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Davis, J.:
The appellants, Mr. and Mrs. B, appeal the district court’s decision denying their petition to adopt Mrs. B’s ten-year-old niece, R.P. They contend that the court failed to accord them the preference required by K.S.A. 1987 Supp. 38-1584(c)(3).
In a well-reasoned opinion, the district court found the appellants to be good prospective adoptive parents, but granted the petition for adoption of Mr. and Mrs. S, who had been R.P.’s foster parents for two and one-half years prior to trial.
No useful purpose would be served by recounting the tragic events of this case except to state that the natural father’s parental rights to R.P. have been severed and the natural mother is deceased. After reviewing the record, we conclude that the decision of the district court is supported by substantial competence evidence. The only remaining question is whether the district court erred as a matter of law by not granting the appellants’ petition for adoption after finding them suitable adoptive parents.
K.S.A. 1987 Supp. 38-1584(c)(3) provides as follows:
“Preferences in custody for adoption or long-term foster care. In making an order under subsection (c)(1) or (2), the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.”
In their brief, the appellants discuss the legislative history of 38-1584(c)(3) at length. They argue that the legislature did not intend for close emotional ties with foster parents or other nonrelatives to affect the statutory preference for placement with relatives. In essence, they argue that the legislature has determined that placement of a child with a suitable relative is in the child’s best interests and that the trial court lacks discretion to determine otherwise.
The clear and unambiguous language of 38-1584(c)(3) belies the appellants’ argument. Preference to a relative shall be given “to the extent that the court finds it is in the best interests of the child.” In 38-1584(a), the legislature emphasized the court’s duty to act in the best interests of the child:
“Purpose of section. The purpose of this section is to provide stability in the life of a child who must be removed from the home of a parent, to acknowledge that time perception of a child differs from that of an adult and to make the ongoing physical, mental and emotional needs of the child the decisive consideration in proceedings under this section. The primary goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting.” (Emphasis added.)
The placement of a child for adoption requires careful consid eration of the facts of the particular case. In 38-1584(c)(3), the legislature has expressed the policy that preference for adoption should be given to a relative of the child. This policy, however, must be balanced with the policy “to make the ongoing physical, mental and emotional needs of the child the decisive consideration.”
We find that the district court applied 38-1584(c)(3) according to its clear intent and meaning. The court concluded that the best interests of R.P. would not be advanced by placing her with the appellants:
“That it would not be in the best interests of the child to destroy the trust and loving relationship that [R.P.] has been fortunate enough to have experienced over the last two and one half years with [Mr. and Mrs. S]. To do so may cause serious consequences and certainly would inflict great emotional pain upon [R.P.],
“The Court emphasizes that this decision does not disregard or reject clear statutory law and well established societal values and cultural expectations; but rather [t]his decision is based upon an overwhelming factual situation which dictates, in this court’s opinion, the application of an exception to the family preference to reach a decision clearly in the best interest of the child.”
The determination of the best interests of the child is within the sound discretion of the trial court. In re Johnson, 210 Kan. 828, 833-34, 504 P.2d 217 (1972). In this case, the district court correctly applied the law and did not abuse its discretion by concluding that R.P.’s best interests would be served by remaining with Mr. and Mrs. S.
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Carpenter, J.:
Defendants Gary Dale Paxson and Kansas Gas and Electric Company (KG&E) appeal a damage award entered in a wrongful death and survival action maintained on behalf of seven children who sought recovery for the death of their mother and her unborn child.
On November 3, 1982, an automobile driven by defendant Paxson struck Virginia Givens as she was crossing Harry Street near its intersection with Pinecrest in Wichita. She did not survive the accident. Virginia Givens was pregnant, and the child she was carrying was stillborn.
Defendant Paxson had neglected to turn on his headlights after leaving a well-lighted parking lot. When he arrived at a section of Harry Street where some street lights were out, he realized his headlights were not on, and was reaching to turn them on when he hit Givens.
Givens had seven children in addition to her unborn child, but her parental rights to such children had been severed several years before the accident.
The administrator of the estates of Virginia Givens and Baby Boy Givens filed suit against Paxson, KG&E, and the City of Wichita, alleging that Paxson had been negligent in driving his car without his headlights on, and that KG&E and the City of Wichita were negligent in failing to maintain the street lights at the scene of the accident.
Eddie Ward intervened in the action, claiming to be the common-law husband of Virginia Givens and the father of Baby Boy Givens. The seven surviving children of Virginia Givens also intervened through a guardian ad litem.
A jury trial was held in September 1985. Plaintiffs moved to dismiss the City of Wichita from the lawsuit, which motion was granted by the court. The trial court ruled as a matter of law that Baby Boy Givens did not suffer conscious pain and suffering. The jury found that Virginia Givens was killed instantly and also determined that Eddie Ward was neither the common-law husband of Virginia Givens nor the father of Baby Boy Givens. The jury found KG&E 37% at fault, Paxson 37% at fault, and Givens 26% at fault and awarded $25,000 in nonpecuniary damages to the seven surviving children as the heirs of Virginia Givens, and $25,000 in nonpecuniary damages to the seven children as heirs of Baby Boy Givens. After assessing Givens’ 26% fault, this resulted in judgments against KG&E of $9,250 in favor of the seven children as heirs of Virginia Givens, and $9,250 in favor of the seven children as heirs of Baby Boy Givens; and against Gary Dale Paxson of $9,250 in favor of the seven children as heirs of Virginia Givens, and $9,250 in favor of the seven children as heirs of Baby Boy Givens.
When plaintiffs rested, KG&E moved for directed verdict on the issue of liability, premised upon the failure to prove any legal duty of KG&E to maintain street lights within the City of Wichita, since plaintiffs had not offered the existing street lighting agreement between KG&E and the City of Wichita in their case in chief. This motion was denied by the court, and KG&E elected to present evidence in its case in chief. In its case, KG&E called its Wichita Regional Manager to testify. During his testimony, plaintiffs first offered the street lighting agreement, which was admitted. At the conclusion of all the evidence, KG&E renewed its motion for directed verdict, which was again denied.
On appeal, KG&E'asserts that the trial court erred in denying its motion for directed verdict when plaintiffs failed to present evidence in their case establishing the legal duty of KG&E to maintain street lights in the City of Wichita. However, the rule in this jurisdiction is that a party waives his right to a directed verdict if such motion is made at the close of his opponent’s case and thereafter he introduces evidence in his own behalf. He may renew his motion at the close of all the evidence, but such renewed motion will be judged in the light of the case as it stands at that time, even though the court may have erred in denying the initial motion. This error is cured if subsequent evidence introduced during the moving party’s case in chief repairs the defects of his opponent’s case. Abston v. Medora Grain, Inc., 206 Kan. 727, 730, 482 P.2d 692 (1971).
KG&E argues that, in order to establish a legal duty to maintain street lights, it would have been necessary for the street lighting agreement between the City and KG&E to be admitted into evidence. However, such omission in plaintiffs’ case was cured when the agreement was admitted without objection during the testimony of KG&E’s Wichita Regional Manager who was called as a witness by KG&E. Accordingly, when KG&E elected to present evidence in its case in chief, it waived any claim of error by the trial court in denying its motion for directed verdict at the close of plaintiffs’ case.
KG&E also contends that the trial court erred in allowing the issue of its negligence to go to the jury for the reason that there was no evidence' introduced which would establish that it departed from the proper standard of care, i.e., that care which would be exercised by prudent persons engaged in the industry. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 622-23, 706 P.2d 476 (1985). We note in passing that, in our scrutiny of the record, we find no objection on this specific ground by KG&E to the instruction on negligence given by the trial court.
Although KG&E moved for directed verdict on the issue of negligence, it would seem that KG&E did not fully articulate the sufficiency of evidence issue in the context of the standard in Mastín. We agree that this is the proper standard. Nevertheless, the record contains the testimony of KG&E’s Wichita Regional Manager, Don Elliott, who stated that it was KG&E’s policy to give widespread street lighting outages priority over individual lights. He also testified that KG&E was aware that the street lights were out early Monday morning preceding the Wednesday night accident, and that the lights were repaired the first time on that Monday. He further testified that KG&E was notified on Tuesday evening that the lights were out again and that a crew was dispatched on Wednesday to repair the lights, but that the repairs were not completed. The accident occurred Wednesday night, November 3, 1982. Elliott was unable to explain why the crew did not stay at the scene on Wednesday until the lights were fixed. The lights were not repaired until Thursday, November 4, 1982. There was also evidence that in excess of 70 street lights were off on both sides of Harry Street between Oliver and Woodlawn Streets, and that the accident scene was extremely dark.
We conclude, therefore, that there was sufficient evidence of KG&E’s negligence for the submission of such issue to the jury.
Defendant Paxson moved for directed verdict on separate grounds that (1) the seven children of Virginia Givens cannot recover as collateral heirs for the wrongful death of Baby Boy Givens as a matter of law, and (2) there was insufficient evidence of any loss or damages suffered by the seven children as a result of the deaths of Virginia Givens and Baby Boy Givens.
K.S.A. 60-1902 provides that a wrongful death action may be maintained by “any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” (Emphasis added.)
The parental rights of Virginia Givens to her seven surviving children were severed four-and-a-half years prior to the accident for conduct which constituted severe child abuse. The four youngest children, who had been adopted, did not appear at the trial. In the case of In re Wheeler, 3 Kan. App. 2d 701, 702, 601 P.2d 15, rev. denied 227 Kan. 927 (1979), the court stated:
“Where there is a termination of parental rights under the juvenile code [citation omitted], the sum total of the rights of the parent or parents in and to the child, as well as the rights of the child in and to the parents, are completely terminated; there is a complete and final divestment of all legal rights, privileges, duties and obligations of the parent and child with respect to each other.”
In Roelfs v. Wallingford, Inc., 207 Kan. 804, 811, 486 P.2d 1371 (1971), our Supreme Court held that deprivation of parental rights in a child under the juvenile code terminated the parental obligation of support, that within the meaning of the Workmen’s Compensation Act a child was no longer a dependent of a worker whose parental rights had been terminated, and that such child was not entitled to workers’ compensation benefits upon the worker’s death.
An heir is defined as “[o]ne who inherits property, whether real or personal. A person who succeeds, by the rules of law, to an estate in lands, tenements, or hereditaments, upon the death of his ancestor, by descent and right of relationship.” Black’s Law Dictionary 651 (5th ed. 1979).
In view of the rule of In re Wheeler, we are forced to conclude that the seven surviving children of Virginia Givens were not her heirs at law and, therefore, not heirs at law of Baby Boy Givens as required by the wrongful death statute, K.S.A. 60-1902. Consequently, the children were not entitled to recover for the death of Baby Boy Givens.
Furthermore, we agree with defendant Paxson’s contention that there was insufficient evidence of a loss sustained by the seven children because of the death of Virginia Givens or Baby Boy Givens, as required by the statute. The only evidence that any of the children had suffered a loss was elicited through the testimony of the oldest child, who testified that she was not even aware that Virginia Givens was pregnant or that the child was stillborn until she read a newspaper clipping after Virginia Givens’ death. She also testified that she was sad and felt a loss when her mother died and that she and her sisters were upset that Baby Boy Givens had not survived.
In Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980), the court held that the children of a deceased father, who had been separated from his children for eight years, were not entitled to any money in compensation for sorrow or mental anguish caused by their father’s death, stating:
“The Court is unable to find that these children suffered grief upon the death of a man they could not remember having seen, a perfect stranger who had provided them neither moral nor material support despite an obligation to do both. Any emotional loss the children may have comprehended was fleeting and shallow.” 490 F. Supp. at 1367.
The only reasonable conclusion to be drawn from the evidence is that there was no meaningful family relationship among these seven children, Virginia Givens, and Baby Boy Givens. We conclude, therefore, that the jury’s award of nonpecuniary damages was not supported by sufficient evidence.
The judgment of the trial court is reversed. | [
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Brazil, J.:
Jerry Linsea, a Chase County resident and taxpayer, appeals the district court’s order concluding it had no jurisdiction under K.S.A. 19-223 to review the board of county commissioners’ decision to remove the cedar trees from the grounds of the Chase County Courthouse.
In May 1987, the Board of County Commissioners of Chase County, Kansas, (Board) submitted plans to the Kansas State Historical Society calling for the addition or repair of a driveway and some sidewalks and reforestation on the courthouse grounds in Cottonwood Falls. The state historical preservation officer responded that the plans would not violate the restrictive preservation covenant covering the property under the state historical preservation law. Sometime before July 27, the Board apparently decided to go ahead with the plans.
On July 27, Jerry Linsea obtained a temporary restraining order which prevented the Board from cutting or harming any trees on the grounds. Four days later, the Board moved to vacate the order and dismiss Linsea’s action because the Board had complied with a statute requiring review by the state historical preservation officer (K.S.A. 1987 Supp. 75-2724), Linsea had no standing to pursue the action, and no statute authorized the action. Linsea then amended his pleading to include an appeal under K.S.A. 19-223, seeking to overturn the Board’s decision as arbitrary, capricious, and not supported by the evidence. The district court heard the Board’s motion on August 12.
Among other things, the court found the Board’s decision to cut down the cedar trees was “legislative, administrative, and discretionary in nature.” The court noted K.S.A. 19-223 provides an appeal process for people aggrieved by the Board’s decisions and Gonser v. Board of County Commissioners, 1 Kan. App. 2d 57, 562 P.2d 102 (1977), had allowed review of “an administrative and discretionary decision” and had not been overruled. The court nevertheless ruled: “The Gonser holding is an aberration and sufficient case law exists to support a finding that K.S.A. 19-223 only allows for appeals of decisions that are judicial or quasi-judicial in nature.” The court concluded it had no jurisdiction and dismissed Linsea’s appeal. Linsea appeals.
The trial court chose to consider the nature of the Board’s action to which Linsea was objecting. Then, based upon its interpretation of Kansas case law, the court found that it lacked jurisdiction to review the Board’s decision since that decision was legislative, administrative, and discretionary in nature.
Neither Linsea nor the Board disputes the trial court’s finding that the Board’s action was administrative and not judicial or quasi-judicial. However, in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828 (1968), the court recognized a limited scope of review of administrative actions.
“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, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.”
The court noted that because the action being reviewed was administrative or legislative, rather than judicial, any wider scope of review would violate the separation of powers doctrine. 200 Kan. at 450.
In Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978), after noting at page 467 the right to appeal is strictly statutory, the court rejected an argument based on Gonser with this analysis:
“The scope of review in each case must be determined first from the legislative authority set forth in the statute which authorizes such appeal. If a quasi-judicial function is to be reviewed the legislature in such case may authorize either a limited review or a de novo review. If a limited review is all the legislature has authorized this scope of review applies to both administrative and quasi-judicial acts. The statute authorizing review in Gonser was K.S.A. 19-223. The Court of Appeals concluded that the trial court correctly decided the appeal under a limited scope of review because of the separation of powers doctrine. The action of the board of county commissioners on review was administrative and discretionary in nature . . . 223 Kan. at 471.
Gonser and Brinson indicate this limited scope of review constitutes a properjudicial review of nonjudicial actions, so K.S.A. 19-223 could authorize the review Linsea seeks. However, on further analysis we conclude that the trial court was correct but for the wrong reason.
“The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason. Arensman v. Kitch, 160 Kan. 783, 792, 165 P.2d 441 (1946). The question for our answer is whether the district court decision was correct, not whether the grounds upon which it professed to proceed are tenable. Johnson v. Boeing Airplane Co., 175 Kan. 275, 283, 262 P.2d
808 (1953).” City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 596, 705 P.2d 564 (1985) (Rees, J., concurring).
Linsea’s amended application for a temporary restraining order and appeal alleged that he was a citizen and taxpayer of Chase County, Kansas, and that he was aggrieved by the Board’s decision which affected his interests as a taxpayer and in the historical and aesthetic appreciation of the courthouse and its environment.
Is Linsea’s status as a Chase County citizen and taxpayer sufficient to confer standing to bring this action? We think not.
A recent discussion of standing appears in Harrison v. Long, 241 Kan 174, 176-77, 734 P.2d 1155 (1987). In that case the defendant, Dr. Long, was sued for malpractice, and his insurer and the Kansas Health Care Stabilization Fund settled with the claimant. 241 Kan. at 175. The doctor objected to the settlement and, when the court approved the settlement, alleged the statute which permitted the Fund to settle despite his objections was unconstitutional. 241 Kan. at 175. The doctor claimed the settlement caused his Fund surcharge to increase, injured his reputation at local hospitals, and would have to be reported on future malpractice insurance applications. 241 Kan. at 177. The court stated:
“Standing has been called one of the most amorphous concepts in the entire domain of public law. Annot., 50 L. Ed. 2d 902, 904. The United States Supreme Court has stated that, in its constitutional dimension, standing imparts justiciability: whether the plaintiff has made out a case or controversy between himself and the defendant within the meaning of Article III of the U.S. Constitution. The court has emphasized that this is the threshold question in every federal case determining the power of the court to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).
“Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Warth v. Seldin, 422 U.S. at 498-99. ‘Standing to sue’ means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 1003, 667 P.2d 879 (1983).” 241 Kan. at 176.
The court then found that Dr. Long had a sufficient stake in the justiciable controversy to confer standing.
However, as Linsea points out in his letter brief submitted after argument, Dr. Long did not have the benefit of proceeding under a statute that conferred standing. In the present case, standing is conferred by K.S.A. 19-223, which provides in part: “Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county.” Standing is conferred upon any aggrieved person, and the question then becomes whether an individual citizen and taxpayer of Chase County is necessarily an aggrieved person under the statute.
In Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P.2d 35 (1962), the drainage district appealed an order of the board of county commissioners which enlarged the boundaries of the city. The appeal was authorized by a statute that read:
“ ‘Any owner of land sought to be taken into the limits of a city under the provisions of this act, who shall be aggrieved by the decision of the board of county commissioners may appeal to the district court of the same county in the manner and method as now provided by section 19-223, Revised Statutes of 1923.’ ” 190 Kan. at 314 (quoting G.S. 1949, 12-502a).
The court quoted with approval from the district court’s decision:
“ ‘A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation. In this sense it does not refer to persons who may happen to entertain desires on the subject, but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected.’ ” 190 Kan. at 314-15.
Absent an allegation of a special injury not suffered by other citizens and taxpayers of Chase County, we conclude that Linsea has not sufficiently alleged he was an aggrieved person under K.S.A. 19-223.
The district court’s order of dismissal is affirmed. | [
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Briscoe, J.:
Plaintiff, George Angle, appeals from the district court’s order upholding suspension of his driver’s license for refusing to submit to a breath alcohol test pursuant to K.S.A. 8-1001 et seq. Defendant, Kansas Department of Revenue (Department), cross-appeals.
On April 5, 1986, plaintiff was involved in an automobile accident in Wichita. Officer Riddle of the Wichita City Police Department responded to the scene. Riddle testified he noticed the smell of alcohol on plaintiff and that plaintiff s speech was slow and drawn out. Riddle asked plaintiff if he had been drinking, to which plaintiff responded negatively. Riddle requested that plaintiff perform field sobriety tests. Plaintiff told Riddle that he might have difficulty performing the tests because of an inner ear problem.
Riddle administered three tests to plaintiff, including the stand and count test, the walk and turn test, and the horizontal gaze nystagmus test. The subject is assessed one point for each instance of noticeable difficulty experienced with the walk and turn test and the horizontal gaze nystagmus test. A grid is then referred to which, based on the score results, indicates whether the officer should request a breath test.
Riddle testified plaintiff did not keep his foot off of the ground for the entire period of the stand and count test, and at one point during the walk and turn test plaintiff lost his balance. Plaintiff was assessed one point on the walk and turn test.
The horizontal gaze nystagmus test is at issue on appeal. In this test, the subject focuses on a moving object such as a pen while the officer looks for nystagmus, the involuntary quivering or jerking of the eye, which is considered a sign of intoxication. The test includes three phases: smooth pursuit, maximum deviation, and 45-degree onset. The smooth pursuit and maximum deviation phases may be conducted in a single pass in front of the eyes. The object is held directly in front of the eye at a distance of about 16 inches, then slowly moved to the outside while the officer looks for nystagmus. This is the “smooth pursuit” phase. When the eye has followed the object to the “maximum deviation” from center, with no white on the outside of the eye showing, the officer holds the object still for two or three seconds and observes for nystagmus.
Plaintiff contends Riddle incorrectly administered the 45-de-gree onset phase of the test. This phase begins as the other phases but, instead of taking the eye to maximum deviation, the officer stops and holds the object at a 45-degree angle and observes for nystagmus.
In his testimony before the district court, Riddle testified he could not recall whether he performed all three phases of the test with one pass for each of the eyes. Counsel for plaintiff confronted Riddle with statements made in the DUI trial and in a deposition that the test had been performed in one pass of the eye. Riddle responded he did not recall but, if that was what the deposition said, he said it. Riddle also testified that, at maximum deviation, a little of the white portion of plaintiff s eye could be seen.
Officer Franks, a training officer, testified that it was improper to perform all three phases of the test with one pass for each eye, and further that at maximum deviation none of the white of the eye should show. Franks further testified that, if the object is moved out to the side and back to the center in three to four seconds for each eye and when the object is at the far extreme some white is still showing in the eye, the test would be accurate for the “smooth pursuit” phase only.
A subject may be penalized up to six points on the test — nystagmus observed in all three phases for each eye. Riddle testified he observed nystagmus in all three phases for plaintiff s right eye and at 45-degree onset and maximum deviation for his left eye. Riddle used the scores from these tests and referred to the grid or decision sheet. He testified that he had no personal knowledge of the theory behind the grid.
Following the field sobriety tests, Riddle requested that plaintiff take a breath test. Plaintiff refused and asked to speak to his attorney. Riddle testified he did not give plaintiff the written notices required by statute, but did tell him he could not speak to an attorney. Plaintiff was then placed under arrest for DUI and taken to the police station. At the station, Riddle again requested that plaintiff take the breath test. No notices were given.
When Riddle and plaintiff arrived at the station, Officer Baker was called to the booking desk. Part of her job was to run the intoxilyzer machine. Officer Baker testified she could not recall talking to Riddle about plaintiff. She testified that she knew plaintiff was there to take the test and that, even before she saw him, she assumed he was under the influence of alcohol. Riddle testified that he spoke with Baker about the case so she could fill out her report.
Baker then went through the implied consent advisory procedure, including warnings, with plaintiff and requested that he take the test. Plaintiff responded that he would not take the test and requested to speak to his attorney. The officers then completed the “Law Enforcement Officer’s Certification of Refusal to Submit to Testing.” The certification contains a line in which the officer indicates the reasonable grounds for his belief that the person is under the influence of drugs or alcohol by placing a check mark by possible reasons listed on the form. Riddle checked the following reasons on the form: odor of alcoholic beverages, and failed sobriety tests. He did not check slurred speech, bloodshot eyes, difficulty in communicating, or poor balance or coordination. No other reason was added in the space provided for that purpose. A “Notice of Suspension and Temporary Driver’s License” was also issued pursuant to K.S.A. 1985 Supp. 8-1002.
Upon request by plaintiff, an administrative hearing was held pursuant to K.S.A. 1985 Supp. 8-1002(d). The officers were not subpoenaed by plaintiff and, therefore, did not attend the hearing. The hearing officer found Riddle had reasonable grounds to believe plaintiff was operating or attempting to operate a vehicle while under the influence of alcohol or drugs; plaintiff was in custody or arrested for an alcohol-related offense at the time the test was requested; Baker presented the necessary notices; and plaintiff refused the test. In the “hearing notes,” the hearing officer noted there was no issue as to the refusal to take the test. As to “reasonable grounds,” the hearing officer noted that plaintiff said he would produce a witness who would testify there was no odor of alcohol about him, but that the witness did not attend the hearing. Under “other issues,” it was noted that plaintiff contended the statute required warnings before making a request and, if a request is made without warnings, no subsequent warnings or requests can be made. Plaintiff also challenged the failure to subpoena the officers when he did not request it. The hearing officer found against plaintiff on these issues.
Plaintiff filed a petition for review with the district court, seeking de novo review pursuant to K.S.A. 1985 Supp. 8-259. The district court upheld the order of the hearing officer.
Burden of Proof
Plaintiff contends the district court erred in ruling he had the burden of proof at the de novo review before the district court.
In Lira v. Billings, 196 Kan. 726, 731, 414 P.2d 13 (1966), the Supreme Court addressed the issue of burden of proof:
“We further hold that K.S.A. 8-259(a) requires a trial de novo of the particular question at issue, governed by the rules applicable to civil proceedings in district court, with the burden of proof on petitioner as the one seeking affirmative relief, and further, the exercise by the court of an independent judgment, with right of trial by jury under appropriate instructions if demanded by petitioner.”
Plaintiff argues that, under 8-1001 as now amended, it is the Department and not the petitioner who must assert the affirmative issues. According to plaintiff, at the time of the Lira decision, the only issue at the hearing and at the de novo trial was the reasonableness of the driver’s failure to submit to the test. Plaintiff argues it was proper for petitioner to be required to prove the affirmative issue, i.e., the reasonableness of his conduct. However, plaintiff contends that, under K.S.A. 1985 Supp. 8-1002(d), the conduct of the officer is at issue, i.e., whether the officer had reasonable grounds to believe the driver was operat ing a motor vehicle while under the influence of alcohol or drugs, and whether the officer had given the statutorily required notices to the driver. Therefore, plaintiff argues Lira is no longer applicable and the Department should bear the burden of proving these affirmative issues.
As regards burden of proof, we conclude the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., controls in this case. Plaintiff sought review of the administrative order suspending his license by filing a petition for review with the district court on May 7,1986. K.S.A. 77-603(a) provides that, after July 1, 1985, the KJRA shall apply to all agencies and all proceedings for judicial review of agency actions not specifically exempted by statute. K.S.A. 77-621(a)(l) states: “The burden of proving the invalidity of agency action is on the party asserting invalidity.” Here, plaintiff is asserting the invalidity of the Department’s actions and, therefore, carries the burden of proof at the de novo hearing before the district court irrespective of any amendment to K.S.A. 1985 Supp. 8-1001.
Cross-Appeal — Scope of Evidence
The Department argues the trial court should not have admitted evidence on the issue of whether the horizontal gaze nystagmus tests were administered correctly because the issue was not raised at the administrative hearing. Plaintiff responds that the court is not confined to the evidence raised at the administrative hearing. Plaintiff contends that, at all stages of the proceeding, the “reasonable grounds” of Officer Riddle were at issue.
