Company v. Oil Company, 47 W. Va. 84, 34 S. E. 923; Roberts v. Bettman et al., 45 W. Va. 143, 30 S. E. 95; Federal Oil Co. v. Western Oil Co., 112 Fed. 373; Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 38 South. 253.
None of these cases is in point here. No question is decided by any of them which would, if followed, dispose of this case. The instruments involved in the cases cited are in substance quite similar to the lease in question. There is a margin of difference, however, between the facts involved in this case and those cited, sufficient to destroy their applicability to the question here presented. In none of the cases mentioned was suit brought to cancel the instrument involved because it was void, but the object in each case was to determine the rights of the parties thereunder. It will be necessary, therefore, to consider the validity of' the lease in controversy upon its own provisions and conditions.
Taking the objections in their order, the first is that it was impossible for the lessee, when the lease was executed, to exercise his option to keep the lease alive by furnishing gas at the end of five years. We do not understand that an option to do something five years in the future is void merely because the person making the agreement is unable to perform the contract at once.
The second objection is that the lessors expected operations would be commenced immediately and not be delayed during the five-year limit, and that they have been disappointed in these expectations. We do not understand that a written instrument is void merely because one of the parties expects the other to perform the conditions thereof on his part at once, when by the express stipulations of the agreement such performance may be delayed five years.
The third objection is that the lease is ambiguous. While the terms of this instrument are not as clear and specific as usual in such important agreements, yet it is not difficult to ascertain therefrom what the parties intended thereby, and, when this can be done, written contracts should not be set aside as void merely because to some degree ambiguous.
The fourth and fifth objections are apparently regarded as the most important, and are chiefly relied upon. It is claimed that the receipt of royalty is the essence of the contract, and that the stipulations therein do not require the lessees to begin or continue operations ; that the lessees are thereby able to defeat the real object of the lease, and that, for this reason, the instrument is void. In the language of the brief of plaintiffs, “it cannot be said that this lease was valid for a single minute, either before or after the assignment thereof.” This objection is founded principally upon paragraph four of the lease. It may be conceded that obtaining royalty is the essence of the contract, and also that under these provisions the lessees might continue the lease during its full term of twenty years without doing anything in the way of exploration for gas of oil. These considerations, however, do not make the lease void, nor unreasonable. There are no facts alleged in the petition which indicate that these pro visions are in any way injurious to the interests of the lessors.
Whether or not a contract is unconscionable, unreasonable, or improvident, may depend upon something more than its mere language.. The subject-matter of the agreement, its condition, surroundings, and the relation of the parties thereto, may become material matters for consideration. The land described in the lease, in the absence of allegations to the contrary, may have been assumed by the district court to be, when the lease was executed, situated remote from oil- or gas-producing territory. When this lease was executed the idea of valuable deposits of gas or oil being under the leased premises may have been regarded as somewhat visionary. The lessors may have been disposed to grant very liberal terms to persons willing to make the necessary expenditures to ascertain whether such deposits existed or not. On the other hand, the lessees may have been willing to undertake such explorations if inducements sufficiently liberal, as to time and otherwise, could be secured. The terms and conditions of such a contract, including the time during which a lease shall continue in force before the commencement of the work of exploration, are proper matters of agreement which the parties have the right to fix to suit themselves. In the absence of fraud, imposition or mistake, neither of which is suggested here, parties should be left to make their own contracts, and, when freely and voluntarily made, should be held to the conditions thereof, even though it should turn out in the light of subsequent developments that their rights were valued too lightly. In the case of Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625, Mr. Justice Burch used language which is quite pertinent here. He said:
“Courts have no right to declare that, whatever the parties may think, operations for sinking a well must begin át once under an oil or gas lease. If this court had done so prior to the time plaintiffs desired to contract they would have rebelled, without any doubt, with the utmost indignation against the decision as an infringement of their liberty to contract with reference to their land and the minerals beneath its surface as they pleased. In so doing they would have been justified. If plaintiffs should desire to contract for an immediate exploration, they must have that right; and if they should desire to give an oil or gas company five years in which to sink a well, upon a consideration satisfactory to themselves, and as the result of negotiations free from imposition and fraud, they must have that right. But having deliberately made a contract of the latter description, they have no right to call upon a court to declare that it is of the other kind merely because generally it might seem to be better for farmers not to encumber their lands with mineral leases giving a long time for exploration, or because generally such leases do contemplate that forfeiture shall follow a failure to explore at once.” (Page 134.)
We see no want of mutuality in the terms of the lease. Taken as a whole, it is such a contract as parties may properly make. We do not think the district court erred in sustaining the demurrer, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. L. Bursaw was convicted of unlawfully selling intoxicating liquors. The information contained five counts, and upon a trial he was found guilty on the first and second counts, the judgment imposed being imprisonment for thirty days and a fine of $100 on each count.
He insists on this appeal that the evidence does not sustain the conviction; that it does not in any event show more than one unlawful sale. The state elected to rely on sales of whisky to four young men on each of the three counts. According to their testimony they obtained three bottles of whisky from defendant and drank it in his presence. While the liquor was all procured by these parties and drank within a brief space of time, the sales appear to have been three separate transactions. The young men state that the defendant furnished them with a bottle of whisky and that they “chipped in” and paid him for it, and when that was drunk they bought another bottle and again “chipped in” for its payment, and in the same way a third bottle was purchased and paid for. It thus appears that each bottle was a separate sale, and each sale was, therefore, a distinct offense. There is no lack of evidence to sustain the verdict.
The complaint that leading questions were asked by the state and allowed is without merit. Only a few questions which might be regarded as leading and to which objection was made were asked, and it is manifest that the defendant suffered no injury from the form of the questions. The court has a wide discretion in allowing leading questions, and only an abuse of such discretion affords ground for reversal.
Objection is made that three of the witnesses to whom liquor was sold were permitted to testify in respect to their ages. It appears that they ranged from eighteen to twenty-one years of age, a fact that was patent to all, and while.the evidence was not material it was certainly not prejudicial.
In instructing the jury the court called special attention to the testimony of the defendant, saying: “He testifies as an interested witness, and from an inter ested standpoint, and as such you should consider his testimony.” In the same connection the jury were informed that he was a competent witness, and that his evidence was to be considered in connection with the other evidence and circumstances surrounding the case, and given such weight as the jury might think it entitled to. The jury have a right in all cases, in measuring testimony, to consider the interest which any witness may have in the result of the litigation, and the court may properly call their attention to that right. Ordinarily a court is not warranted in singling out a witness and commenting on his particular interest in the case, but when ah accused becomes a witness in his own behalf the court is justified in calling attention to the interest which he has in the result and stating that it may be considered in determining his credibility. (Hughes, Ins. to Juries, §§ 226,227.) The credibility of a witness is, of course, a question for the jury, and the court should never use language discrediting a witness nor indicate an opinion as to the weight which should be given to his testimony. Here the court appears to have placed no estimate on the evidence of the defendant, but allowed the jury to determine his credibility, saying that in doing so they were at liberty to consider the interest he had in the result of the trial.
Attention is called to remarks made by the county attorney in his argument to the jury, but those mentioned in the brief are not of a serious nature; and, besides, they were not brought to the attention of the court when made, and exceptions to them are not preserved in the record. The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The motion to dismiss the proceeding on the ground that the case-made was not served within the time required by law is disposed of by the case of Gerdom v. Durein, ante, p. 704.
We will first consider the demurrer of the railway company. It is argued that as plaintiff in error was not in the employ of the railway company it had no control over his actions, and that the negligence charged against the railway company upon the ground of the defective brake on the ballast-car is not sufficient to constitute a cause of action against it. The contention is that the causal connection between the negligence alleged on the part of the railway company and plaintiff’s injury was broken by the alleged negligence of plaintiff’s employers. In other words, assuming that the railway company was negligent in furnishing a defective car to Frazier and Vanderhoof, it is said that its negligence could not have been the proximate cause of the injury. The petition shows that the employers of plaintiff had taken possession of the defective car at the time he was injured, and it is argued that under the allegations of the petition and the law of master and servant the masters were responsible to the servant, and their negligence was the proximate cause of the injury.
In Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, a brakeman in the employ of one railway company was injured by a defective car furnished to his employer by" another company. It was held that, the railway company in whose employ the brakeman was at the time of the injury having failed to discharge its obligation to inspect cars received from another company, the causal connection between the act- Of the company first guilty of negligence in furnishing the car and the injury had been severed by the- interposition of an independent agency. The company furnishing the defective car was held, in that case, not liable for injuries to the employee of the company receiving the car.
Plaintiff seeks to recover for a joint tort — the negligence of the railway company in furnishing the defective car to the masters, combined with the negligence of the masters in knowingly furnishing it to him. The question involved is elaborately discussed and the cases in point quite fully collated in the Merrill case, supra. Under the rule laid down in that case it is clear that plaintiff has no cause of action against the railway company. The causal connection between the alleged negligence of the railway company and his injury, under the allegations of his petition, was broken by the intervening negligent acts of his employers. The demurrer of the railway company to the petition was properly sustained.
A different question arises with reference to the de murrer of the other defendants, Frazier and Vanderhoof. It is said that they are not liable because they did not furnish the car, and are not responsible for its defective condition; that it was not their duty to inspect cars furnished them or repair those found to be defective, because they had no authority to remove the cars from the side-track. But it is the duty of the master to furnish his employee with reasonably safe tools and appliances for the performance of the work assigned to him. (Bridge Co. v. Miller, 71 Kan. 13, 40, 80 Pac. 18.) The fact that they were not originally responsible for the defective condition of the car did not relieve them of the duty to provide their employees with reasonably safe appliances. In volume 1 of Labatt on Master and Servant, section 372, it is said:
“Both on principle and authority it is clear that a master is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. In such cases the elements of possession and the exercise of control are decisive. Manifestly, no distinction can logically be based upon the bare circumstance that he has a merely qualified right of property in them. So far as regards his obligations to his servants, he must be considered as the owner pro tempore. This principle is applicable whether he has borrowed the appliance in question, or has hired it for a specific consideration, or has taken possession of it for a definite or indefinite period, with a view to the performance of certain work in which he and the owner are both interested.”
Whether it was their duty to inspect cars when received it is not necessary to décide. The petition alleged that they had actual notice of the defective condition of the car for at least a day prior to the, injury.
A case very similar is that of Spaulding v. Flynt Granite Co., 159 Mass. 587, 34 N. E. 1134. Plaintiff there was in the employ of a stone company, and was bringing a car loaded with stone from defendant’s quarry on a side-track leading to a connection with the Boston & Albany railway. The car was moved by gravitation, and, after starting, plaintiff found he was unable to control the car with the brake. The car ran away with him and he was injured. An action was brought against his employer, the stone company. Defense was made that the car was furnished by the railway company; that the defendant was required to take what cars it could get, and was therefore not liable to the plaintiff. The court said: '
“This car was used by the defendant as one of the instruments of its business. When that is the case, it does not matter whether the defendant owns the thing used or borrows it. The responsibility of the master to his servants is the same either way.” (Page 589.)
A further contention is that the petition shows such contributory negligence on the part of the plaintiff as bars his right to recover. Whether plaintiff was negligent in attempting to stop the car by means of the pinch-bar is, we think, under the circumstances, a question of fact to be determined by the jury. The court was not warranted in saying, as a matter of law, that the plaintiff was guilty of contributory negligence in not abandoning the car and seeking his own safety. While there is no allegation that the man on the other car was in danger, yet a reasonable construction of the petition leaves it fairly to be inferred that plaintiff’s attempt to stop the car was to avoid danger to another as well as the destruction of property. Where one is placed in a dangerous position by the- negligence of another, and in a sudden emergency adopts a perilous alternative in an endeavor to avoid danger to himself or to others he is not guilty of contributory negligence, as a matter of law, although as it turns out he should have acted differently. (Railroad Co. v. Langley, 70 Kan. 453, 461, 78 Pac. 858; Edgerton v. O’Neil, 4 Kan. App. 73, 46 Pac. 206; 1 Shear. & Red. Law of Neg., 5th ed., § 89.)
It follows from what has been said that the court erred in sustaining the demurrer of defendants Frazier and Vanderhoof. The judgment is affirmed as to defendant railway company; as to the other defendants the judgment is reversed and the cause remanded, with directions to overrule their demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Numerous contentions are made in regard to the principles of law which it is said are involved in this controversy. Only a few of them in our . view need be decided.
(1) It is contended by defendant that the judgment of the district court is not appealable, and that therefore this court was without authority to grant a supersedeas staying execution of the judgment and lacks jurisdiction to order the court below to act upon the motion for a new trial. It is said that no motion for a new trial was proper; that the district court has concurrent jurisdiction with the supreme court in habeas corpus; that no provision is made by statute authorizing an appeal from a judgment or decision in habeas corpus; and that the wnight of authority is to the effect that, independent of any statutory provision, an appeal will not lie. Manifestly the question whether this court may review a judgment or decision of the district court in habeas corpus is primarily involved.
Great conflict of opinion exists upon the question whether a judgment in habeas corpus is appealable. Many courts hold that, in the absence of statutory provision, where the action is strictly one to obtain the release of a person who claims to be illegally restrained of his liberty, no appeal lies. Other courts recognize a distinction which sometimes necessarily arises by reason of the nature and scope of the decision and have held that in that class of habeas corpus proceedings where the right to the custody of a minor child is the thing determined an appeal will lie. The action is said to partake of the nature of a private suit in which the public has no concern. • The rights of the parties are determined as in any civil action, and, being a civil action, the right to appeal follows.
Defendant relies upon the decision in In re King, 66 Kan. 695, 72 Pac. 268. In that case we declined to regard a former judgment by another court in habeas corpus for the custody of a child as absolutely conclusive and binding upon this court. The controlling consideration, however, was expressly declared to be that of the welfare of the child. It was there said:
“We agree that, so far as such a proceeding is to be considered as a mere trial of conflicting private rights, there is no reason in the nature of things why the doctrine of estoppel by former adjudication should not apply. . . . When a court in a proper proceeding, wherein conflicting claims to the right to the custody of a child are litigated, takes the custody from the parents and bestows it upon some other person, the legal right of the parent is to that extent extinguished and the new custodian has in that respect the same right formerly held by the parents. The parents may not dispute such right nor relitigate it, except upon a new state of facts. But the court has the same power to change the custody as against the new custodian as it had originally against the parents.” (Pages 698, 699.)
The case of In re Hamilton, 66 Kan. 754, 71 Pac. 817, was decided at the same term. The exact question there was whether a former judgment in habeas corpus determining the custody of a child was res judicata, and the distinction between that and ordinary habeas corpus proceedings was recognized. The court used this language:
“After a careful examination of the authorities, we are inclined to the opinion that, in cases of this character, where the controversy arises over the custody of a child, the real issue is one between private parties contesting a question of private right, under the form of habeas corpus proceedings, in which there arises no question of personal liberty, and in consequence all matters in issue arising upon the same state of facts determined in the prior proceeding should be regarded as settled and concluded.” (Page 756.)
It is said in volume 1 of the fourth edition of Freeman on Judgments, section 324:
“The principle of res judicata is also applicable to proceedings on habeas corpus, so far at least as they involve an inquiry into and a determination .of the rights of conflicting claimants to the custody of minor children. . . . The principles of public policy requiring the application of the doctrines of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form.”
The case of In re King, supra, is not in conflict with this, nor with the doctrine of In re Hamilton, supra. It merely adds the modification that this court will consider'.the best interest of the child as always paramount to the rights of contending claimants, and will not be bound by the hard and fast rule adopted by some courts to the effect that it must first be made to appear that a change in the conditions surrounding the child has occurred since the former adjudication.