The only indication of what issues were raised and evidence presented at the administrative hearing are the “hearing notes” attached to the order of suspension. Under the heading “reasonable grounds,” the hearing officer noted that plaintiff stated he could produce a witness who would testify he did not have an odor of alcohol about him, but that the witness did not appear at the hearing. The hearing officer also noted the law enforcement officers were not subpoenaed by plaintiff and, therefore, did not appear. Nowhere in the notes does the hearing officer indicate the horizontal gaze tests were made an issue.
In order to determine what issues and evidence the trial court should consider, we must determine whether plaintiff is entitled to de novo review under the KJRA. When the petition for review was filed on May 7, 1986, there was no right to de novo review of the license suspension. At the time plaintiff filed his petition for review, the KJRA confined judicial review of disputed issues of fact to the agency record, supplemented by additional evidence taken under the KJRA, except de novo review was provided in appeals of (1) workers’ compensation orders; (2) Kansas Commission on Civil Rights (KCCR) orders; and (3) any agency order if violation is a crime punishable by fine exceeding $500 or imprisonment exceeding 6 months. K.S.A. 77-618. Subsequent to the filing of the petition for review and before the review was conducted, 77-618 was amended to allow de novo review of driver’s license suspensions.
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. Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981). There is an exception to this rule when the change is merely procedural or remedial in nature. Davis, 229 Kan. at 101 (quoting Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 [1979]). “Procedure” or “practice” has been defined as the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action or other judicial proceeding. Jones v. Garrett, 192 Kan. 109, 114, 386 P.2d 194 (1963). Here, the change in law involves what evidence may be considered by the court in reviewing a driver’s license suspension. Clearly, this does not involve a substantive right, but only a statement of the procedure to be followed on review. Further, 77-603(b) expressly provides that the KJRA creates only procedural rights and duties. We conclude the 1986 amendments should be applied retrospectively to provide plaintiff de novo review of his driver’s license suspension under K.S.A. 1985 Supp. 8-259(a).
Our determination that plaintiff was entitled to a de novo review of the suspension order does not resolve the question of what issues and evidence the trial court could consider. The Kansas Supreme Court has restricted true de novo review based on the separation of powers doctrine.
“The Kansas Supreme Court has almost universally applied this doctrine of separation of powers to various appeal statutes providing for appeals from purely administrative tribunals, ruling that the court may not substitute its judgment on questions of fact for that of an administrative tribunal.” Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 174, 476 P.2d 966 (1970); emphasis added.
When the subject of review is a purely administrative function, the district court is restricted to a more limited form of judicial review, even if the statute provides for de novo review. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 552-53, 539 P.2d 1 (1975). The more limited scope of review is set out 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, (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.’ ” Olathe Hospital Foundation, Inc., 217 Kan. at 553 (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 [1968]).
The Supreme Court, however, has held in a limited number of cases that, when the subject of de novo review is a judicial function of the agency as opposed to a legislative function, the court may make independent findings of fact and law. Nurge v. University of Kansas Med. Center, 234 Kan. 309, 313, 674 P.2d 459 (1983); Stephens v. Unified School District, 218 Kan. 220, 226, 546 P.2d 197 (1975).
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Stephens, Syl. ¶ 4.
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.” Stephens, Syl. ¶ 3.
In applying these tests set forth in Stephens, we conclude the agency is performing a judicial function in driver’s license suspension cases. Here, under the first test, the agency’s inquiry is judicial in nature because it involves the investigation, declaration, and enforcement of rights as they stand on present or past facts and under laws as they already exist. Each of the issues on review involves the application of standards to past facts. The other two tests are whether the court could have been charged with the responsibility of making the decision the agency makes and whether the function is one courts have been accustomed to perform. While the court in Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 743, 518 P.2d 377 (1974), cited Lira v. Billings in support of its conclusion that the revocation of a professional license is an administrative function, we conclude revocation of a driver’s license under 8-1001 et seq. differs from revocation of a professional license. Here, the standards for revocation are clearly stated in a statute and involve standards of reasonableness which courts traditionally have applied in other contexts. Although this is a “licensing” case, that characterization is not determinative of the nature of the agency action here.
Having concluded the agency action here is “judicial” in nature, the trial court is not restricted to the more limited review exercised in the review of “nonjudicial” agency actions where new evidence is admissible as to the limited issue before the court on appeal; namely, the reasonableness and the legality of the order appealed from. Rydd v. State Board of Health, 202 Kan. 721, 732, 451 P.2d 239 (1969). In instances involving review of “judicial” agency actions where de novo review has been expressly recognized, the court has still limited the issues and evidence. In KCCR cases, the court is confined to those issues raised in the motion for rehearing and to an independent review of the agency record. Stephens, 218 Kan. 220. In workers’ compensation cases, the statute expressly limits review to questions of fact and law as shown by the transcript of the evidence and proceedings as presented and introduced before the director. K.S.A. 1987 Supp. 44-556(a); Gawith, 206 Kan. 169.
Here, K.S.A. 1985 Supp. 8-259(a) contains no such limitations. No restrictions are imposed on review of the record and no provision for rehearing is made which could be used to limit the issues. We conclude, however, that plaintiff should be restricted to those issues raised at the administrative hearing because of the principles applied in Nurge, 234 Kan. at 316-17. First, statutes purporting to grant de novo review should be strictly construed. Second, even though this is a de novo review, the proceeding is still predominantly appellate in nature. If plaintiff may raise a completely new issue and produce evidence before the court not produced below, effectively the agency action is ignored and the proceeding is not truly appellate. We conclude it was error for the trial court to consider whether the horizontal gaze tests were correctly administered when that issue was not raised at the administrative hearing.
From our reading of these cases addressing de novo review, the Supreme Court has not interpreted any statute to allow true de novo review in the sense of a new trial on facts and issues as though they had never been tried. Even under the de novo review recognized in KCCR cases, the court is restricted to those issues preserved in a motion for rehearing before the commission and to a review of the agency record.
Plaintiff argues the issue was raised at the administrative hearing because the issue of reasonable grounds was argued. This definition of issue, however, is too expansive. Any of the grounds for revocation specified by the statute could be challenged by a licensee with a variety of arguments. If the agency is not made aware of the argument at the hearing, it cannot truly be said that the court in the de novo hearing is reviewing the agency action.
Substantial Competent Evidence— Reasonable Grounds and Statutory Notices
Plaintiff also contends there was not substantial competent evidence to support the trial court’s findings that there were reasonable grounds to believe (1) plaintiff was driving while under the influence, and (2) that the statutory notices were given.
Specifically, plaintiff argues the requests of Officer Riddle, the officer at the accident scene, cannot serve as a basis for suspending plaintiffs license because Riddle gave none of the required statutory notices and did not have reasonable grounds to believe plaintiff was driving while under the influence (again challenging the horizontal gaze tests). Plaintiff also argues the requests of Officer Baker at the station cannot serve as the basis for suspension because, although she gave the necessary statutory notices, she did not have reasonable grounds to believe plaintiff was driving while under the influence.
We have concluded in the preceding issue that plaintiff is restricted in the de novo review before the trial court to those issues raised before the administrative hearing officer. Riddle certified that the reasonable grounds for his belief was the “odor of alcoholic beverages” and “failed sobriety tests.” Plaintiff did not challenge the horizontal gaze tests at the administrative hearing but did challenge the officer’s reliance upon an odor of alcohol as a reasonable grounds for his belief. Plaintiff also raised the issue of whether the officer gave the oral and written notices required under K.S.A. 1985 Supp. 8-1001(f). Plaintiff concedes he did not dispute his involvement in a motor vehicle accident, and that he refused to submit to requested testing.
Following its de novo review, the trial court made the following conclusions of law:
“3. After viewing the scene of the motor vehicle accident, after observing that plaintiff has a strong odor of alcohol about him and that his speech was slow and slurred, and after observing Mr. Angle while performing the three (3) field sobriety or coordination tests, and after Mr. Angle [refused] to take the breath test, Officer Riddle had reasonable grounds to believe that the plaintiff was or had been operating or attempting to operate a motor vehicle while under the influence of alcohol. Officer Riddle had reasonable grounds to request Mr. Angle to submit to a breath test.
“4. Officer [Baker], when requesting plaintiff to submit to a breath test, acted upon her personal observations of plaintiff and information furnished her by Officer Riddle. Officer [Baker] had reasonable grounds for requesting Mr. Angle to submit to a breath test. Officer [Baker’s] request was refused by Mr. Angle.”
The trial court did not make a specific conclusion of law as to the statutory notices. It did, however, find that Baker understood plaintiff was turned over to her for the purpose of going through the implied consent procedure and that Riddle told her plaintiff had been arrested for DUI. Furthermore, the court found that Baker gave plaintiff the necessary notices.
K.S.A. 1985 Supp. 8-1001(b) provides that the law enforcement officer administering the test may act on the collective information available to law enforcement officers involved in the accident. Both parties assume this is the basis for the court’s decision. However, the court’s findings indicate it based its conclusion on Baker’s personal observations and the fact that Riddle told her plaintiff was under arrest for DUI.
This court must determine whether there is substantial competent evidence to support the findings of the court. Woods v. Midwest Conveyor Co., 236 Kan. 734, 736, 697 P.2d 52 (1985). “Reasonable grounds” is not defined in K.S.A. 1985 Supp. 8-1001(b). It has been suggested that reasonable grounds must be defined as “probable cause.” Gottlieb & Zinn, An Analysis of Recent Changes in Drunk Driving Laws, 3 Kansas Criminal Procedure Review 59, 60 n.10 (1986). The conclusion is based on two grounds: (1) “reasonable grounds” is synonymous with definitions of probable cause given in Kansas decisions (see State v. Giddings, 216 Kan. 14, 531 P.2d 445 [1975]), and is synonymous with the common-law definition of probable cause, which the United States Supreme Court equates with the Fourth Amendment requirement; and (2) blood tests under the statute would be unconstitutional if not based on probable cause. Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). The second ground is significant because, under the statute, a blood test may be requested without an accompanying arrest. K.S.A. 1985 Supp. 8-1001(b).
A review of the record does not indicate any observations which Baker made to support her belief that plaintiff was driving while under the influence. She did testify that she knew Angle was there to take the test and she assumed he was intoxicated. There is no substantial basis to support a finding of reasonable grounds based on Baker’s personal observations.
The court found that Baker’s reasonable belief was also based on information conveyed to her by Riddle. Here, the record shows that Baker could not recall whether Riddle discussed the case with her, while Riddle testified he did discuss the case so that Baker could fill out her report. The Department argues that Baker could act under the provision of the statute which allows the administering officer to act on collective information available to law enforcement officers investigating the accident. K.S.A. 1985 Supp. 8-1001(b).
We conclude there is substantial competent evidence to support the court’s finding that Riddle had reasonable grounds to believe plaintiff was driving under the influence.
Plaintiff argues the horizontal gaze test was administered improperly. As previously stated, this argument was not raised before the hearing officer. Riddle’s conclusions regarding the horizontal gaze test were unchallenged before the hearing officer and should not have become an issue before the trial court. The unchallenged certification that plaintiff failed sobriety tests which included these horizontal gaze tests was evidence to support the trial court’s finding that Riddle had reasonable grounds to believe that plaintiff was driving while under the influence.
But, even if we were to allow plaintiff s challenge of the horizontal gaze tests, the record still contains substantial competent evidence to support the trial court’s findings. Even though the testimony indicates the 45-degree onset phase of the horizontal nystagmus test was administered improperly, there was testimony by the police training officer that the smooth pursuit phase of the test was administered properly. As to the maximum deviation phase, the training officer testified it was possible maximum deviation could occur at a point where some of the white portion of the eye still shows, as was the case here. Therefore, even though the test was not conducted properly, some phases were conducted in a way that could indicate nystagmus according to the training officer’s testimony.
Riddle also testified concerning facts which could serve as reasonable grounds, including the smell of alcohol about the plaintiff, his slow and slurred speech, and his loss of balance on the walk and turn test. While it is true the officer did not indicate all of these factors in his sworn certification, the smell of alcohol and the failed sobriety tests, which included the walk and turn test and the horizontal gaze tests, were identified.
If Riddle had reasonable grounds, could Baker act on this information? Clearly, if this information was communicated to her, she could. However, even if the facts were not communicated, she could act under the “collective information” provision of 8-1001(b). Plaintiff argues this section is analogous to the “fellow officer rule” in the area of warrantless arrest. This doctrine set forth in State v. Clark, 218 Kan. 726, Syl. ¶ 5, 544 P.2d 1372 (1976), allows an officer to act on the strength of a communication through official channels directing an arrest be made:
“An arresting officer who does not have in his possession sufficient information to constitute probable cause may make a valid warrantless arrest if (1) it is shown that he acted upon the direction or as a result of a communication from another police department and (2) it is shown that the police, as a whole, were in possession of information sufficient to constitute probable cause.”
According to plaintiff, there was no communication of Riddle’s reasonable grounds to Baker, so under either rule she could not act under the collective information. We disagree.
It is not necessary that all of the information be communicated to the arresting officer. The focus is on all of the investigating officers as a whole. Courts have expressly held that, when an arrest is made on the basis of a radio message, the question of probable cause is determined on the basis of the full information which caused the message to be sent, not on the basis of the message alone. Clark, 218 Kan. at 732. Here, Baker was directed to administer the implied consent procedure. Under either the “fellow officer” rule or 8-1001(b), it was proper for Baker to act.
Conclusion
The court did not err in placing the burden of proof upon plaintiff as the one seeking affirmative relief from the administrative ruling against him. The trial court did err in considering evidence on the field sobriety tests (horizontal gaze tests) when this issue was not raised before the hearing officer. The record shows there is substantial competent evidence to support the trial court’s findings that there were reasonable grounds to conclude plaintiff was driving while under the influence and that the necessary notices were given. The court correctly upheld the suspension of plaintiff s license.
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Elliott, J.:
The sole issue in this foreclosure action is whether the Federal Land Bank of Wichita is exempt from paying the mortgage registration fee as provided for in K.S.A. 1987 Supp. 79-3102(a). We hold it is. As a result, the trial court did not err in admitting the mortgage into evidence, despite the language of K.S.A. 79-3107, which provides that any mortgage on which the registration fee has not been paid is not to be admitted into evidence and no judgment for its enforcement is to be rendered.
12 U.S.C. § 2055 (1982) clearly states that the mortgages held by federal land banks shall be exempt from all taxation, except for certain federal tax liabilities not relevant to this case.
The Kansas Supreme Court has consistently held that the mortgage registration fee called for in K.S.A. 1987 Supp. 79-3102(a) is a tax and not a user fee or a fee for administrative work. Berger v. Bierschbach, 201 Kan. 740, 745, 443 P.2d 186 (1968).
Appellant’s reliance on Federal Land Bank of Wichita v. Read, 237 Kan. 751, 703 P.2d 777 (1985), is simply misplaced. Holding that a federal land bank is a private corporation for due process consideration does not remove mortgages held by a federal land bank from the express exemption of 12 U.S.C. § 2055.
Consequently, validly executed federal land bank mortgages may be filed without payment of the mortgage registration fee, and such mortgages are enforceable in Kansas courts. See Att’y Gen. Op. No. 86-78.
The judgment is affirmed. | [
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Flood, J.:
The sole issue in this appeal is the applicability of K.S.A. 59-605 to a situation in which the scrivener of a will is the wife of the principal beneficiary.
The testator, Maggie Alexander, and her husband had four children; Roy, Russell, Harold, and Lulu Lee. In 1957, Mr. and Mrs. Alexander gave a farm to each of the three boys and the cash equivalent to Lulu Lee. Following her husband’s death in 1963, Maggie Alexander lived with her son Harold until his marriage to Arlyss in 1973, at which time Harold and Arlyss moved a mile down the road to set up housekeeping. Between 1963 and 1979 when Maggie entered a nursing home, Harold alone, and then Harold and Arlyss attended to most of Maggie’s needs, looking in on her frequently and providing her with the bulk of her transportation needs. After Harold and Russell had a falling out in 1973, Russell never again saw Maggie before her death. Maggie and her daughter Lulu Lee also had a strained relationship, but that softened somewhat during Maggie’s final years in the nursing home.
In 1969, Maggie made out a will by which she left her estate equally to her sons Harold and Roy, excluding Lulu Lee and Russell. In 1978, she made out a second will with the same provisions, except she left one dollar each to Russell and Lulu Lee. In 1979, by letter to Harold, Maggie evidenced an intent to leave her entire estate to Harold and, earlier that same year, she transferred her savings to Harold.
After Maggie’s move to the nursing home in 1979, Lulu Lee began to visit Maggie frequently and apparently worked herself back into Maggie’s favor.
On April 16, 1980, Lulu Lee, ostensibly at Maggie’s direction, went to see attorney Frank Oberg and had a new power of attorney made out, naming Lulu Lee and Russell as Maggie’s attorneys in fact. The next day, again ostensibly at Maggie’s direction, Lulu Lee went to see attorney Wayne Ryan and had a will prepared, leaving Maggie’s estate to her four children in equal shares and naming Lulu Lee and Russell as co-executors. This will was read and explained to Maggie by attorney Ryan and was duly witnessed by his two secretaries.
Subsequently, Maggie advised Arlyss that she had been tricked into signing some papers and wanted a new will made out leaving her entire estate to Harold. Arlyss drafted a copy of the new will, went over it with Maggie, and then on May 3, 1980, Maggie executed the will before Arlyss’s mother and sister.
After Maggie’s death in February of 1985, Russell and Lulu Lee offered the will dated April 17,1980, for probate, and Harold offered the will dated May 3, 1980, for probate. The trial court admitted the May 3, 1980, will to probate and denied admission to probate of the will dated April 17, 1980.
The trial court found that the record did not contain evidence showing that Harold discussed the will with Maggie or participated in having it executed. The trial court further found there were not sufficient facts and circumstances to justify a finding that Arlyss and Harold were a fiduciary to each other or that Arlyss was a fiduciary to Maggie when she took Maggie’s instructions and prepared her will to impute such a relationship to Harold; therefore, K.S.A. 59-605 did not apply. With respect to the exercise of undue influence by either Arlyss or Harold, the court reached the following conclusion:
“Here the evidence shows a pattern of Harold caring for Maggie over many years. The evidence shows an estrangement between Maggie and Russell that continued until her death, and an estrangement between Maggie and Lulu Lee that existed for years until the latter began to visit Maggie in the nursing home. The evidence shows that Maggie, in return for h is years of devotion, wanted Harold to take her estate to the exclusion of her other children. If any evidence smacks of undue influence, it is that which suggests that after years of estrangement, Maggie would execute a will in April naming Lulu Lee and Russell as co-executors. The Court finds that the petitioners Lulu Lee and Russell have failed to show that the May 3, 1980 will was the result of undue influence.”
We are, of course, bound by the trial court’s findings of fact, but not by the trial court’s conclusions of law. K.S.A. 59-605 provides:
“If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto.”
With reference to the latest will dated May 3,1980, it is readily apparent that Maggie Alexander did not have independent advice. By the same token, the beneficiary is Harold Alexander, who was not the scrivener of the will. Rather, it was his wife Arlyss who was the scrivener.
In In re Estate of Schippel, 169 Kan. 151, 161, 218 P.2d 192 (1950), it was recognized that under this statute there might be circumstances in which a person occupying a position of a “go-between” could be considered to be held the one writing or preparing a will within the meaning of the statute. However, here, the trial court found that the record did not contain any evidence that Harold discussed the will with Maggie or participated in having it executed, and such a finding has not been challenged on appeal. In In re Estate of Kern, 239 Kan. 8, 716 P.2d 528 (1986), it was recognized indirectly that the statute might apply if the principal beneficiary had made suggestions to the scrivener concerning the preparation of the will. However, the evidence in this case seems to be that Arlyss prepared the will pursuant to Maggie’s request, without any input from Harold.
The question, then, before this court is whether the actions of Arlyss as scrivener must, under the statute, be imputed to Harold solely because of their husband and wife relationship. The closest Kansas case dealing with this question seems to be In re Estate of Robinson, 231 Kan. 300, 644 P.2d 420 (1982), relied upon by the trial court in making its decision in this case. In that case the wife of the testator was the principal beneficiary and was, arguably, the go-between with the family lawyer who had drafted the will; furthermore, she had suggested the contingent beneficiaries named in the will. The trial court held that, under those circumstances, 59-605 had been violated. The Supreme Court reversed, holding that the relationship of husband and wife alone was not sufficient to create the confidential or fiduciary relationship between the beneficiary and the testator required by K.S.A. 59-605 and, further, that the action of the wife in suggesting contingent beneficiaries to the family lawyer did not make her the scrivener of the will. The case is distinguishable because it does not deal with the question presented here, which is whether a wife can ever be the scrivener of a will in which her husband is the principal beneficiary without violating the provisions of 59-605.
We have been cited to several decisions from other states where the issue has been addressed, although not necessarily in the context of a statute similar or identical to the one in Kansas. In Estate of Trefen, 86 Cal. App. 2d 139, 194 P.2d 574 (1948), a daughter-in-law had been instrumental in getting the decedent to make a new will disinheriting decedent’s husband in favor of the daughter-in-law’s husband, decedent’s son by a prior marriage. The court there held in Syl. ¶ 10:
“Where a wife is active in obtaining the preparation and execution of a will making her husband the sole beneficiary, the activity of the wife is imputed to the husband.”
However, in that case there was a factual finding that the wife of the beneficiary had exercised undue influence upon the decedent to disinherit the decedent’s husband. This finding, in turn, was based upon the fact that the decedent had long expressed a testamentary preference for her husband, who had jointly helped her acquire the property in question.
In In re Estate of Peterson, 283 Minn. 446, 168 N.W.2d 502 (1969), an attorney who acted as scrivener induced his client to make a will disinheriting her relatives in favor of the attorney’s own children. The court held that the act of the scrivener, who stood in a confidential relationship with the decedent, could be imputed to his children as beneficiaries to make out a prima facie case and sustain a finding of undue influence. Here, again, we have a case where on the facts a decedent, who stood in a confidential and fiduciary relationship with the scrivener, is induced by the scrivener to make out a will in favor of casual acquaintances, contrary to her expressed intent and desires.
In Swenson v. Wintercorn, 92 Ill. App. 2d 88, 234 N.E. 2d 91 (1968), an elderly testatrix had been persuaded by Mr. Green to make out a will in favor of his wife, Mrs. Green. Mrs. Green was not related to the testatrix. The Illinois court held that one who procures the execution of a will largely benefiting himself in the absence of others having equal claim on the bounty of the testatrix, who is enfeebled by age and disease, is faced with the presumption that he exercised undue influence. The court went on to say that undue influence may be the result of activities of third persons, as well as the result of activities of direct beneficiaries, and that insofar as Mr. Green may have been instrumental in influencing the testatrix to favor his wife, his activity may be imputed to his wife.
The most that can be said of these decisions is that where one who is a scrivener drafts, or procures a scrivener to draft, a will in favor of his or her spouse or son or daughter, such behavior allows a presumption of undue influence or makes out a prima facie case of undue influence or supports a decision of undue influence. This is particularly so when the beneficiary is not related to the testator, or the will is contrary to the long-expressed desires of the testator.
In this case the evidence is that Harold did not procure the making of the May 3, 1980, will by his mother, nor did he have any input into the making of the will. Further, Maggie’s long-expressed testamentary intent as shown by the earlier wills, the letter, and the relationship generally was that she intended to make Harold Alexander her sole beneficiary. The trial court found that the evidence would not support a conclusion that either Arlyss or Harold exercised undue influence on Maggie. The trial court further found that there was no fiduciary relationship between Arlyss and Harold or between Arlyss and Maggie which would permit imputing Arlyss’s actions as scrivener of the will to Harold. We think these factual conclusions are correct. We also agree with the trial court that, merely because the relationship between the scrivener of a will and the principal beneficiary is one of husband and wife, there is not an automatic or per se violation of K.S.A. 59-605. To so hold, we believe, would take action by the legislature.
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Meyer, J.:
This is a criminal case in which defendant Ruth Bryan appeals her convictions of four counts of felony theft pursuant to K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701, commonly known as welfare fraud.
The sole issue on appeal is whether the district court lacked jurisdiction to convict the defendant because the information failed to allege a crime.
The information upon which the defendant was tried and convicted alleged four counts of “welfare fraud.” It began as follows:
“In the name and by the Authority of the State of Kansas, I, Gene M. Olander, District Attorney in and for the County of Shawnee in the State of Kansas, who prosecute for and on behalf of said State in the District Court of said County, sitting and for the County of Shawnee, come now here and give the Court to understand and be informed that Ruth Bryan at the County of Shawnee, in the State of Kansas aforesaid, and with the Jurisdiction of the Court, on or about the 1st day of September, A.D. 1983, did unlawfully, feloniously, willfully and intentionally,
“Count 1
“WELFARE FRAUD, K.S.A. 39-720 and 21-3701, pen. section 21-4501(d) “obtain by means of willful false statement or representation or by other fraudu lent device, welfare assistance, to which the said RUTH BRYAN was not entitled, the said assistance being in an amount of one hundred dollars ($100) or more and the property of the State of Kansas, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas.”
Except for the dates of the alleged offenses, counts 2, 3, and 4 were all in substantially the same language as count 1.
None of the four counts of the information alleged that the defendant obtained control over the State’s property with the intent to deprive the owner permanently of the possession, use, or benefit of the property. For this reason, the defendant contends the district court erred in convicting her of felony theft pursuant to K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701. We agree.
The indictment or the information is the jurisdictional instrument upon which the accused stands trial. State v. Slansky, 239 Kan. 450, 452, 720 P.2d 1054 (1986). An information which fails to include an essential element of the crimes it attempts to charge is jurisdictionally and fatally defective, and the convictions for those offenses must be reversed. State v. Jackson, 239 Kan. 463, Syl. ¶ 5, 721 P.2d 232 (1986).
K.S.A. 39-720 is the statute under which the defendant was convicted. It provides as follows:
“Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act.” (Emphasis added.)
K.S.A. 1986 Supp. 21-3701 defines the crime of theft as follows:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner s property:
(a) Obtaining or exerting unauthorized control over property; or
(b) Obtaining by deception control over property.” (Emphasis added.)
A conviction for welfare fraud under K.S.A. 39-720 is a conviction for theft. K.S.A. 39-720; State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976). An essential element of the crime of theft is that the accused obtain the property “with intent to deprive the owner permanently of the property. K.S.A. 1986 Supp. 21-3701; State v. Burnett, 4 Kan. App. 2d 412, Syl. ¶ 1, 607 P.2d 88 (1980).
The State contends that a person who fraudulently obtains welfare assistance to which the person is not entitled, according to K.S.A. 39-720, “shall be guilty of theft.” The problem with the State’s argument is that K.S.A. 39-720 does not stop at the point where it states that “[a]ny person who obtains ... by means of . . . fraudulent device, assistance to which the [person] is not entitled, shall be guilty of the crime of theft.” (Emphasis added.) Presumably, the Legislature could have stopped at that point. See State v. jones, 214 Kan. 568, 570, 521 P.2d 278 (1974) (“The Legislature has the power to define and prescribe, punishment for criminal offenses.”) However, the statute continues, saying that such person “shall be guilty of the crime of theft, as defined by K.S.A. 21-3701.” (Emphasis added.) K.S.A. 1986 Supp. 21-3701 in fact defines “theft” as obtaining control over property “with intent to deprive the owner permanently of the possession . . . of the owner’s property.” A person is not guilty of theft “as defined by K.S.A. 21-3701” unless that person obtains control of the property with the intent to permanently deprive the owner of his property. Thus, we hold that an information charging an accused of “welfare fraud” under K.S.A. 39-720 must allege that the accused obtained control of the property with the intent to permanently deprive the owner of his property.
The State contends that K.S.A. 39-720 is a penal statute and the specific elements listed in the statute constitute an independent crime. The State’s argument finds support in In re Estate of Butler, 159 Kan. 144, 147, 152 P.2d 815 (1944), wherein it was held that the predecessor of K.S.A. 39-720 “creates a criminal liability for the fraudulent obtaining of assistance and provides a penalty for the commission of that offense.” However, at the time Butler was decided, the predecessor of K.S.A. 39-720 read as follows:
“Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, is guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars or be imprisoned for not more than six months or by both such fine and imprisonment.” G.S. 1935, 39-720 (1943 Supp.).
Clearly, the older statute defined an independent crime. How ever, the present version of the statute labels the proscribed acts as “theft, as defined by K.S.A. 21-3701.” A conviction for fraudulently obtaining welfare assistance is a conviction for theft, specifically, theft by deception under K.S.A. 1986 Supp. 21-3701(b). See State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986); State v. Ambler, 220 Kan. 560. K.S.A. 39-720 does not define “welfare fraud” as a crime independent of theft, but defines it as “theft.” The State’s argument that K.S.A. 39-720 constitutes an independent crime is without merit.
The State also contends that the reference in K.S.A. 39-720 to 21-3701 exists only for dispositional purposes; that is, to determine whether the proscribed act is a felony or a misdemeanor depending on the value of the assistance fraudulently obtained. We have been unable to find any case or statutory authority that supports this conclusion. However, the State’s theory does find some support if one looks to the history of K.S.A. 39-720. As stated above, the statute at one time provided that a person committing the act proscribed by the statute “is guilty of a misdemeanor.” By inserting “shall be guilty of the crime of theft, as defined by K.S.A. 21-3701” in place of the prior language, the Legislature may have intended to direct the sentencing judge in determining whether the crime was a felony or a misdemeanor.
However, the State’s argument is overshadowed by the fact that other statutes in the Social Welfare article specifically guide a sentencing court with respect to crimes involving welfare assistance. For example, K.S.A. 39-709b(d) provides:
“It shall be unlawful for any person, association, firm, corporation or other agency to disclose, to make use of or to authorize, knowingly permit, participate in or acquiesce in the use of any lists or names or addresses contained in the public list ... for commercial or political purposes of any nature or to make use of or disclose confidential information except as provided in this section. Any person, association, firm, corporation or other agency who willfully or knowingly violates any provisions of this section shall be guilty of a class B misdemeanor.”
Even more illustrative of the weakness of the State’s argument is K.S.A. 39-717, which establishes penalties for the unlawful sale or disposition of welfare assistance. The statute provides, in part:
“Any person convicted of violating the provisions of this paragraph shall be guilty of a class A misdemeanor if the value of the assistance sold or otherwise disposed of, purchased, acquired or possessed was less than $100. Any person convicted of violating the provisions of this paragraph shall be guilty of a class E felony if the value of the assistance sold or otherwise disposed of, purchased, acquired or possessed was $100 or more.”
Had the Legislature intended the misdemeanor/felony distinction in K.S.A. 1986 Supp. 21-3701 to apply to cases of welfare fraud, presumably it would have set out that distinction in K.S.A. 39-720 itself rather than refer to the theft statute. This is what the Legislature did in K.S.A. 39-717; it could have just have easily done the same thing in K.S.A. 39-720. Because the Legislature specifically refers to the theft statute, we conclude the Legislature did not simply want to guide the sentencing judge as to whether the crime was a felony or a misdemeanor.
The State relies on an unpublished opinion of this court in support of its argument that the information charging the defendant herein was valid. The use of an unpublished opinion is expressly forbidden by Supreme Court Rule 7.04,235 Kan. lxxiii, and we accordingly disregard it.
The defendant herein was convicted of felony theft pursuant to K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701. The information charging the defendant with theft did not allege that she obtained control of the welfare funds with the intent to permanently deprive the State of those funds, an essential element of theft. Consequently, her convictions for theft are void and are reversed. | [
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Rulon, J.:
Ralph and Esther Hale (defendants) appeal from the district court’s grant of summary judgment to St. Francis Regional Medical Center, Inc., (plaintiff) on defendants’ counterclaim alleging negligence. Finding no error, we affirm.
The issue on appeal is whether the district court erred in dismissing the defendants’ counterclaim because expert testimony was necessary to establish the hospital’s standard of care, deviation from that standard of care, and causation of defendant Esther Hale’s injury.
FACTUAL HISTORY
On January 13, 1984, Esther Hale was admitted to St. Francis Regional Medical Center (St. Francis) with a heart condition. She had bypass surgery on the 17th. During surgery, a vein was harvested from her left leg. The leg incision was sutured and the skin was closed with a staple gun. Esther first noticed problems with the incision several days after surgery. It did not seem to be healing properly, so she mentioned this to a nurse. The nurse’s notes of January 18,1984, indicate some “bloody oozing from the incision.” Esther was dismissed January 25, 1984, and was instructed to consult with her family doctor regarding the leg problem.
The family doctor prescribed an ointment; however, the infection worsened. Antibiotics were also prescribed. In August 1984 she was examined by Dr. Newby, the doctor who performed the heart surgery, and he prescribed an ointment for the leg.
In the fall of 1984, Dr. Baker cultured the discharge from the sores on Esther’s leg and diagnosed a staph infection. He prescribed another ointment, whirlpool treatment, and antibiotics. The infection appeared to clear up but, after several weeks without antibiotics, it worsened.
In February 1985, Dr. Schmeidler took an x-ray and discovered clips that had been left in the leg from the heart surgery. A lab report showed a staph infection. Continued treatment failed to remedy the condition and in the fall, Esther was referred to Dr. Ammar.
Dr. Ammar diagnosed cellulitis related to stitch or metal. Cellulitis is deep inflammation of the tissues just under the skin caused by infection with germs. On October 7, 1985, Dr. Ammar performed surgery in order to excise several small ulcers or sores. Several hemoclips were found and removed. On January 13, 1986, another surgical procedure was performed on the leg and several more hemoclips were removed. At the time of Esther’s deposition in April 1986, her leg had not completely healed from the January surgery.
PROCEDURAL HISTORY:
In November 1984, ten months after the initial surgery, St. Francis filed a claim against the Hales, pursuant to Chapter 61, for collection of their unpaid hospital bill in the amount of $1,003.35. The Hales filed a counterclaim and the case was transferred to the Chapter 60 docket. The counterclaim alleged that the hospital’s failure to provide sanitary and safe facilities was the cause of Esther’s staph infection. The Hales subsequently amended their claim to include Dr. Newby as an additional party.
In April 1986, a discovery conference was held. The Hales were ordered to furnish their experts’ reports by May 1, 1986. The Hales failed to name their experts and furnish reports. St. Francis filed a motion to preclude use of medical expert testimony. The district court denied the motion and granted the Hales until August 6,1986, to produce expert reports. The Hales again failed to produce names of experts and copies of expert reports. The hospital filed a second motion to preclude use of expert testimony by the Hales. At the hearing on the motion, counsel for the Hales stated he had been unable to locate an expert witness and consented to the granting of the hospital’s motion.
Dr. Newby, who had performed the initial surgery, moved to be dismissed on the ground that the Hales had failed, as a matter of law, to prove a cause of action against him. The district court granted the motion.
St. Francis filed a motion for summary judgment and memorandum in support. The hospital argued that the Hales’ claim should be dismissed for their failure to produce an expert to (1) establish the standard of care and (2) testify regarding causation. The Hales filed their response and argued that the “common knowledge” exception applied and no expert testimony was necessary to prove their cause of action.
The district court granted the hospital’s motion for summary judgment, finding that the counterclaim involved the contraction of the staph infection and Esther’s subsequent care and treatment. The court ruled that those issues were “not within the common knowledge exception to the rule requiring expert testimony to prove standard of care, deviation from standard of care and causation in medical malpractice cases.”
The Hales filed a notice of appeal. The hospital’s claim, however, had not been disposed of. This court issued a show cause order, requesting a journal entry setting out the disposition of the hospital’s claim. The parties agreed to a dismissal without prejudice and filed a journal entry. This court ordered the appeal to proceed.
SUMMARY TUDGMENT WAS PROPER
The rules governing the granting of summary judgment motions are well settled and need not be restated. See Crooks v. Greene, 12 Kan. App. 2d 62, Syl. ¶ 1, 736 P.2d 78 (1987).
To avoid summary judgment, the nonmoving party must establish each element of the cause of action:
“The plain language of K.S.A. 60-256(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.” Crooks v. Greene, 12 Kan. App. 2d 62, Syl. ¶ 2.
In the present case, as in Crooks v. Greene, the plaintiffs made a “conscious legal decision to assume the position that expert testimony was not required to establish their claims.” 12 Kan. App. 2d at 65. The trial court was then left with the legal issue of whether the Hales’ claims fell within the common knowledge exception or whether their claims were beyond that exception and thus required expert testimony.- See 12 Kan. App. 2d at 65-66. As this court stated in Crooks, “[i]f plaintiffs were wrong in their assertion that expert testimony was not needed, their claims failed for lack of evidence because they had not identified any expert testimony to support their claims.” 12 Kan. App. 2d at 66.
In the present case, the district court ruled that expert testimony was necessary to establish standard of care, deviation from standard of care, and causation. The district court apparently reasoned that without that proof, the Hales would be unable to prove the essential elements of their negligence case and entered summary judgment in favor of the hospital. We agree.
In order to maintain a cause of action, the Hales need to establish three elements: (1) a duty on the part of the hospital to protect Esther from the contraction of the staph infection and subsequent problems; (2) failure on the part of the hospital to perform the duty; and (3) Esther’s contraction of the infection and subsequent problems must have proximately resulted from the hospital’s failures. See Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910, Syl. ¶ 1, 636 P.2d 215 (1981).
The Hales contend on appeal that “[a]s a matter of public policy and common sense, the testimony of an expert is unnecessary to prove that physicians must be responsible for removing all harm-producing foreign objects which they knowingly place inside a patient’s body during an operation.” (Emphasis supplied.) Appellants, however, have no cause of action against a physician. Dr. Newby, the physician performing the initial surgery is not a party to this appeal. Therefore, the Hales must establish the elements of their cause of action as to St. Francis.
The general duty of a private hospital was restated in Mellies:
“ ‘A private hospital is bound to exercise toward a patient such reasonable care as the patient’s known condition may require, the degree of care being in proportion to the patient’s known physical and mental ailments. The extent and character of the care that a hospital owes its patients depends upon the circumstances of the particular case, and the measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in the community.’ ” 6 Kan. App. 2d at 913 (quoting McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. 632, 633, 585 P.2d 984 [1978]).
“The standard of medical and hospital care which is to be applied in each case is not a rule of law, but a matter to be established by the testimony of competent medical experts.” Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 5, 574 P.2d 136 (1977). In medical malpractice cases, not only is expert testimony generally necessary to establish the standard of care but also to support conclusions of causation. Mellies, 6 Kan. App. 2d 910, Syl. ¶¶ 3, 4.
The Hales assert that the hospital is liable for (1) its failure to provide safe and sanitary operating and recuperating facilities; (2) the failure of nurses to notify physicians of the swelling and infection; (3) the failure of the records to show the use of metal hemoclips; (4) its failure to culture, x-ray, and diagnose the infection at an earlier date; and (5) its failure to properly treat the infection after it was discovered. However, the Hales offered no expert testimony regarding the hospital’s standard procedure or duty in these particular areas. Appellants rely upon the lay person’s understanding of standard hospital procedure and the duties of a hospital versus the duties of the treating physician and staff nurses.
The Hales assert the “common knowledge” exception is applicable to this case:
“There is a common knowledge exception to the rule requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally.” McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. 632, 633, 585 P.2d 984 (1978) (citing Webb v. Lungstrum, 223 Kan. 487, Syl. ¶ 3, 575 P.2d 22 [1978]).
In order to determine whether expert testimony was necessary under the facts of this case, we have reviewed numerous appellate decisions addressing the common knowledge exception. Testimony of lay persons was sufficient in the following cases: McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. at 635; Hiatt v. Groce, 215 Kan. 14, 21-22, 523 P.2d 320 (1974); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 51, 510 P.2d 190 (1973); Rule v. Cheeseman, Executrix, 181 Kan. 957, Syl. ¶ 1, 317 P.2d 472 (1957); Bernsden v. Johnson, 174 Kan. 230, 238, 255 P.2d 1033 (1953).
The common knowledge exception was found not applicable and expert medical evidence was required to establish the cause of action in the following cases: Webb v. Lungstrum, 223 Kan. 487, Syl. ¶ 4, 575 P.2d 22 (1978); Collins v. Meeker, 198 Kan. 390, 399, 424 P.2d 488 (1967); Crooks v. Greene, 12 Kan. App. 2d at 66; Crowley v. O’Neil, 4 Kan. App. 2d 491, Syl. ¶ 6, 609 P.2d 198, rev. denied 228 Kan. 806 (1980).
In the present case, the hospital’s duty is not so obvious as to fall within the common knowledge exception. The doctor was primarily responsible for the initial surgery. The hospital, however, is the only defendant and the hospital’s duty to Esther needs to be established by competent medical experts. See Chandler v. Neosho Memorial Hospital, 223 Kan. at 5.
Nor does the cause of a staph infection appear so obvious that a lack of reasonable care by the hospital would be apparent to a lay person and within common knowledge and experience generally. Esther’s treating physicians were unsure of the cause. Expert evidence is needed to establish whether some failure of the hospital proximately caused Esther to contract the infection. See Mellies, 6 Kan. App. 2d 910, Syl. ¶ 4.
In the district court, the Hales’ claims failed for lack of evidence because no expert testimony established the essential elements of their case. The district court’s determination that expert testimony was necessary to establish the hospital’s standard of care, deviation from standard of care, and causation was correct.
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Six, J.:
This is an appeal in a foreclosure action. The issue presented is whether the trial court erred in awarding rents collected by a receiver, after default and before the period of redemption, to the property owner rather than to the second mortgagee. We conclude the trial court erred and reverse and remand the case for proceedings consistent with this opinion.
On April 23, 1982, Anthony and Carrie Curtis executed a note and first mortgage on real estate located in Johnson County with Missouri Valley Investment Company (Missouri Valley). On September 28, 1984, the Curtises executed a note and second mortgage with appellant MidAmerican Bank & Trust Company (MidAmerican).
Under the terms of both mortgages, the Curtises agreed to “mortgage, grant and convey” the real estate to the mortgagees, “[t]ogether with all the . . . rents” of the property. Further, both mortgages provided for the appointment of a receiver upon default “to enter upon, take possession of and manage the Property and to collect the rents of the Property.” The mortgages stated that the rents so collected were to be applied “first to payment of the costs of management of the Property and collection of rents,” then “to the sums secured by this Mortgage.”
The Curtises defaulted on appellant MidAmerican’s mortgage in March of 1985 and on the Missouri Valley mortgage in May of 1985. The Curtises were divorced in August of 1985 and, under the terms of the divorce decree, Carrie Curtis conveyed her interest in the property to Anthony Curtis.
Missoüri Valley instituted foreclosure proceedings against the Curtises on November 20, 1985, joining appellant MidAmerican as a defendant. On November 22, 1985, Anthony Curtis conveyed the mortgaged property to appellee Jack Cook, who took title subject to the two mortgages. Later that month, Cook leased the property to Mr. and Mrs. James Finken. Cook began collecting rent in the amount of $600 per month.
Appellant MidAmerican filed a cross-claim against the Curtises and Cook to foreclose its second mortgage. On February 6, 1986, upon joint motion of MidAmerican and Missouri Valley, the trial court appointed a receiver. The receiver was instructed, by the appointing order, to collect rents from the property, to purchase casualty insurance, and to protect the property. The receiver collected rents from the property until Missouri Valley purchased the property for the amount of its debt at the August 25, 1986, sheriff s sale.
On August 27,1986, the trial court confirmed the sheriff s sale. Also on that date, the court entered an order releasing the receiver and awarding him fees totalling $1,248. The trial court awarded the remaining rent proceeds to appellee Cook, the owner of the property. MidAmerican’s counsel did not receive either a copy of the receiver’s motion or a copy of the notice of hearing until after the hearing and decision. MidAmerican filed a motion for reconsideration of the trial court’s decision awarding Cook the remaining rents. The trial court overruled MidAmerican’s motion and it is from this ruling that MidAmerican has appealed.
MidAmerican contends the trial court erred in awarding the balance of the post-default, pre-redemption period rent proceeds collected by the receiver to Cook. MidAmerican’s rent claim is based upon two provisions in its mortgage: (1) the provision conveying the rents to it as part of the security for its debt; and (2) the provision relating to the appointment of a receiver in the event of default. We conclude these provisions are enforceable and, consequently, give MidAmerican a claim to the preredemption period rents superior to the claim of appellee Cook, the property owner.
Under Kansas law, a mortgage is not a conveyance of an interest in land. “[T]he mortgagee acquires no estate whatever in the property, either before or after condition broken, but acquires only a lien securing the indebtedness described in the instrument.” Hall v. Goldsworthy, 136 Kan. 247, 249, 14 P.2d 659 (1932).
Kansas is a “lien theory” jurisdiction, not a “title theory” jurisdiction. In a “title theory” jurisdiction, the mortgage is viewed as a form of title to property. Randolph, The Mortgagee’s Interest in Rents: Some Policy Considerations and Proposals, 29 Kan. L. Rev. 1, 9 (1980). In lien theory states, a mortgagee is not entitled to immediate possession of the property upon default because the mortgage is merely a lien and not a form of title. Mid-Continent Supply Co. v. Hauser, 176 Kan. 9, 15, 269 P.2d 453 (1954). Under Kansas law, a mortgagee is entitled to rents collected after default and before the period of redemption if (1) the mortgage conveys or assigns those rents to the mortgagee, and (2) the mortgagee takes possession or control of the rents by proper legal action, such as a receivership proceeding. See Mid-Continent Supply Co. v. Hauser, 176 Kan. at 15; Home Owners’ Loan Corp. v. Benner, 150 Kan. 108, 111-12, 91 P.2d 9 (1939); Hall v. Goldsworthy, 136 Kan. at 250-51. We hold that a mortgage provision conveying the rents to the mortgagee is enforceable in Kansas, as to rents collected after default and before the period of redemption, if the mortgagee takes proper legal action to reduce the rents to its possession. See Holton B. & L. Ass'n v. Gibson, 139 Kan. 829, 831, 33 P.2d 138 (1934).
Rents properly collected by a receiver, or by other legal action, are to be applied to the liens on the property in the order of priority. Hauser, 176 Kan. at 16; Lumber Co. v. Bowersock, 109 Kan. 135, 136-37, 197 Pac. 1104 (1921). A mortgagee’s right to share in rents collected by a receiver is not lost once the mortgagee’s lien is extinguished at the sheriff s sale. The mortgagee has already reduced the rents to its possession through the appointment of a receiver. Hall v. Goldsworthy, 136 Kan. at 251; Bank v. Dikeman, 98 Kan. 222, 157 Pac. 1177 (1916).
The trial court in this case appointed a receiver “to collect the rents and profits from the subject property.” Under MidAmerican’s mortgage with the Curtises, “all rents collected by the receiver shall be applied first to payment of the costs of management of the Property and collection of rents, including, but not limited to, the receiver’s fees and premiums on receiver’s bonds, and then to the sums secured hy this mortgage.” (Emphasis added.) There is no provision in the mortgage allowing the owner of the property to retain rents collected from the property. Once Missouri Valley purchased the property for the amount of its judgment, its lien was extinguished and its debt satisfied. MidAmerican, the second lienholder, was next in order of priority and the balance of the rents should have been paid to it. The trial court erred in ordering the receiver to pay the balance of the rents collected to the owner Cook. See Hall v. Goldsworthy, 136 Kan. at 250-52.
While it is true that Cook did not give a mortgage rent assignment to MidAmerican, this fact does not change the result in this case. It is undisputed that Anthony Curtis conveyed the property to Cook subject to the mortgages. A purchaser of a mortgagor’s interest in mortgaged property takes subject to the provisions of the mortgage. Kansas Savings & Loan Ass’n v. Rich Eckel Construction Co., Inc., 223 Kan. 493, 504, 576 P.2d 212 (1978). Thus, Cook was bound by the rent conveyance provision in the mortgage.
Cook contends that the cases allowing a mortgagee to receive the pre-redemption period rents from mortgaged property all involved an assignment of rents. No such assignment is present in this case. However, the mortgage specifically states that the Curtises agreed to “mortgage, grant and convey” the real estate “together with all . . . rents.” The language of the mortgage evidences an intent of the parties to include the rents from the property as part of the security.
Cook suggests that the mortgage provision conveying rents to the mortgagee is an unenforceable infringement upon the mortgagor’s “unassailable right” to the rents and profits of real property during the redemption period. Cf. Home Owners’ Loan Corp. v. Benner, 150 Kan. at 112. However, MidAmerican is not seeking the rents earned during the redemption period. Rather, MidAmerican seeks only to obtain those rents acquired after default and before the redemption period, which is allowed under Kansas law. Hall v. Goldsworthy, 136 Kan. at 250-52.
Cook contends that the trial court gave MidAmerican exactly what it asked for, a receiver to collect the rents from the property. Cook asserts that MidAmerican never requested the court to have the receiver hold the excess funds for MidAmerican. We disagree. In the memorandum in support of the joint motion for an appointment of receiver, MidAmerican and Missouri Valley argued that they would suffer irreparable damage unless a receiver was appointed to collect the rents and apply them “to the payment of the back taxes, maintenance and debt service.” MidAmerican requested the excess rents by requesting the appointment of a receiver to collect them.
Cook raises two arguments on appeal that were not presented to or ruled upon by the trial court. First, Cook suggests that the mortgage provision granting MidAmerican the rents is ambiguous and, second, that the mortgage is an unenforceable adhesion contract. Because these arguments were not raised at trial, we will not consider them for the first time on appeal. Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983).
The trial court erred in not directing that the remaining rental income collected by the receiver, prior to the property’s sale, be paid to appellant MidAmerican. Accordingly, we reverse and remand this case for proceedings consistent with this opinion.
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Parks, J.:
Petitioner, Paul T. Swisher, appeals from the trial court’s order dismissing his petition for a writ of habeas corpus.
The first issue is whether petitioner’s claims are barred by the doctrine of res judicata.
Defendants Maschner, Barbara, and the Kansas Department of Corrections contend that the petitioner raised his need for psychiatric treatment in a previous habeas action. They contend that the doctrine of res judicata bars not only the treatment issue raised by the petitioner, but also precludes all other issues raised by the petitioner because the doctrine prevents the splitting of a single cause of action or claim into two or more suits.
The record does not indicate that petitioner raised these same issues in his previous habeas action. The petition filed in the earlier case stated only a conclusionary contention that petitioner was held illegally, unlawfully, and unconstitutionally without specifying the factual basis for the contention.
In In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985), the 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. Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 6, 659 P.2d 823 (1983); Adamson v. Hill, 202 Kan. 482, 487, 449 P.2d 536 (1969).”
See McDermott v. Kansas Public Serv. Co., 238 Kan. 462, 473, 712 P.2d 1199 (1986).
Since the petitioner alleges a different basis for his cause of action in the present case and has named different party defendants, we conclude that the petitioner is not precluded from asserting his claims because of the doctrine of res judicata.
The petitioner contends that the trial court erred in dismissing his petition because discovery had not been completed and issues of material fact remained unresolved.
Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to the ordinary rules of civil procedure. According to K.S.A. 60-1505(a), “[t]he judge shall proceed in a summary way to hear and determine the cause.” In addition, the summary dismissal of a habeas corpus petition has been affirmed in a number of cases. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Highman v. Marquez, 5 Kan. App. 2d 158, 160,613 P.2d 394 (1980). These cases reflect adherence to the principle that the maintenance and administration of penal institutions are executive functions and, before courts will interfere, the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock the general conscience, or be intolerable to fundamental fairness. Levier v. State, 209 Kan. 442, 451, 497 P.2d 265 (1972). Therefore, to avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature. See, e.g., Wright v. Raines, 1 Kan. App. 2d 494, 499-501, 571 P.2d 26, rev. denied 222 Kan. 749 (1977), cert. denied 435 U.S. 933 (1978) (challenge to hair length regulations where petitioner alleged to have legitimate belief in an established religion that prohibits cutting hair).
From the petition and the remarks of petitioner at the March 15, 1985, hearing, we discern three distinct issues, two of which concern the actions of the Kansas Adult Authority and a third allegation which challenges the actions of both the adult authority and corrections officials. In sum, the petitioner charges the adult authority has unlawfully passed any consideration of parole for petitioner until his conditional release date in 1989 and relied upon false evidence to deny his past requests for parole. In addition, petitioner alleges the prison authorities have acted with deliberate indifference to his need for treatment for his XYY chromosomal abnormality and the adult authority has relied on the failure of the corrections department to provide such treatment as a justification for the denial of his parole requests.
Initially, we note that a habeas corpus action is an appropriate proceeding in which to review decisions of the adult authority or parole board. Johnson v. Stucker, 203 Kan. 253, 259, 453 P.2d 35, cert. denied 396 U.S. 904 (1969). However, Johnson also stated that “[pjarole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace, and no constitutional right is involved.” Johnson, 203 Kan. at 257. Therefore, the court’s inquiry is limited to whether the authority complied with applicable statutes and whether its action was arbitrary and capricious. K.S.A..22-3710; Johnson, 203 Kan. at 260. See In re Uphoff, 7 Kan. App. 2d 301, 306, 641 P.2d 406 (1982). The district court has no authority to substitute its discretion for that of the authority in granting parole. If there is a serious due process violation or if the authority abuses its discretion, the district court can only remand the case to the Kansas Adult Authority with instructions to grant the proper hearing, and make the proper findings. Uphoff, 7 Kan. App. 2d at 306.