A well-considered case directly in point is The State, Baird, pros., v. Baird and Torrey, 19 N. J. Eq. 481. There it was decided that an appeal in such a case will lie notwithstanding the proceedings were by habeas corpus; that while in technical strictness the office of the writ is simply to remove unlawful restraint, and where this is the only purpose the right to appeal is a debatable question, still in habeas corpus for the custody of a child the petition takes a wider scope and invokes the exercise of that power of the court which is gmsi-parental.' It was held that the court in such a case acts under its general jurisdiction of the affairs of infants, and not by force of its more limited jurisdiction by proceedings in habeas corpus. (See, also, In re Mary B. Sneden, 105 Mich. 61, 62 N. Wl 1009, 55 Am. St. Rep. 435; 9 Encyc. Pl. & Pr. 1071, 1072; 15 A. & E. Encycl. of L. 213; 5 Cur. Law, 1619; Mahon v. The People, 218 Ill. 171, 75 N. E. 768; Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787; People ex rel. Lawrence v. Brady, 56 N. Y. 182; The People v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105.) In the last-named case the Colorado court said:
“Whatever may be the rule in this regard applicable to the usual judgment in habeas corpus discharging a party from illegal imprisonment, we think that in a case where the controversy involves the right to the custody of an infant, although the writ of habeas corpus is used to determine that right, it is nevertheless a civil suit, and the judgment rendered being a final adjudication in regard to such custody, it is clearly reviewable by the court of appeals, under the statute creating that court.” (Page 409.)
Some of the ■ authorities cited supra are based upon the conclusiveness of the former decision, proceeding upon the theory that the appealability depends entirely upon whether the former judgment is res judicata. But it is not the rule that to constitute a final judgment for the purposes of appeal it must be a bar to another suit. At common law in the court of king’s bench a final judgment did not mean a final determination of the rights of the parties, but final merely as to the particular suit. The same construction of the meaning of the term “final judgment” -has been adopted by the supreme court of the United States in Weston et al. v. The City Council of Charleston, 27 U. S. 449, 7 L. Ed. 481. To the same effect see Colorado Eastern Ry. Co. v. Union Pac. Ry. Co., 94 Fed. 312, 36 C. C. A. 263. A judgment in forcible entry and detainer cannot be pleaded as a bar to another action by either party, but it is, nevertheless, a final judgment from which an appeal will lie. (Redden v. Tefft, 48 Kan. 302, 29 Pac. 157.) And many other orders and judgments which are not res judicata are final for the purposes of appeal.
Another quite pertinent consideration suggests itself, which is: whether the judgment was or was not an appealable one, this court by granting a■ stay of proceedings assumed to have jurisdiction, and, until ultimately decided by this court to the contrary, it is appealable so far as that question concerns or affects this proceeding. We hold, however; that the judgment of the district court is one from which an appeal will lie.
The effect of the Illinois judgment is manifestly not involved in this proceeding, and therefore nothing said herein in reference to the conclusiveness of such judgments is decisive of that question.
(2) Plaintiff in her petition for this writ of mandamus, after reciting the proceedings below, says:
“Thereupon Mrs. Bleakley, intending no disrespect to the court, but feeling that her rights had not been respected and that the court had arbitrarily deprived her of .her fight to give bond to stay execution, which bond she could give in any sum which a court could reasonably require, and fearing that the illegal act of the court might cause her to lose her baby, she took the train to Moline, 111., the home of the relators in the Kansas suit, and is now an exile from Kansas and her home resting securely in the possession of her child under the laws of Illinois and under the protection of its courts.”
Beyond any question she was guilty of contempt in removing the subject of controversy from the jurisdiction of the court. It is urged by her counsel that she was to some extent justified in her conduct by the action of the court in refusing to grant her a stay of execution. Her application to be permitted to give a stay bond was made twice, once immediately after the judgment was rendered, and again after the motion for a new trial had been by the court continued to the next term. Both of these applications- were made under the provisions of section 1 of chapter 322 of the Laws of 1905, which reads as follows:
“That after the rendition of a judgment or decree in any civil action in any of the district courts of the state of Kansas, that upon the execution of a good and sufficient bond, to be approved by the court, by the party or parties against whom such judgment or decree may be rendered, it shall be the duty of such court to stay execution or order of sale upon such judgment or decree for a reasonable length of time, for the purpose of allowing such party or parties against whom such judgment or decree may be rendered to file proceedings in the supreme court of Kansas to reverse, vacate or modify such judgment or decree.”
Aside from any express statutory provision, it is generally the policy of the courts to preserve the status quo of the parties pending an appeal upon proper security being given, when that may be done without manifestly defeating the ends of justice. This statute, however, declares in positive terms that it shall be the duty of the court to grant the stay. It gives a party situated as was the plaintiff when the judgment was rendered a right which depends in no respect upon the discretion of the court. Counsel for defendant suggest a supposed case in habeas corpus for the custody of a young girl, where it might be clearly established that the defeated party intended* to keep her for the purpose of prostitution, and it is argued that to permit him under such circumstances to stay proceedings on the judgment would defeat the ends of justice. It is sufficient to say that our habeas corpus act makes express provision by which the court or judge may make such order for the temporary custody of the person as justice may require; and, in the absence of such pro vision by statute, the court would have inherent power in a case like the one supposed.
The learned judge of the trial court must have misconceived the force and effect of chapter 322 of the Laws of 1905 in refusing to permit Mrs. Bleakley to give a bond and stay proceedings. Nothing in the findings of the court seems to warrant the inference that there was any special necessity for placing the child in the possession and control of the Barclays pending the final determination of the rights of the parties. The $4000 bond which the court required of the successful party was one for which no express provision is.made by statute, and changed the status of the parties. Conditions might exist which would authorize a court to require such a bond, but the one which Mrs. Bleakley asked to be permitted to give is expressly providéd for by statute, and preserved the status quo. Her application should have been granted and the proceedings stayed. When this court granted a stay of further proceedings on the judgment she was no longer in .continuous contempt in fáiling to return with the child, because the district court no longer had power to enforce the judgment or jurisdiction to act in the case, further than to pass upon the motion for a new trial. Our action in superseding the judgment did not in any' sense relieve her from the charge of, or penalty for, her previous contempt; but, as observed, over that we have no jurisdiction. In order to complete the record for review by this court it became at once the duty of the court below to rule upon the motion for a new trial by either granting or denying it.
This is all that is directly involved in the proceeding. The writ will therefore issue, directing defendant to pass upon the motion for a new trial.
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The opinion of the court was delivered by
Burch, J.:
John Yentzer, of Seneca county, Ohio, died leaving a will, which was duly probated at his domicil, and which contains the following provision:
“I give and devise to my daughter, Elizabeth Yambert, eleven hundred dollars aside of what she has already received, and I appoint my sons, Jacob Yentzer and Benjamin Yentzer, after my death to purchase with the above eleven hundred dollars a home for the above-named “Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children.”
Benjamin Yentzer was appointed executor of the will. In 1878 he deeded to Elizabeth Yambert the land in controversy by a deed containing the following recitals :
“This deed made in compliance and accompanied by a copy of the last will and testament of John Yentzer, late of Seneca county, Ohio, deceased heretofore on the 14th day of November, A. D. 1876. Admitted to probate court, and now on record in said probate court, of which by Benjamin Yentzer, his executor, and in compliance with item four (4) of said will, does convey as specified in said deed to the said Elizabeth Yambert to be for her use during her life and after her death the property to fall to her heirs forever. . . . To have and to hold the same to the only proper use of the said Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her heirs forever.”
This deed was filed for record in the county where the land lies on March 7, 1885. Afterward one Durland acquired tax deeds of the property. In March, 1889, Elizabeth Yambert gave a general warranty deed of the land to Laura E. Lohmuller, in consideration of $1000 and support for the remainder of her life. After that Laura Lohmuller paid taxes on the premises. She is a grandchild of Elizabeth Yambert, but her mother, Saloma Michaels, daughter of Elizabeth Yambert, died before the death of John Yentzer occurred. After the conveyance to Laura E. Lohmuller, Durland quit-claimed to her.
Elizabeth Yambert died in 1902, leaving five children. Two of them conveyed their interests in the property to William Coates. In a suit for partition brought in 1904 Coates was awarded two-fifths of the land and the three children who had not conveyed one-fifth each. Laura E. Lohmuller was .allowed a lien for taxes. The court found that Benjamin Yentzer and Elizabeth Yambert intended that the deed of 1878 should carry out the purpose expressed in the will, and intended that it should follow the wording of the will, but that the word “heirs” was inserted by mistake instead of the word “children.” Hence the deed was ordered to be reformed. Laura E. Lohmuller complains of this judgment.
The chief controversy relates to the interpretation of the will. It is said that Elizabeth Yambert was given eleven hundred dollars absolutely and unconditionally; that this clear bequest cannot be cut down by what follows ; and that the attempt to limit her interest in land purchased with her own money was nugatory.
The rule of law relied upon by the plaintiff in error is well understood. It has been stated in various ways. The form used in the note to the case of McIsaac v. Beaton, 37 Can. Sup. Ct. 143, in volume 3 of the American and English Annotated Cases, at. page 615, is probably as satisfactory as any: “A clear devise or bequest will not be cut down by other expressions or clauses contained in the will which do not, with reasonable certainty, indicate the intention of the testator to cut. it down.” The authorities are collated in the note referred to. (See Williams v. McKinney, 34 Kan. 514, 9 Pac. 265; McNutt v. McComb, 61 Kan. 25, 58 Pac. 965; Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082.)
Applying the rule to the will in question, it immediately becomes manifest that the words following the first indication of a gift are not ambiguous, nor are they directory merely, or precatory, or inferential in their intent. They are unequivocal, of equal authority with those going before; and so inseparably conjoined with those which precede that the expression of the testator’s comprehensive thought is not complete until the end of the sentence is reached. The testator desired to add to what his daughter had already received. He set aside $1100 for the purpose. He gave that much more to her, but not as cash. His sons, Jacob and Benjamin, were to take the money and buy a home for her. This home was to be for her use and benefit during her life; after her death the property so purchased to fall to her children.
The purpose is as unmistakable as if in stiff legal phraseology he had appointed trustees, had ordered $1100 in cash from his estate to be paid to them, had ordered them to invest that sum in real estate suitable for a home for Elizabeth,, and then had charged the .land so to be acquired with an estate to her for life, with remainder in fee to her children. It is impossible to say that Elizabeth was to take $1100 in cash to spend as she pleased, or that, if her brothers purchased a home for her with the money, she might whenever she wished deed it away, as a gift of for a price, in fee simple absolute. The case, therefore, is not one of a clear bequest against which subsequent expressions may not prevail, and the rule invoked is not controlling.
Other questions presented are less difficult of solution. It is nothing to Laura E. Lohmuller that only one of the trustees carried out the provisions of the will, or that in the execution of the trust a consideration passed, the beneficiary having been satisfied. The real estate in question did not belong to the testator, and title to it did not pass by his will. Hence it was not necessary that the will be recorded in Nemaha county.
The conveyance to Elizabeth Yambert expressly limited her interest in the land to a life-estate, and the reference in the deed to the will sent prospective purchasers of the land to the will to ascertain the true scope of the deed. Under these circumstances any grantee of Elizabeth Yambert took with notice of the extent of her rights, and there was no need of reforming'the deed. Any error in that respect could not be prejudicial.
After Laura E. Lohmuller had purchased the life-estate in the land her acquisition of the Durland tax titles merely redeemed the land from taxes. The words “fall to her children” in the will create by inartistic phrase a remainder in fee, the word “children” being a word of purchase.
The facts found by the district court are sustained by the evidence, and its judgment is affirmed.
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Malone, J.:
Halliburton Company (Halliburton) petitioned the district court for an order of mandamus compelling the registers of deeds for Jackson County, Kansas, and Nemaha County, Kansas, to file a mortgage on oil and gas leases located in those counties. The district court denied the petition and Halliburton appeals the decision.
The facts are not disputed. On April 23, 1986, Longhorn Resources, Inc., (Longhorn) executed a mortgage in favor of Halliburton, a foreign corporation authorized to do business in Kansas. The mortgage covered Longhorn’s interest in oil and gas leases located in Jackson and Nemaha Counties and in Richardson County, Nebraska. The mortgage secured a principal amount of $185,433.18 plus interest, as evidenced by a promissory note, and included the following provisions:
“WHEREAS, in order to secure the aforementioned indebtedness . . . and all extensions, renewals or substitutions thereof, together with all interest, charges and fees thereon, and also to secure the payment of any advances and charges made by MORTGAGEE hereunder to MORTGAGOR prior to or during the term of this Mortgage, or any other loans, future advances, debts, obligations and liabilities of every kind and character of MORTGAGOR now or hereafter existing in favor of MORTGAGEE, whether direct or indirect, primary or secondary, joint or several, fixed or contingent, the said MORTGAGOR has this day and does by these presents sell, convey, transfer, assign, set over and mortgage unto the MORTGAGEE, its successors or assigns the following: ....
“As hereinabove provided, this Mortgage is intended to and shall secure any and all future indebtedness of the MORTGAGOR to MORTGAGEE, whether arising out of account, assignment or otherwise; provided, however, the lien of this mortgage for any such future indebtedness shall not exceed at any one time the sum of $5,000,000.00.” (Emphasis added.)
Pursuant to K.S.A. 1987 Supp. 79-3102, Halliburton forwarded the mortgage with the registration fee for indebtedness of $185,433.18 to the register of deeds in Jackson County and the register of deeds in Nemaha County. The registers of deeds in both counties refused to file the mortgage, stating that under Kansas law the registration fee would need to be based on the five million dollar ceiling figure in the future advance clause contained in the mortgage. The mortgage, which was also recorded in Nebraska, included the five million dollar figure because Nebraska law requires a stated limitation on future advances.
On June 16, 1986, Longhorn executed another mortgage in favor of Halliburton in an attempt to cure the objections of the registers of deeds. This second mortgage covered the same indebtedness of $185,433.18, but omitted the five million dollar limitation of future advances. However, Halliburton attempted to secure future indebtedness by including in this new mortgage the following language: “As hereinabove provided, this Mortgage is intended to and shall secure any and all future indebtedness of the MORTGAGOR to MORTGAGEE, whether arising out of account, assignment or otherwise.” Halliburton forwarded this second mortgage with registration fees based on indebtedness of $185,433.18 to the register of deeds in Jackson County and the register of deeds in Nemaha County. Again the registers of deeds refused to file the mortgage unless Halliburton deleted the future advance clause of the mortgage or included a ceiling amount on future advances and paid the registration fee based on that maximum amount.
Halliburton filed a petition for mandamus in the District Court of Jackson County, Kansas, requesting an order directing the register of deeds of Jackson County and the register of deeds of Nemaha County to file the mortgage of April 23 or the mortgage of June 16, and to accept the registration fee on the principal amount of $185,433.18. Halliburton also requested attorney fees and costs of the action be assessed against the two counties.
The matter was tried by stipulation and the district court held that the registers of deeds acted properly in refusing to file either mortgage. Halliburton timely appeals those decisions.
Kansas law requires the register of deeds, upon request, to immediately file for record any written instrument affecting real estate, including oil and gas leases. K.S.A. 58-2221 provides in part:
“Every instrument in writing that conveys real estate, any estate or interest created by an oil and gas lease, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of register of deeds of the county in which such real estate is situated. . . It shall be the duty of the register of deeds to file the same for record immediately.”
In Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 961, 685 P.2d 866 (1984), the court stated:
“The purpose of [K.S.A. 58-2221] is to provide a system of registration for instruments affecting the title to land. The record is kept to insure the title and its history may be preserved and protected. The statute makes readily available to the public notice of title to property or liens and adverse claims against property.”
In addition, the register of deeds must collect a registration fee before a mortgage, including renewals and extensions, can be filed for record. K.S.A. 1987 Supp. 79-3102(a) provides:
“Before any mortgage of real property, or renewal or extension of such a mortgage, is received and filed for record, there shall be paid to the register of deeds of the county in which such property or any part thereof is situated a registration fee of $.25 for each $100 and major fraction thereof of the principal debt or obligation which is secured by such mortgage, and upon which no prior registration fee has been paid.”
The mortgage registration fee is a tax. Missouri Pacific Railroad Co. v. Deering, 184 Kan. 283, 286, 336 P.2d 482 (1959). The tax is imposed upon the mortgagee, here Halliburton, who is interested in filing the mortgage. This is to insure that the cost of recording mortgages is not paid by the public, but by those who seek the protection that the public notice affords. Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. at 961.