Petitioner alleges the adult authority denied him parole each year from 1981 to 1984 when it passed further consideration of the possibility of his parole until petitioner’s conditional release date. He contends that this decision deprives him of the right guaranteed by K.S.A. 1986 Supp. 22-3717 to a hearing at “intervals.” The statute states in pertinent part as follows:
“Prior to each parole hearing and, if parole is not granted, at such intervals thereafter as it determines appropriate, the Kansas parole board [formerly Kansas Adult Authority] shall consider all pertinent information regarding each inmate . . . .” K.S.A. 1986 Supp. 22-3717(g).
The statute vests discretion in the authority to determine the frequency of parole hearings and does not require any specified interval. In addition, while further consideration of petitioner’s request for parole has been passed by the authority to his conditional release date, the regulations promulgated by the authority indicate that the authority retains the discretion to advance the hearing of any request. K.A.R. 45-6-2 (1986 Supp.). Petitioner is not deprived of the opportunity to request earlier parole. Therefore, the petitioner’s allegation regarding the frequency of the hearings permitted by the authority does not reveal any violation of law or arbitrary conduct.
The petitioner’s complaint concerning the authority’s alleged reliance on false evidence was addressed by the adult authority in an appeal pursuant to K.A.R. 45-4-6 (1986 Supp.). The authority denied the request for a rehearing of the parole request after determining that petitioner had failed to provide substantial new evidence to justify such a course of action. Petitioner has failed to allege any way in which this action violated the authority’s regulations or reflected arbitrary conduct. Instead, petitioner simply asserts his disagreement with the decision of the authority. As stated by the trial court, it is not within the province of the courts to review the authority’s exercise of its discretion to grant or deny parole. No proper basis for review of this issue having been raised, the court properly dismissed it in a summary fashion.
Petitioner’s final allegation that corrections officials failed to provide him with proper medical treatment could raise a constitutional issue if the conduct alleged reveals a deliberate indifference by prison personnel to a prisoner’s serious illness or injury. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). However, the allegation made by petitioner is not that he has been denied access to psychological or psychiatric treatment but that he has not been afforded the type of treatment necessitated by his chromosomal condition. Thus, petitioner quarrels with the manner of treatment available to him and does not allege circumstances suggesting a reckless indifference to a need for treatment.
We conclude the trial court properly denied petitioner any relief on his writ.
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Briscoe, J.:
The Newton Country Club (Club) appeals from an order of the Board of Tax Appeals (BOTA). By its order, the BOTA upheld an order by the Director of Taxation that denied the Club’s request to set aside deficiency assessments issued against it for noncollection and payment of sales and liquor excise taxes.
On June 15, 1983, the Kansas Department of Revenue (Revenue) issued notices to the Club of assessments of additional sales and excise taxes. The assessments covered a three-year period from April 1, 1980, through March 31, 1983. Revenue based its assessments upon the Club’s failure to pay sales and excise taxes on the 15 percent “mandatory gratuity” charged to customers on the sales of food and liquor at the Club’s restaurant and bar.
The Club is a nonprofit private club that maintains a restaurant and bar for its members’ use. The Club issued separate tickets to its member customers for sales of food and for sales of liquor. A mandatory gratuity of 15 percent of the price of the food or liquor was charged the customers by the Club. The amount was separately stated on each ticket and, every 30 days, member customers were billed for their purchases, including the 15 percent gratuity.
The gratuities were pooled and the Club distributed the 15 percent gratuity to its service employees, including waiters, waitresses, and bartenders, according to total hours worked. Employees were paid with a single check each month, which included both the hourly wage and the gratuity. The Club withheld income tax on the gratuity and reported it on the employees’ W-2 forms.
The Club appealed the assessments by Revenue to the Director of Taxation. On June 8, 1984, the Director upheld the assessments. The Club requested and was granted a formal hearing and, on April 23, 1985, the Director again issued an order upholding the assessments. The Club appealed to the BOTA. A formal hearing was conducted and the BOTA issued an order upholding the Director’s order. The Club moved for rehearing and, on April 10, 1987, the BOTA issued an order sustaining its original order in its entirety.
I. Jurisdiction.
Is this appeal subject to dismissal as untimely filed? The BOTA ruled on the Club’s motion for rehearing on April 8, 1987. The Club filed its notice of appeal from that ruling on May 11, 1987, beyond the 30-day limitation of K.S.A. 1987 Supp. 77-613(b). Upon review of the applicable provisions of the Act for Judicial Review and Civil Enforcement of Agency Actions (Act), K.S.A. 77-601 et seq., we conclude the appeal is timely.
According to K.S.A. 1987 Supp. 74-2426(b), an order issued by the BOTA following a rehearing is a final order subject to review in accordance with the Act. The Act requires the filing of a petition for review of an order within 30 days after service of the order. K.S.A. 1987 Supp. 77-613(b). Service may be made by delivering or mailing a copy of the order to the parties. Service by mail is complete upon mailing. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of an order, pleading, or other matter and it is served by mail, three days shall be added to the prescribed period. K.S.A. 1987 Supp. 77-613(d).
Here, the BOTA’s order on rehearing was dated April 8, 1987, and certified on April 10, 1987. The record contains a copy of a certified mail receipt indicating the order was mailed on April 10, 1987. Since April 10 was the date of mailing and the order was certified on April 10, we conclude the order was mailed no earlier than April 10. Under 77-613(b), the appeal must be filed within 30 days of service. Service in this case was by mail. Under 77-613(d), service was completed when the notice was mailed, which was no earlier than April 10. The Club’s notice of appeal was filed on May 11, 1987. Under K.S.A. 60-206(a), the day of the act or event from which the 30-day period for appeal begins to run is not counted. Therefore, the period begins on April 11 and concludes on May 10, which was a Sunday. Under 60-206(a), the last day of the period cannot fall on a Saturday or Sunday and, therefore, the 30-day period ended on Monday, May 11. The Club’s filing of its notice of appeal on May 11 was timely.
II. Taxability of mandatory gratuities.
The central issue in this case is whether a mandatory gratuity charged by a private club to its customers on sales of food and liquor is subject to sales and liquor excise taxes. This is an issue of first impression. The term “mandatory gratuity” as used in this opinion refers to a mandatory charge to customers which is distributed to employees by the employer.
K.S.A. 79-3603 imposes a sales tax on gross receipts received by a private club from the sales of meals and drinks:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax as follows:
“(d) a tax at the rate of 3% upon the gross receipts from' the sale of meals or drinks furnished at any private club or at any restaurant, eating house, dining car, hotel, drugstore, or other place where meals or drinks are regularly sold to the public.”
“Gross receipts” is defined in K.S.A. 79-3602(h):
“ ‘Gross receipts’ means the total selling price or the amount received as defined in this act, in money, credits, property or'other consideration valued in money from sales at retail within this state; and embraced within the provisions of this act.”
“Selling price” is defined in K.S.A. 79-3602(g):
“ ‘Selling price’ means the total cost to the consumer exclusive of discounts allowed and credited, but including freight and transportation charges from retailer to consumer.”
K.S.A. 79-41a02 imposes an excise tax on sales of liquor by clubs:
“(a) There is hereby imposed, for the privilege of selling alcoholic liquor, a tax at the rate of ten percent (10%) upon the gross receipts derived from the sale of alcoholic liquor by any club.”
K.S.A. 79-41a01(c) provides:
“ ‘Gross receipts derived from the sale of alcoholic liquor’ means the amount charged the consumer for a drink containing alcoholic liquor, including any portion of that amount attributable to the cost of any ingredient mixed with or added to the alcoholic liquor contained in such drink.”
In its order, the BOTA found the mandatory gratuity charged by the Club was part of the Club’s gross receipts under both the sales and excise tax statutes and was therefore subject to taxation. The following factors support the BOTA’s conclusion-: (1) customers must pay the gratuity to receive food or liquor; and (2) the gratuity is treated as compensation to the employees. The BOTA also found that K.A.R. 92-24-11 applies only to the liquor excise tax. According to the BOTA’s interpretation of the regulation, gratuities are exempt from the excise tax in two instances: (1) when the customer gives a direct cash gift to the employee; or (2) when the customer voluntarily designates an additional amount on his credit card statement.
When this court reviews an order of an administrative agency involving the interpretation of a statute, it is free to substitute its judgment for that of the agency. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 453, 691 P.2d 1303 (1984). However, the legal interpretation of a statute by an administrative agency charged with its enforcement is entitled to a great deal of judicial deference. Kansas Bd. of Regents v. Pittsburg State Univ. Chap, of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983). The ruling of an administrative agency on questions of law, while not as conclusive as its findings of fact, is persuasive and given great weight, and may carry with it a strong presumption of correctness, especially if the agency is one of special competence and experience. Kansas Bd. of Regents, 233 Kan. at 810.
As with other statutes, the function of this court in interpreting tax statutes is to give it the effect intended by the legislature. Kansas Krude Oil, 236 Kan. at 455. Tax statutes are considered penal in nature and thus are strictly construed in favor of the taxpayer. This rule of strict construction, however, does not permit a disregard of manifest legislative intention appearing from plain and unambiguous language of the statute. J.G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984). The rule of strict construction means that ordinary words are to be given their ordinary meaning. Kansas Krude Oil, 236 Kan. at 455.
Our analysis of both sales and liquor excise tax statutes will be treated together. Both taxes are imposed for the privilege of selling either food and drink (sales) or alcoholic liquor (excise). Both taxes are imposed as percentages of gross receipts received from such sales. Under the sales tax act, gross receipts includes the “selling price,” which is in turn defined as “total cost to the consumer.” K.S.A. 79-3602(g). Under the excise tax, “gross receipts” is defined as “the amount charged the consumer for a drink containing alcoholic liquor.” K.S.A. 79-41a01(c). Therefore, the definitions of gross receipts under both acts are substantially the same.
Although we have found no Kansas cases addressing the issue of the taxability of mandatory gratuities, a number of other jurisdictions have addressed the issue. An annotation of these cases may be found at 73 A.L.R.3d 1226. These cases indicate that courts have applied one of two tests to determine the taxability of gratuities. The first, characterized as the “mandatory-voluntary” test, concentrates on the voluntariness of the gratuity. If the court concludes that customers are required to pay the gratuity, in most cases the gratuity is taxable. If, however, the court concludes that payment of the gratuity is voluntary, the gratuity is not taxable. The second, characterized as the “benefit” test, determines whether the employer is deriving any benefit from charging the mandatory gratuity, such as retaining some of the funds or applying them to meet minimum wage or contractual wage obligations. If the employer is deriving a benefit, the gratuity is taxable. If the employer derives no benefit, the gratuity is not taxable. Courts which apply the benefit test tend to view mandatory gratuities as merely a substitute for tipping and therefore reject the “mandatory-voluntary” classification.
The Club argues that we should apply the benefit test in this case. Under this test, the Club argues, the mandatory gratuity would not be taxable because the Club derived no benefit from it. It notes that none of the funds were retained by the Club, but were paid to its employees each month. Furthermore, the payments to the employees from the funds were not used to meet the Club’s obligation to pay contractual or minimum wages. The Club argues it was merely acting as a conduit to channel the gratuities to the employees.
Revenue argues the mandatory-voluntary test is applicable. The mandatory gratuity is taxable, Revenue argues, because customers are required to pay it. According to Revenue, the mandatory nature of the charge makes it part of the “total cost to the consumer,” taxable under the sales tax statute, and part of the “amount charged the consumer for a drink,” taxable under the excise tax statute. Revenue also argues the service charge is taxable under the clear words of the statute even if the Club derives no benefit from it.
We conclude that, under the plain language of the statutes, mandatory gratuities are subject to sales and excise taxes. As previously stated, the function of this court is to give effect to the intention of the legislature. Although the tax statutes are given strict construction, this does not permit us to disregard the intent of the legislature which appears in clear and unambiguous language. J.G. Masonry, 235 Kan. at 500. We must give ordinary words used in the statutes their natural and ordinary meanings. Kansas Krude Oil, 236 Kan. at 455; Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984). The sales tax is imposed on the “gross receipts,” defined as the “selling price or the amount received . . . from sales at retail within this state.” K.S.A. 79-3602(h). “Selling price,” in turn, is defined as the “total cost to the consumer.” K.S.A. 79-3602(g). Here, the customer is required to pay a mandatory gratuity as part of the monthly billing for food and drinks. As such, this mandatory gratuity is part of the “total cost to the consumer” and is taxable. The excise tax is imposed upon “gross receipts,” defined as “the amount charged the consumer for a drink containing alcoholic liquor.” K.S.A. 79-41a01(c). Here again, the mandatory gratuity must be paid on each drink purchased and is therefore part of the “amount charged for a drink” and taxable.
The Club’s argument that the charge is taxable only if the Club benefits is not supported by the language of the statute. Under both statutes, the amount taxable is determined by what the consumer was required to pay. Taxability does not depend on whether the vendor derived any benefit from the amount charged.
The Club also cites cases which hold that mandatory gratuities like those here are merely outgrowths of the social custom of tipping and should therefore be treated the same. This reasoning is not compelling because tips and mandatory gratuities are easily distinguished. Mandatory gratuities are billed to the customer and must be paid; however, tips need not be paid. Although there might be great social pressure to pay a tip, the final decision of whether or not to pay a tip rests with the customer. Clubs might indeed choose to adopt the mandatory gratuity practice in lieu of voluntary tipping. Once the charge becomes mandatory, however, it becomes part of the cost to the customer and is taxable under the statutes.
The Club contends the mandatory gratuity was not truly mandatory because the Club itself imposed the charge on its membership. It is not clear from the record, however, if the membership approved the charge. Even if members themselves voted to impose the charge, the Club’s argument is not convincing. Club members or guests who did not vote for the mandatory gratuity did not consent to paying it. Furthermore, the statutes plainly impose the taxes on the “total cost” and the “amount charged” the consumer, without regard to how such cost is determined.
III. Is the BOTA’s interpretation of K.A.R. 92-24-1 (1980 Supp.) clearly erroneous?
The assessments at issue covered a three-year period from April 1, 1980, through March 31, 1983. K.A.R. 92-24-1 (1980 Supp.) was in effect for a portion of this period and read as follows:
“The gross receipts derived from the sale by a club, as defined in K.S.A. 1979 Supp. 41-2601, of a drink containing alcoholic liquor, including any portion of the amount charged for any ingredient mixed with or added to the alcoholic liquor, is subject to a tax at the rate of ten percent (10%). The tax shall apply to ingredients whether mixed by the licensee or sold separately. The term ‘gross receipts’ shall also include charges made incidental to charges for drinks containing alcoholic liquor including, but not by way of limitation, service charges, corkage charges, cooling charges, serving charges, fees or charges for the use of club-owned equipment incidental to the serving of drinks containing alcoholic liquor and, except as hereinafter provided, gratuities. Gratuities shall not be'included within the gross receipts subject to the tax if such gratuities are voluntarily given by the consumer or are separately stated on a billing statement and are entirely distributed to employees of the club not in the form of wages, salaries or other compensation. Where alcoholic liquor is provided by a club in connection with room rental, soft drinks, water and ice and a single fee or charge is made for all such property or services, the entire fee or charge, less the amount normally charged for the room rental is subject to the tax.” (Emphasis added.)
K.A.R. 92-24-1 (1980 Supp.) remained in effect until October 25, 1982, when a temporary regulation (K.A.R. 92-24-11 [1983 Supp.]) became effective. This temporary regulation was in effect for the balance of the assessment period at issue. Temporary regulations are given the same force and effect as permanent regulations. See Country Club Home, Inc. v. Harder, 228 Kan. 802, 623 P.2d 505 (1981). On May 1, 1983, this temporary regu lation became permanent. The temporary regulation, K.A.R. 92-24-11 (1983 Supp.), amended the fourth sentence of 92-24-1 to substitute the term “source record” for the term “billing statement”:
“Gratuities shall not be included within the gross receipts subject to the tax if the gratuities are voluntarily given by the consumer or are separately stated on a source record and are entirely distributed to employees of the club licensee not in the form of wages, salaries or other compensation.” (Emphasis added.)
“Source record” is defined as:
“(1) A dated customer service check or ticket;
“(2) a dated cash register tape, if coded to reflect the required information; or
“(3) an equivalent of the check, ticket or tape in a form approved by the director.” K.A.R. 92-24-9(d) (1983 Supp.).
The amended version of the regulation as reflected in the permanent regulation, K.A.R. 92-24-11, was in effect at the time of the BOTA hearing and was followed by the BOTA in rendering its decision. We note there is no parallel regulation for the sales tax statute.
The Club contends the BOTA’s interpretation of K.A.R. 92-24-11 is erroneous. The BOTA interpreted the regulation to apply only to the liquor excise tax. It also found that gratuities are exempt from the excise tax in two instances: (1) the customer gives a direct cash gift to the employee, or (2) the customer voluntarily designates an additional amount on his or her credit card statement.
The Club argues that K.A.R. 92-24-11 expressly provides for exemption of mandatory gratuities like those charged in this case. According to the Club, gratuities are exempt (1) when voluntarily given by the customer, or (2) when stated on a source record and entirely distributed to employees not in the form of wages, salaries, or other compensation. The Club contends gratuities under (2) need not be voluntary. The Club’s argument that the regulation exempts mandatory gratuities turns on their interpretation of the fourth sentence of 92-24-11, quoted above. The Club argues all voluntary gratuities are covered by the first part of the sentence. Therefore, the only gratuities left to be covered under the second part are involuntary or mandatory gratuities. The Club also contends the regulation should apply to sales tax as well.
Revenue responds that such an interpretation of the regulation would conflict with the statute, which makes mandatory gratuities taxable. The BOTA interpreted the regulation to cover only voluntary gifts from the customer: “A gratuity is a gift. When appellant forces its customers to pay more, it is no longer a gratuity.” According to the BOTA, the first part of the disputed sentence covers voluntary cash gifts. The second part covers voluntary designation of a gratuity on a credit card statement. Under both situations, the actions must be voluntary.
An agency’s interpretation of its own rules and regulations is given deference and will not be disturbed on appeal unless the interpretation is clearly erroneous or inconsistent with the regulation. Kansas Bd. of Regents, 233 Kan. at 809. In the absence of a voluntary statutory provision, however, an administrative agency may not under the guise of a regulation or order substitute its judgment for that of the legislature. It may not alter, modify, or enlarge the legislative act which is being administered. Kansas Krude Oil, 236 Kan. 450, Syl. ¶ 2.
We have concluded the liquor excise tax statute requires taxation of the mandatory gratuities at issue here. If the statute requires taxation of these mandatory charges, the BOTA’s interpretation of 92-24-11 is consistent with this intention. If, however, the BOTA’s interpretation is incorrect and either 92-24-1 or 92-24-11 exempts mandatory gratuities, the regulation would be at odds with the statute and invalid.
The BOTA’s inteipretation of 92-24-11 is consistent with the intent of the legislature as expressed in the liquor excise tax statute. Under the statute, the determining factor is whether the charge is mandatory and, therefore, a part of the “amount charged the consumer.” Under the BOTA’s interpretation of 92-24-11, gratuities are exempt only if they are voluntary. Our reading of92-24-1 would lead us to the same conclusion. The use of the term “billing statement” in 92-24-1 does not affect the requirement that the gratuity must be voluntary to be exempt. If the charge is mandatory, it is taxable under the statute.
The BOTA’s interpretation is also consistent with the language of both 92-24-1 and 92-24-11. As the BOTA found, the common meaning of “gratuity” is “gift.” Therefore, only voluntary contributions are covered by either regulation. If the regulations address only voluntary contributions, the BOTA’s conclusion that the first part of the disputed sentence covers direct cash gifts and the second part covers credit transactions is reasonable. Although we read the terms “billing statement” and “source record” to cover more than just credit transactions, we agree with the thrust of the BOTA’s conclusion that only voluntary contributions are exempt from liquor excise tax. Finally, the regulations by their own terms apply only to liquor excise tax.
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Woleslagel, J.:
John Daniels directly appeals his jury trial convictions of illegal display of flashing emergency lights and aggravated assault. We reverse each conviction.
Teenagers Jesse Mack Grant and Shannon Evans were traveling by car in a rural area when they approached closely behind the truck of Daniels, which Evans recognized. They soon passed the truck and recognized Daniels as the driver. After passing the truck, the boys saw red lights flashing inside the grille of the truck. Daniels pulled alongside the car and Evans saw him take a pistol from the glove compartment of the truck. The boys increased speed, pulling away and turning onto a crossroad. As they did so, they heard a gunshot and Evans saw the gun protruding from the passenger’s window of the truck. Daniels did not turn but continued straight ahead. The boys soon stopped to see if either they or the car had been hit.
The Flashing Lights Conviction
Taking up the flashing red lights conviction first, it appears the trial judge may have considered the conviction as questionable as he suspended any sentence thereon. It is still of some significance, however, since the charge was based upon an infraction of K.S.A. 8-2010 relating to emergency vehicles and Daniels, therefore, stood convicted of a misdemeanor.
In 1986 the display of flashing red lights was governed by K.S.A. 8-1729, section (c) of which prohibits these lights on this truck. K.S.A. 1986 Supp. 8-2118(c) specifies the fine for “unauthorized lights and signals.” It follows that any infraction as to these lights would be merely a traffic offense and his misdemeanor conviction must be set aside.
The Aggravated Assault Conviction: As a Lesser Included Offense Authorized as a Lesser Degree of Crime of Attempted Second-Degree Murder
Daniels was charged with attempted second-degree murder and the jury was instructed as to that crime. The defendant requested an instruction on simple assault. The judge decided, we believe quite correctly, that if an assault charge was proper it would be aggravated assault because of the evidence of the handgun. Accordingly, he instructed on aggravated assault as a lesser included offense of attempted second-degree murder.
We approach the question of whether an instruction on aggravated assault was authorized by reading K.S.A. 1986 Supp. 21-3107, the parts applicable here providing:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(d) a crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
For the most part, our courts have considered only subsection (2)(d), which covers lesser included crimes in reviewing convictions on lesser crimes or claims that instructions on lesser crimes should have been given. It may be that, because subsection (2)(a) is so seldom involved in appellate court litigation (we find only two such cases, which will be noted later), an apparent semantic problem has evolved. It seems crimes under subsection (2)(d) are ordinarily spoken of as “lesser included crimes,” while crimes under subsection (2)(a) are spoken of, when at all, as “lesser degree crimes.” The statute provides that both sections refer to “included crimes.” They both also refer to crimes that are lower, or lesser, in order, in that they carry lesser penalties. The only proper distinction would seem to be the basis which allows each to be a lesser included crime. We first discuss subsection (2)(a) as a possible basis, which requires consideration of certain statutory definitions and court decisions as to the elements of the two respective crimes.
Murder in the second degree is the malicious killing of a human being committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony. K.S.A. 21-3402. An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime. K.S.A. 1986 Supp. 21-3301(a).
Insofar as is pertinent here, aggravated assault is unlawfully assaulting or striking at another with a deadly weapon. K.S.A. 21-3410(a). Although the State points to the words “striking at” and asserts the elements of simple assault are not all required for aggravated assault, this proposition was rejected in State v. Nelson, 224 Kan. 95, 97-98, 577 P.2d 1178 (1978).
Turning now to the two cases in which our Supreme Court held there was a lesser included crime based upon subsection (2)(a), we note that in State v. Gregory, 218 Kan. 180, 182-83, 542 P.2d 1051 (1975), the court looked to common-law precedents to determine that manslaughter is a lesser degree of murder, both being part of the generic crime of homicide. In State v. Long, 234 Kan. 580, 590-92, 675 P.2d 832 (1984), the court again looked to common-law precedents to conclude that theft is a lesser degree of robbery. Thus, it appears that the common law is the guide for determining whether one crime is a lesser degree of another. We find no common-law authority on the relationship between attempted second-degree murder and aggravated assault.
Apparently, the common-law rule is that an assault is an attempt to commit a battery. 2 Wharton’s Criminal Law § 179 (14th ed. 1979). “An assault, as thus defined . . . may be committed even though the victim is entirely unaware of the impending battery.” 2 Wharton’s Criminal Law § 179, p. 300. In Kansas, battery is “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.” K.S.A. 21-3412. It becomes aggravated battery when done instead “with intent to injure that person or another” and it inflicts great bodily’harm, or causes any disfigurement or dismemberment, or is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted. K.S.A. 21-3414.
An attempt to commit aggravated battery appears to differ from an attempt to commit second-degree murder only because it requires an intent to injure rather than an intent to kill. See State v. Smith, 8 Kan. App. 2d 494, 660 P.2d 978, rev. denied 234 Kan. 1077 (1983) (charges of attempted second-degree murder and aggravated battery are multiplicitous because the only difference between them is the intent with which the act is committed). The intent to injure would appear to be merely a lesser degree of the intent to kill, a lesser included intent.
In Kansas today, however, as in most states, an assault is not necessarily an attempted battery. As stated in 2 Wharton’s Criminal Law § 180, pp. 300-01:
“In most jurisdictions, there is another way by which an assault may be committed: by defendant’s performing an act which places another in reasonable apprehension of an imminent contact. (This also happens to be the tort theory of assault.) Under this theory of assault, the defendant need not intend to cause a contact, and by definition the victim must be aware of the impending contact.”
As the Judicial Council note to K.S.A. 21-3408 indicates, the definition of assault under the criminal code adopted in 1969 “follows the tort concept of assault and is narrower than the usual criminal definition of assault. The crime of assault does not usually include the apprehension of bodily harm as a necessary element of the offense. The status of the former Kansas law is not entirely clear.” Under this theory of assault, the defendant’s intent is not the determining factor; the focus is shifted to the victim’s perception of impending harm. Also, the defendant may intend either just to threaten or to do bodily harm. K.S.A. 21-3408. These differences would seem to remove assault from the category of lesser degree of attempted second-degree murder, and that is our conclusion.
The Aggravated Assault Conviction: As a Lesser Included Offense Authorized as a Crime Necessarily Proved if the Crime of Attempted Second-degree Murder Were Proved
The test for determining if a lesser included offense may be based upon subsection (2)(d) is not complex. It was recently repeated in State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320 (1985):
“In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), the court held that ‘an offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged.’ 233 Kan. at 107. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).”
As we observed earlier, aggravated assault must include the elements of simple assault. As we also observed earlier, simple assault requires that the victim be immediately apprehensive of bodily harm. See Nelson, 224 Kan. at 97; K.S.A. 21-3408; PIK Crim. 2d 56.12. We also noted earlier that the defendant need not attempt a battery. It is sufficient if he merely threatens.
Attempted second-degree murder, to the contrary, requires attempt to harm; apprehension by the victim is not an element. It follows that subsection (2)(d) does not permit aggravated assault to be considered as a lesser included crime of attempted second-degree murder. See Daniels, 223 Kan. at 272, holding aggravated battery is not a lesser included offense of attempted murder.
In an attempt to prevent the collapse of this conviction, the State offers three propositions, but we find them invalid:
1. The State says it could not separately charge attempted second-degree murder and aggravated assault because the information would have been multiplicitous and thus defective. Nevertheless, the State could have charged the two crimes alternatively. State v. Smith, 8 Kan. App. 2d at 495.
2. The State shows that Daniels did not object to the aggravated assault instruction. Even so, a court is without jurisdiction to convict unless the offense is charged or is a lesser included offense. This applies even if the defendant requests an instruction on the uncharged offense. State v. Chatmon, 234 Kan. 197, 204-05, 671 P.2d 531 (1983).
3. The State claims it was not clearly error to instruct on aggravated assault as a lesser included offense of attempted second-degree murder because our appellate courts have never passed upon the question. The instruction was clearly erroneous, however, because the jury would have been compelled to return a different verdict if the instruction had not been given. See State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983). Further, as shown before, the court had no jurisdiction under the circumstances as to aggravated assault.
Daniels claims other grounds for reversal, but it is now unnecessary for us to address them.
The convictions are reversed and set aside as void. | [
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Brazil, J.:
Alphonso S. Thomas appeals his jury conviction on one count of aggravated burglary following two mistrials caused by deadlocked juries. He contends the trial court had jurisdiction to grant his untimely motion for acquittal; the trial court’s reconsideration of its grant of acquittal and the subsequent third trial were barred by double jeopardy; and the evidence was insufficient to sustain his convictions. We reverse.
K.S.A. 22-3419(3) provides in part:
“If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within seven days after the jury is discharged or within such further time as the court may fix during the seven-day period.”
Thomas filed his motion for acquittal on September 18 following the discharge of the second jury on August 12. The trial court granted the motion and then, after the State filed a motion to reconsider, declared its order of acquittal void because Thomas’ motion had not been filed within seven days as required by K.S.A. 22-3419(3).
The parties have cited no Kansas cases addressing the jurisdiction of a court to consider motions untimely filed under K.S.A. 22-3419(3), and we find none. However, the 1969 Judicial Council comment to 22-3419 notes that it is “substantially” like Federal Rule of Criminal Procedure 29, and we have found several federal cases addressing this issue in the context of Rule 29.
The courts of appeal from the Fifth and Tenth Circuits have found that trial courts did not have jurisdiction to consider motions for acquittal that were untimely filed. United States v. Johnson, 487 F.2d 1318 (5th Cir.), cert. denied 419 U.S. 825 (1974); Rowlette v. United States, 392 F.2d 437 (10th Cir. 1968).
However, more recently, the courts of appeal from the Ninth and Third Circuits have found otherwise. In State of Ariz. v. Manypenny, 672 F.2d 761, 764-66 (9th Cir.), cert. denied 459 U.S. 850 (1982), the Ninth Circuit suggested Rule 29 sets a deadline for the defendant, not the court, but actually held only that the district court had the power to reconsider its denial of a timely motion while it still had jurisdiction of the case. The Third Circuit then relied on Manypenny to reject the prosecution’s assertion the limits prevented the district court from granting acquittal after the time had expired. United States v. Giampa, 758 F.2d 928, 936 n.l (3rd Cir. 1985). The court held the double jeopardy clause of the federal Constitution barred it from reviewing the lower court’s judgment of acquittal, but added a footnote rejecting the prosecution’s jurisdictional claim by quoting dicta from Manypenny that Rule 29(c) “ ‘creates a deadline by which defendant must present motions for acquittal to the court; it does not address the court’s inherent power to grant such a judgment.’ ” 758 F.2d at 936 n.l (quoting 672 F.2d at 764).
In two subsequent cases, the Third Circuit has expanded on this holding. In United States v. Wright-Barker, 784 F.2d 161, 170 (3d Cir. 1986), the court held the district court did not err in refusing to consider late motions for acquittal, and added in a footnote that it did not need to examine the court’s inherent power to consider them since the lower court had chosen not to exercise that power. 784 F.2d at 170 n.8. Then, in U.S. v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987), the court held the district court could grant the defendant’s late motion since it had authority to grant an acquittal on its own motion.
We are persuaded that the Third Circuit’s approach to the federal rule makes sense for K.S.A. 22-3419(3) as well. While a desire for finality might justify ending a trial court’s power to overturn a jury’s guilty verdict shortly after the jury is discharged, it is somewhat difficult to see any reason to restrict that power where the jury failed to return a verdict and the prosecution may, as was done in this case, decide to proceed with another trial. Taking the Third Circuit’s view, however, the purpose of the statute is to limit the defendant’s power to force the trial court to consider a motion for judgment of acquittal to the times stated. After those times, the court could properly deny the motion summarily due to the late filing. The court would retain the power, however, to consider the motion if it felt it should, at least so long as it retained jurisdiction over the case.
We conclude the trial court had jurisdiction to consider Thomas’ motion for acquittal despite his late filing.
Because the court had jurisdiction to consider Thomas’ motion, his acquittal must be reinstated and further proceedings barred. In Lowe v. State, 242 Kan. 64, 744 P.2d 856 (1987), the Supreme Court held where a trial court granted a dismissal during an evening recess, double jeopardy prevented it from reinstating the charge before the trial resumed the next morning, even though the progress of the trial was unaffected, because the dismissal constituted an acquittal which barred any further proceedings aimed at resolving the factual question of the defendant’s guilt.
Having found Thomas’ acquittal should be reinstated, we need not address his other arguments.
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The opinion of the court was delivered by
Graves, J.:
The first question presented in this case is a motion to dismiss the petition in error for the rea son that the case-made was not settled and signed within the time prescribed by section 3 of chapter 320, Laws of 1905, which reads:
“The case-made or a copy thereof shall within ten days after the judgment or orders entered be served upon all opposite or adverse parties, by delivery thereof to such parties or their attorney or by delivery thereof to the clerk of the court in which such judgment or order is made or entered; . . . provided further, that the party . . . applying for said order of extension shall, immediately upon . . . securing and filing an order of extension, give notice in writing to the opposite or adverse parties of such . . . extension by serving a copy of such notice personally on such opposite or adverse parties or their attorneys or - any of their attorneys of record, or by mailing a copy of such notice, enclosed in an envelope directed to the last known address of such opposite or adverse parties or their attorneys of record, postage prepaid, and such parties shall thereupon take notice of such . . . extension. Proof of the service of the notices herein required may be made before the court or judge signing the case-made, as herein provided, by affidavit that such notice has been served or mailed as herein provided for.”
The close of the journal entry of judgment in this case reads:
“Thereupon the defendants filed their motion for a new trial, which motion was presented to the court and after due consideration by the court was overruled,. and the defendants excepted to the ruling thereon. Thereupon said defendants were allowed ninety days in which to make and .serve their case-made for the supreme court herein.”
The case-made was settled and signed August 28, 1905. No application was made for an extension of time beyond ten days, after the judgment was entered, and no notice was served upon the adverse parrties or their attorneys that such an application would be made. The only compliance with the requirements of the statute is found in the journal entry'of judg ment. We think this sufficient. The order of the court, made as a part of the journal entry of judgment, when all parties were in court and had notice thereof, was a substantial compliance with the terms of the statute, and nothing further was necessary to be done until the expiration of the time so given. It is useless to notify a party of that which he already knows. The object of this statute was to prevent parties from prolonging the preparation of a case-made by extensions obtained from time to time without the knowledge of the adverse party. The practice followed in this case fully accomplishes this purpose; therefore, the motion to dismiss is denied. This requires a consideration of the case upon its merits.
This is a suit in partition. The plaintiffs in error in the district court interposed the plea of former adjudication, which was overruled, and that ruling is claimed to be erroneous. The question will be understood by a consideration of the following facts: In 1892 the defendant in error commenced a suit for partition of the land in controversy, in the district court of Shawnee county, against the plaintiffs in error. In that suit a decree of partition was entered as prayed for; commissioners were appointed to make a division of the property, who reported that such division could not be made without manifest injury to the rights of the parties, and thereupon returned an appraisement of the land. The court, on May 18, 1892, ordered the land to be sold according to law, and the proceeds paid into court, to await its further order. There the proceedings rested. No further steps were taken to enforce the decree. On the 6th day of March, 1903, the defendant in error, instead of proceeding under the decree already obtained, began this suit for partition. His petition was filed in the same court, was between the same parties, was concerning the same land, and contained substantially the same allegations as the petition in the former case. The plea of former adjudi cation was overruled, another trial had, and a decree entered substantially the same as before.
We think the decree and proceedings in the first suit are binding upon both parties, and that neither can maintain a new suit, identically the same in all respects, for the accomplishment of the same purpose. Persons may not be annoyed and harassed by repeated lawsuits for the purpose of determining questions which have already been judicially determined in court.
The distinction drawn by counsel between pleas in bar and for the abatement of the suit does not seem to be important in this case. The object of the answer of the plaintiffs in error was merely to defeat the new suit for partition, and was not intended to affect the first suit, and we do not think it should have any effect beyond the abatement of the suit in which it was filed.
The judgment of the district court is reversed, with instructions to carry out the view here expressed.
All the Justices concurring. | [
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Per Curiam:
Defendant was convicted of two unlawful sales of intoxicating liquor, and also for maintaining a nuisance. By an election the- state designated the transactions upon which it would rely to establish the sales. The proof was sufficient to support the findings on both counts. A sale by defendant’s barkeeper, at defendant’s place of business, and in his presence, is strong proof of a sale by himself. According to the testimony. ,the witness .Kern bought liquor from the defendant directly, and ■ at other times he was served by those who were assisting in the sale of liquor in defendant’s place of business.
■" The judgment is affirmed. | [
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Per Curiam:
Kansas avenue, in the city of Topeka, runs north and south. The Topeka Railway Company has a double track occupying the center of the street, the tracks being about six feet apart. Ninth street crosses Kansas avenue at right-angles. The defendant in error was driving one horse attached to a top-buggy, going north on Kansas avenue, about eight or ten feet west of the west track. When she arrived at the south side of Ninth street she saw, approaching her from the north, an express wagon and other vehicles. She concluded she could proceed faster if she crossed to the east side of Kansas avenue, and attempted to do so. She testified that before she went on to the west track she looked out of her buggy, to see if a car was approaching, and saw none; that just as she reached the east track a car going north struck her horse, throwing him back on the west side of the track, and throwing her forward against the dashboard and then backward on the buggy seat, causing her serious injury.
The negligence charged against the defendant is that the car which struck plaintiff was negligently propelled at the rate of about twenty-five miles an hour, in violation of a city ordinance which by its provisions limits the rate of speed of electric cars to eight miles an hour; that defendant’s agents and employees negligently failed to sound the gong on the car or give other notice of its approach until the car had collided with plaintiff’s horse and buggy; that the defendant’s servants negligently omitted to stop the car after they discovered the plaintiff was attempting to cross its track and in danger, as they could have done by the exercise of proper care. The answer was a general denial, and for a second defense it was alleged:
“If said plaintiff suffered any injuries at the time and place mentioned in said petition, the same were caused by the careless, negligent and reckless acts of said plaintiff, and the same would not have occurred but for the careless, negligent and reckless acts of said plaintiff.”
When the plaintiff had introduced her evidence and rested, defendant demurred thereto, which demurrer was overruled. Defendant then introduced its evidence, and upon a general verdict,for plaintiff a judgment was entered. The defendant prosecutes this proceeding to reverse this judgment. The-errors assigned that require attention are the overruling of defendant’s demurrer to plaintiff’s evidence, and the giving of certain instructions.
This court cannot weigh oral evidence. Whenever it appears that there is. substantial testimony tending to prove all material questions of fact involved in a given controversy, and the jury have weighed and determined upon which side it preponderates, and their judgment is concurred in by the trial court, this court will not further review the evidence. The jury in weighing evidence may believe one witness and disbelieve another. Whether their judgments and conclusions are correct or incorrect this court will not decide. In this case there was evidence tending to support the allegations of the plaintiff’s petition; therefore we cannot say that the court committed error in overruling the demurrer.
• The second contention is that the court committed prejudicial error in stating the law of the “last clear chance” to the jury. No contention is made that the law was incorrectly stated, but that such principles ■ had no application to the facts of this case. This conclusion is based upon the assumption that the plaintiff was guilty of contributory' negligence in going upon the tracks as she did, and that her negligence was continuing up to the time the car collided with her horse. The specific claim is that the law of the “last clear chance” can never be applicable where the plaintiff is guilty -of continuing contributory negligence.
The plaintiff in error’s argument is that, admitting its negligence in not stopping its car after discovering the dangerous position of plaintiff, the latter was also negligent in not extricating herself from her perilous position after she discovered it and before the car collided with her; that where two parties are equally negligent, and damage results to one, the other cannot recover; that if two persons were driving in opposite directions on a-public highway, with equal opportunity to avoid a collision, neither wishing to give any part of the traveled track to the other, and they collided, neither could recover from the other for any injuries sustained, because both would be equally guilty. The argument of plaintiff in error upon this point, is based upon the assumption that plaintiff was guilty of contributory negligence in going upon the track, and was also guilty of continuing negligence in not pulling her horse off the track after she discovered her danger and before she was injured. The findings of the jury conclusively deny these' assumptions of plaintiff in error. The general verdict of the jury is conclusive that plaintiff was not negligent in going upon the track and was not negligent in pursuing her course. It is conclusive upon the defendant that it was negligent in driving the car at too high a rate of speed, and that the motorman saw plaintiff’s danger, or by the exercise of proper care should have seen it, in time to have stopped the car before the collision occurred. The record presents nothing but a question of fact. The argument of counsel against the applicability of the instruction is based entirely on a statement of facts which the jury by its general verdict found did not exist.
The judgment is therefore affirmed. | [
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Per Curiam:
Charles Glass was charged with having burglarized, in the night-time, a coal-house belonging to school dis-trict No. 34, in Stafford county, Kansas, in which were contained goods and wares of the school district. He appeals from a judgment of conviction.
Several errors are assigned, but an examination of the record does not disclose anything prejudicial to the appellant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The defendants in error brought this action on an account stated to recover a balance alleged to be due them from the plaintiff in error for lemons sold and delivered to it under a written contract. The petition contains a copy of the contract and the account stated, which shows a balance due plaintiffs of $ — . Tt alleged full performance on their part of all conditions of the contract, and prayed for judgment. The contract pleaded reads as follows:
“All contracts made in triplicate copies.
“C. O. Graves, Bostonia.
“Sold Irey Fruit Co.,
“Agents for Central Mercantile Co.,
Hutchinson, Kan.
“Order No.........
E1 Cajon, Cal., 11-24-190.. Terms spot cash.
Inspection............
Delivery, Irey’s packinghouse, El Caj'on.
Route................
Car No.........
“This contract includes prices named by seller and Irey Fruit Company, brokerage of-cents per box. His entire lemon crop for the term of one year from date, said lemons to be picked carefully, regularly, and sizes to be 2J to 2i¡ inches, as near as possible; any excess of larger or smaller sizes to be handled for his account. His lemon orchard to be cared for in such a manner that the fruit will be good keepers, clean and merchantable. Price to be cents per pound, all alike.
“Seller, Graves Brothers.
“For buyer, Ira S. Irey, Agent.
“Seller sign yellow contract and return at once.”
The answer contained a general denial and admitted the execution of the contract, but alleged that at the time it was entered into Irey, the defendant’s agent, was a broker engaged in buying and selling fruit, and was at the time the plaintiffs’ agent and broker to find a purchaser for their lemon crop and. other fruits. The answer further alleged that while Irey, as defendant’s agent, was receiving the lemons from the plaintiffs on its account he was also purchasing and receiving other fruits from the plaintiffs and was carrying a general account with them, in which he kept the lemon account; that the defendant transmitted to Irey sufficient money to have paid its entire indebtedness to the plaintiffs if it had been properly applied on the plaintiffs’ lemon account, but that it was improperly applied by plaintiffs, with the consent of Irey, upon Irey’s general account with them; and that the defendant had fully paid, satisfied, and discharged the plaintiffs’ account.
The defendant also filed a cross-petition alleging that the plaintiffs agreed that their orchard should be cared for in such a manner that the fruit would be “good keepers, clean, and merchantable”; that they were careless in caring for their orchards, by reason of which neglect the lemons produced were defective, not good keepers, and were unmarketable, and that they were affected with an interior rot which was not discernible by inspection, by reason whereof the defendant suffered great loss, and asked that it have judgment for the damages thus sustained.
The plaintiffs recovered judgment. Of the contentions that the court erred in overruling the demurrer to the petition, the motion to. make the petition more definite and certain, the motion for judgment on the pleadings, and the demurrer to the plaintiffs’ evidence, none is maintainable.
The court committed no error in sustaining the plain-, tiffs’ demurrer to the evidence in support of the second and third counts in the defendant’s answer. The second count did not state a defense. The fact, if it was a fact, that Irey was the agent of the. plaintiffs to sell their fruit crop at the time he made the purchase of - their lemons for the defendant, in the absence of any allegation of fraud or unfair dealing resulting prejudicially to the defendant, would not prevent the plaintiffs from recovering the contract price of the lemons sold by the plaintiffs and delivered to, and accepted by, the defendant. There was no allegation in this count, nor evidence on the trial, of bad faith or any other im-, proper practice by Irey in making the purchase..
The material allegations of the third count are that the money sent by the defendant to its agent, Irey, to pay for the lemons was improperly applied by the plaintiffs to the payment of an individual indebtedness of Irey to them, and that it had fully paid the plaintiffs for the lemons delivered to it by them. There was evidence that Irey was a fruit broker; that he purchased on his own account from the plaintiffs that year fruits other than lemons; that he kept a general account with them in which the lemon account was also kept, but there was no confusing of these accounts. They were kept on the same books, and, when asked’ to explain the manner of keeping the accounts, Irey testified:
“We had scale books with duplicate tickets to show the receipts of the fruit. I went through that book the end of each month and posted in my journal each item of fruit received, which was credited to the grower and charged to the Central Mercantile Company. As fast as the fruit was sorted, the culls were weighed back in this same scale book, and these items were credited to the mercantile company and charged to the growers. The discounts I arranged with the growers to charge back to them as the fruit was packed-out. The off-sizes were discounts; twenty-five cents small off-sizes, fifty cents large off-sizes. Each man’s fruit was packed by itself and a separate account kept as to sizes. Those sizes were charged to their account from the sales-book, where I entered all shipments.”
There was no testimony that any of the money sent by the defendant to Irey to pay for the lemons was applied by the plaintiffs on Irey’s individual account.
Atiother contention is that the agent, Irey, violated his authority, as expressed in the contract of purchase, in receiving the plaintiffs’ lemons and charging them to the account of the defendant, and that therefore the defendant is not liable. The argument is that the contract of purchase provided that payment should be cash, and that this was an express denial of Irey’s authority to purchase on credit. This is a misconception of the contract. The contract is one of purchase and sale, and not one of agency. It does not purport to limit or define the authority of the agent. The cash condition was inserted for the benefit of the seller and not as a limitation of the agent’s authority, and is a condition that could be waived by the seller, and, if waived, would not relieve the purchaser from the performance of the contract assumed by it.
But it does not appear that this condition of the contract was violated by Irey, or waived by the plaintiffs. It appears to be true that each delivery of lemons was not paid for at the time of the delivery, but payments were made at such reasonable intervals, as the delivery and inspection progressed, as to be consistent with the idea that it was a cash transaction and inconsistent' with the idea that it was a transaction upon credit. Irey, the agent of the defendant, was engaged as a fruit broker and operated a fruit warehouse at El Cajon, Cal., where the plaintiffs delivered their lemons to be washed, inspected, and by him accepted or rejected for the defendant. The culls, or the rejected «•lemons, were to be handled by the defendant on account of the plaintiffs. It is evident that this process takes time, and presumably the contract was made with reference to the process of handling lemons, and what was meant by cash, or “spot cash,” as stated in the contract, had reference to payment to be made after the lemons were washed, inspected, selected, accepted, and weighed, and the pulls disposed of. The itemized account indicates that this was the method pursued.
It is also contended that the court erred in giving that portion of instruction No. 6-| which reads:
“Such acceptance will render the defendant liable notwithstanding there may have been defective lemons delivered which were accepted, because the defendant’s agent neglected to properly inspect or test the same.”
The words “such acceptance,” used in this instruction, refer to the acceptances mentioned in instruction No. 6, and that instruction undertakes to state the contentions of the defendant under its cross-petition, to which statement there is no objection, and then proceeds :
“But if at the time of the accepting of the lemons defendant’s agent knew of the defect, if there was any, or with the use of ordinary tests could have discovered the defects, the defendant cannot recover damages on account of lemons received under such circumstances.”
Under the facts and circumstances of this case these instructions, read together, state the law as favorably to the defendant as it could ask. The contract was an executory one for the sale of lemons by description, to be grown in the future. While words of description may amount to a warranty, before they should be so held it must be made to appear clearly that they were so intended by the parties. (Hastings v. Lovering, 19 Mass. 214, 13 Am. Dec. 420; Hogins v. Plympton, 28 Mass. 97.) The agreement to care for the orchards in such a manner that the lemons would be “good keepers, clean, and merchantable” was not a warranty which survived the acceptance, and was not so intended, hence the provision for inspection before acceptance, and also the provision for the disposition by the defendant of those which would not pass inspection.
The defendant’s counter-claim was not founded upon an executory contract, for the non-performance of its conditions, but upon an executed contract for the purchase of merchandise, after delivery and acceptance, to recover damages for its defective quality. There is no doubt of the rule that where merchandise is sold upon a warranty which survives acceptance, and upon receipt of the merchandise it is discovered that there is a breach of the warranty, the purchaser may retain the property and recoup on the Warranty in an action for the price; but in the absence of such warranty, where defects are. so plain as to be'discernible by ordinary observation, and where there is an opportunity to inspect the property, acceptance without objection will be conclusive upon the purchaser. (M’Cormick v. Kelly, 28 Minn. 135, 9 N. W. 675; Day et al. v. Pool et al., 52 N. Y. 416, 11 Am. Rep. 719; Gurney et al. v. Atlan. & G. W. R’y Co. et al., 58 N. Y. 358.)
“A purchaser is liable for the agreed price of goods accepted by him without objections after opportunity of inspection, in the absence of a warranty intended to survive acceptance.” (Schopp v. Taft & Co., 106 Iowa, 612, 76 N. W. 843, syllabus.)
“One who purchases an article which, upon delivery, is found not to comply with the terms of. the order or to be,defective, but who, nevertheless, retains and uses it without objection, is presumed to have waived the right to object and is bound to pay for it.” (Allison, Smith & Johnson v. Vaughn, 40 Iowa, 421, syllabus.)
The parties contracted that the lemons should be inspected after delivery and before acceptance. Whether such an inspection could have been made as would have discovered the defects, if any existed, was a question of fact, and was submitted to the jury under proper instructions. Their general verdict answered this question in the affirmative. The opportunity was afforded to inspect the lemons and discover any defects that existed, and, if defendant did inspect them and discover the defects, if any existed, or if it neglected to make any inspection and accepted the lemons, the law presumes it waived any defects that may have existed. This rule should be applied in the present case with strictness. The vendors commenced to deliver the lemons in November, 1902, and continued to deliver them in small quantities and at different times until July 27, 1903. During this time the defendant was curing and shipping them by the car-load almost .weekly, and made no objections to the quality. It speculated with the plaintiffs’ lemons without objections during this long period of time, and, when sued for a balance remaining unpaid, undertakes to defeat a recovery because the lemons were defective.
Several other contentions are made with reference to the instructions given, as well as to the rulings of the court in refusing to give certain instructions asked by the defendant. There was no prejudicial error committed by the court in any of such rulings. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
We do not think these facts entitle the defendant to a reversal of the judgment. While the plaintiff might have seen, if he had looked, that the vestibule door was open, he had no reason to suspect that it was open. It was the duty of the trainmen to keep it closed between stations, and he had a right to rely, upon their performance of this duty. The evi- ■ dence is that the plaintiff did not, in fact, see that the door was open. On the other hand it was the duty of ' the porter to know whether or not the door was open, and he is conclusively presumed to have acted with the knowledge he should have possessed.
’ The jury were justified in believing from the evidence that the porter, knowing the door was open, recklessly pushed or jostled the plaintiff and caused him to fall through the door and off the train. If so, the negligence of the porter was the proximate cause of the resulting injuries; and if, as the defendant contends, the plaintiff was guilty of negligence in riding within the vestibule instead of within a coach, which we do not decide, it is still liable for such negligence of the porter.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Appellant was convicted of a violation of the prohibitory law. The information contained two counts; the first charged a sale, the second the keeping of a nuisance. The jury returned a verdict of guilty on both counts. A motion in arrest of judgment was allowed as to the sale count and denied as to the second, or nuisance, count.
The claim is made that inasmuch as the court must necessarily have disbelieved the witnesses who swore to the sale charged there was a total failure of evidence to sustain the nuisance count. There was, however, testimony to sustain the charge, and, the trial court having passed upon it, we shall not disturb the judgment.
The information was signed by C. L. Evans, assistant attorney-general for Allen county, and verified by him upon information and belief. Attached thereto were the affidavits of two witnesses, who swore that they purchased liquor at the place on the 13th of September, 1905. The affidavits were acknowledged before C. L. Evans, a notary public, on September 15, and, as he was not appointed assistant attorney-general. until a month later, it is claimed he had no authority to . act and that the court erred in denying the motion to quash. The affidavits were sworn to before an official who was authorized to administer oaths. When he attached them to the information he acted in a different capacity, but the affidavits were valid and furnished him sufficient proof to believe verily that the facts stated in the information were true. There is no merit in the contention that the affidavits were invalid because acknowledged before the attorney for plaintiff. He was not the attorney when they were sworn to. There was no action pending.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This .is a proceeding to reverse an order of the district court of Rawlins county setting aside a judgment formerly rendered in that court against John Oscar Wiren in favor of R. W. Marquis.