The mortgage registration fee is a revenue measure. Potwin State Bank v. Ward, 183 Kan. 475, 490, 327 P.2d 1091 (1958). If this were not the case, the statute would not assess a fee for each one hundred dollar increment of the mortgage, as a set fee to cover the costs of recording the mortgage (no matter the amount) would be more reasonable. When considering the Misco Industries and Potwin State Bank cases it is clear the purpose of the registration fee is to cover the costs of recording the mortgage and to generate revenue.
In the case before us, Halliburton is not seeking to avoid payment of a registration fee, but to have that fee based on the amount of original indebtedness secured by the mortgage. Halliburton contends that: (1) The registers of deeds should have recorded the April 23 mortgage and calculated the registration fee based on the $185,433.18 actual indebtedness at the time of the requested filing and not on the five million dollar maximum possible indebtedness included in the future advance clause of the mortgage; and (2) the registers of deeds should have recorded the June 16 mortgage and accepted the registration fee based on the $185,433.18 actual indebtedness without requiring Halliburton to delete the open-ended future advance clause of the mortgage. The issue before this court is whether K.S.A. 1987 Supp. 79-3102 requires a mortgage registration fee on undetermined amounts of money which may be loaned later in time as provided by a future advance clause of the mortgage.
A review of Kansas cases indicates two different types of future advance clauses are used in real estate mortgages. The first type is one that states a limit on the maximum amount of money that can be advanced. This limit may or may not exceed the original amount of indebtedness at the time of the mortgage recording. See Home State Bank v. Johnson, 240 Kan. 417, 729 P.2d 1225 (1986); First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982); Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974). This type of future advance clause is referred to as a close-ended advance clause. The second type is one that states no limit on the maximum amount of money that can be advanced. See First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, 736 P.2d 909 (1987), Potwin State Bank v. Ward, 183 Kan. 475. This type of future advance clause is referred to as an open-ended advance clause.
Future advance clauses are clearly valid and enforceable in the State of Kansas and are addressed in our statutes dealing with real estate mortgages. K.S.A. 58-2336 provides:
“Every mortgage or other instrument securing a loan upon real estate and constituting a lien . . . upon the real estate securing such loan . . . may secure future advances and the lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record: Provided, That the lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage.”
Appellate questions concerning the validity of a future advance clause usually arise in priority of lien cases. “[U]nder K.S.A. 58-2336, when advances are made pursuant to a future advance clause in a mortgage, the advances have priority over liens which attach after the recording of the mortgage but before the advances are made.” First Nat’l Bank in Wichita v. Fink, 241 Kan. at 327. See First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. at 601; Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178; Potwin State Bank v. Ward, 183 Kan. 475; Fidelity Savings Ass’n v. Witt, 8 Kan. App. 2d 640, 642, 665 P.2d 1108 (1983).
A comparison of two of these cases — one involving the use of a close-ended advance clause and the other an open-ended advance clause — is helpful in determining the issue before this court. In First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, the promissory note was for $47,000 and the mortgage contained a close-ended future advance clause “in amount not to exceed $400,000.00.” The Supreme Court affirmed the trial court’s finding that the mortgage secured subsequent debt of $206,413.91. In its decision, the Supreme Court stated “that mortgages given to secure future advances have long been held to be valid and enforceable in Kansas.” 231 Kan. at 600. The court further held:
“Subsequent debts maybe secured under the [future advance] clause of a real estate mortgage in either of two ways: (1) by specifically stating on the face of the new note that it is secured by the prior mortgage; or (2) by showing that the subsequent debt is of the same kind or character as, or part of the same transaction or series of transactions with, that originally secured by the mortgage.” 231 Kan. 595, Syl. ¶ 1.
In First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, the promissory note was for $24,506.39 plus interest and contained an open-ended future advance clause which provided:
“That this mortgage secures the payment of any and all existing and future notes, loans, advances and any renewal or renewals of note/s and each and all of the payments and obligations thereunder, even though the indebtedness of Mortgagors to Mortgagee from time to time be reduced below the maximum amount above stated or be paid in full and if Mortgagee shall thereafter make loans or advances to Mortgagors, such loans or advances thereafter made shall nevertheless be secured by this mortgage until this mortgage is released of record.” 241 Kan. at 322.
After this mortgage was recorded, the mortgagor executed a second mortgage on the same real estate in favor of another mortgagee. After this second mortgage was recorded, future advances were made on the first mortgage, each documented by a mortgage and note listing the first mortgage as collateral. (Also, it should be noted that the mortgagor had paid all but $9,152 plus interest on the first mortgage.) The Supreme Court held that under K.S.A. 58-2336, when advances are made pursuant to a future advance clause in a mortgage, the advances have priority over liens which attach after the recording of the mortgage but before the advances are made; however, the priority is limited to the principal sum of the first mortgage, $24,506.39. The second mortgage lien is prior to any sums owing the first mortgagee in excess of that amount. 241 Kan. at 327.
The close-ended clause in Lygrisse is similar to the future advance clause in the April 23 mortgage filed by Halliburton. In the present case, the district court held that mortgage registration fees “are computed on the total amount' which is secured by a mortgage.” The trial judge found that the secured amount was the five million dollar maximum lien authorized in the future advance clause of the April 23 mortgage.
K.S.A. 1987 Supp. 79-3102(a) states, in part, the registration fee shall be based on the “principal debt or obligation which is secured by such mortgage.” Lygrisse makes it clear that the indebtedness up to the maximum limitation specified in the future advance clause of the mortgage is secured. Since future advances are secured, we conclude K.S.A. 1987 Supp. 79-3102 requires the registration fee be based on the maximum amount of possible secured indebtedness at the time of the registration as stated in the close-ended future advance clause of the mortgage.
In the present case, the registers of deeds were correct in refusing to record the April 23 mortgage with a registration based only on the original indebtedness of $185,433.18. The registration fee is to be based on the maximum secured amount of the future advance clause, five million dollars.
The open-ended clause in the Fink case is similar to the future advance clause in the June 16 mortgage filed by Halliburton. The trial judge here, in deciding the June 16 mortgage could not be filed, said, “[T]he total amount secured was not stated and, therefore, the mortgage registration fee could not be computed. Computation and payment of mortgage registration fees are prerequisite to filing and, therefore, filing could not and cannot be perfected in the second instance.”
The payment of a mortgage registration fee is a revenue measure, not a recording measure. The payment of the fee does not give notice, constructive or otherwise, and has no bearing on the question of future advances. Potwin State Bank v. Ward, 183 Kan. at 490. A tax statute will not be extended by implication beyond the clear import of its language, and the operation of the statute will not be enlarged to include matters not specifically embraced. If there is reasonable doubt as to the meaning of a tax act, it will be construed in favor of the taxpayer. National Cooperative Refinery Ass’n v. Board of McPherson County Comm’rs, 228 Kan. 595, 597, 618 P.2d 1176 (1980); Fleming Company v. McDonald, 212 Kan. 11, Syl. ¶ 1, 509 P.2d 1162 (1973); Grauer v. Director of Revenue, 193 Kan. 605, Syl. ¶ 3, 396 P.2d 260 (1964); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 114 P.2d 871 (1941).
K.S.A. 1987 Supp. 79-3102(a) requires the mortgagee to pay a tax before a mortgage, or a renewal or extension of the mortgage, “is received and filed” by the register of deeds, but there is nothing in the language of the statute that indicates a mortgage registration fee is to be assessed on open-ended future advances contemplated but not specified by the mortgage. Since a tax statute will not be extended beyond the clear meaning of its language, we conclude K.S.A. 1987 Supp. 79-3102(a) does not impose a mortgage registration fee on future advances made pursuant to an open-ended advance clause, unless and until those advances are actually made and the mortgage refiled with the register of deeds.
The Fink and Potwin State Bank cases leave no doubt that open-ended future advance clauses are valid and enforceable in our state. Since the amount on an open-ended future advance is unknown at the time of recording, there can be no registration fee assessed against it at the time of the recording of the original mortgage. In the present case, the registers of deeds were required to record the June 16 mortgage and accept the registration fee based on the principal amount of $185,433.18. However, under the holding in Fink, additional advances made under the open-ended future advance clause would have priority over other liens based on the June 16 recording date only to the maximum amount stated in the mortgage, as provided by K.S.A. 58-2336, or $185,433.18.
Plaintiff also requests attorney fees. K.S.A. 60-802(c) allows the recovery of attorney fees in mandamus actions when the refusal of the public official to perform a duty imposed by law was unreasonable under the facts and circumstances of the case. Cities Serv. Oil Co. v. Board of County Comm’rs, 224 Kan. 183, 189, 578 P.2d 718 (1978); Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 512, 438 P.2d 732 (1968). Attorney fees are also allowed in civil actions under K.S.A. 60-2007(b) when claims or defenses are made “without a reasonable basis and not in good faith.”
In this case, plaintiff initially requested the registers of deeds to file mortgages without the proper registration fees. When plaintiff petitioned the district court for an order of mandamus, it sought an order compelling the registers of deeds to record either the April 23 mortgage or the June 16 mortgage. The district court upheld the refusals. Under the facts and circumstances of this case, we cannot say the actions of the registers of deeds were unreasonable or in bad faith.
For the reasons set forth in this opinion, we find the registers of deeds for Jackson and Nemaha Counties correctly refused to file the April 23 mortgage with a stated maximum limit on future advances without receiving the registration fee based on the maximum amount of possible indebtedness. We affirm the trial court’s decision in this regard.
We further find the registers of deeds were required to file the June 16 mortgage with the open-ended future advance clause and accept the registration fee based on the $185,433.13 actual indebtedness at the time of the recording. We reverse the trial court’s holding to the contrary.
The judgment of the district court is affirmed in part and reversed in part. This case is remanded to the district court with directions to issue an order of mandamus requiring the defendant registers of deeds to file the June 16 mortgage and accept the registration fee based on the original indebtedness. Plaintiffs request for attorney fees is denied. | [
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Parks, J.:
This suit was filed by a car dealership, Western Motor Company, Inc., against defendant Perry Koehn after he returned a car from a test-drive in a damaged condition. Defendant filed a third-party petition against plaintiffs insurer, Universal Underwriters Insurance Company, alleging that plaintiff had been fully compensated for its loss and that Universal was the real party in interest. Koehn contended that Universal should be barred from asserting a claim for subrogation against him because defendant was an additional insured protected by Universal’s coverage. The case was submitted to the court on stipulated facts and the court held the suit was barred because defendant was an insured. Western Motor and Universal appeal from the judgment in favor of Koehn.
The parties stipulated that on April 23, 1983, Koehn went to Western Motor and arranged to test-drive a new 1983 Buick Riviera. Prior to Koehn’s test-drive, the Buick was undamaged and Koehn agreed to return it in an undamaged condition. However, while driving the Buick, Koehn was involved in an accident for which he was at fault. The car was damaged in the accident but there is no indication in the record that any bodily injury or property damage resulted from the accident. Pursuant to its policy with Western Motor, Universal paid Western Motor $2,176.44 for damages to the covered vehicle. The parties did not stipulate to the total amount of damages sustained by the car but Western Motor’s petition alleged damages in excess of that paid by Universal.
On May 1, 1984, Western Motor filed this action in Finney County seeking judgment against Koehn in the amount of $2,975.00 for damages to the Buick. Koehn’s automobile liability insurance carrier, State Farm Mutual Automobile Insurance Company, denied coverage for the accident but defended Koehn under a reservation of rights. Koehn filed an answer and third-party petition which named Universal as a third-party defendant. Koehn claimed Universal’s policy provided coverage for any liability he may have to Western Motor. He reasoned that if he was found liable to Western Motor, then Universal was in turn liable to him. Koehn contended that because Universal had paid Western Motor for the damage to the Buick, Universal was the real party in interest and that the action filed by Western Motor, in practical effect, resulted in Universal suing its own insured.
After considering the stipulated facts and arguments of the parties, the court issued a letter opinion which concluded that Koehn was an insured under Universal’s policy. The court stated that no subrogation claim could be asserted by Universal and that Western Motor was only entitled to receive from defendant the amount of its loss which was not covered by insurance. However, the journal entry of judgment granted judgment to Koehn on the claims of both Western Motor and Universal. The plaintiff and its insurer appeal.
Turning first to consider the appeal of Western Motor, we note the apparent discrepancy between the court’s opinion in its letter that Western Motor was limited in the recovery it could have against defendant and the judgment which denied any relief to plaintiff. However, since this case was submitted to the district court on stipulated facts and documentary evidence, we have the same opportunity to consider the evidence as did the district court and may determine what the facts establish de novo. H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 162, 717 P.2d 1049 (1986). Therefore, any inconsistency between the court’s letter opinion.and the journal entry of judgment may be rectified on appeal without the necessity of remand.
In joining Universal in this action, defendant contended that the insurer, not Western Motor, was the real party in interest. However, an insured property owner, who has been but partly reimbursed for his loss, is the proper party to bring suit against a third-party wrongdoer for the entire loss. In case of recovery, the insured is said to hold in trust for his insurer the part of the proceeds which has been paid him on his loss. Dondlinger & Sons’ Constr. Co. v. EMCCO, Inc., 227 Kan. 301, 306, 606 P.2d 1026 (1980). Although the parties did not stipulate to the total loss sustained as a result of the car accident, plaintiff alleged the damages exceeded the sum paid by Universal, since it alleged damages of $2,975 and Universal paid only $2,176.44. In addition, the declarations in Universal’s policy limit coverage to 100% of labor costs and 75% of parts with a $250 deductible. Therefore, the record indicates Western Motor was only partially reimbursed for its loss and was a real party in interest.
The cause of action alleged by Western Motor was the negligent execution of a bailment. A bailment is the delivery of personal property by one person to another for a specific purpose, with an express or implied contract that when the purpose has been fulfilled the property will be returned or accounted for. M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, Syl. ¶ 1, 675 P.2d 864 (1984). The bailee in a bailment for mutual benefit must use ordinary care in safeguarding the property in order to prevent its damage or theft. M. Bruenger & Co., 234 Kan. 682, Syl. ¶ 3. The parties’ stipulated facts admitted the creation of a bailment for mutual benefit with acknowledgment of an agreement that defendant could test drive the car and would return it undamaged. Defendant also stipulated that he was at fault for the accident which resulted in the damages to the new Buick. Thus, defendant admitted the negligent execution of the bailment; Western Motor should have been granted judgment for the amount of its uninsured loss without regard to whether Western Motor or Universal could also recover the sum paid by Universal. The court erred in entering judgment without deter mining whether Western Motor did in fact sustain damage beyond that compensated by Universal.
We turn now to determine whether the court correctly denied recovery of the damages compensated by Universal. Once Universal was joined as a party, it sought recovery of the amount it had paid Western Motor based on its right of subrogation. This right is derived from its contract with the insured and its rights against a third-party wrongdoer can rise no higher than the rights of the insured against that third party. Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 539, 608 P.2d 923 (1980); Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 206-07, 597 P.2d 622 (1979). By definition, an insurer can have no right of subrogation against its own insured since its insured is not a third party but one to whom a duty to pay a loss is owed. In addition, it is generally stated that no right of subrogation arises against a person who is not a named insured but holds the status of an additional insured under the policy since it must have been the intention of the parties to protect this additional insured from the consequences of his negligence by including him in the insurance coverage. Transamerica Ins. Co. v. Gage Plumbing and Heating Co., 433 F.2d 1051 (10th Cir. 1970) (applying Kansas law); 16 Couch on Insurance 2d § 61:137, p. 197 (rev. ed. 1983). Therefore, to determine whether an insurer is barred from claiming a right to subrogation from a particular person, the insurance contract must be examined to determine whether it was the intention of the parties to include the person within the scope of the policy’s coverage.
The exhibit which the parties stipulated represented the insurance coverage provided by Universal is a single document consisting of multiple types of coverage. According to the first page of the exhibit, the policy insures “only those coverages and property shown in the declarations” made a part of the policy. In addition, the preamble to the policy states that each Coverage Part is a separate contract of insurance. Since Universal’s right to subrogation arises out of the contract upon which it paid the loss caused by defendant, we must examine the applicable coverage part to determine whether the parties intended to insulate persons like defendant from the consequences of their own negligence.