It appears that on August 30, 1889, John Oscar Wiren, a single man, gave his note in the sum of $200 to the Des Moines Loan & Trust Company, and also gave a mortgage upon certain real estate in Rawlins county to secure its payment. The plaintiff in error subsequently became the owner of the note and mortgage, and certain payments thereon being in default he commenced his suit on February 28, 1900, in the district court of Rawlins county against John Oscar Wiren to recover a personal judgment against him upon the note and to foreclose the mortgage. He caused a summons to issue to John Oscar Wiren, directed to the sheriff of Shawnee county, Kansas, to be served, at the same time informing the sheriff that John Oscar Wiren was an inmate of the insane asylum located in Shawnee county. This summons was returned showing service by delivering a copy to John Oscar Wiren personally on October 5, 1900.
Subsequently the plaintiff made application to the district court for the appointment of a guardian ad litem for John Oscar Wiren, upon the ground that he .had been adjudged insane and was then an inmate of the insane asylum at Topeka. Upon this application the court appointed D. C. Bye guardian ad litem for John Oscar Wiren, who, after taking the guardian’s oath, filed a general denial, and the cause was tried without other service. A personal judgment was rendered against Wiren and a decree foreclosing the mortgage was made. Under this judgment and decree an order of sale was issued and the land sold to the plaintiff. The sale was confirmed, and a deed executed to him.
On March 6, 1905, the probate court of Rawlins county appointed O. A. Olson guardian of the person and estate of John Oscar Wiren, and on the same date the guardian filed an application in the district court of Rawlins county asking that the judgment theretofore rendered in the case of Marquis against Wiren be set aside for the reason that the court had no jurisdiction of the defendant Wiren and that the entire proceedings were void. The application was granted and the judgment was set aside. From this order the plaintiff prosecutes error.
The only question to be determined is, Was the judgment rendered void for want of jurisdiction of the defendant Wiren? There is but one way for a court to obtain jurisdiction of an insane person and that is by having the process served on his guardian. Section 3941 of the General Statutes of 1901 authorizes any person to institute proceedings in lunacy against one suspected of being insane or incapable of managing his own affairs, and section 3945 requires the probate court, when it has been determined that such person is insane or incapable of managing his own affairs, to appoint a guardian of his person and property. Section 3976 provides that in all actions against an insane person the process must be served upon his guardian, and section 3958 makes it the duty of the guardian to prosecute and defend all actions instituted in behalf of or against such ward. These sections were in force at the time the original proceedings were had, but were repealed by chapter 299 of the Laws of 1905; but no change was made which in any way affects the proceedings upon which the original judgment was rendered. None of these provisions wás observed in the attempt to bring Wiren into court. The court therefore did not obtain jurisdiction of him, and the judgment is void.
The order setting aside the judgment upon the application of the guardian of Wiren is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
It is the contention of plaintiffs that the facts disclosed established, as a matter of law, that two contracts were entered into between the parties; that there was a breach of the first contract causing damage to plaintiffs; that afterward a second contract was made and carried out; and that plaintiffs by entering into the second in no manner waived their right to claim damages for the breach of the original contract. On the other hand it is claimed by defendant that the undisputed facts establish, as a matter of law, that there was but one contract, the terms of which were modified by consent of the parties; and that plaintiffs, by consenting to this modification, and their acceptance of the goods, thereby waived all claim for damages for failure to deliver under the terms of the original contract.
It was the duty of plaintiffs, upon the breach of the contract, to use diligence to procure the goods some where and thus to minimize any damages for which they expected to hold defendant liable. It was so held in Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444. In that case a mere acceptance of the lumber after the specified time for the delivery was said not to constitute a waiver of a claim for damages caused by the failure to deliver in accordance with the terms of the contract. It appeared that the lumber was of such a character as could not be procured in the market at the place of delivery, and that the owners of the buildings for whom it was purchased were daily incurring expense by the failure of the vendor to provide the lumber at the time specified. The court said that under such circumstances it was the duty of the vendees to make the injury as light as possible by taking and using the lumber upon its arrival, and that to have returned the lumber would not have lessened the damages which had already accrued, but would have aggravated the injury and enhanced the vendor’s liability.
In Van Winkle & Company v. Wilkins et al., 81 Ga. 93, 104, 7 S. E. 644, 12 Am. St. Rep. 299, which was an action to recover the contract price of machinery sold for a cottonseed-oil mill, the court, in allowing damages resulting from its non-delivery in due time, by way of recoupment, notwithstanding the objection that receiving the machinery was a waiver of such damages, said:
“As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency between reception of the machinery and retention of the claim for damages on account of delay to furnish it by the time stipulated. To hold that there was a waiver by implication would be very unreasonable.” (Page 104.)
It was held error to charge the jury, in an action to recover the purchase-price of building material in which defendant counter-claimed damages sustained by reason of non-delivery within the time agreed upon, that they had a right to consider whether the receipt of the goods was not a waiver of any claim for damages. (Gaylord et al. v. Karst, 17 N. Y. Supp. 720.) In that case the court said that the charge obviously had “no other purport than to instruct the jury that if they found that defendant consented in April to accept future delivery of the building material, which plaintiffs had originally agreed to deliver on the 4th of the previous month, they were at liberty, to find further that defendant had thereby waived all claim for damages accruing to him from plaintiffs’ default in delivery by the time first appointed; and as this seems to be in direct conflict with the law as declared by the court of appeals in Ruff v. Rinaldo, 55 N. Y. 664, and McMaster v. State, 108 N. Y. 542, 553, 15 N. E. 417, it is impossible to escape from the conclusion that the charge was erroneous and the exception thereto well taken. That the defendant was prejudiced by this error is a proposition the validity of which is apparent upon its mere assertion, as the error vitally affected the meritorious consideration by the jury of defendant’s counterclaim.” (Page 721.)
In Hansen and Hansen v. Kirtley, 11 Iowa, 565, it was held that the acceptance of the goods after the time fixed for delivery may be considered by the jury as evidence of a waiver of the damages sustained by the delay, but that its weight must depend upon the circumstances of the case.
In the case of Industrial Works v. Mitchell, 114 Mich. 29, 72 N. W. 25, which was an action to recover upon notes given for the purchase-price of machinery, defendant sought to ‘recoup damages occasioned by delay in the delivery and for further delay resulting from defects in the machinery. It was held that the mere acceptance of the machinery by the vendee, without protest, after the time specified, and his appropriation of the same to his own use, and even the giving of notes for the purchase-price, did not constitute a waiver of his right to claim damages for the delay. It was said that circumstances often require a vendee to accept the goods after a specified time or suffer irreparable loss, and that the acceptance in that case amounted to a compulsory one.
In McMaster v. The State of New York, 108 N. Y. 542, 15 N. E. 417, the court said:
“The contention that, where there is a breach of contract by one party and the other thereafter is permitted to perform the same in part, receiving the contract price for such part performance, the injured party thereby waives or releases his right to damages for the breach, has no foundation in reason or authority. It is undoubtedly the rule that where one party to a contract breaks the same, the other party may stop and refuse further performance. But instead of doing so he may perform so far as he is permitted and then claim the damages he has' suffered from the breach.” (Page 533. See, also, Orange Growers Ass’n v. Gorman, 76 Mo. App. 184, affirmed in 161 Mo. 203, 61 S. W. 820, 54 L. R. A. 718.)
We think the rule as qualified by many of the cases is correct; that the mere acceptance of a purchased article after the agreed time of delivery does not constitute a waiver of damages for the delay, unless such acceptance is accompanied by other circumstances which manifest an intention on the part of the purchaser to waive such damages. The intention of the parties controls. (24 A. & E. Encycl. of L. 1074, 1161; Ramsey et al. v. Tully et al., 12 Ill. App. 463; Belcher v. Sellards [Ky.] 43 S. W. 676.)
It is true that in none of the correspondence on the part of plaintiffs, following the refusal of defendant to deliver the goods, is there any intimation of an intention to hold defendant under the original terms of the contract. Nor, on the other hand, is there any intimation that they intended to waive a claim for damages caused by delay. It is also true that the defendant’s letter of April 7 did not stop with a refusal to deliver, but contained an offer to go ahead provided satisfactory terms were made for the payment of the purchase-price. Plaintiffs adopted the suggestion and arranged for satisfactory terms of payment. Whether we call this a modification of the original or a new contract is not very important. The time for delivery under the original contract had already expired. There had been a breach of the terms of the contract.
All of the evidence which consists of the correspondence between the parties is before us, and we have difficulty in arriving at the same conclusion reached by the trial court in finding for defendant. The court may have erroneously held that the acceptance of the goods was a waiver of any claim for damages for failure to deliver.
There is nothing in the additional circumstances which, in view of all that occurred, warrants the inference that the plaintiffs by acceding to the demand for cash payment intended to waive damages for the breach which had already taken place. Having accepted the order and permitted plaintiffs to rest for several months in the assurance that the goods would be delivered at a certain date, defendant, after the time expired, refused to deliver, placing the refusal upon grounds which under ordinary diligence in business should have been discovered and made known to plaintiffs long before. These circumstances seem to make it unreasonable to hold plaintiffs to have waived any actual damages suffered because they consented to the change in the terms of payment and accepted the goods. The judgment is reversed and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This is, in effect, a suit to have a tax deed issued to Katie M. Fike adjudged void, at least as to a two-thirds interest in the land in question. If the tax deed is void the plaintiff is entitled to recover an interest in the land; otherwise the defendant, as the court below adjudged, was the sole owner of the land at the time of the commencement of the suit. If the plaintiff is entitled to recover any interest in the land the judgment of the court below should be reversed; otherwise it should be affirmed. Section 7680 of the General Statutes of 1901 provides:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where .the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
The tax deed in question had been recorded nearly twice five years before the commencement of this suit, and the taxes had not been paid nor had the land been redeemed “as provided by law,” unless Katie M. Fike, as the wife of one of the cotenants, is by reason of such marriage relation disqualified from acquiring the title to the land by a tax deed and her attempt to do so amounted to a payment of the taxes or to a redemption. The following question, then, to which the plaintiff asks an affirmative answer and the defendant a negative answer, is the sole question for our consideration: Where the marriage relation exists can one spouse, who is not in the possession and is not deriving benefits from the land of the other, in good faith and with his or her separate means, acquire the title to such land of the other, or to land of which the other is a cotenant, by a tax deed?
The answer to this question depends upon whether or not one spouse has such an interest or estate in the real property of the other, by virtue of such relationship alone, as imposes upon him or her either a legal or a moral obligation to .pay taxes upon the real estate of the other. The common law and the decisions of the courts of sister states where marital relations and the rights of the spouses are essentially different from such relations and rights under the constitution and laws of this state afford us little or no aid in arriving at the proper determination of this case. The decisions of the courts of this state, and indeed the decisions of this court, have been conflicting upon the question, and it is hoped that by this decision it may be satisfactorily settled and that property rights involved may be permanently determined. It is of great importance that a right so frequently called in question should be settled and determined.
At the very formation of our state a radical departure from the common-law relations between husband and wife was provided for. Section 6 of article 15 of our constitution reads:
“The legislature shall provide for the protection of the rights of women, in acquiring and possessing prop erty, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.” (Gen. Stat. 1901, § 232.)'
In obediehce to this constitutional mandate the legislature enacted the “married woman’s act,” which reads in part as follows:
“Section 1. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.
“Sec. 2. A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property and enter into any contract with reference to the same in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property.
“Sec. 3. A woman may, while married, sue and be sued, in the same manner as if she were unmarried.
“Sec. 4. Any married woman may carry on any trade or business, and perform any labor or services, on her sole and separate account; and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used and invested by her in her own name.” (Gen. Stat. 1901, §§ 4019-4022.)
The spirit and intent of the constitutional provision should be recognized by the courts in the interpreta-, tion of the law relating to married women as implicitly as it was the duty of the legislature to regard it in passing a law to give it effect. And the courts of this state should ignore any principle of the common law and the decisions of any sister state, although sustained by never so high authority, if they conflict with the spirit of this constitutional provision or with the letter or spirit of this statute. And this in the main is the history of the decisions of this court. Step by step these decisions have discarded the shackles which the common law placed upon married women, and, passing beyond the mere letter of the statute, by interpretation have advanced toward the real spirit of the constitutional provision; With the added powers and rights they have accorded to married women they have also imposed upon them added responsibilities. And with the decreased power of the husband over the person and property of the wife have come decreased responsibilities, especially for the care of her property. If she participates in crime it is no longer presumed that she does so by the compulsion of her husband. She is as fully amenable to the law as is he; judgment is rendered against her on her promissory note although she may only be a surety; she may contract her services and skill in the future and is liable for damages if she fails to perform the contract, and, if she perform it, may recover the value of her services. Without any separate estate she may purchase property on credit and her obligation to pay is valid. She is liable upon her covenants of warranty in a deed in which she joins with her husband for the conveyance of his land. Indeed it is almost literally true, as said by Mr. Justice Valentine in The State v. Hendricks, 32 Kan. 559, 564, 4 Pac. 1053: “In Kansas, women have all the rights and privileges that men have, except merely that they cannot vote at general elections.”
In Harrington v. Lowe, 73 Kan. 1, 84 Pac. 570, a well-considered opinion by Mr. Justice Burch, unanimously concurred in by the other members of the court, it was said:
“Therefore the one-person idea of the marriage relation as expounded by the common-law authorities can no longer be made the touchstone of a married woman’s rights or capacities in this state. Her powers and responsibilities do not depend upon the principle of unity, but upon the principle of diversity.” (Page- 20.)
Conversely, it is evident that the above excerpt, if applied to the rights, capacities, powers and responsi bilities of a married man, would be equally true. He is no longer, by virtue of his relation, the owner, nor even the trustee, of his wife’s property. He may sell to or buy from her as freely as with a third person, and if his contracts with her are in good" faith and for a fair consideration his and her creditors are as helpless to interfere as they would be to interfere with his dealings with a third person.
In view of the profound admiration and even veneration which every true lawyer must feel for that grand system of jurisprudence known as the common law, which has indicated the high-water mark of advancing civilization for at least four centuries, and has been illuminated by the reasoning and refinement of the greatest minds of those ages, it is not strange that, in the advancing march toward a higher civilization and a greater freedom for one-half of the people of Kansas, provided for them in the state constitution, even the highest court in this state should occasionally take a backward glance and a receding step. This is in accord with all the impulses of our nature and with the history of all social and judicial advancement. Thus we find that after this court had decided, in Broquet v. Warner, 48 Kan. 48, 22 Pac. 1004, 19 Am. St. Rep. 124, in accordance with the numerous previous decisions of this court as to the right of husband and wife to invest, manage and control his or her separate fortune independently of the other, that the mere fact of marriage does not impose upon the husband any obligation to pay taxes upon his wife’s land, and of itself does not disqualify him from acquiring title thereto by tax deed, in Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, it overruled the former decision.
Let us then examine these two decisions, since both cannot be right, to see which, if either, is in accord with the constitutional provision and the statute enacted thereunder.
The statute above quoted guaranteed to every married woman that the property which she had at her marriage, with the rents, issues and profits thereof, should remain her sole and separate property and not be subject to disposal by her husband nor liable for his debts; that she might bargain, sell and convey her property and might enter into any contract with reference to the same, to the same extent and effect as might any married man; that she might carry on any trade or business and that her earnings from a trade or .business, labor or services would remain her separate property and might be used and invested by her in her own name. This court by repeated decisions has interpreted this statute to mean that a woman may not only sell and convey her property but may buy it for cash or on credit or may barter for it. Mrs. Ffke bought the tax certificate from W. P. Peter, and, since it is agreed that she bought it with her own money, the •presumption is that the money was derived from property which she had at the time of her marriage, or had inherited, or that she had acquired it by her own labor, trade or business or from the profits of her individual investments. In either case she had the absolute, unqualified right under the statute to invest it in her own name, and that it should not be subject to the disposal of her husband nor liable for his debts. She did invest it in her own name, and, if the statute means anything, she was entitled to the benefit of her investment, which was the title to the land sold for taxes, provided it was not redeemed according to law.
Harking back to the rule of the common law it is ' contended that, as her husband could not acquire the title of his cotenants to the land in question, Mrs. Fike could not so acquire such title. It was said in Warner v. Broquet, 54 Kan. 649, 650, 39 Pac. 228:
“Both husband and wife have an interest, either direct or indirect, in each other’s real estate. These interests and the mutual confidence which ought to exist between husband and wife forbid either from obtaining a tax title upon the real estate of the other.” ■
To apply this rule to this case would be to deny to Mrs. Fike arbitrarily, and in deference to a common-law rule, a right which the statute expressly confers upon all married women. It would subject her money or property to disposal by her husband and would make the same liable for the payment of his debts. If she obtained no title by the purchase of the tax-sale certificate, the securing of the deed, and the payment of taxes on the land for many years, any creditor of her husband could have levied upon and sold his interest in the land, as could also the creditors of his cotenants their .interests, free and clear of any lien or claim of hers. If it was a voluntary payment of her husband’s and his cotenants’ taxes she would have no remedy to recover from him or them the money paid, and, in case of the partition of the land between the husband and his cotenants, he would have no recourse to recover from them the taxes which his wife had voluntarily paid for them. Again, Katie M. Fike never hay-' ing been a resident of the state, her husband and his cotenants could have sold and conveyed the entire interest in the land without her consent-and free from any lien or claim in her favor, even as the cotenants have attempted to do in this case. Furthermore, as Katie M. Fike has sold and by warranty deed conveyed to the defendant the land in question for the consideration of $1600, if she acquired no title by her tax deed she is responsible in damages to her grantor under her warranty.
Thus this common-law theory not only denies to a married woman the rights accorded to her by the laws of the state, but, if applied to this case, would become •the instrument of fraud. It would render the records of the county unreliable as an evidence of title to land. The tax deed had been of record much more than five years. It contained no information that the grantee therein was the wife of one .tenant in common of the land. The county treasurer’s books showed neither that the taxes had been paid nor that the land had been redeemed according to law. Lawyers advised that all action against the tax deed was barred, and that the grantee therein had and could convey good title. Relying on these records, and thus advised, the defendant bought the land for $1600. If the common-law theory should prevail he could pocket his loss or seek his remedy against his warrantor in a distant state, there, perchance, to discover that she is insolvent. On the other hand, Henry and Anna Fike are entitled to little consideration. Knowing their land was subject to taxation they gave it no attention for thirteen long years. Their grantee, the plaintiff, has no greater equities. For a trifling consideration he bought a lawsuit, hoping to reap where, not he, but others, had sown.
Katie M. Fike’s interest in the land, prior to her purchase of the tax-sale certificate, was quite analogous to the interest of an heir. Suppose that she and her husband had a son, an only child. She being a non-resident of the state, the husband and father could have disposed of his interest in this land without the consent of the wife or of the son. Upon the death of the husband and father, if the land had not been conveyed prior thereto, and had not been necessary for the payment of his debts, the wife and son would each have inherited one-half in value of the land. It could not be contended that the son would have been incapable of procuring title to his father’s land by a tax deed. A mortgagee might have had an interest in this land of far greater value than the inchoate interest of the wife, yet, as has been repeatedly held by this court, he could have acquired title to the entire fee by a tax deed. It was said in Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245:
“While the wife’s right and interest in the real estate of her husband, not occupied by the family as a homestead, is inchoate s£nd uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband to prevent its wrongful alienation or disposition under fraudulent judgments procured and consented to by the husband, with the object and for the purpose of defeating the wife’s right.” (Syllabus.)
That was a suit for divorce by the wife against her husband, and to set aside fraudulent judgments which he had consented to and procured to be rendered against hixh for the purpose of defrauding his wife of her rights in case of divorce. Upon granting a divorce to the wife it is by statute made the duty of the court to award to the wife all of her separate property, and the court may further award her such portion of the husband’s property or may award her such sum in money, as alimony, as seems equitable. If the wife has no separate property the court may award her such portion of his property or sum in money out of his estate as seems equitable. The judgment in that case might as well have been based upon the personal obligation of the husband to support and maintain his wife. A judgment creditor would under the same circumstances have had the same right to maintain a suit to prevent the wrongful alienation or disposition of his debtor’s property under fraudulent judgments procured and consented to by the debtor, yet it would not be contended that a judgment creditor has such an interest in the real estate of his debtor that he could not acquire title thereto by a tax deed. The cases of Busenbark v. Busenbark, supra, and Munger v. Baldridge, 41 Kan. 236, 21 Pac. 139, 13 Am. St. Rep. 276, base the argument that the wife has a present interest and property in the real estate of her husband upon the provision of the statute of descents and distributions which reads:
“One-half in value of all the real.estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him.” (Gen. Stat. 1901, § 2510.)
The argument- is fallacious. The conclusion does not follow that the wife has a present property interest in the real estate of her husband. If so it would be repugnant to the fourteenth amendment to the constitution of the United States, in that the property interests of the wife could be sold on an execution against her husband in an action to which she was not a party. This is not due process of law. It would also be repugnant to the constitution and statutes of Kansas ' hereinbefore cited. At most this statute creates an interest in the husband’s real estate which attaches, not during his lifetime, but upon his death. It has been frequently decided that the husband has the same rights in the property of the wife that the wife has in his property, upon the death of either, respectively. In fact section 2529 of the General Statutes of 1901 expressly so provides. Yet the constitution of our state, before cited, commands the legislature to make provision to protect the rights of women to acquire and possess real property, separate and apart from the husband, and as before said the legislature has complied with the mandate, and to that extent the act of the legislature has the potency of a constitutional provision. Now it is impossible for a married woman to own real estate separately from her husband and at the samé time for the husband to have a property interest in the same. It seems more logical to say that the statute last above quoted was enacted for the protection of purchasers. The husband and the wife each having the right not only to acquire real estate from others, but to sell and convey one to the other, it may have been anticipated that it would be difficult for third parties to determine their respective rights in lands to which either held the legal title. It is a matter of public policy that land titles should be kept free from doubt and that the public records should be a reliable index to the condition of such titles.
However this may be, the argument of present in-, terest fails when applied to this case. Under the pro viso to the section of the statute last above quoted it is not requisite that the wife should sign her husband’s deed to his land to devest her of her contingent interest when at the time of the conveyance she had never been a resident of this state.
If we are right in our conclusions thus far — that the wife has no present interest in the real estate of her husband which forbids her from obtaining a tax title on his real estate — there only remains to determine whether or not the “mutual confidence,” the remaining ground for the decision in Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, forbids the same. As a complete answer to this contention, attention is again called to Harrington v. Lowe, 73 Kan. 1, 84 Pac. 570. Also the following from the opinion of Mr. Chief Justice Johnston, in Munger v. Baldridge, 41 Kan. 236, 21 Pac. 139, 13 Am. St. Rep. 276:
“Thé statutes of Kansas recognize no conflict of interest between them [husband and wife], nor any necessity to protect the wife against the act of the husband. They do not contemplate that she may be led to convey her interest through fear, compulsion, or the undue influence of her husband; and hence we have no enactment, as some states do, that in making a conveyance she must undergo a private examination by an officer to learn whether she is intimidated by her husband or is executing the conveyance against her will. On the contrary, the law proceeds upon the theory of confidence, good faith and honest dealing between husband and wife.” (Page 244.)
In other words there is no presumption that the mutual confidence which should exist between husband and wife has been betrayed by either, and any denial of a right to either, based on such an assumption, is a wrong. The utmost good faith and fair dealing should be, and is, demanded of each in dealing with the other; ■and, if either is wronged by a breach of the trust and confidence which the other has a right to rely upon, the courts of our state are sensitive to afford speedy relief.
Instead of its being a fraud or wrong Upon the rights of the husband to maintain the title of the wife, acquired under the tax deed in this case, it would, as before indicated, be a great wrong to him as well as to her to deny her the rights guaranteed to her under the constitution and laws of the state. He has recognized her title to the land and has executed with her a deed of general warranty therefor to the defendant.
The principle here enunciated has been asserted in Broquet v. Warner, 43 Kan. 48, 22 Pac. 1004, 19 Am. St. Rep. 124, and has been denied in Warner v. Broquet, 54 Kah. 649, 39 Pac. 228. The latter case, so far as it overrules the former, should in turn be overruled, and the former should stand as a correct interpretation of the laws of this state.
The judgment of the district court is affirmed.
Porter, Graves, JJ., concurring. | [
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The.opinion of the court was delivered by
Porter, J.:
In an action for damages for injuries received in a fall upon an icy sidewalk the trial court rendered judgment in favor of the city .for costs upon the opening statement to the jury of the facts which plaintiff expected to prove. Error is predicated upon this ruling of the court.
In his statement plaintiff followed the averments of his petition, which were in substance that on the night of January 19, 1904, and on the following day, as the result of rain, sleet and snow 'flurries, the walks of the city became covered with a sleety ice to the depth of less than an inch and more than half an inch, which was, then and continued to be smooth and slippery and difficult -and dangerous to walk upon; that the walks were permitted by the city to remain in this condition until the evening of the 25th of January, when plaintiff, who was walking with due care because he knew that the sidewalk was icy, slipped and fell by reason of the icy, slippery condition of the sidewalk in that particular place.
When ice and snow accumulate from natural- causes upon the sidewalks of a city, and a person is injured by a fall occasioned by their smooth and slippery, condition, is the city liable in an action for damages ? This is the sole question in the case. No other defect in the sidewalk is claimed. The same question has frequently been before the courts, and with almost entire unanimity it has been held that where the injuries were caused wholly by reason of the smooth and slippery condition of the ice and snow there was no liability for negligence on the part of the city. A distinction has been observed in many cases where the ice or snow has been allowed to form in ridges' or uneven places on the walk amounting to an obstruction; but smoothness and slipperiness, being natural conditions, have almost universally been held not sufficient to cast responsibility upon the city. The reasons for the distinction are well stated in Smyth v. Bangor, 72 Me. 249, as follow:
“In this cold climate, where ice and snow cover the whole face of the earth for a considerable portion of the year, such an inconvenience ought not, and rightfully cannot, be regarded as a defect. No amount of diligence can keep our streets and sidewalks at all times free from ice and snow;, and the latter, when trodden smooth and hard, is nearly, and sometimes quite, as slippery as ice; and travelers will often slip and fall when no one is to blame. To hold towns and cities responsible for such accidents would practically make insurance companies of them. A block of ice may constitute a defect the same as a block of wood or stone. So a ridge or hummock of ice, or snow, may constitute a defect the same as a pile of lime, or sand, or mortar, upon the sidewalk would. But we regard it as now well settled that mere slipperiness of the surface of a highway or sidewalk, caused by either ice or snow, is not a defect for which towns and cities are liable.” (Page 250.)
In Gilbert & Wife v. City of Roxbury, 100 Mass. 185, a case like the one at bar, the action of the trial court in directing a verdict for defendant was sustained. In Stone v. Inhabitants of Hubbardston, 100 Mass. 49, it was held that mere slipperiness of the surface of a highway properly constructed, and of no unusual slope, was not a defect which would render the municipality liable any more than moisture or mud upon a flagstone or sidewalk. It was said in that case:
“But ice, which by reason of constant or repeated flowing of water, trampling of passengers, or any other cause, assumes such a shape as to be an obstacle to travel, may constitute such a defect.” (Syllabus.)
To the same effect see: Chamberlain v. The City of Oshkosh, 84 Wis. 289, 54 N. W. 618, 19 L. R. A. 513, 36 Am. St. Rep. 928, and cases cited in note; Grossenbach v. The City of Milwaukee, 65 Wis. 31, 26 N. W. 182, 56 Am. Rep. 614; Luther v. City of Worcester, 97 Mass. 268; Stanton v. City of Springfield, 94 Mass. 566; Borough of Mauch Chunk v. Kline, 100 Pa. St. 119, 45 Am. Rep. 364;. Kinney v. The City of Troy, 108 N. Y. 567, 15 N. E. 728; Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186; Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225, 58 Am. Rep. 843; Broburg v. The City of Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756.
Most of these cases are from the extreme northern and eastern states, where the conditions which usually obtain illustrate more forcibly the manifest propriety of the rule. It is urged by plaintiff in error that the mildness of the winters in Kansas requires a distinction to be made, which has been recognized by some courts, based upon climatic conditions; that where the winters are so mild that ice and snow are comparatively infrequent the municipality should be held to a higher degree of diligence. Thus it was said in Scoville v. Salt Lake City, 11 Utah, 60, 39 Pac. 481, cited by plaintiff in error:
“Differences of climate and locality are to be considered in determining the liability of municipalities for their failure'to exercise care in removing ice and snow from their walks. Each case must be considered with reference to the climate of the place. In Minnesota, where ice and snow- exist almost constantly through the winter season, to require municipalities "to keep their walks absolutely free of ice and snow would be highly unreasonable. But in other localities and in a warmer climate, like Utah, where snow and ice, although not unusual, are by no means continuous, to require the municipalities to keep their walks free of ice and snow, especially in particular localities, is by no means unreasonable.” (Page 67.)
An examination of this case discloses, however, that the decision was not placed upon the reasons stated in the excerpt. It appears that the ice in question was not formed by natural causes but by water discharged upon the sidewalk by means of a defective conductor, and that the city had permitted the ice to remain for an unreasonable length of time in a rounded and uneven condition. So the portion of the opinion relied upon seems not to have been necessary to the decision.
On the other hand the supreme court of Missouri, in Reedy v. Brewing Ass’n and City of St. Louis, 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805, a recent and parallel case, arising in a locality not more subject to the natural accumulation of ice and snow than the city of Concordia, Kan., .if we may take notice of the weather reports, recognized the force of the rule established in the northern ahd eastern states, although affirming a judgment against the city upon other grounds. It was held that smooth and slippery ice covering a sidewalk- at one place, which formed from water running off the roof of an abutting building on account of a leak in a water-pipe, was a dangerous obstacle which the city was bound to remove within a reasonable time after notice, it not having been shown' that there was any other ice or snow in the city. The court referred to the well-established doctrine that a city is not liable for injuries caused by smooth and slippery ice where it has formed generally upon the streets and walks, and where no special defect is shown, and mentioned two well-founded reasons for it: First, it is not one of the law’s reasonable requirements that a city should remove from the many miles of walks the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things; second, because when these conditions exist generally they are obvious, and every one who uses the sidewalks at such times is on his guard and is warned by the surroundings and the danger of slipping at every step. These reasons meet with our approval. To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for. This rule has reference to a general accumulation of ice or snow from natural causes, where no other defect in the walk is shown except the natural slippery condition of the ice or snow.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by.
Graves, J.:
This is an application for a writ of habeas corpus. The petitioner is confined in the Sedgwick county jail under an order of commitment issued by the judge of the city court of the city of Wichita, as an examining magistrate. The petitioner claims that he was insane at the time of the preliminary examination, and could not be held to answer to, or defend against, the charge made against him.
The facts, briefly stated, are as follow: The petitioner was duly charged in the city court of the city of Wichita with having, on March 20, 1906, committed the crime of burglary and larceny. He was arrested and arraigned March 26, 1906. At that time the petitioner demanded a preliminary examination, and the case was thereupon continued to March 30, 1906. When the case was called the county attorney obtained leave to file an amended complaint, which was done at once. A new warrant was issued and served by the arrest of the defendant immediately. The petitioner was then and there arraigned, and he again demanded a preliminary examination. By consent the hearing thereof was continued to April 3, 1906, and when the case was then called it was again continued by consent to April 4, 1906. When the case was called on April 4, 1906, the defendant filed a plea in bar, which was overruled, and the preliminary examination proceeded, resulting in an order requiring the petitioner to give bond in the sum of $750 for his appearance at the next term of the district court to answer to the charge of burglary and grand larceny. In default of bail he was committed to jail, where he still remains. Oh March 29,1906, an affidavit was filed in the probate court alleging the insanity of the petitioner. An examination was had April 3, 1906, which resulted in a verdict finding the defendant insane. This verdict was the foundation of the plea in bar. It is here urged that the legal effect of this verdict was to oust the examining magistrate of jurisdiction to proceed, and that all action thereafter was void.
It is universally conceded that a defendant cannot be compelled to answer to, or defend against, a criminal charge when by reason of an insane mental condition he is unable to do so in a rational manner. The principal objection urged, in this court is that the court having possession and jurisdiction of the defendant in a criminal proceeding ought to be entrusted with the duty of determining whether he is mentally fit to make proper defense or not, and should not be liable to be interrupted in the performance of its duty by the proceedings of another court.
By chapter 60 of the General Statutes of 1901 full authority is conferred upon the probate court to ex-‘ amine into the mental condition of persons and adjudge whether they are insane or not, and that court having duly adjudged the petitioner to be insane when the preliminary examination was had and when the order of commitment was made, such adjudication, in the absence of any showing or finding to the contrary, must be deemed conclusive upon this question. If the examining magistrate, after the plea in abatement was filed, had upon an examination of his own found and decided that the petitioner had sufficient mental capacity to make a rational answer and defense, a conflict of jurisdiction would have arisen, and a materially different and more difficult question would be presented. Upon the facts before us, however, we feel bound 'to find that the petitioner was insane when the preliminary examination was had, and when the order of commitment was made, and for that reason both are void. The writ is allowed, and the petitioner ordered turned over to the jurisdiction of the probate court of Sedgwick county, there to abide the order and judgment of that court concerning him.
All the Justices concurring.
(89 Pac. 678.)
1. Criminal Law — Mental Disability of Defendant at the Time of Trial. No person can be compelled to answer for a crime who at the time is incapable of doing so in a rational manner on account of mental disability occurring after the alleged commission of the offense charged against him.
2. —;— Jurisdiction to Determine Defendant’s Mental Fitness for Trial. The court having jurisdiction of a person charged with the commission of a crime has the exclusive right and power to determine the mental fitness of the defendant to make proper answer and defense to .such charge, unless otherwise provided by statute.
3. ■-• Duty to Make Inquiry — Forcing Insane Person to Trial — Void Proceedings. Where upon the trial of a person charged with a crime it is claimed that he is then unable to make answer and defense thereto in a rational manner, because of mental incapacity which has arisen since the alleged commission of the offense, it is the duty of the court where such trial is pending to make inquiry concerning such disability, and, if found to exist, to stop further proceedings in the trial until such disability has been removed. Failure in this respect, whereby an insane person is forced into trial, will render all subsequent proceedings void.
4. - Verdict of Insanity Not Conclusive Proof of Defendant’s Incapacity for Trial. A verdict of insanity found under chapter 99 of the General Statutes of 1901 does not conclusively show that the person therein named is a lunatic or mentally unfit to answer or make defense to a criminal charge against him.
5. Habeas Corpus — Burden of Proving Void Proceedings. A ■writ of habeas corpus can only be issued in behalf of a person who is confined in prison when it is shown that the legal proceedings under which he was committed are void, and the burden is upon the petitioner affirmatively to make such showing.
6. Practice, Supreme Court — Presumption as to Regularity of Proceedings. Where the record fails to show what action was taken by the court with reference to some particular matter in a- proceeding it will be presumed, in the absence of any showing to the 'contrary, that the action of the court was regular and in accordance with the law. | [
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The opinion of the court was delivered by
Porter, J.:
The principal contention is that the petition of the defendant in error set up a specific act of negligence and the recovery was had upon another and entirely different act of negligence. The petition alleged that Wagner, foreman of plaintiff in error, “negligently and carelessly, with jacks and braces, pushed the north wall of said building in at the bottom, thus slightly raising the roof or plates on which the roof rested and which were resting on the upright timbers as aforesaid, and thus loosening the tension and letting one of said timbers fall, which said timber in falling struck the plaintiff across the head.”
It has frequently been declared by this court that the negligence proven and found by the jury must correspond with the averments of the petition. (Telle v. Rapid Transit Rly. Co., 50 Kan. 455, 31 Pac. 1076; S. K. Rly. Co. v. Griffith, 54 Kan. 428, 38 Pac. 478; Brotan v. Railway Company, 59 Kan. 70, 52 Pac. 65; St. John v. Berry, 63 Kan. 775, 66 Pac. 1031.)
It is claimed, as a matter of fact,' that plaintiff in error on the next day following the accident took the same jack-screws from under the uprights where they had been supporting the roof and. placed them in a horizontal position against the railway-track, and by the use of pressure -applied laterally pushed the north wall a sufficient distance south to make it perpendicular. It is insisted that plaintiff in error “went into trial knowing that Wagner was not pushing the building over with jacks or braces until the next day after the accident occurred and had the right to rely on this fact as a complete defense.”
It is provided in section 133 of the code that “no variance between the allegations in a pleading, anc[ the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the ’merits.” (Gen. Stat. 1901, § 4567.)
It may be conceded that the petition in this case is not drawn with the certainty and precision as to the negligent act of the plaintiff in error with which it should have been to conform strictly to the facts » proven; but it requires some stretch of imagination to discern in what way plaintiff in error could have been misled. The- upright timber did, as plaintiff in error well knew, fall and strike Baker on the head, fracturing his skull. It is inconceivable that every one present, including the employees of the plaintiff in error, did not know all about it immediately. They did know, and were present at the trial and gave their testimony. There was no dispute with reference to the exact time the accident happened and practically none with respect to how it happened. No one actually went into the trial believing that the defendant in error expected to prove that his injuries were received the day after they were received, simply because the plaintiff in error happened on the next day to be pushing the coal-shed over in the manner described in the petition. It may be true that, as a matter of strict pleading, plaintiff in error had the right to believe this, but certainly with the knowledge it had of what actually occurred it had no business to believe it. The contention turns upon too narrow a construction of the pleading. The gravamen of the charge of negligence was not so much the pushing of the side of the building “in”, or “over,” nor even the slight raising of the roof, but 'the “loosening” of the tension of the weight on the upright, permitting it to fall and strike the plaintiff across the head. As the learned foreman of the jury, in answer to a special question, phonetically expressed it“Ques. Then state what.caused said timber to fall. Ans. Because the jack was not kep'tite.”
Most of the complaint in reference to the instructions is based upon this same contention — that there was a fatal variance between the averments of the petition and the proof, and that the court should have instructed the jury definitely as to the specific negligence charged, and practically that, unless the injury occurred by reason of the north wall being pushed in, as averred in the petition, defendant in error was not entitled to recover. The instructions,. though quite general, were fair upon the pleadings and the evidence, and, in our opinion, give the plaintiff in error no ground for the claim that its substantial rights were prejudiced.
Error is urged because the court refused to require the jury to make their answer, to question No. 3 more definite. The question and answer are as follow:
“Ques. When did the said M. H. Wagner and his men push the north wall of said building in with reference to the time the plaintiff was injured? Ans. Finished 28th May, 1904.”
Plaintiff in error all through the trial contended that the building was in fact pushed “over” onto its foundation on the 28th, and there was no controversy but that the accident in which defendant in error received his injuries occurred on the day previous — May 27. The answer was rendered somewhat indefinite by the word “finished,” but it could not affect the liability of the plaintiff in error no matter how it was answered or whether answered at all. The question had sole reference to an occurrence after the accident in which defendant in error was injured, and therefore it was immaterial when the building was. pushed “in” or “over,” so long as the question had no'reference to the time of the injury. No answer the jury could have returned under the evidence would have availed anything to the plaintiff in error.
It is urged that the jury allowed damages for permanent injuries after finding that defendant in error sustained no permanent injury. This contention is based upon the following special findings:
“Ques. Are the injuries to plaintiff such that he will be permanently disabled from performing manual labor? Ans. Don’t know.”
“Q. How much do you allow plaintiff for permanent injury? A. $500.
The physician who treated the defendant in error did not know whether it would or would not permanently interfere with his ability to perform manual labor, but the evidence of the same physician as to the probability of the injury being to some extent permanent in its character warranted the jury in allowing the suni they did for permanent injury. A man might have his ear torn off and sustain a permanent injury which at the same time might not render him in any sense less able to perform manual labor.
We have examined the other errors complained of, but find none which in our opinion affects the substantial rights of the plaintiff in error or which requires specific mention here. The- judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Do the facts as stated render the defendant, the father of the boys, liable for the damage resulting from the fire? The trial court correctly answered, “No.” It is conceded that the father is not liable for the tortious acts of his sons by reason simply of the relationship, nor by reason of their minority, nor because they lived at home with him and worked for him and were under his care, management and control.
It is contended, however, that the further allegation that the minor sons, “while engaged in repairing a fence on the farm owned by their father, the said defendant, while they were engaged in his business and for his benefit and working for him, purposely, carelessly and negligently set out a fire . . . and in not taking proper care and means to control the said fire,” does state facts which render the father liable. An essential ingredient of liability is lacking, viz., that the setting out of the fire was within the scope of their employment — that the setting out of the fire was the act of the father, by his sons %s his agents, in the same sense as was the building of the fence by them his act. No connection is shown between the father’s work pf building the fen'ce and the act of setting out the fire. Had it been alleged that while building a fence for their father the sons shot the plaintiff’s horse the lack of connection between the two acts would only be more apparent.
It is urged that the setting of the fire may have been necessary to enable them to build the fence. The argument is good; not so the petition. Had the petition alleged that it became necessary to remove rubbish or brush by burning it before the fence could be built, and for that purpose the sons started the fire and negligently allowed it to escape and spread upon the plaintiff’s premises, etc., the missing link would probably have been supplied.
The liability of a parent for the act of a minor son rests upon the same basic facts as the liability of a master for the acts of his servant, and does not result from the fact of the tort or act being purposely or wilfully done but from its being done in doing the master’s or parent’s business. If the act complained of be the setting out of a fire, it is not a sufficient pleading of liability to allege that the servant or child was engaged in the business of the master or parent, but it must appear that the setting of the fire was a part of that business or resulted from some act done in the performance of such business. The act must be the result of doing the business of the master or parent, and not of an independent act done during a cessation, even momentary, of the doing of such business. (Hudson v. M. K. & T. Ply. Co., 16 Kan. 470; 38 Am. St. Rep. 370, note; 20 A. & E. Encycl. of L. 167, 168.) The judgments are affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendants challenge the jurisdiction of this court to inquire into the merits of this cause on the ground that no judgment has been entered on the verdict against the plaintiff. This contention cannot be sustained. Section 5019 of the General Statutes of 1901 provides that this court may reverse or vacate an order denying a motion for a new trial. This may be done independently of the rendition of a judgment on the verdict. (Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; Osborne, Ex’r., v. Young, 28 Kan. 769, 774; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476.) A litigant may prosecute a proceeding in error to set aside an order refusing him a new trial although the verdict and judgment are in his favor.
The principal error assigned is the giving of the following instruction:
“If, then, you believe from the evidence in this ease that such an indemnity agreement was executed by these defendants to the plaintiff company; and that after the termination of the suit in the Texas court the plaintiff company took exclusive charge and control of the matter of the settlement of the costs of said litigation in the Texas court; that afterward correspondence and communications were had between plaintiff company and these defendants with reference to these costs wherein plaintiff company called upon these defendants to pay a certain judgment for costs rendered in said court against plaintiff, and that plaintiff company at the time represented to these defendants that said judgment comprised all the costs in said suit, and that upon payment of said judgment for costs by these defendants to the plaintiff to be applied to the payment of said judgment for costs plaintiff company would release and discharge these defendants from all further liability to the plaintiff company under and by reason of said indemnity agreement; and if you further believe from the evidence that payment was so made by these defendants, Wellcome and Dunn, to plaintiff company to be so applied, and that it was the understanding between the plaintiff company and these defendants at the time that said payment was made that it was considered and understood- as a full and final settlement between plaintiff company and these defendants of any and all liability of these defendants to plaintiff under and by.virtue of said indemnity agreement, and that that was the understanding between the parties at the time said payment was made, and that said payment was so accepted by plaintiff company, then I instruct you that these defendants would not be liable to this plaintiff for any additional costs subsequently paid by it to the Texas court.”
This instruction should not have been given. There is no evidence to justify it. There is no evidence tending to show that the plaintiff represented to the defendants, as an inducement to them to pay the $194.29 costs, that this was all of the costs, or that the plaintiff represented to them that upon the payment of the $194.29 costs it would release them from further liability to it, or that it had or would cancel the bond. All the evidence on this subject is contained in the letters which passed between H. E. Valentine and the defendants. This correspondence is as follows:
' “Holton, Kan., May 5, 1903.
“H. E. Valentine, Res. Asst. Secy., Topeka, Kan.:
“Dear Sir — Yours of the 4th is at hand. Herewith find draft $97.14 in full payment of my share of your claim for costs in case of Sarah A. Dové et al. v. H. P. Howard et al., in district court of Grayson county, Texas.
“Please collect the other half from Mr. William Well-come as per your agreement, and send me a receipt releasing me from all liability on the bond.
Yours truly, Alex Dunn, jr.”
“C — American Surety Company of New York.
“Alex Dunn, jr., Holton, Kan.: May 7, 1903.
“Dear Sir — I am in receipt of your favor of the 5th inst. enclosing draft for $97.14 in payment of one-half of the amount which the surety company has been notified is due on the bond written in the case of Sarah A. Dove et al. v. H. P. Howard et al. in the district court of Grayson county, Texas. I have collected the same amount from Mr. William Wellcome, and will today forward the entire sum to Texas to pay the costs.
“I cannot send you a receipt releasing you from all liability on the bond. While I am very certain that there will be nothing more taxed against the principals of the bond or the surety company in this case, and that we are free from any further liability, yet should there be any further liability the surety company will have to look to you and Mr. Wellcome to indemnify it.
Yours truly,
H. E. Valentine, Res. Asst. Secy.”
“Topeka, Kan., May 20, 1903.
“Mr. Alex Dunn, jr., Holton, Kan.:
“Dear Sir — I herewith hand you copy of letter and receipt written by the clerk of the district court of Grayson county, Texas, to the Dallas, Tex., representative of the American Surety Company, which would indicate that everything is settled and there can be no further liability against you and Mr. Wellcome. The originals of these I send to the home office of our company so that the bond may be canceled.
Yours truly, H. E. Valentine,
Resident Assistant Secretary.”
These letters show that Mr. Valentine not only refused to release the defendants from their liability on their bond but plainly informed them that if further costs should be adjudged against the parties the surety company would look to them for protection.
In the absence of any evidence upon which this instruction can be based it was prejudicial error to submit it to the jury. For this reason the order of the trial court denying plaintiff’s motion for a new trial is set aside and the cause remanded, with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
GRAVES, J.:
This suit was commenced in the district court of Cowley county by the defendant in error, May 14, 1903, to quiet his title to the real estate in controversy. The plaintiffs in error claimed to own the land, and in a cross-petition asked for possession thereof and a judgment against the defendant in error for rents and profits. ■
Soranus L. Brettun, from whom all parties claim title, owned the land in question, and at his death disposed of the same by will. He devised a life-estate therein to his widow and two grandchildren, Brettun Crapster and Caroline Louisa Crapster, with remainder in fee to the children of his grandchildren. Plaintiffs in error Caroline L. Crapster and Bretta V. Crapster are minor children of Brettun Crapster, and plaintiffs in error Milton A. Bangs, Margaret E. Bangs, Ruth T. Bangs and Phyllis G. Bangs are minor children of Caroline Louisa Crapster, who married A. C. Bangs.
October 11, 1883, the executors of the will of Soranus L. Brettun filed a petition in the probate court asking for an order to sell the real estate in controversy for the purpose of paying the debts of the testator. The order was granted November 9, 1883, the land sold thereunder and conveyed by the executors to one Kerns, who sold to the defendant in error, and his title depends upon the validity of such sale.
At the time the executors filed their petition to sell plaintiff in error Milton A. Bangs was about two months old; his coplaintiffs in error were all bom since that time. No notice was given to Milton A. Bangs of the petition or proceedings to sell; no guardian or other person was served with notice as his representative, and no person appeared in his behalf; in fact, it was not supposed at the time that he had any right to, or interest in, the land. It is claimed by the plaintiffs in error that this failure to notify the infant, either personally or otherwise, made the sale and conveyance under which the defendant in error holds void, as against the rights of the plaintiffs in error. Whether such sale is valid or not is the only question presented.
It is settled law in this state that the sale of real estate in the probate court by executors or administraors for the payment of debts is an adversary proceeding, and notice to the owner of the land to be sold is jurisdictional. (Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161; Fudge v. Fudge, 23 Kan. 416, 418; Rogers v. Clemmans, 26 Kan. 522, 527; C. K. & N. Rly. Co. v. Cook, 43 Kan. 83, 22 Pac. 988.) It is also settled that a judgment without notice is a nullity and is open to attack collaterally. (Rogers v. Clemmans, supra; Kelso v. Norton, ante, p. 442.) The statute which prescribes the kind and manner of notice to be given in such cases is found in section 2923 of the General Statutes of 1901, which reads:
“The court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.”
The order made by the court in this case reads:
“It is ordered that said petition come on for final hearing on the 29th day of October, A. D. 1883, at the hour of ten o’clock A. M., at the probate court-room in the county aforesaid, the said day being one of the days of the October, 1883, term of said court, and .that said executors notify the heirs at law, and all others interested, of the pendency of said petition, the time and place set for the hearing thereof (and that unless the contrary be made to appear an order will be granted for such sale), by causing to be served personally upon Brettun Crapster and Louise C. Bangs, sole heirs at law (besides said executors of said decedent, and both of said heirs being residents of Cowley county, Kansas), a true copy of their petition herein filed, together with notice in writing of the time and place where the same will be heard. Service to be had at least three days prior to the time herein appointed for such hearing in said county.”
The order approving service of notice reads:
“It is found that the heirs at law of said decedent have been served with a true copy of said petition and notice of the time when the same would be heard. Service being acknowledged on the back of said original petition by Brettun Crapster and Louise Bangs, the other heirs being the executors of said estate, said notice being in conformity to the order of this court heretofore in that behalf made, and is good and sufficient.”
It will be seen that while the court ordered notice to be served upon the heirs at law and all'persons interested, it specifically designated the testator’s grandchildren, Brettun Crapster and Mrs. Bangs, as the sole heirs at law, • ignoring entirely the interests of the infant, Milton A. Bangs. Notice was served upon Mrs. Bangs, the mother of Milton A. Bangs, but such notice did not inform her that the rights of her child would be in any manner affected by the proceedings; it only called her attention to her own interests therein. If she had been served with a notice as the guardian of her child, a different question would be presented.
When it is remembered that the parents of. this child knew of the pendency of these proceedings, it seems like a useless formality to require service of notice upon the babe in his mother’s arms. At the same time, this babe, though helpless, had the legal capacity to be, and was, the owner of the fee-simple title to the land about to be sold. His interests might have been best conserved by resisting the sale, but he was unable to determine what his rights were or how they might be protected. Courts have always been especially careful and vigilant in protecting the property rights of infants, and the extreme youth and helplessness of this plaintiff in error at the time of this sale were sufficient to furnish a strong appeal to the conscience of the court to interpose in his behalf, at least to the extent of providing him with a competent guardian, who would see that his interests were protected. Nothing of this kind, however, was done; the babe’s rights were ignored.
It is a fundamental and universal rule of law that no person can be judicially devested of any property right without notice thereof and.an opportunity to be heard, and this rule applies to old and young alike. In the case of Galpin v. Page, 85 U. S. 350, 21 L. Ed. 959, it was said:
“It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.” (Page 368.)
The rights of this plaintiff in error, Milton A. Bangs, have been disregarded; they were not even considered. Therefore the sale complained of is void.
The judgment of the district court is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether a tax deed is valid upon its face, no attack having been made upon it within five years from the date of its record. ' The deed is in the following form:
“Know All Men by These Presents: That whereas the following described property, viz., northwest quarter of section one (1), township twenty-seven (27) south, range nineteen (19) west of the sixth principal meridian, situated in the county of Kiowa and state of Kansas, was subject to taxation for the year A. D. 1893; and whereas the taxes assessed upon said real property for the year aforesaid remain due and unpaid at the date of the sale hereinafter mentioned; and whereas the treasurer of said county did, on the 4th day of September, 1894, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Tuesday of September, 1894, expose to public sale, at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of taxes, interest and costs then due and remaining unpaid upon said property; and whereas, at the place aforesaid, said property could not be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for said county for the sum of $11.34, the whole amount of tax and charges then due on the whole of the above-described property; and whereas, for the sum of $67.07, paid to the treasurer of said county, on the 24th day of May, 1898, the county clerk' did assign the certificate of sale of said property and all the interest of said county in said property to D. M. Brower, of the county of-, and state of-; and whereas the subsequent taxes of the year 1897, amounting to the sum of $6.95, have been paid by the purchaser as provided by law; and whereas three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: •
“Now, therefore, I, E. A. Northrup, county clerk of the county aforesaid, for and in consideration of the sum of $74.02, taxes, costs and interest due on said land for the years 1893, 1894, 1895, 1896, and 1897, to the treasuTer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said D. M. Brower, his heirs and assigns, the real property hereinbefore described, to have and to hold unto him, the said D. M. Brower, his heirs and assigns, forever, subject, however, to all rights of redemption as provided by law.
“In Witness Whereof,” etc.
The objections urged against this'deed are: Want of authority on the part of the treasurer to execute, and of the county clerk to assign, the tax-sale certificate; the failure of the deed to show the correct amount of taxes and charges due on the land when the certificate was assigned; and the failure to include the taxes for the year 1897 in the amount for which the certificate was assigned.