Defendant points to the definitions in Coverage Part 900, Basic Auto Insurance, to argue that he is included in the scope of the intended coverage. However, the declarations indicate that the only portion of the coverage in Coverage Part 900 which was included in the insurance purchased by Western Motor was that provided by Insuring Agreement “A” which protects against bodily injury. The loss sustained by Western Motor and reimbursed in part by Universal was confined to damage to a car owned by plaintiff. This loss would be insured under the protection described in Coverage Part 300, “Auto Physical Damage.” This coverage part provides insurance against any loss of or to a covered auto from any cause except as excluded. The coverage applies to new cars, such as the Buick damaged in this case, and covers any number of risks including fire, flood, theft, and collision. Coverage Part 300 includes a definition section but it does not define “Insured” or include a “Who is an Insured” provision. By contrast, the contract protecting against physical damage to covered vehicles does include the following exclusion:
“NO BENEFIT TO BAILEE — This insurance will not benefit, directly or indirectly, any carrier or bailee.”
Looking solely at the language of Coverage Part 300, there is no reason to conclude the insurer and insured intended individuals in defendant’s position to receive the protection of the insurance. The coverage protects specific covered property rather than applying to the action of a particular individual who could be characterized as an “insured.” In addition, the applicable contract of insurance expressly provides that persons in defendant’s position as a bailee are not intended to benefit from the coverage. Since the policy states that each coverage part is intended to be a separate contract, the inclusion of definitions of “insured” in other coverage parts which could include defendant do not contradict the intention expressed in Coverage Part 300 that bailees not benefit from the physical damage protection.
Our interpretation of the specific wording of Universal’s policy is also consistent with the general authority from other jurisdictions. 10A Couch on Insurance 2d § 42:223 (rev. ed. 1982). Although each case depends heavily on the particular contract language involved, those involving loss to insured property under collision coverage, as opposed to liability, have generally held the insurer could assert subrogation rights against a third-party tortfeasor. These cases tend to either construe the policy definition of “insured” as not including or excluding the tortfeasor (see, e.g., Auto Driveaway Company v. Aetna Cas. & Sur. Co., 19 Ariz. App. 224, 506 P.2d 264 [1973]; Dairyland Ins. Co. v. Munson, 292 Minn. 141, 193 N.W.2d 476 [1972]), or they examine the type of coverage involved and determine it does not protect the interests of anyone but the owner of the insured property. See e.g., Highlands Ins. Co. v. Fischer, 122 Ariz. 394, 595 P.2d 186 (Ct. App. 1979); Aetna Cas. and Surety Co. v. Penn. Nat. Mut. Cas. Ins. Co., 316 N.C. 368, 341 S.E.2d 548 (1986).
In a recent case, an individual named Bell borrowed and wrecked a car owned by a car agency, Imports of High Point, Inc. The North Carolina Supreme Court held the insurer (Penn) could maintain a subrogation action against Bell regardless of .whether he could be called an “insured.” The court stated, in part, as follows:
“The issues of who is an ‘insured’ and of permissive use are critical in the resolution of a dispute involving automobile liability insurance policies but not in cases involving automobile collision coverage; liability insurance covers whomever may be construed as an ‘insured’ under the terms of the policy and permission is relevant in determining whether the acts of the driver are insured by the policy. Collision insurance is basically a contract of indemnity which merely covers physical damage to a specific insured vehicle — here, the Mercedes itself — irrespective of who is driving. 10A Couch on Insurance 2d § 42:221 (rev. ed. 1983); 7 Am. Jur. 2d Automobile Insurance §§ 157, 172 (1980); Annot., Automobile Insurance — Accident—Collisions, 105 A.L.R. 1426, 1431 (1936). In fact, Penn does not dispute its obligation to pay Imports regardless of who was operating the vehicle or even that it would have to pay Imports for damage to the Mercedes if it had been standing still. The question we must decide, then, boils down to whether Imports has a valid cause of action against Bell and, if so, whether Penn has the right to be subrogated to that cause of action.
“Our resolution of the issue in this case is premised on the type of insurance policy concerned and is founded on general principles of subrogation. Since the coverage in controversy was for damage from collision, only the owner, Imports, had an insurable interest in the car. Imports of High Point, Inc. — the corporation itself — was indemnified by Penn pursuant to Penn’s obligation under the collision coverage clause for the property damage to the Mercedes. Because Bell does not hold legal title to the Mercedes and has no equitable or economic interest in the car, he has no insurable interest with respect to collision coverage. Thus, plaintiffs’ argument that permissive use exempts Bell from liability for compen sation to Penn for the damage to the car is not relevant to the controversy arising on the facts before us. Imports could sue Bell for negligently damaging the Mercedes. . . . Because there is no impediment to Imports suing Bell as the tort-feasor legally responsible for the damage to its Mercedes, we hold that Penn has the right to be subrogated to Imports’ right of action against Bell. The decision of the Court of Appeals is therefore
Reversed.” Aetna Cas. and Surety Co., 316 N.C. at 370-72.
Defendant also argues that even if the particular provisions of Universal’s insurance contract do not protect him, public policy expressed in the automobile injury reparations act (K.S.A. 40-3102 et seq.) compels the extension of such protection. He contends that to permit Universal to assert its right of subrogation against him would violate the law which requires automobile insurance to protect any person who has express or implied consent to use the vehicle of the named insured. K.S.A. 40-3107(b). However, while our law requires liability insurance policies to contain provisions which include the permissive user as an insured, Universal’s subrogation right in this case arose out of its payment to the policy holder under its collision coverage. As already noted, this coverage applies regardless of who was driving the car or whether it was being driven at all. K.S.A. 40-3107 is intended to assure the compensation of accidental bodily injuries and specifically provides that an insurer may exclude coverage for any damages to property owned by the insured. K.S.A. 40-3107(i)(2). Therefore, the statutory mandate contained in K.S.A. 40-3107 simply has no bearing on this case. See Highlands Ins. Co., 122 Ariz. at 396 (under statute omnibus coverage is an implied term in liability policies, not collision policies).
In conclusion, we hold that the district court erred in granting judgment to defendant against the claims of both Western Motor and Universal. The stipulated evidence established that Western Motor was entitled to recover the amount of any loss not reimbursed by insurance. Moreover, the terms of the insurance contract which gave rise to Universal’s claim to subrogation reflects an intention by the insurer and insured that persons in defendant’s position not be protected by the collision coverage.
Reversed. dispositive issue before us is the liability portion of the insurance policy. The damage issue was not reached in the trial court and was not briefed on appeal. Thus, the damage issue is not before us.
Abbott, C.J., dissenting: I would affirm the trial court. The
I would hold that Koehn is an additional insured under the policy, thus precluding his own insurance carrier from subrogating against him. I regret that time constraints prevent me from going into greater detail. | [
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Briscoe, J.:
This appeal involves a priority dispute among three parties claiming a security interest in a mobile home.
The parties do not dispute the following facts: Louise and James Schroeder purchased a mobile home in 1977. The purchase was financed by a retail sales contract which was assigned to appellant, Hutchinson National Bank (Hutch National). Hutch National noted its security interest on the mobile home’s certificate of title. Shortly thereafter, the Schroeders transported the mobile home to their property in Grinnell, Kansas, placed it on a concrete block foundation, and removed the wheels and axles. In 1981, the Schroeders mortgaged the Grinnell real estate to Beneficial Finance Company (Beneficial). Beneficial noted its mortgage on the mobile home’s certificate of title, and also filed a financing statement with the register of deeds. In 1984, Farmers and Merchants Bank of Hill City (Farmers and Merchants) took a second mortgage on the Schroeders’ Grinnell real estate. To perfect its security interest, Farmers and Merchants simply filed a financing statement with the register of deeds. In 1985, Beneficial foreclosed on the Schroeders’ property and the issue of security interest priority in the mobile home arose. The trial court granted foreclosure of the mortgages and/or liens of Beneficial, Farmers and Merchants, and Hutch National, but reserved ruling on which parties’ security interest in the mobile home had priority. After considering briefs filed by the parties, the court ruled in favor of Beneficial and Farmers and Merchants, concluding the mobile home had become a fixture on the real estate which was subsequently mortgaged to Beneficial and Farmers and Merchants. Hutch National appeals.
Pursuant to K.S.A. 1986 Supp. 84-9-302(3), a security interest in a vehicle may be perfected by noting its existence on the vehicle’s certificate of title, or by mailing or delivering notice of the security interest to the Division of Motor Vehicles. K.S.A. 1986 Supp. 8-135(c)(5). Mailing or delivering notice of the security interest perfects the secured party’s interest during the period from attachment to notation on the certificate of title. At the time of the Schroeders’ purchase, a mobile home was defined as a vehicle under K.S.A. 8-126(v). Under the current statute, K.S.A. 1986 Supp. 8-126(v), the term “mobile home” is used synonymously with and means the same as “manufactured home.” Hutch National followed the statutory provisions for perfecting its security interest in the mobile home by noting its security interest on the certificate of title pursuant to K.S.A. 1986 Supp. 8-135(c)(5). Beneficial and Farmers and Merchants successfully argued to the trial court that Hutch National was also required to make a fixture filing with the register of deeds in order to retain priority over subsequently perfected security interests in the real estate upon which the mobile home was located.
According to the trial court, the Schroeders’ mobile home became a fixture pursuant to K.S.A. 84-9-313 when it was attached to the concrete block foundation. Under K.S.A. 84-9-313(1):
“(a) goods are ‘fixtures’ when affixing them to real estate so associates them with the real estate that, in the absence of any agreement or understanding with his vendor as to the goods, a purchaser of the real estate with knowledge of interests of others of record, or in possession, would reasonably consider the goods to have been purchased as part of the real estate;
“(b) a ‘fixture filing’ is the filing in the office where a mortgage on the real estate would be filed or recorded of a financing statement covering goods which are or are to become fixtures and conforming to the requirements of subsection (5) of section 84-9-402.”
This statute also provides that “[a] perfected security interest in fixtures has priority over the conflicting interest of an encumbrance or owner of the real estate where . . . the security interest is perfected by a fixture filing before the interest of the encumbrancer or owner is of record.” K.S.A. 84-9-313(4)(b). Based on this statute, the trial court concluded Hutch National lost its priority by failing to make a fixture filing prior to the time either Beneficial or Farmers and Merchants recorded its security interest in the real estate with the register of deeds.
On appeal, Hutch National contends that no fixture filing was required because K.S.A. 1986 Supp. 84-9-302(3)(c) provides the exclusive methods for perfecting a security interest in a vehicle. We agree. K.S.A. 1986 Supp. 84-9-302(3)(c) provides:
“A security interest in:
“(c) a vehicle (except a vehicle held as inventory for sale) subject to a statute of this state which requires indication on a certificate of title or a duplicate thereof of such security interests in such vehicle:
“Can be perfected only by presentation, for the purpose of such registration or such filing or such indication, of the documents appropriate under any such statute to the public official appropriate under any such statute and tender of the required fee to or acceptance of the documents by such public official, or by the mailing or delivery by a dealer or secured party to the appropriate state agency of a notice of security interest as prescribed by K.S.A. 8-135 and amendments thereto. Such presentation and tender or acceptance, or mailing or delivery, shall have the same effect under this article as filing under this article, and such perfection shall have the same effect under this article as perfection by filing under this article.”
K.S.A. 1986 Supp. 8-135(c)(5) states:
“Upon sale and delivery to the purchaser of every vehicle subject to a purchase money security interest as defined in K.S.A. 84-9-107 and amendments thereto, the dealer or secured party may complete a notice of security interest and when so completed, the purchaser shall execute the notice, in a form prescribed by the division, describing the vehicle and showing the name and address of the secured party and of the debtor and other information the division requires. The dealer or secured party may, within 10 days of the sale and delivery, mail or deliver the notice of security interest, together with a fee of $1.50, to the division. The notice of security interest shall be retained by the division until it receives an application for a certificate of title to the vehicle and a certificate of title is issued. The certificate of title shall indicate any security interest in the vehicle. Upon issuance of the certificate of title, the division shall mail or deliver confirmation of the receipt of the notice of security interest, the date the certificate of title is issued and the security interest indicated, to the secured party at the address shown on the notice of security interest. The proper completion and timely mailing or delivery of a notice of security interest by a dealer or secured party shall perfect a security interest in the vehicle described on the date of such mailing or delivery.”
The Kansas comment to K.S.A. 84-9-302 reads:
“Subsections (3)(b) and (3)(c) make it clear that security interests in motor vehicles can be perfected only by indication of the security interest on the certificate of title. These matters are governed by K.S.A. 8-135, which must be read in close relationship to this subsection. Of course if the vehicle is not required to be registered, as would be the case with most farm implements, filing under Article 9 would again come into play. On the other hand, mobile homes are generally titled and perfection would be governed by K.S.A. 8-135 rather than Article 9, even though other aspects of the secured transaction would still fall within the scope of the UCC.” Emphasis added.
Based on the language of K.S.A. 1986 Supp. 84-9-302(3)(c) and the Kansas comment, we believe the legislature intended 8-135(c)(5) to contain the exclusive methods for perfecting a security interest in a mobile home. As a practical matter, if mobile homes were subject to fixture filing requirements, a secured party with an interest in a mobile home could only maintain priority by making a new fixture filing every time the mobile home is moved. In today’s mobile society, a secured party would be under an enormous burden to continuously monitor the whereabouts of the mobile home. By 8-135(c)(5) governing the exclusive methods of perfection, the secured party is perfected with only one filing no matter where the mobile home is located.
We find unconvincing the argument urged by Beneficial and Farmers and Merchants that subsequent parties with an interest in the real estate are often unable to ascertain whether the structure on the property is a mobile home. While it may not be readily apparent whether the structure is or is not a mobile home, these parties can protect their interests by more careful inspection, by questioning the home owner, or by checking for a certificate of title. As a policy matter, it is more reasonable to require a party who subsequently obtains an interest in specific real estate to make inquiry concerning a structure located on the property than to require a party with a security interest in a mobile home to maintain constant vigilance regarding the whereabouts and alleged fixture status of the mobile home.
Under Kansas law, the exclusive methods for perfecting a security interest in a mobile home are contained in K.S.A. 1986 Supp. 84-9-302(3)(c), as more specifically described in K.S.A. 1986 Supp. 8-135(c)(5). Hutch National properly perfected its security interest in the mobile home, and its security interest has priority over Beneficial’s. As regards the competing security interests of Hutch National and Beneficial in the mobile home, Farmers and Merchants’ filing with the register of deeds is without effect.
The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. | [
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Kennedy, J.:
First Bank of WaKeeney (First Bank) appeals from a judgment interpreting four loan participation certificates.
On May 10, 1982, First Bank signed three certificates of participation contributing to three loans made by Peoples State Bank of Sharon Springs (Peoples) to Sand Creek Farms. On March 31, 1983, First Bank signed four certificates of participation which represented renewals of the 1982 loans. The trial court found First Bank’s total participation in the four loans amounted to $144,763.83. First National Bank of Goodland also participated in all of these loans. All of the loans were secured and due on January 5, 1984.
The language in the 1983 certificates differs from the 1982 certificates, yet these certificates were the only documents executed by the parties. For some reason that does not appear in the record, there were no participation agreements which set forth the parties’ respective rights and duties.
The Sand Creek loan was not repaid by the due date. Sometime before March 13, 1984, First Bank received a cease and desist order stating that it could not advance, renew, or extend any lines of credit that were already on its books without first collecting the interest on the Sand Creek credit lines.
On March 13, 1984, representatives of the three banks involved held a meeting to discuss the Sand Creek loans. Peoples and the First National Bank of Goodland wanted to extend the line of credit. At that meeting, First Bank indicated that it could not agree to extend the line of credit because of the cease and desist order. First Bank did not specifically request foreclosure or liquidation of the security pledged for the loans. The trial court found that the parties agreed to continue with the line of credit but that First Bank could not be involved in advancing additional funds because of the cease and desist order. In a letter dated June 4, 1984, First Bank requested Peoples to buy out its participation interest.
First Bank subsequently informed Peoples several times that it would not participate in an extension of the loans. Over First Bank’s objections, Peoples and the First National Bank of Good-land agreed to extend the loans until November 1984.
On December 12, 1984, First Bank filed a petition against Peoples alleging four causes of action involving disputes over various loan agreements. At the time of trial, the parties announced that they had settled three of the causes and that First Bank owed Peoples $27,152. Trial on the fourth cause of action, involving the extension of the Sand Creek credit line, was held before the court. First Bank sought relief from the court in the form of damages for Peoples’ failure to terminate First Bank’s interest in the loan at the time of due date. Judgment was entered in favor of Peoples. First Bank timely appeals.
The question of a participant bank’s rights in enforcing a loan is an issue of first impression in Kansas.
“A true participation is a shared loan, an undertaking by one financial institution, usually called the ‘lead’, to divide a large loan which it has or will put on its books into shares which it then offers for sale to other ‘participant’ financial institutions.” Armstrong, The Developing Law of Participation Agreements, 23 Bus. Law. 689 (1968).
“[Participation] agreements are simultaneously an assignment of an interest in an intangible right, a contract that prescribes duties of servicing the loan, and a document that creates an agency.” Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L. Rev. 519, 520 (1984).
The participant bank has no legal relationship with the borrower. The borrower’s and participant’s relationships are solely with the lead bank. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L. Rev. at 528. See Hibernia Nat. Bank v. Federal Deposit Ins. Corp., 733 F.2d 1403, 1407 (10th Cir. 1984).
The rights of the participant bank flow not from the participation relationship itself but from the express terms of the specific agreement. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L. Rev. at 525. See Hibernia Nat. Bank v. Federal Deposit Ins. Corp., 733 F.2d at 1408 (citing Franklin v. C.I.R., 683 F.2d 125 [5th Cir. 1982]); Northern Trust Co. v. Federal Deposit Ins. Corp., 619 F. Supp. 1340, 1341 (D. Okla. 1985); Clinton Fed. S. & L. v. Iowa-Des Moines Nat., 391 N.W.2d 712, 716 (Iowa App. 1986); Armstrong, The Developing Law of Participation Agreements, 23 Bus. Law. 689. See Tompsett, Interbank Belations in Loan Participation Agreements: From Structure to Workout, 101 Banking L.J. 31, 32-33 (1984). The parties to a participation agreement may contract to whatever terms they wish. Any such contract will generally be enforced as to its terms. Authorities state that a participating bank wanting control over decisions affecting modification or collection of loans, or seeking a right to demand repurchase by the lead bank, must explicitly provide for that control in the participation agreement. R. Nassberg, The Lender’s Handbook 45 (1986); Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L. Rev. at 525; Tompsett, Interbank Relations in Loan Participation Agreements: From Structure to Workout, 101 Banking L.J. at 32; and Armstrong, The Developing Law of Participation Agreements, 23 Bus. Law. 689.
There are many reasons for banks to participate in loans. One of the most important reasons is that it allows the lead bank to make a loan which is greater than its lending authority. The trial judge found this to be the primary reason for these participation agreements. If the participant bank’s agreement with the lead bank requires the lead bank to buy out the participant bank’s interest upon request, then the lead bank may be required to carry the entire amount of the loan on its books and the loan may exceed its lending authority. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L. Rev. at 521-22, 525.
Courts have indicated in dicta that, in the absence of a negotiated contract term, the lead bank exercises sole control over the collection and enforcement of the loan. In In re Yale Express System, Inc., 245 F. Supp. 790, 792 (S.D.N.Y. 1965), the court stated that any right to control the extension of the loan periods lie with the lead bank unless modified by the participation agreement. In Carondelet S. & L. Ass’n v. Citizens S. & L. Ass’n, 604 F.2d 464, 469 (7th Cir. 1979), the court stated that, unless the agreement imposed an obligation on the lead bank to foreclose in the event of default, the lead bank owed no enforcement duties to participating banks. We find this dicta to be persuasive and adopt it as our holding.
The extension of a loan period does not change the character of the loan. “A renewal of a loan . . . does not create a new obligation independent of the old one.” 9 C.J.S., Banks and Banking § 396. See Fourth National Bank v. Hill, 181 Kan. 683, 695, 314 P.2d 312 (1957).
In the present case, the certificates of participation addressed only First Bank’s right to take a pro rata share of collections and losses on the loan. Paragraph III states:
“In the event of the default by Borrower, Participant shall, subject to all the conditions hereof, bear its proportionate share of the (a) risk of loss, and (b) the costs and expenses, inclusive of reasonable attorneys’ fees incurred in undertaking to collect the loan . . .
No mention is made in the certificates of repurchase rights, foreclosure rights, or allocation of decision-making powers among the three banks involved in the loan.
One authority states that the agreement should establish criteria for the declaration of default or acceleration or the granting of waivers, consents, and modification. “The practicality of the matter nonetheless operates to discourage any requirement of total unanimity of action, as such requirements are an invitation to impasse, a situation that can be abused by the small-percentage participant seeking, by a display of intransigence, to force a takeout after a default.” R. Nassberg, The Lenders Handbook 45 (1986). In the present case, two of the three banks involved favored extending the loan period, while only First Bank sought foreclosure or repurchase.
In Carondelet, 604 F.2d at 470, the court stated, “[I]t is manifest that in the context of a participation agreement some party must have the authority to decide whether to modify or to foreclose.” The court noted that where nothing in the agreement specifies which bank possesses such authority, the authority vests in the lead bank.
First Bank contends that such an interpretation creates a.perpetual contract. This contention is without merit. Peoples has a duty to exercise reasonable care in handling the loan. Franklin v. C.I.R., 683 F.2d at 128 and Carondelet, 604 F.2d at 469. This duty does impose some limit on Peoples’ conduct; however, a court may not rewrite the participation agreement to give the participant greater control. Hibernia Nat. Bank v. Federal Deposit Ins. Corp., 733 F.2d at 1408.
First Bank further contends that because the prior certificates stated that the participation was accepted “without recourse,” while these words were omitted in the present certificates, Peoples abandoned certain rights of control over the loan. A court may look to past business dealings to interpret an ambiguous participation agreement. Clinton Fed. S. & L. v. Iowa-Des Moines Nat., 391 N.W.2d at 716-17.
In the present case, there is no ambiguity in the certificates. They do not purport to grant First Bank any right in collections. Furthermore, the prior agreement stated that Peoples agreed to “use the same degree of care in servicing said loan as it would if said loan had been made for its own sole account.” In omitting these words from the present certificates, the parties have re duced Peoples’ contractual obligation to First Bank. Nothing in the certificates of participation either limited Peoples’ power to extend the loan periods or created rights in First Bank to excuse itself from the loan.
As its final issue, First Bank argues that the trial court erred in holding that Peoples did not owe it a fiduciary duty. First Bank did not allege a breach of fiduciary duty in its petition and did not present evidence of a duty at the trial. “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987) (citing Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 [1984]). Even if it is considered on its merits, this contention is not persuasive.
“[Participation] agreements are arms-length contracts between relatively sophisticated financial institutions and do not establish fiduciary relationships such as exist between the management of a corporation and the corporation’s shareholders or even its debenture holders.” In re Colocotronis Tanker Securities Litigation, 449 F. Supp. 828, 833 (S.D.N.Y. 1978).
See Northern Trust Co. v. Federal Deposit Ins. Corp., 619 F. Supp. at 1344-45.
A fiduciary relationship may be implied if a joint venture is found, as alleged in First Bank’s original petition. See Hutchins, What Exactly is a Loan Participation?, 9 Rut.-Cam. L.J. 447, 470 (1978). However, for the joint venture fiduciary duty to arise, the agreement must contain some language giving the participant explicit control over the loan. Hutchins, What Exactly is a Loan 'Participation?, 9 Rut.-Cam. L.J. at 469-70. There is no such language in these agreements.
The trial court did not err in failing to find a breach of a fiduciary duty by Peoples.
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Davis, J.:
This is a direct appeal by the defendant, John Dean, from a sentence imposed following his plea of guilty to one count of misdemeanor criminal damage to property. K.S.A. 1986 Supp. 21-3720.
Defendant was extradited from Kalamazoo, Michigan, to face a charge of criminal damage to property to the extent of $150 or more, a class E felony. The return on the extradition warrant lists extradition expenses totaling $1,492.50, including $1,325 for air travel, $55.81 for car rental, taxi, etc., $56.24 for lodging, and $55.45 for meals.
As part of a plea agreement, defendant pleaded guilty to the misdemeanor charge. The court sentenced defendant to thirty days in jail, restitution of $110, “and costs.” The words, “and costs,” are printed on the journal entry form following several blank spaces provided for entry of sentence. The journal entry does not specify the costs imposed on defendant. The court placed defendant on probation for a period of one year, conditioned on payment of $110 restitution, obedience to the laws, and regular contact with the probation office.
Approximately two months after sentencing, the State filed a “Motion to Order Extradition Costs.” The State filed the same motion again some two months later. Following a hearing, the trial court sustained the State’s motion and assessed extradition costs in the amount of $1,492.50 against defendant. Payment of these costs was made a condition of defendant’s probation.
Approximately one year after sentencing, the trial court ruled that defendant had completed all terms and conditions of probation except payment of extradition costs: “[T]he only condition of continuing probation will be payment of the extradition costs should the Court of Appeals rule adversely to the defendant.”
Defendant contends that the district court erred by assessing extradition costs because (1) the assessment after sentence increased his penalty; (2) the plea bargain did not include an agreement to pay extradition costs; and (3) the trial court failed to determine whether he was financially able to pay extradition costs before making those costs a condition of probation.
Defendant argues that the imposition of $1,492.50 extradition costs over four months after his sentence was an additional penalty and violated his rights under the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution. Kan sas law does not support defendant’s contention that assessment of court costs upon criminal conviction is part of the penalty.
K.S.A. 1986 Supp. 22-3801(a) mandates that court costs be imposed upon a convicted defendant:
“Liability for costs, (a) If the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for payment of money in civil cases.” (Emphasis added.)
The requirement that a convicted defendant assume liability for court costs has long been a part of Kansas law. See State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344 (1965); State v. Thomson, 188 Kan. 171, 176-78, 360 P.2d 871 (1961); State v. Granville, 26 Kan. 158, 160-61 (1881); Co. Com’rs v. Whiting, 4 Kan. 273 (1868).
Kansas courts have held that statutes requiring a convicted defendant to pay court costs were not intended to penalize the defendant, but to allocate the expenses incurred in prosecution. In State v. Schmidt, 34 Kan. 399, 403-04, 8 Pac. 867 (1885), the court held that a county attorney’s fee, authorized by statute to be assessed against a defendant following conviction of a prohibitory liquor law, “is not imposed as a part of the punishment, but is simply imposed as a part of the costs of the prosecution, for services rendered by the county attorney.”
In State v. Waufle, 9 Kan. App. 2d 68, 673 P.2d 109 (1983), the defendant was convicted of a misdemeanor. At the time the defendant was charged, the misdemeanor docket fee was $40, but by the time of his conviction, the amended version of K.S.A. 1982 Supp. 28-172a(a) had raised the fee to $84. Defendant contended that the docket fee in effect at the time he was charged, not at the time of his conviction, should apply. We held that the amendment affected procedural, not substantive, rights, and reversed and remanded with directions to tax the docket fee of $84 in accordance with K.S.A. 1982 Supp. 28-172a(a):
“The fees section of the amended statute is not a part of the law which creates, defines or regulates rights. It does not create any liability against defendant for the crime committed. Rather, the amendment appears to have been routinely made to remedy the defect in the statute caused by inflation and passage of time. No new duty is thereby imposed upon defendant. As such, the statutory amendment appears procedural in nature. . . . The amount of docket fee to be assessed defendant was statutorily controlled and was not a matter within the trial court’s discretion.” 9 Kan. App. 2d at 79. (Emphasis added.)
Defendant argues that imposition of the extradition costs, unlike docketing fees, is within the discretion of the trial court. He argues that because the court failed to exercise its discretion at the time of original sentence, it may not four months later exercise that discretion to impose extradition costs. He claims that the imposition of extradition costs under the circumstances amounts to an increase in his penalty.
In support of his position, defendant relies on the provisions of K.S.A. 28-172a(a) and (d).
“(a) Except as otherwise provided in this section, whenever the prosecuting witness or defendant is adjudged to pay the costs in a criminal proceeding in any county, a docket fee shall be taxed as follows:
Murder or manslaughter.............................. $148
Other felony................ 118
Misdemeanor ...................................... 88
Forfeited recognizance ............................... 48
Appeals from other courts............................. 48
“(d) Statutory charges for law library funds, the law enforcement training center fund, the crime victims reparations fund and the prosecuting attorneys’ training fund shall be paid from the docket fee. All other fees and expenses to he assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Additional fees shall include, but are not limited to, fees for service of process outside the state, witness fees, fees for transcripts and depositions, costs from other courts, doctors’ fees and examination and evaluation fees. No sheriff in this state shall charge any district court of this state a fee or mileage for serving any paper or process.” (Emphasis added.)
Defendant’s argument fails to consider K.S.A. 1986 Supp. 22-2724:
“Costs and expenses. The expenses which may accrue under K.S.A. 22-2723 [procedure for extradition of a person charged with a crime in this state] shall be treated-as costs of the criminal proceedings and shall be taxed and paid as provided in K.S.A. 22-3801 et seq.”
Read in conjunction with K.S.A. 1986 Supp. 22-3801(a), K.S.A. 1986 Supp. 22-2724 specifically fixes responsibility for payment of extradition costs upon the defendant.
Defendant contends that because extradition costs are not “specifically fixed” in amount by statute, they are subject to the discretion of the trial court. Prior to the 1982 amendment of K.S.A. 22-2724, extradition expenses were imposed upon the county or, in some instances, upon the state. By its 1982 amendment of K.S.A. 22-2724, the legislature clearly expressed its intent that the defendant, if convicted, bear the expenses of extradition. Because of the wide diversity of locations where a defendant might be found, specification of the amount of extradition expenses in the statute would have been unfeasible. We conclude that K.S.A. 1986 Supp. 22-2724 imposes or fixes extradition costs upon a convicted defendant even though it does not specify the amount of expenses that must be assessed.
Because extradition expenses are “specifically fixed” as costs (K.S.A. 1986 Supp. 22-2724) to be assessed against the defendant upon conviction, K.S.A. 1986 Supp. 22-3801(a), they must be imposed. K.S.A. 28-172a(d) does not give the trial court discretion to relieve a convicted defendant of liability for extradition costs.
Defendant makes no argument that the extradition expenses requested by the State are unreasonable. In the hearing on the State’s motion to assess extradition expenses, defendant did not argue that the amount requested does not accurately reflect the cost of extraditing him from Kalamazoo, Michigan. The trial court properly taxed extradition expenses to defendant as court costs pursuant to K.S.A. 1986 Supp. 22-2724 and 1986 Supp. 22-3801(a).
The four-month delay in imposing extradition costs did not prejudice defendant. The court was not required to compute costs until after the conclusion of the criminal case. K.S.A. 22-3803 provides that “[a]t the conclusion of each criminal case the court shall tax the costs against the party responsible for payment and shall cause to be delivered to such responsible party a complete statement of the costs, specifying each item of service and the fee assessed for such service.” As the court observed, defendant was on notice that the State had incurred the expenses listed on the return of the extradition warrant.
K.S.A. 1986 Supp. 22-2724 and 1986 Supp. 22-3801(a) require the trial court to impose extradition expenses on a convicted defendant as part of the costs of a criminal case. The trial court did not err by ordering defendant to pay extradition expenses.
Next, defendant contends that the imposition of extradition expenses at the State’s insistence violated the terms of the plea agreement, which did not contemplate payment of these costs. This argument fails to take into consideration the provisions of K.S.A. 1986 Supp. 22-2724 and 1986 Supp. 22-3801(a). Under these statutes the imposition of extradition expenses as court costs is mandatory. The State may not negotiate or contract away such costs. Imposition of costs is outside the plea negotiation process.
Finally, defendant contends that State v. Higgins, 240 Kan. 756, 732 P.2d 760 (1987), decided after defendant filed his notice of appeal, requires the trial court to inquire into his financial condition before making court costs a condition of probation. He argues that the condition that he pay extradition costs must be set aside or the case remanded for further proceedings because the court did not inquire into his ability to pay.
In Higgins, the district court assessed $1,193.80 in extradition fees against the defendant as court costs and then paroled him from paying these fees. The State appealed. On appeal, the court defined the issue as follows: “[W]hether a district court has the authority to release an indigent defendant on probation or parole without requiring, as a condition of the parole or probation, the payment of all costs and expenses incurred in returning the defendant, as an extradited fugitive, to Kansas from another state.” 240 Kan. at 758. After reviewing the applicable statutes, the court answered the question in the affirmative. The court noted that incarcerating an indigent defendant for failure to pay costs, without considering the reasons for the failure, violates the defendant’s right to equal protection of the laws. 240 Kan. at 759 (citing Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S.Ct. 2064 [1983]; State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 [1985]). The court, however, held that parole of an indigent defendant from payment of court costs does not destroy the civil judgment imposed by statute upon conviction:
“We have considered all of the statutes and cases cited above, and have concluded that K.S.A. 1986 Supp. 22-2724 and K.S.A. 1986 Supp. 22-3801 should be construed together to require that a judgment against the defendant for court costs in a criminal case constitutes a civil judgment for the payment of money and is enforceable as such, subject to the same protections and exemptions provided indigent defendants in civil cases. As a civil judgment, a judgment for court costs in a criminal case incurred in connection with an extradition proceeding may be collected whenever a defendant has sufficient property to satisfy the judgment. We have also concluded that, under the broad power of a trial court to grant probation or parole, a trial court may excuse a defendant from the immediate payment of court costs when a defendant is released on probation or parole. This action, however, does not in any way destroy the civil judgment for court costs. It simply makes it possible for an indigent defendant to be treated on an equal basis with other indigent defendants in civil cases.” 240 Kan. at 760.
Here, the court has ordered defendant to pay extradition costs. The court may, in deciding to grant or continue probation, impose such costs as a condition of probation without considering defendant’s ability to pay. A court may not revoke defendant’s probation without providing him notice and a hearing. K.S.A. 1986 Supp. 22-3716(2); State v. Duke, 10 Kan. App. 2d at 393-94. At the probation revocation hearing, the court must consider whether defendant has the means to pay the extradition costs. Higgins, 240 Kan. at 759; State v. Duke, 10 Kan. App. 2d at 395.
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Davis, J.:
Anna Kaiser appeals from the district court’s ruling that her disclaimer of interest in joint tenancy accounts does not relate back to the date of her sister’s death and defeat the interest that her -judgment creditor, Citizens State Bank of Grainfield (Citizens State Bank), had acquired through garnishment.
On February 6, 1986, Citizens State Bank filed a petition seeking judgment against Anna and Carl Kaiser for the unpaid balance on a promissory note and foreclosure of a mortgage on the Kaisers’ homestead. The Kaisers did not answer, and on May 13, 1986, the court entered judgment against them and foreclosed the mortgage.
Anna Kaiser’s sister, Barbara Ochs, died testate on May 12, 1986. LeRoy Hartman and Mary Zerr were appointed co-executors of the estate. Prior to her death, Barbara Ochs had established joint tenancy accounts at Peoples Heritage Federal Savings and Loan Association (Peoples Heritage) in the names of herself and her two sisters, Mary Zerr and Anna Kaiser.
Citizens State Bank initiated two garnishment actions to collect the judgment against Carl and Anna Kaiser. Peoples Heritage was served with an order of garnishment on September 10, 1986. In an amended answer filed on September 22, 1986, it responded as follows:
“We show the following accounts held in joint tenancy in the name of: Barbara Ochs or Mary M. Zerr or Anna Kaiser as Joint Tenants;
SC 19-0-4738 $20,000.00
SC 19-0-6840 $ 6,000.00
SC 19-0-5248 $28,000.00”
On September 22,1986, the clerk of the district court issued an order of garnishment to Hartman and Zerr, as co-executors of the estate of Barbara Ochs. In an answer filed on September 30, Hartman and Zerr acknowledged that they held funds to which Anna Kaiser might be entitled as a legatee of the estate, but claimed a setoff of $12,800 for a debt owed the estate by the Kaisers. Citizens State Bank denied priority of the $12,800 claim in a reply filed on October 6.
The Kaisers filed no reply to either the answer of Peoples Heritage or the answer of Hartman and Zerr. On October 6, 1986, the Kaisers filed a “Motion to Stay Garnishment and Sale of Mortgage Real Estate.” They requested the court to stay garnishment of the estate and sale of the mortgaged real estate until it determined the applicability of the Family Farm Rehabilitation Act, K.S.A. 1986 Supp. 2-3401 et seq. (The Kansas Supreme Court declared the Family Farm Rehabilitation Act unconstitutional on February 18, 1987. See Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 732 P.2d 710 [1987].)
On October 29, 1986, the district court ordered Peoples Heritage to pay $27,000 plus accrued interest (one-half of the amount of the accounts) to the clerk of the district court and ordered the clerk to disburse the funds to Citizens State Bank.
On October 30, 1986, the Kaisers filed a motion to vacate the October 29 order on the ground that their October 6 motion to stay garnishment was still pending.
At a hearing on December 3, 1986, Anna Kaiser presented the court with a “Motion to File Reply to Answer of Garnishee Out of Time.” In a proposed reply to the answers of Peoples Heritage and Hartman and Zerr, Kaiser asserted that she had disclaimed her interest in the joint tenancy accounts. During argument counsel indicated Kaiser’s intention to disclaim her interest in the estate as well. Kaiser argued that the disclaimers relate back to the date of her sister’s death pursuant to K.S.A. 59-2293(a) and, therefore, that she never had interests in the accounts or in the estate subject to garnishment. The disclaimer of interest in the accounts was filed in the District Court of Gove County, where the matter of Barbara Ochs’ estate was pending, on December 4, 1986. The disclaimer of interest in the estate was filed a few weeks later, on December 30.
After hearing arguments on December 3, the court (1) denied the “Motion to File Reply to Answer of Garnishee Out of Time” because Anna Kaiser had not shown excusable neglect; (2) denied the October 6 “Motion to Stay Garnishment and Sale of Mortgage Real Estate”; (3) stayed garnishment of the estate pending determination of the effect of Kaiser’s disclaimer of interest and directed Hartman and Zerr not to dispose of or to distribute any interest Kaiser might have in the estate pending further order; (4) denied the October 30 motion to vacate; and (5) ordered that the October 29 order be executed “insofar as it orders the payment of the amount held by [Peoples Heritage] to the Clerk of the District Court” and that the clerk retain the funds in an interest-bearing account pending further order. The court granted Kaiser’s request to brief the disclaimer issue and scheduled arguments for January 7, 1987. A journal entry reflecting the court’s rulings was filed on December 16, 1986.
On January 7,1987, the court heard arguments on the impact of the disclaimers. In a journal entry filed on January 27, 1987, the court concluded that “the disclaimers filed by Anna Kaiser were not legally effective by relation back to the date of death of Barbara Ochs to preclude the interest of the plaintiff [Citizens State Bank] acquired by garnishment.” The court directed the clerk of the court to pay to Citizens State Bank the funds previously paid into court by Peoples Heritage, unless Kaiser filed a timely supersedeas bond and notice of appeal, and ordered Hartman and Zerr to pay Anna Kaiser’s share of Barbara Ochs’ estate into court at the time of distribution.
Anna Kaiser filed a notice of appeal on February 6, 1987. On February 12, 1987, after Kaiser had failed to post a timely supersedeas bond, the court directed the clerk to pay the funds deposited by Peoples Heritage to Citizens State Bank. The record does not show that Kaiser’s share of Barbara Ochs’ estate has been paid into court or that the court has adjudicated the estate’s claim to setoff.
Kaiser contends that her disclaimers “relate back for all purposes to the date of death of the decedent,” K.S.A. 59-2293(a), and defeat any interests that Citizens State Bank had acquired through garnishment. Before we discuss this contention, we must address two threshold issues raised by Citizens State Bank.
First, Citizens State Bank contends that the court lacks jurisdiction because Kaiser failed to file a notice of appeal within thirty days of the entry of judgment on October 29, 1986, as required by K.S.A. 60-2103(a).
The October 29 order was final and started the time for appeal. See Brown v. Tubbs, 2 Kan. App. 2d 522, 582 P.2d 1165 (1978). Although Kaiser did not file a notice of appeal from the October 29 order, she did file a motion to vacate on October 30. The motion to vacate was, in effect, a motion to alter or amend the judgment, K.S.A. 60-259(f), and terminated the running of the time for appeal. K.S.A. 60-2103(a); see Andres v. Claassen, 238 Kan. 732, 737, 714 P.2d 963 (1986); Caplinger v. Carter, 9 Kan. App. 2d 287, 290, 676 P.2d 1300, rev denied 235 Kan. 1041 (1984).
On December 3, 1986, the district court denied Kaiser’s motion to vacate, as well as her motion to reply to the answers of the garnishees out of time. The court, however, reserved a final ruling on Kaiser’s attack on the October 29 order until it could consider the effect of the disclaimer, ordering that in the meantime funds held by Peoples Heritage be paid into court and invested by the clerk. The court resolved the disclaimer issue on January 7 and on January 27 entered an order directing the clerk of the court to pay the funds to Citizens State Bank. Kaiser filed a timely notice of appeal from the January 27 journal entry.
In her brief on appeal, Kaiser did not request that we reverse the January 27 order requiring Hartman and Zerr to pay her share of Barbara Ochs’ estate into court at the time of distribution. On September 29, 1987, after the parties had submitted briefs, Kaiser filed a motion to amend her prayer for relief on appeal to include the order to Hartman and Zerr.
After reviewing the record, we conclude that Kaiser’s motion to amend her prayer for relief must be denied. Although in its January 27, 1987, journal entry the court ordered Hartman and Zerr to pay Kaiser’s share of Barbara Ochs’ estate into court at the time of distribution, it did not adjudicate the rights of Citizens State Bank and the estate to the proceeds. The estate’s claim to setoff remained pending on February 6 when Kaiser filed her notice of appeal. The portion of the court’s January 27 journal entry ordering Hartman and Zerr to pay Kaiser’s share of the estate into court did not fix “the rights and liabilities of all the parties,” K.S.A. 60-721(a), and, therefore, did not constitute a final, appealable judgment.
As a second threshold issue, Citizens State Bank contends that Kaiser is not the real party in interest because she (1) has not been precluded from disclaiming her interest in the joint tenancy accounts but only from controlling the disposition of the funds, and, thus, has not been injured and (2) has no interest in the accounts due to her disclaimer.
Contrary to the assertion of the bank, the effect of the district court’s ruling is to bar Kaiser from disclaiming her interest in the accounts. The bank could garnish the accounts to satisfy its judgment against Kaiser only to the extent that she had an interest in them. “The real party in interest is the person who possesses the right sought to be enforced, and is not necessarily the person who ultimately benefits from the recovery.” O’Donnell v. Fletcher, 9 Kan. App. 2d 491, 492, 681 P.2d 1074 (1984) (citing Swanston v. McConnell Air Force Base Fed’l Cred. Union, 8 Kan. App. 2d 538, 543, 661 P.2d 826 [1983]). Because Kaiser’s right to disclaim her interest in the accounts is implicated by the district court’s ruling, she is a real party in interest to this appeal. Moreover, Citizens State Bank waived any objection to Kaiser’s participation in the suit by failing to raise the issue below. 9 Kan. App. 2d at 494.
Kaiser contends that pursuant to K.S.A. 59~2293(a) her disclaimer of interest in the accounts relates back to May 12, 1986, the date of Barbara Ochs’ death, and, therefore, that she had no interest in the accounts subject to garnishment.
Citizens State Bank and the Kansas Bankers Association (KBA), which filed an amicus brief, contend that the disposition of the accounts in the garnishment proceedings bars Kaiser’s right to disclaim her interest in them. K.S.A. 59-2293(b) provides as follows:
“Any conveyance of or contract to convey real property or any interest therein, any assignment or transfer of or contract to assign or transfer personal property, any written waiver of the right to disclaim the taking of or power over real or personal property or any sale or other disposition of real or personal property pursuant to judicial process by a person attempting to disclaim the taking of or power over property bars the right of such person to disclaim as to the power, property or interest.” (Emphasis added.)
Citizens State Bank and the KBA argue that the garnishment of the accounts effected a “disposition of . . . personal property pursuant to judicial process” and, therefore, barred Kaiser’s right to disclaim. Kaiser contends that a “sale or other disposition . . . pursuant to judicial process” bars the right to disclaim only when undertaken “by a person attempting to disclaim.” She argues that the garnishment did not bar her right to disclaim because it was commenced by Citizens State Bank, not by her.
Citizens State Bank and the KBA acknowledge that the garnishment proceedings were not initiated by “a person attempting to disclaim,” but argue that the legislature did not intend to limit the bar to a sale or other disposition pursuant to judicial process undertaken by the person attempting to disclaim. Citizens State Bank and the KBA argue that the construction advocated by Kaiser is not supported by the legislative history and is contrary to legislative intent. We agree.
The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent “even though words, phrases or clauses at some place in the statute must be omitted or inserted.” Lakeside Village Improvement Dist. v. Jefferson County, 237 Kan. 106, 114, 697 P.2d 1286 (1985) (citing School District v. Board of County Commissioners, 201 Kan. 434, 440, 441 P.2d 875 [1968]). In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In re Petition of City of Moran, 238 Kan. 513, 520, 713 P.2d 451 (1986); Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984). Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect. This presumption, however, may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982); Confinement Specialists, Inc. v. Schlatter, 6 Kan. App. 2d 1, 626 P.2d 223, rev. denied 229 Kan. 669 (1981).
Prior to 1980 the right to disclaim was limited to property or interests passing to “[a]ny heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument or any person designated to take pursuant to a power of appointment exercised by or under a testamentary instrument.” K.S.A. 59-2291 (Weeks).
In 1980 the legislature expanded the types of property and interests that may be disclaimed:
“(a) A person or the personal representative of a person may disclaim in whole, or in part or in an undivided part any real or personal property, or interest therein or power thereover, passing upon death of another to such person as: (1) Heir; (2) next of kin; (3) devisee; (4) legatee; (5) a person succeeding to a disclaimed interest; (6) beneficiary under a testamentary trust; (7) beneficiary under an insurance policy; (8) joint owner with a right of survivorship in real or personal property, to the extent the survivor may take more than the survivor’s equitable portion of the property; (9) a person named to take on the death of another person; (10) donee of a power of appointment; (11) beneficiary under the terms of an inter vivos trust; or (12) a person designated to take pursuant to a power of appointment exercised by or under a testamentary instrument.” K.S.A. 1987 Supp. 59-2291(a).
In conjunction with the expansion of the types of property and interests subject to disclaimer, the legislature amended K.S.A. 59-2293 (Weeks). Prior to amendment the statute provided in part as follows:
“Any conveyance of or contract to convey real property or any interest therein, or assignment or transfer of or contract to assign or transfer personal property, or written waiver of the right to disclaim the succession to real or personal property made by an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary or person designated to take pursuant to a power of appointment exercised by or under testamentary instrument, or any sale or other disposition of real or personal property pursuant to judicial process made before the expiration of the period in which he or she may disclaim as herein provided bars the right to disclaim as to the property or interest.” (Emphasis added.)
As part of the amendment the legislature omitted the words “made by an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary or person designated to take pursuant to a power of appointment exercised by or under testamentary instrument.” The legislature added the words “by a person attempting to disclaim,” after “any sale or other disposition of real or personal property pursuant to judicial process.”
The changes in 59-2293 were proposed by John Kuether, a professor at Washburn Law School. He explained the reasons for the changes in a January 22, 1980, letter to Representative Kent Roth, which is attached to the March 18, 1980, minutes of the Senate Committee on the Judiciary:
“Change 4. The deleting of the words ‘made by an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary or person designated to take pursuant to a power of appointment exercised by or under testamentary instrument’ in line_, and the insertion in line_, toward the end of the paragraph, of the phrase, ‘made “by one attempting to disclaim’” before the expiration of the period in which he or she may disclaim” is to simplify the statute by not listing again all the types of property interests which might be disclaimed. The alternative is to repeat from K.S.A. § 59-2291 all the additional types of property over which disclaimer may be exercised in K.S.A. 59-2993 again. It is simpler to say that K.S.A. § 59-2293, paragraph 2, simply provides that certain types of dealing with the property after receiving the right to the property, but before an attempted disclaimer, will defeat the right to disclaim. This is because dealing with the property is inconsistent with claiming no interest in the property, interest or power over the property.” (Emphasis added.)
As Professor Kuether’s comments indicate, the amendment was intended to simplify the statute and to reflect the changes made in 59-2291. Significantly, Professor Kuether’s comments do not suggest any intent to change the circumstances in which the right to disclaim is barred.
K.S.A. 59-2293 (Weeks) barred a person’s right to disclaim in three sets of circumstances. First, “[a]ny conveyance of or contract to convey real property or any interest therein, or assignment or transfer of or contract to assign or transfer personal property” estopped the person from disclaiming. Second, the right to disclaim could be waived in writing. Third, any sale or other disposition of the property pursuant to judicial process disposed of the person’s interest in the property and barred the right to disclaim. The latter provision was intended to protect the interests of persons, including creditors, who acquire property by sale or other disposition pursuant to judicial process prior to disclaimer.
We do not think that the legislature intended to abrogate the protection given to holders of property acquired pursuant to judicial process when it amended 59-2293 in 1980. As Professor Kuether’s comments indicate, the thrust of the amendment was simplification, not dramatic substantive change.
The construction urged by Kaiser would render the provision virtually meaningless. Rarely does a person undertake to sell or to dispose of his or her own property pursuant to judicial process. Moreover, voluntary dispositions of property are covered in the first part of K.S.A. 59-2293(b). We do not believe that the legis lature intended to restrict “any sale or other disposition of real or personal property pursuant to judicial process” to a voluntary disposition of property by the person attempting to disclaim.
Considering the legislative history of K.S.A. 59-2293(b), the purpose to be accomplished by the 1980 amendment, and the effect the statute would have under the construction suggested by Kaiser, we conclude that the placement of “by a person attempting to disclaim” after “any sale or other disposition of real or personal property pursuant to judicial process” was not intended to change the circumstances in which the right to disclaim is barred.
We hold that a sale or other disposition of real or personal property pursuant to judicial process bars the right to disclaim the property, whether the sale or other disposition was sought by the person attempting to disclaim or by another party. K.S.A. 59-2293(b).
Kaiser failed to reply to Peoples Heritage’s answer, which alleged that she possessed an interest in the joint tenancy accounts. Therefore, Kaiser’s interest in the accounts is deemed to be confessed. K.S.A. 60-718(c). On October 29, 1986, the trial court entered judgment pursuant to K.S.A. 60-721(a), fixing the rights and liabilities of all parties to the accounts. At the time Kaiser attempted to disclaim, her interest in the accounts had been disposed of “pursuant to judicial process” and her right to disclaim was barred. The trial court correctly concluded that Kaiser’s disclaimer did not defeat the interest in the accounts acquired by Citizens State Bank in the garnishment proceedings.
Finally, Kaiser contends that the district court abused its discretion by denying her December 3 motion to file a reply out of time to the answer of Peoples Heritage. The record contains no evidence that Kaiser’s failure to reply was the result of excusable neglect. K.S.A. 60-206(b)(2). The district court did not abuse its discretion by denying the motion.
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Davis, J.:
The Kansas Power and Light Company (KPL) appeals from an order denying its application to compel arbitration of a dispute among itself, Kansas Gas and Electric Company (KG&E), Centel Corporation (Centel), and UtiliCorp United, Inc., (UtiliCorp) co-owners of the Jeffrey Energy Center in Pottawatomie County, Kansas. KG&E filed an action for declaratory judgment against KPL, Centel, and UtiliCorp, claiming that KPL breached fiduciary duties owed to it under an operating agreement. The district court agreed with KG&E’s contention that the operating agreement did not provide for arbitration.
This appeal involves two issues: (1) whether the denial of a motion to compel arbitration made under K.S.A. 5-402 is appeal-able as a matter of right; (2) if so, whether the district court’s ruling that the operating agreement did not provide for arbitration is correct.
In January 1975, KG&E, KPL, Central Telephone & Utilities Corporation (now Centel), and Missouri Public Service Company (now UtiliCorp) entered into an agreement for the construction and ownership of Jeffrey Energy Center (hereinafter referred to as the “ownership agreement”). The parties divided the ownership of the facility as follows: KPL, 64%; KG&E, 20%; Centel ánd UtiliCorp, 8% each. KPL was designated as the operator of the project.
The ownership agreement contains an arbitration clause, which provides in part as follows:
“25. Arbitration
“(a) Any controversy between or among any of the Owners of the Project, including KPL as Operator, arising out of or relating to this Agreement, or any breach hereof or default hereunder, shall be submitted to arbitration upon the request of any such Owner in the manner provided herein.”
In September 1978, the parties to the ownership agreement executed an agreement for the operation of Jeffrey Energy Center (“operating agreement”). The operating agreement contains the following provision concerning its relationship to the ownership agreement:
“1. Precedence of Ownership Agreement
“(a) The respective obligations, duties and responsibilities of KPL, KG&E, CTU [Centel] and MPS [UtiliCorp] undertaken in or arising out of this Operating Agreement shall in all respects be subject to and controlled by the definitions, terms, conditions and substantive and procedural provisions of the Ownership Agreement, and the term ‘this Agreement’ as used in the Ownership Agreement shall be deemed to include this Operating Agreement.”
The operating agreement authorizes KPL to act as agent for the other owners in the operation and maintenance of Jeffrey Energy Center. Paragraph 5(a) incorporates a coal supply agreement negotiated by KPL:
“The Operator [KPL] has contracted for a supply of coal for the Project on the terms, conditions and provisions set forth in that certain Coal Supply Agreement between American Metal Climax, Inc. (’AMAX’) and the Operator dated July 1, 1973, which is incorporated herein and made part hereof by reference. Each of the other Owners hereby ratifies and confirms such Coal Supply Agreement, as the same may be amended from time to time by the Operator and American Metal Climax, Inc.”
KPL and AMAX agreed to amendments to the coal supply agreement in January 1980, February 1982, September 1982, and January 1986. As amended, the agreement includes a “deficient tonnage” provision, which requires KPL to pay AMAX according to a formula if it fails to purchase within a specified period of time all of the coal called for in the agreement. The coal supply agreement and amendments provide for the purchase of coal for four units at Jeffrey Energy Center, even though Unit 4 was postponed indefinitely due to lack of demand. In the third amendment, executed in September 1982, KPL agreed to increase the amount of coal to be taken, in part to supply its facilities in Lawrence and Tecumseh.
Paragraph 5(g) of the operating agreement states that the owners are to be billed for fuel costs “in proportion to their respective percentages.” Paragraph 16 provides that the operating agreement may be amended by the written agreement of “the Owner or Owners of not less than 51% of the Project.”
On July 23, 1986, KPL, Centel, and UtiliCorp amended the operating agreement, effective January 1, 1986, over KG&E’s objection. The amendment includes a new subparagraph, 5(i), which allocates responsibility for deficient tonnage charges among the owners based on coal consumption, rather than on percentage of interest in Jeffrey Energy Center.
KG&E claims that KPL breached its fiduciary duties by amending the operating agreement to its advantage and to the disadvantage of KG&E and by failing in the amendments to the coal supply agreement to delineate between the coal to be delivered to KPL’s wholly owned Lawrence and Tecumseh stations and the coal to be delivered to the Jeffrey Energy Center. KG&E alleges that, as a result of KPL’s administration of the coal supply agreement, it is exposed to the likelihood of having to pay deficient tonnage charges for coal supplied to KPL’s wholly owned plants.
Jurisdiction
KPL appeals pursuant to K.S.A. 5-418(a)(l), which provides that “[a]n appeal may be taken from: (1) An order denying an application to compel arbitration made under K.S.A. 5-402.”
The order entered by the district court denying KPL’s application to compel arbitration clearly falls under K.S.A. 5-402(a), which provides in part that “if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.”
KG&E contends that the appeal is interlocutory and must be dismissed. It bases this contention on K.S.A. 5-418(b), which states, “The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” K.S.A. 1987 Supp. 60-2101(a), which defines this court’s jurisdiction, makes appeals in civil actions from the district court to this court subject to the provisions of K.S.A. 1987 Supp. 60-2102. K.S.A. 1987 Supp. 60-2102(a) specifies certain orders that are appealable as a matter of right. KG&E argues that this appeal is interlocutory because the order from which KPL appeals is not among the orders listed in K.S.A. 1987 Supp. 60-2102(a). This court may permit an interlocutory appeal if the district judge states in writing that the “order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” K.S.A. 1987 Supp. 60-2102(b); Rule 4.01 (1987 Kan. Ct. R. Annot. 18). KPL has not complied with these requirements.
KPL argues that K.S.A. 5-418(a)(l) was intended to make an order denying an application to compel arbitration appealable as a matter of right. In support of its argument, KPL relies on Hodes v. Comprehensive Health Associates, 9 Kan. App. 2d 36, 670 P.2d 76 (1983). In Hodes, the court held that a denial of a motion to stay arbitration is not an appealable order. The court reasoned as follows:
“K.S.A. 5-418(a)(l) and (2) set forth the statutory right to immediate appeal from orders on applications made under K.S.A. 5-402. Appeals may be taken from orders denying applications to compel arbitration and orders granting applications to stay arbitration. K.S.A. 5-418(a)(l) and (2) do not grant the right to appeal from an order denying an application to stay arbitration made under K.S.A. 5-402(b).” 9 Kan. App. 2d at 38.
Although the court in Hodes did not face the issue of whether a party appealing from an order denying an application to compel arbitration must meet the requirements for an interlocutory appeal, it clearly assumed that K.S.A. 5-418(a)(l) and (2) grant the right to immediate appeal.
K.S.A. 5-418 was adopted without change from the Uniform Arbitration Act approved by the National Conference of Commissioners on Uniform State Laws in 1955. The drafters of the uniform act considered certain orders sufficiently final to merit appeal. According to the Prefatory Note to the uniform act, “The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present.” Unif. Arbitration Act, 7 U.L.A. 2 (1985). (Emphasis added.) The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others, appealable:
“Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised on appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on an award.” Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)
KG&E’s contention that a party appealing an order denying an application to compel arbitration must meet the requirements of K.S.A. 1987 Supp. 60-2102(b) and Rule 4.01 is not convincing. The legislature would have had no reason for listing an order denying an application to compel arbitration in K.S.A. 5-418(a)(1) had it intended to require a party appealing such an order to satisfy the conditions for an interlocutory appeal. Moreover, permitting an appeal from an order denying an application to compel arbitration only at the end of litigation would risk needless waste of resources. In states that have adopted Section 19 of the Uniform Arbitration Act without change courts have held uniformly that an order denying a motion to compel arbitration is appealable as a matter of right. See Rocz v. Drexel Burnham Lambert, Inc., 154 Ariz. 462, 743 P.2d 971 (Ariz. App. 1987); Danvers v. Wexler Construction Co., Inc., 12 Mass. App. 160, 162 n.3, 422 N.E.2d 782 (1981); County of Hennepin v. Ada-Bec Systems, 394 N.W.2d 611, 613 (Minn. App. 1986), rev. denied December 17, 1986; Blow v. Shaughnessy, 68 N.C. App. 1, 12, 313 S.E.2d 868, rev. denied 311 N.C. 751 (1984); Docutel Olivetti v. Dick Brady Systems, Inc., 731 P.2d 475, 477-78 (Utah 1986).
We hold that an order denying a motion to compel arbitration made under K.S.A. 5-402 is appealable as a matter of right. K.S.A. 5-418(a)(l) is an addition to the list of appealable orders in K.S.A. 1987 Supp. 60-2102(a). K.S.A. 5-418(b) does not require that a party appealing an order denying a motion to compel arbitration meet the requirements for an interlocutory appeal, but provides that the procedure for appeals as a matter of right in civil actions shall apply.
Arbitration
The trial court concluded that the operating agreement did not incorporate the arbitration clause of the ownership agreement. The court based this conclusion on the absence of any reference to arbitration or dispute resolution in paragraph 1(a) of the operating agreement.
The construction of a written contract is a question of law. Peterson v. Midland Nat’l Bank, 242 Kan. 266, 272, 747 P.2d 159 (1987). “Regardless of the construction of the written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.” Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). Unless the contract is ambiguous, its meaning must be determined solely from its “four corners.” Brown v. Lang, 234 Kan. 610, 675 P.2d 842 (1984). “A contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings.” Arkansas Louisiana Gas Co. v. State, 234 Kan. 797, Syl. ¶ 2, 675 P.2d 369 (1984).
We find no ambiguity about arbitration in the two agreements. By providing in paragraph 1(a) of the operating agreement that “[t]he respective obligations, duties and responsibilities” of the owners “undertaken in or arising out of this Operating Agreement shall in all respects be subject to and controlled by the definitions, terms, conditions and substantive and procedural provisions of the Ownership Agreement,” the drafters of the operating agreement clearly intended to incorporate by reference the arbitration clause in the ownership agreement. KG&E has not suggested any reasonable alternative meaning for this provision.
Moreover, the operating agreement provides that “the term ‘this Agreement’ as used in the Ownership Agreement shall be deemed to include this Operating Agreement.” The arbitration clause in the ownership agreement states that any controversy between or among the owners “arising out of or relating to this Agreement, or any breach hereof or default hereunder,” shall be submitted to arbitration at the request of any owner. Therefore, the arbitration clause in the ownership agreement requires arbitration of any controversy arising out of or relating to the operating agreement.
KG&E concedes that the controversy in this case arises out of and is related to the operating agreement. KPL has expressed its desire to have all issues resolved through arbitration. The agreements entered into among the owners of Jeffrey Energy Center give KPL this right. Therefore, we reverse the decision of the district court and remand with directions to grant KPL’s application to compel arbitration.
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Six, J.:
Appellants Steve and Ann Sutterby appeal the district court’s grant of summary judgment against them in their action for abuse of process and wrongful execution against appellees, The Wellsville Bank (Bank) and its president, Richard Moherman. The issues are whether the trial court erred (1) in concluding that judgment entered against the Sutterbys was voidable only, (2) in granting the Bank and Moherman summary judgment on the Sutterbys’ abuse of process claim, (3) in granting the Bank and Moherman summary judgment on the Sutterbys’ wrongful execution claim, and (4) in failing to permit the Sutterbys to join the Bank’s attorneys in this action. We find no error and affirm.
On February 5, 1985, The Wellsville Bank filed an action against the Sutterbys to foreclose its security interest in equipment and guns. The Sutterbys had given the Bank a security interest in this property to secure payment of a promissory note in the amount of $85,946.62.
After the Sutterbys were served with the summons and petition for foreclosure, they met with Moherman to work out an agreement to avoid foreclosure of the security interest. The Sutterbys and the Bank entered into a new note and security agreement on April 24, 1985. In consideration for the new note, the Bank agreed not to enforce the original note and the Sutterbys agreed to reduce the loan balance to $70,000 on or before July 1, 1985.
By late June 1985, the Sutterbys had paid approximately $3,500 towards the amount they owed under the April 24 agreement. On June 27, 1985, the Bank obtained a default judgment against the Sutterbys on the original note and security agreement. The Sutterbys did not make any payments to the Bank after July 13, 1985. They were in default on the new note as of July 1, 1985. In September 1985, the Bank filed a special execution directing the sheriffs of Douglas, Johnson, and Franklin Counties to seize the property which secured the original note.
The Sutterbys, on September 23, 1985, filed a motion to set aside the default judgment. On November 5, 1985, the trial court granted the motion, concluding that the April 24, 1985, agreement was a novation and that the original note was no longer enforceable. In addition, the court granted the Bank twenty days to file an amended petition on the new note.
Steve Sutterby, on November 7, 1985, picked up the guns and ammunition seized by the Douglas County Sheriff. On November 8, 1985, the Douglas County Clerk received a copy of a letter from counsel for the Bank to counsel for the Sutterbys. The letter stated that on November 6, 1985, the Bank was exercising its right of self-help to repossess all secured property based upon the Sutterbys’ default on the new note and security agreement.
The Bank, on November 12, 1985, filed an amended petition for foreclosure under the new note. Before filing an answer, the Sutterbys filed a motion to join Moherman and the Bank’s attorneys as third-party defendants. The court permitted the Sutterbys to join Moherman. However, the court denied the request to join the Bank’s counsel, reasoning that the Sutterbys failed to furnish the court with any legal authority justifying the action against the attorneys. The Sutterbys filed: (1) an answer to the Bank’s amended petition, (2) a counterclaim against the Bank, and (3) a cross-claim against Moherman for abuse of process and wrongful execution.
The action was bifurcated for trial. On August 15, 1986, the Bank’s foreclosure action came on for trial. The trial court ordered that the Bank’s security interest be foreclosed and awarded the Bank judgment in the amount of $95,723.04.
The Bank and Moherman, on August 25, 1986, moved for summary judgment on the Sutterbys’ counterclaim. The trial court granted the motion, concluding that the June 27, 1985, judgment on the original note was a voidable judgment and remained in effect until set aside. The trial court reasoned that once the judgment was set aside, the Bank remained in legal possession of the equipment because by that time the Sutterbys were in default on the new note and the Bank could legally exercise a right of self-help to repossess the property. The trial court concluded that the Bank never wrongfully possessed the collateral.
1. VOID — VOIDABLE JUDGMENT
The Sutterbys contend that they “appeared” in the Bank’s action on the original note and that K.S.A. 60-255(a) entitled them to notice of the Bank’s application for default judgment three days prior to the hearing. Because they did not receive this notice, they contend that the default judgment was void, rather than voidable; consequently, the subsequent execution upon the alleged void judgment constitutes an abuse of process. See Little v. Sowers, 167 Kan. 72, 204 P.2d 605 (1949).
The Sutterbys concede they did not present this issue to the trial court. They assert, however, that if the new issue is determinative of the case and involves only a question of law arising on proved facts it may be addressed by this court for the first time. See Johnson v. Kansas Neurological Institute, 240 Kan. 123, 126, 727 P.2d 912 (1986).
K.S.A. 60-255(a) provides that “[i]f the party against whom judgment by default is sought has appeared in the action, he or she . . . shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.” (Emphasis added.)
Assuming for discussion purposes, and without so holding, that the execution of the new note constituted an “appearance” within the meaning of K.S.A. 60-255(a), the Bank’s failure to give the required three days’ prior notice of the hearing on the Bank’s application for default judgment does not render the default judgment void. Failure to give the three days’ notice justifies the setting aside of the default judgment. Cf. Hood v. Haynes, 7 Kan. App. 2d 591, 598, 644 P.2d 1371 (1982); 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2687 (1983). However, the default judgment entered without such notice is not void. Winfield Associates, Inc. v. Stonecipher, 429 F.2d 1087, 1091 (10th Cir. 1970); 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2687; accord, Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 302, 720 P.2d 1121 (1986). The trial court did not err in concluding that the default judgment was voidable.
2. ABUSE OF PROCESS
The Sutterbys argue that: (1) regardless of whether the default judgment was void or voidable, the issuance of the writ of execution on the judgment constituted an abuse of process, and
(2) the trial court erred in entering summary judgment in favor of the Bank and Moherman.
The Sutterbys do not contend there are disputed questions of fact. The question we must address is whether the uncontroverted facts are legally sufficient to support the granting of summary judgment in favor of the Bank and Moherman on the Sutterbys’ abuse of process claim. See Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987).
To establish their claim of abuse of process, the Sutterbys had to prove: (1) that the Bank and/or Moherman made an illegal, improper, or perverted use of civil or criminal process (that is, a use neither warranted nor authorized by the process); (2) that the Bank and/or Moherman had an ulterior motive or purpose in exercising the illegal, improper, or perverted use of process; and (3) that the Sutterbys were damaged by the abuse of process. Porter v. Stormont-Vail Hospital, 228 Kan. 641, 646-47, 621 P.2d 411 (1980); Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444 (1950); see Restatement 2d of Torts § 682 (1977).
The undisputed facts establish that the Bank and Moherman had no other “motive” than to execute on a judgment, valid on it face. The use of a writ of execution to satisfy a judgment valid on its face is proper. See Lacy v. Laurentide Finance Corp., 28 Cal. App. 3d 251, 255-56, 104 Cal. Rptr. 547 (1972); Cartwright v. Wexler, Wexler & Heller, Ltd, 53 Ill. App. 3d 983, 986, 369 N.E.2d 185 (1977). The trial court did not err in granting summary judgment to the Bank and Moherman on Sutterbys’ abuse of process claim.
3. WRONGFUL EXECUTION
The Sutterbys reason that once the default judgment was set aside, the Bank became a trespasser ab initio, rendering the execution on the judgment wrongful.
The general rule in Kansas is that one who causes a writ of execution to issue upon a judgment which is later vacated is liable for the damages caused by the wrongful execution. Little v. Sowers, 167 Kan. at 76-77.
The Sutterbys-Bank relationship is complicated by the fact that, as of July 1, 1985, some two-and-a-half months before the writ of execution was issued, the Sutterbys defaulted upon the new note. In the security agreement, the parties agreed that: (1) until default, the Sutterbys would have possession of the collateral, and (2) upon default, the Bank would have the right to immediate possession of the property and to the remedies of a secured creditor under the Kansas Uniform Commercial Code. The issue is whether the Bank’s right to possess the collateral under the terms of the security agreement shields it from liability for wrongful execution upon the original note. We hold that it does.
In Wilk Enterprises v. J.I.B. Realty, 72 Misc. 2d 507, 339 N.Y.S.2d 75 (1972), the assignee of a security interest in the debtor’s equipment brought suit against the debtor’s landlord for recovery of property. Debtor was in default and the assignee repossessed the equipment. Before all of the equipment could be removed, the landlord put a lock on the door and prevented the assignee from removing any more items. The assignee obtained an ex parte order directing a marshal to seize the remaining equipment from the landlord. The assignee brought an action for recovery of certain items that the marshal was unable to seize, and the landlord counterclaimed for the value of the items removed. As part of its argument, the landlord contended that the ex parte order was improper because it was granted without notice, therefore subjecting the assignee to liability for wrongful execution. The court disagreed, concluding as follows:
“Plaintiff, as the assignee of the security interest, had the right on default to take possession of the chattels. (Uniform Commercial Code Section 9-503.) . . . [W]hether or not the order was properly issued would not affect plaintiff s right to possession of the chattels since it had such right as a matter of substantive law pursuant to section 9-503 of the Uniform Commercial Code and as one who had become owner of the chattels. See Mendelson v. Irving (155 App. Div. 114), pointing out that if one had the right to take possession without legal process, one could not be deprived of that right by using legal process which turned out to be void.” Wilk Enterprises, 72 Misc. 2d at 511-12.
Similar reasoning was applied in Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980). In Massey-Ferguson, a secured creditor repossessed its collateral under authority granted by the state’s prejudgment claim and delivery statute. The statute was held to be unconstitutional. The debtor sued the creditor for utilizing the unconstitutional statute to repossess the debtor’s property, alleging the execution constituted a deprivation of constitutional rights. The Idaho Supreme Court concluded that the debtor could, at best, recover nominal damages, reasoning that if the creditor would have exercised self-help repossession under UCC § 9-503, the debtor would have had no actionable claim at all. The court disagreed with the debtor’s contention that its default under the security agreement was immaterial to its cause of action for deprivation of constitutional rights. Massey-Ferguson Credit Corp., 102 Idaho at 115-16.
In this case, the Sutterbys were in default on the new note on July 1, 1985. Under the terms of the security agreement, the Bank was entitled to possession of the collateral. Further, the Sutterbys’ default triggered the following provision of the Kansas version of the Uniform Commercial Code:
“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” K.S.A. 84-9-503.
We note that the rights and remedies of a secured creditor under Article 9 of the UCC are cumulative. K.S.A. 84-9-501.
When the writ of execution was issued in September of 1985, the Bank was entitled to possession of the property. The execution on the property could not have been wrongful if the Bank was entitled to possession of the property. Wilk Enterprises, 72 Misc. 2d at 511-12; Massey-Ferguson Credit Corp., 102 Idaho at 115-16; see Watkins v. Layton, 182 Kan. 702, 704, 324 P.2d 130 (1958). In addition, the Sutterbys suffered no damage as a result of the execution. They could not recover damages for the loss of property which, under the terms of the security agreement, they had no right to possess. The trial court did not err in granting the Bank and Moherman summary judgment on the Sutterbys’ wrongful execution claim.
4. JOINDER OF ATTORNEYS
The Sutterbys contend the trial court erred in failing to permit them to join the Bank’s law firm and attorneys in this action.
On December 2, 1985, the Sutterbys moved to add Richard Moherman as a third-party defendant in their abuse of process and wrongful execution action against the Bank, case No. CV 85-89. The Sutterbys also moved to add the Bank’s attorneys, Richard O. Skoog and R. Michael Latimer, and their law firm, Skoog and Latimer, P.A., as third-party defendants. On August 18, 1986, the trial court permitted the Sutterbys to join Moherman, but refused to allow them to join either the firm or Skoog and Latimer individually.
On May 6, 1986, the Sutterbys filed a new lawsuit (CV 86-346) against Skoog, Latimer, and the firm alleging that the attorneys were liable for abuse of process and wrongful execution for their participation in the Wellsville Bank’s foreclosure action. The trial court dismissed this action with prejudice by journal entry filed September 19, 1986.
On appeal, the Sutterbys claim the trial court erred in failing to permit them to join Skoog and Latimer in the action against the Bank. Skoog and Latimer, who have filed an amicus curiae brief, argue that any action against them for wrongful execution and abuse of process is barred by principles of res judicata which render the joinder issue moot.
In In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985), the Supreme Court stated the requirements for establishing res judicata:
“An issue is res judicata when there is a concurrence of four conditions: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. [Citations omitted].”
The doctrine of res judicata prevents a second assertion of the same claim or cause of action. Wirt v. Esrey, 233 Kan. 300, 308, 662 P.2d 1238 (1983).
It is undisputed that the same parties were involved in case No. CV 85-89 and in case No. CV 86-346 and that the same claims or causes of action were involved.
In addition, without an indication to the contrary, the dismissal of the Sutterbys’ action with prejudice was on the merits. K.S.A. 60-241(b); Wirt v. Esrey, 233 Kan. at 309-10.
The Sutterbys’ claim against Skoog and Latimer in case No. CV 85-89 (this appeal) would be the same claim that was adjudicated on the merits in case No. CV 86-346 (the second lawsuit). Of course, at the time the trial court denied the joinder motion, the second case had not been filed. The denial precipitated the second lawsuit which was disposed of on the merits. If Skoog and Latimer were to be joined now in this case (case No. 85-89), the Sutterbys’ action against them would be barred by res judicata. The trial court did not err in refusing to allow the Sutterbys to join Skoog and Latimer as third-party defendants.
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Davis, J.:
Kenneth J. Denning was convicted in the Municipal Court of Overland Park, Kansas, of violating city ordinance 12.04.030, which prohibits a person from operating or attempting to operate a vehicle within the city while “(1) [t]he alcohol concentration in the person’s blood or breath is .10 or more, as measured from sample(s) taken within two hours after the person operated or attempted to operate the vehicle.” Defendant appealed his conviction to the district court and was again convicted. He timely appeals, raising as his sole issue the constitutionality of Overland Park Municipal Ordinance 12.04.030.
Defendant contends that the ordinance is unconstitutionally vague because, short of scientific .testing, the average driver cannot ascertain when his or her breath or blood alcohol level exceeds the legal limit.
The ordinance is substantially similar to K.S.A. 1986 Supp. 8-1567(a)(l). Both the ordinance and the statute prohibit a person from operating or attempting to operate any vehicle while the alcohol concentration in the person’s blood or breath, within two hours after the person operated or attempted to operate the vehicle, is .10 or more.
In a recent case decided by this court, K.S.A. 1986 Supp. 8-1567(a)(l) survived the same challenge defendant makes to the municipal ordinance. State v. Larson, 12 Kan. App. 2d 198, 737 P.2d 880 (1987). In Larson, the defendant argued that the statute is unconstitutionally vague because a person cannot determine through his or her senses whether his or her alcohol concentration has reached the legal limit. In upholding the constitutionality of the statute, Larson found that “the standard of 8-1567(a)(l), in our opinion, is more precise than 8-1567(a)(2), ‘under the influence of alcohol,’ and the latter was held not to be unconstitutionally vague in State v. Campbell, 9 Kan. App. 2d 474, 475, 681 P.2d 679 (1984).” 12 Kan. App. 2d at 202.
In State v. Robinson, 239 Kan. 269, 273, 718 P.2d 1313 (1986), the court stated the test for determining whether a criminal statute is unconstitutionally vague:
“The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. State v. Cantrell, 234 Kan. 426, Syl. ¶ 11, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817 (1984).
“In determining whether a statute is void for vagueness two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983).”
The language of the ordinance is clear. When measured by common understanding and practice, it conveys a sufficiently definite warning as to the conduct proscribed. See City of Ottawa v. Brown, 11 Kan. App. 2d 581, 730 P.2d 364 (1986), rev. denied 241 Kan. 838 (1987).
We hold that Overland Park Municipal Ordinance 12.04.030 is not unconstitutionally vague.
Affirmed. | [
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Brazil, J.:
In a mortgage foreclosure action, the debtor appeals the trial court’s order of sale directing the sale of the property in parcels different from those requested by the debtor. For the reasons stated below, we hold that we lack jurisdiction to reach that issue because an order of sale is not an order which may be appealed under K.S.A. 1987 Supp. 60-2102(a)(3).
K.S.A. 1987 Supp. 60-2102(a) provides in part:
“[T]he appellate jurisdiction of the court of appeals maybe invoked by appeal as a matter of right from:
“(3) ... an order involving . . . the title to real estate, the constitution of this state or the constitution, laws or treaties of the United States.”
An order directing a judicial sale of real property involves “the title to real estate.”
However, in Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164 (1965), the Supreme Court considered when an order involving the constitution is appealable under 60-2102(a). The court said:
“[T]he order must have some semblance of finality. The fact that one of the parties raises a constitutional question does not permit an appeal to this court until the trial court has had an opportunity to make a full investigation and determination of the controversy. . . . Such an order is . . . subject to the rule that [it] must constitute a final determination of the constitutional controversy.” 195 Kan. at 302.
The Court of Appeals applied this rationale as an alternative reason for dismissing an appeal from an order denying a motion for summary judgment which might have involved title to real estate in In re Estate of Ziebell, 2 Kan. App. 2d 99, 101, 575 P.2d 574 (1978). Although the present case has progressed far beyond a motion for summary judgment, the questions raised in the appeal concern only the post-judgment order of sale. The question, then, is whether such an order has “some semblance of finality” so that it is appealable.
Following the order of sale and sale by the sheriff, K.S.A. 60-2415 provides in part:
“(a) The sheriff shall at once make a return of all sales ... to the court. If the court finds the proceedings regular and in conformity with law and equity, it shall confirm the same, direct the clerk to make such entry upon the journal and order the sheriff to make to the purchaser the certificate of sale or deed provided for in this article.
“(b) The court may decline to confirm the sale where the bid is substantially inadequate . . . .”
Thus, the statutes clearly provide for further action by the district court after the order of sale is issued, and the order has no semblance of being a final determination of the title to the real estate. See, e.g., National Reserve Life Ins. Co. v. Kemp, 184 Kan. 648, 652-54, 339 P.2d 368 (1959) (alleged defect in journal entry of judgment was corrected by order confirming sale).
Dismissed. | [
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