The first objection is pressed no further than to say that the officers had no right to act except with reference to correct amounts. The proposition presented in the last objection was determined adversely to the plaintiff in error in the case of Gibson v. Trisler, 73 Kan. 397, 85 Pac. 413. The decision of the controversy turns, therefore, upon the consideration for the assignment of the tax-sale certificate.
The form for tax deeds prescribed by the statute does not require that the amount paid for the assignment of a tax-sale certificate after land has been bid in by the county shall be itemized, or that the sources of the consideration be stated. The following is all that is necessary: *
“And whereas, for the sum of- dollars and -:— cents, paid to the treasurer of said county, on the-day of-, the county clerk did assign the certificate of sale of said property, and all the in terest of said county in said property, to said E. F., of the county of-and state of-.” (Gen. Stat. 1901, § 7676.)
The amount to be inserted is the cost of redemption at the time the assignment is made. This amount may be the sale price, with interest, or it may also include the taxes and charges for subsequent years if the taxes for such years have not been paid. Taxes paid by the assignee subsequently to his acquisition .of the certificate of sale are to be stated independently of the consideration for the assignment, as indicated by other parts of the form. Analyzing the consideration stated in the foregoing deed, it clearly includes the taxes for the year 1897 in the sum of $6.95. Deducting this amount from the total consideration, the remainder is the sum stated by the deed to be the consideration for the assignment of the certificate, $67.07. There is nothing on the'face of the deed to show that this was not the actual cost of redemption on May 24, 1898, and the deed is not to be presumed to be irregular. Of the sum stated, the original sale price of the land with interest computed according to the statutory rule amounts to $17.67. The remainder, $49.40, is the cost of redemption for years other than 1893 and 1897. That there were other years in which taxes accrued is shown by the recital immediately preceding the grant of the land — that is, the years 1894, 1895 and 1896.
If the statutory form rendered .it necessary to show how the consideration for the assignment of a certificate is in any case derived the objection of the plaintiff in error might be more serious; but since every matter required by the statute to be stated in the deed duly appears in the prescribed order, and other recitals do not impeach the correctness of the consideration stated, the deed is valid on its face.
The record shows that other objections to the deed 'in question, argued in the briefs and at the bar, were not presented by plaintiff in error to the trial court, and that tribunal will not be reversed for something' which it had no opportunity to consider.
The judgment of the district court is affirmed.
The same questions are presented in case No. 14,630, Robbins v. Phillips, and the judgment of the district court in that action is likewise affirmed.
All the Justices concurring. | [
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Per Curiam:
On the rule to show cause why the de fendant should not be punished for contempt of thl judgment of this court he makes a special appearancj and insists that the citation served upon him is nc legal process, and that jurisdiction over him can onl| be acquired by the issuance of a writ of attachmer and an arrest under it. (Gen. Stat. 1901, § 1983.)
The supreme court is a constitutional tribunal, and has inherent power to punish for contempt and to determine whether a contempt has been committed. Assuming, however, that the statute relating to indirect contempts controls, the issuance of an attachment and the arrest of a defendant under it are not necessary to initiate the proceedings nor to give jurisdiction. When it is brought to the attention of the court that a person is guilty of contempt the court may issue such process as the circumstances of the case may require. An attachment may issue, but its issuance is not an absolute requirement, as the statute provides that other legal process may issue. A citation is an appropriate process, which has the sanction of long usage and may be fairly regarded to be such legal process as will bring the defendant into court. The essential thing is that the defendant shall have notice and opportunity to explain or purge. The initial step, whether by attachment or citation, is only preliminary to a formal accusation, to which defendant is required to answer, and upon issue thus joined trial is to be had. An arrest is a harsh proceeding, one which may be wholly unnecessary, and is a method which should never be employed unless required by the circumstances of the case.
We think that a citation is legal process within the meaning of the statute, and therefore the motion to quash the rule to show cause is denied. | [
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The opinion of the court was delivered by
BURCH, J.:
This proceeding in error was instituted to reverse an order of the district court denying an application to open a judgment rendered upon publication service. The practice in such cases is regulated by section 77 of the code of civil procedure, which reads as follows:
“A party against whom a judgment or order hag been rendered, without other service than by publica tion in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter affidavits to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.” (Gen. Stat. 1901, § 4511.)
. All the requirements of the law were complied with if the answer filed was a “full answer.” The judgment was rendered under the act of 1901 relating to the collection of delinquent taxes on real estate and providing a remedy by way of sale under a court decree. (Laws 1901, ch. 392; Gen. Stat. 1901, §7718 et seq.) The court found the amount of taxes due on the defendant’s Iqnd to be $115.08. The answer tendered shows that this amount includes taxes levied for seven successive years, without any authority of law, on account of the “current university fund,” amounting to sixty cents; taxes levied for two years, without any authority of law, on account of what was called a “fire tax,” amounting to five cents; and an illegal advertising fee amounting to thirty cents. Interest on these charges is also included in the judgment, so that one per cent, of it, at least, is illegal. It.is conceded that the answer is drawn with due observance of all matters of form.
The plaintiff argues that the answer is not a full answer because it presents a partial defense only; that if its allegations were true the judgment would not be materially modified as to amount; and that the same decree of sale would have been entered if the defense had been proved at the trial.
The statute was- designed to enable the courts to do right between litigants, and should be construed in the spirit of fairness which prompted its enactment. When the conditions of the statute have been complied with the court has no discretion in the matter. The judgment must be opened. (Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614.) In the case just cited Mr. Justice Brewer, speaking for the court, said:
“Indeed, in order to do justice to both parties, the provisions of that section [Code, § 77] should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done consistent with the rights of other parties. The section provides ample protection to third parties dealing with property on the faith of the judgment, and the plaintiff certainly has no right to complain if within a reasonable time, which by statute is fixed at three years, the defendant demands an opportunity of litigating with him the justice of the claim. In fact, a judgment upon service by publication is as between the parties in the nature of a conditional judgment, one which becomes final and absolute only at the expiration of three years, and liable in the meantime to be opened whenever the defendant brings himself within the provisions of the section.” (Page 445. See, also, Sperring v. Hudson, 37 Kan. 104, 106, 14 Pac. 489.)
In the case of Durham v. Moore, 48 Kan. 135, 29 Pac. 472, it was said that a “full answer” means an answer “not wanting in any essential requisite; a meritorious answer.” (Page 136.) Manifestly great injustice might result if the answer were required to meet the entire cause of action presented by the petition, or every part of each cause of action, if there should be several. Pressed to its logical result such a doctrine would forbid the opening of a tax judgment if ninety-nine per cent, of the cause of action were illegal, the remaining one per cent, being unanswered. This being true, the statute should be interpreted to mean that the answer must be full and complete as a pleading by the defendant in the cause. It need not present a defense coextensive with the entire demand, or with every demand, of the petition, but whatever defense it proposes must be complete and perfect in the sense of fully overcoming the portions of the plaintiff’s claim against which it is directed, and it must subvert sufficient of the cause of action set forth in the petition to make it worthy .of. consideration in the doing of substantial justice between the parties.
It is true the suit is an ordinary one to foreclose a' lien. The state is simply given a remedy by suit for the collection of its revenues, in addition to the usual administrative methods. The proceeding is judicial, follows the common course of civil proceedings generally, and the deed issued in consummation of a sale is not a tax deed. (English v. Woodman, 40 Kan. 412, 20 Pac. 262; McGregor v. Morrow, 40 Kan. 730, 21 Pac. 157; Pritchard v. Madren, 31 Kan. 38, 2 Pac. 691, interpreting the statute of 1877.)
The suit, however, is in effect one by the sovereign for the arbitrary appropriation of the private property of the individual. The claim of the state is almost invariably made up of sums of money which, separately considered, would be of little importance in ordinary commercial transactions, and usually the entire amount to be collected is so disproportionately small when compared with the value of the security that the proceeding presents all the harsh features of a forfeiture. Under these circumstances items which would be disregarded in suits upon contracts become formidable. Here, as in the case of other judgments, trivial mistakes, inconsequential errors and slight irregularities should be overlooked. They may inhere in a tax judgment and it still be just. But the intentional imposition of specific burdens for designated purposes not sanctioned by any provision of law cannot be tolerated, even although the amounts be small. Innocent purchasers of the property must of course be protected, but, this being done, to refuse to listen to the protest of the taxpayer would be to foster tyranny.
The court is not called upon to name the lowest sum of which cognizance should be taken. It merely decides that the answer tendered to the district court complied with section 77 of the code. (Gen. Stat. 1901, § 4511.)
The judgment of the district court is reversed and the cause remanded, with direction to proceed further in accordance with the views expressed in this opinion.
All the Justices concurring. | [
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Per Curiam:
This is an appeal from a conviction and judgment fining the appellant $50. The state moves to dismiss, and assigns various reasons, none of which is considered sufficient. The bill of exceptions does not disclose the commission of any error prejudicial to the appellant, therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Ejectment to recover lot 18, block 3, in the town of Syracuse. Defendant had, judgment below, and plaintiffs bring the case here for review. Plaintiffs relied upon a deed from the owner of the fee. Defendant claimed under a conveyance of a tax title, and the only questions involved relate to the validity of the tax deed. The tax deed was issued January 4, 1894, and recites that twenty-two lots in fifteen different blocks in the town of Syracuse were subject to taxation for the years 1886, 1887 and 1888. The granting clause conveys to the grantee “the real property last hereinbefore described.” The last description in the former recitation is lots 2, 3, 4, and 5, block 40. The deed shows that all of the twenty-two lots were sold together for a gross sum.
In Cartwright v. McFadden, 24 Kan. 662, the deed described several odd-numbered lots, with nothing to indicate that they might not lie side by side without being divided by streets, and it was held that they might be contiguous and the deed was declared not void on its face. It was said in that case that if the deed showed the lots to be separate and distinct tracts of land it would be void on its face. Here it is ap parent that the fifteen blocks were separated by streets, and the several lots mentioned, therefore, separate and distinct tracts of land. The deed was void on its face because it recited a sale in gross of separate and disconnected tracts of land.
Another question in this case is whether these defects in the deed were cured by chapter 242 of the Laws of 1901, which reads as follows:
“An act to legalize the official acts of county officers of Hamilton county, Kansas, in relation to the compromising of delinquent taxes of said county for the years 1892 to 1900, inclusive.
“Be it enacted, by the legislature of the state of Kansas:
■ “Section 1. That the acts of the board of county commissioners, county clerks and county treasurers of Hamilton county in relation to the compromising of the delinquent taxes- of Hamilton county, on tax certificates held by said county for the years 1892 to 1900, •each inclusive, are hereby declared legal and valid, any errors or irregularities to the contrary notwithstanding, and the tax deeds issued by the county clerks on any of such tax certificates so compromised are hereby declared legal and valid.
“Sec. 2. This act shall take effect and be in force from and after its publication in the statute-book.”
It is the contention of the defendant that this act applies and cures the defects. Plaintiffs, on the other hand, question the power of the legislature to enact a law which it is claimed has the effect to declare a deed conclusive evidence of compliance with those requirements essential to the valid exercise of the taxing power. It is not necessary, however, to decide that question here, for the reason that, conceding the validity of the act, it has no possible bearing upon the defects of the tax deed. The act only attempts to legalize certain acts of the county officers of Hamilton county in the compromise of delinquent taxes for the years 1892 to 1900. Defendant is forced to place such a violent construction upon this language as to have it apply to the taxes for the years 1886, 1887 and 1888, if compromised during the years mentioned in the act. It is said that the language of the act has reference to the time of the compromise and not to the years the taxes were levied; but the expression “taxes for” a certain year is one the meaning of which is so well established by usage that there is no room for dispute.
For another reason the act has no application: It purports to legalize the things done by the officers in the compromise of taxes, and could not have been intended to cure defects which had no reference to the compromising of taxes and which could not have been within the intent of the legislature. If the legislature had intended to provide for a sale of distinct and separate tracts of land in bulk, or to alter the form and requirements of tax deeds, somewhere in the act words would have been employed to indicate such purpose.
Defendant has still another .contention which must be passed upon: Plaintiffs are only entitled to' recover on the strength of their own title and not upon the weakness of the title of the defendant, who has the actual possession. (O’Brien v. Bugbee, 46 Kan. 1, 26 Pac. 428.) On the trial plaintiffs’ proof of title ran back to a patent from the state of Kansas to the Atchison, Topeka & Santa Fe Railroad Company. They proved no conveyance from the United States, the primary owner of the soil, to the state of Kansas, and it is urged that this failure on their part left a fatal gap in their title. In Neer v. Williams, 27 Kan. 1, Mr. Justice Brewer used this language:
“If the grantor has no title,, neither patent nor deed conveys anything. The state is not the primary owner of the soil, and until title is shown from the United •States to the state, a patent from the state of Kansas is no more than mere waste paper.” (Page 65.)
It is contended that the court will take judicial' notice of the acts of congress and that this is an odd-numbered section; but it is urged that the court cannot take judicial notice of when and where the railway line of the Atchison, Topeka & Santa Fe Railroad Company was definitely located, or whether this particular odd- numbered section lies within the limits of that grant and of such location. We are unable to agree with defendant upon this proposition. In the case of G. C. & S. F. Ry. Co. v. The State, 72 Tex. 404, 10 S. W. 81, 1 L. R. A. 849, 13 Am. St. Rep. 815, it was said:
“But the authorities cited show that we must take notice of the geography of the state, and at least of its navigable streams. It is a matter of history that important lines of railroad once established have remained as fixed and as permanent in their course as the rivers themselves. They supersede in the main all other modes of travel between the points which they touch and become as well if not better known than any other geographical feature of the country. Their locality becomes ‘notorious and indisputable.’ ” (Page 410.)
In volume 1 of Wharton on the Law of Evidence, section 339, it is said:
“A court is bound to take judicial notice of the leading geographical features of the land, the minuteness of the knowledge so expected being in inverse proportion to distance.” (See, also, Peyroux and others v. Howard and Varion, 32 U. S. 324, 8 L. Ed. 700; 17 A. & E. Encycl. of L. 944.)
This court, of course, will take judicial notice of the act of congress referred to in the patent from the state to the railway company, and we are of the opinion that the court should also take judicial notice of the fact that this odd-numbered section 7, conveyed by the patent from the state to the railway company, lies within the limits of the congressional grant and within the limits of the line of the road as permanently located.
Plaintiffs’ title was sufficient to entitle them to a judgment. The tax deed under which defendant claimed being void on its face, the judgment is reversed, and the cause remanded with instructions to render judgment for the plaintiffs.
All the Justices concurring. | [
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The opinion of the court was delivered by
BURCH, J.:
Appellant was convicted of the crime of carnally knowing a female under the age of eighteen years. The principal errors assigned are that in his opening statement 'to the jury the county attorney related facts which he expected to prove concerning the relations of appellant and the prosecutrix occurring subsequent to the date of the crime charged, and involving other punishable offenses; that evidence of the character outlined in the opening statement for the prosecution was introduced; that the cross-examination of appellant as a witness in his own behalf was unduly extended; and that the evidence was insufficient' to support one of the material allegations of the information.
If the evidence itself was proper the statement of it to the jury was proper. Therefore the first two propositions present but one legal question. The evidence need only be sketched. It discloses an agreement between two young people to marry; a lustful desire on the part of the appellant to enjoy his betrothed, which was gratified on the night of May 10, 1902, a month before she was capable in law of giving her consent; temporary grief and seeming repentance for the act and a vow against its repetition; Sunday visits, evening calls three or four times a week, attendance upon church and balls together, and otherwise intimate relations, until August, 1903, when another act of sexual intercourse occurred; pregnancy of the prosecutrix, her' submission to an attempt at an abortion with medicine procured by appellant, renewed promises to marry, and statements on his part concerning preparations for a place for them to live; his flight to the state of Washington, and the birth of her babe in May, 1904.
Counsel for appellant insist upon discussing the case as if it were within the rule that one crime cannot be proved by other disconnected offenses, and the authorities for that rule are presented with much unction. Such eases are distinguished by this court in the case of The State v. Borchert, 68 Kan. 360, 74 Pac. 1108.
It is argued with great vigor that acts of sexual intercourse subsequent to. the one charged in the information have no relevancy. Upon this question the courts are divided. This court, in the case just cited, 'came to the conclusion that such conduct may under certain circumstances evidence previous acts of the same kind. Such is the rule in the majority of the states. It is approved by a majority of the text-writers, and will be adhered to in this case.
It is further contended that other of the facts recited occurring subsequent to May 10, 1902, had no ten- • dency to prove the incident alleged to have taken place on the night of that day. On the morning of May 11, 1902, these young people possessed, so far as the record shows, all virtues but that of chastity. It is not probable that they could have met as strangers, suddenly sinned, and parted. Their downfall resulted from a relation of intimacy giving opportunity for the display of overmastering passion. - It is known of all men that some length of time is usually occupied in the formation of such relations between virtuous persons, and when once they are shown to exist it may be concluded with, safety that they have persisted through an appreciable period of the past. Subsequent intimacy does illustrate the prior dispositions of individuals of opposite sex toward, each other, and the question is how far derivable inferences may be carried backward. Manifestly this is, in the main, a question of weight and not of relevancy. In the case of Keller v. Donnelly, 5 Md. 211, 219, an action for seduction, it was said:
“Whilst what occurred when the girl was twenty-three years of age could not give a cause of action, it might serve to illustrate and explain what took place five years previously.”
The question here involved is discussed in all its phases in a learned and philosophical way by Professor Wigmore in volume 1 of his epoch-making work on Evidence, sections 216 and 394 to 402, where the leading authorities are collated. His conclusion is stated as follows:
“The limits of time over which th,e evidence may range must depend largely • on the circumstances of each case, and should be left to the discretion of the trial court. A subsequent existence of the désire is equally relevant with a prior one. It is true that the contingencies of error are different; i. e., in the former case the desire may have been first induced by intervening circumstances, in the latter it may have- been ended by them; but the strength óf these contingencies is no greater in one instance than in the other. If for example the parties have been intimate during the entire year 1890, and an act of adultery is charged on July 1, an adulterous desire on December 31 carries no less persuasive weight than an adulterous desire on January 1. That there is any distinction is generally repudiated.” (§ 399.)
The perturbation of the young people upon the dis.covery of the girl’s pregnancy, the resort to drugs, his flight when her shame could no longer be concealed, and the birth of the child, are all as inseparably connected with the second act of intercourse, so far as evidential value is concerned, as if they had all occurred in a single day. In the light of the full description given of the relations of the parties prior to August, 1903, their mutual passion for each other then, which appellant admitted, rendered probable the crime charged in the information. No doubt proper limitations were placed upon the evidence complained of, since no error is assigned relating to the instructions to the jury.
This court has many times announced rules of great liberality respecting the cross-examination of defendants who take the witness-stand in their own behalf. To apply them to each specific question and answer assigned as error is unnecessary. The court has read the evidence, and is satisfied that the limits of the trial court’s discretion were not transgressed and that no substantial right of the defendant was invaded.
The evidence relating to the continuous absence of the defendant from the state was sufficient.
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.:
Ida K. Smith, as plaintiff, procured a judgment of divorce aghinst her husband, the present petitioner, which contained a recital that all questions relating to alimony, suit money, attorney’s fees, costs and expenses of suit and advancements of money had been amicably settled between the parties. Therefore no judgment other than as described was rendered concerning the subjects of the settlement. Afterward the plaintiff instituted proceedings for a modification of the judgment respecting matters involved in the settlement, alleging that plaintiff’s assent to the arrangement had been procured by false and fraudulent representations of the petitioner and his attorney. The court found against certain of the charges of fraud but sustained others, and modified the judgment by awarding the plaintiff alimony, fixing the time and manner in which it should be paid, and taxing'the petitioner with the costs of the divorce suit. For disobedience of the judgment as modified the petitioner was cited for contempt. His defense was want of jurisdiction in the court to change the original decree, and financial inability to pay. The court found against him on the question of fact, ruled against him on the question of law, and committed him to jail. In this application for a discharge the district court’s conclusion respecting the petitioner’s ability to pay at the time the order of imprisonment was made cannot be reviewed, and if his financial situation has undergone subsequent inhibitive change he should present the facts to the court which deprived him of his liberty. The only question for determination, therefore, is the validity of the judgment which the petitioner failed to satisfy.
The petitioner builds his argument upon certain general statements of the law contained in decisions of this court true in themselves but having no application to the facts of his own case. His premises are found in Mitchell v. Mitchell, 20 Kan. 665, Lewis v. Lewis, 15 Kan. 181, Roe v. Roe, 52 Kan. 724, 35 Pac. 808, 39 Am. St. Rep. 367, and In re Johnson, Appellant, 54 Kan. 726, 39 Pac. 725.
In Mitchell v. Mitchell, supra, the judgment fixed the amount of alimony to be paid. Afterward, in a suit brought for that purpose, the district court modified the judgment on the ground the financial misfortunes of the defendant had rendered him unable to pay. In reviewing the case this court said:
“Alimony allowed to a wife on a decree for divorce from the bonds of matrimony by reason of the fault or aggression of the husband, under the statute in this state, is to be based upon the circumstances of the parties at the time of the divorce, and is not to be modified by subsequent changes in these circumstances. The court has no power, on subsequent application showing circumstances thereafter arising, to increase or diminish the allowance given in the original judgment.” (Syllabus.)
In Lewis v. Lewis, supra, a decree of divorce barred the defendant of all rights in the plaintiff’s property. In a subsequent suit the service upon which this judgment was based was attacked and held to be .inyalid. Therefore the court opened the decree and made a new order respecting the property rights of the parties. In a proceeding in error this court held the service to be good, and concluded as follows:
“Where the decree of divorce contained no other order concerning property than one barring defendant of all right and interest in the property of plaintiff, held, that this order must stand with the decree, and, the decree being undisturbed, the order could not be set aside.” (Syllabus.)
In the case of Roe v. Roe, supra, this court said:
“The final judgment in an action granting a divorce settles all property rights of the parties, and is a bar to an action afterward brought by either party to determine the question of alimony, or any property rights which might have been settled by such judgment.” (Syllabus.)
And in the case of In re Johnson, Appellant, supra, it was remarked that “the divorce and the adjustment of property interests are not to be regarded as transpiring at different .times, but as contemporaneous.” (Syllabus.)
From these quotations it is said to follow that the district court had no power to grant relief against the vicious judgment it had been induced to render. The cases cited were all well decided, but they do not in any way fortify the stability,of a judgment relating to alimony which has been procured by fraud.
In her petition for divorce Mrs. Smith prayed for alimony. She made it an issue in the case. The decree granted no alimony, and was binding upon her to the same extent as if her claim had been expressly denied. The judgment gave the reason for its failure to pronounce further upon the subject, and concluded the parties as other final judgments bind other litigants. But this judgment, which deprived the plaintiff of an enforceable court order for adequate alimony, was procured by fraud. Therefore it was impeachable for fraud, like other judgments so affected. There is no distinction in this respect between judgments in divorce cases and judgments in other cases. The defendant’s dishonesty.having left its mark upon that portion of the judgment only which undertook to respond to the plaintiff’s 'claim for alimony, that portion alone needed purging. The provision divorcing the parties was not tainted and there was no reason for disturbing it.
If the reason for attacking the judgment had been furnished by some fact which touched upon the court’s authority to proceed at all the judgment would have stood or would have fallen as an entirety, as in the Lewis case. But for the petitioner’s fraud there would have been a contemporaneous adjustment of all the rights of the parties, as contemplated by the Johnson case. The court did not grant relief upon any change of circumstance or condition after judgment, as in the Mitchell case. It merely did what would have been done but for the petitioner’s deceit. If the plaintiff had altogether neglected to seek a determination of her right to alimony, as in the Roe case, she would have been remediless. But, having sought a righteous adjudication of the matter at the proper time, and having been circumvented by the petitioner’s machinations, the district court still had the power to do justice. The petitioner is remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Complaint was made in writing before a justice of the peace charging James Clark with a felony. A warrant was duly issued, upon which he was arrested and brought before the magistrate. He waived a preliminary examination and was bound over to the district court. In default of bail the following commitment was issued and executed:
“State of Kansas, Logan County, ss.
“The State of Kansas to the Sheriff of said County,
Greeting:
“Whereas, It appearing that the offense of grand larceny has been committed, and there is probable cause to believe that the defendant, James Clark, is guilty of the commission of said offense; and, whereas, no sufficient bail has been offered in said defendant’s behalf, for his appearance at the next term of the district court of said county, to answer said charge alleged against him; you are therefore commanded to take and commit the said defendant to the jail of Logan county, there to remain until he shall be discharged by law. And deliver this writ to the jailer thereof.
“Witness my Hand,” etc.
On the back of this writ was indorsed the following: “Bail required, $300 dollars.”
The accused remained in jail until the next term of the district court, when he waived arraignment and pleaded not guilty to an information which in the meantime had been filed. On the next day after these proceedings the district court made the following order, which was duly entered upon the journal:
“And now on this 15th day of April, 1903, it being the succeeding day of said term, this cause comes on again for hearing, and is upon the application and consent of both plaintiff and defendant continued until the next regular term of this court, and defendant is ordered to recognize in the sum of $500 for his proper appearance at said term of said court, and in default thereof to be committed to the county jail of said Logan county.”
The sheriff continued to keep the accused confined in jail until July 8, 1903, when his release was procured by giving to the sheriff the following recognizance (formal parts omitted) :
“Whereas, Upon good cause shown, the above-entitled action is this 15th day of April, 1903, continued for trial unto the next term of the district court for Logan county: Now, we, the undersigned, residents of Logan .county, Kansas, bind ourselves to the state of Kansas in the sum of $500 that said James Clark shall be and appear before the judge of the district court for Logan county to answer the information in said cause presented and filed against said James Clark and abide the judgment of the above-named court, and not depart the same without leave. James Clark, Principal.
“B. O. McKie,
James McKie,
Jane E. Daykins,
Sureties.
“Approved by me this 8th day of July, 1903.
J. E. Nolind, Sheriff of Logan County.”
The recognizance was duly certified to the clerk of the court and recorded in the recognizance docket. The original commitment was filed with the justice of the peace who issued it and by him transmitted to the district court with the other papers in the case. Apparently a certified copy of the journal entry of April 15, 1903, was not delivered to the sheriff and at the time the- recognizance was taken he had in his possession no written document commanding the detention of the prisoner.
The accused did not appear, the recognizance was duly forfeited, and in an action against the sureties it was claimed that the foregoing facts show the principal in the recognizance was not in legal custody when it was given, that the sheriff had no authority to take it, and hence that it created no liability. Judgment was rendered for the state, and the same propositions are urged in this proceeding in error.
The authority of the sheriff to take bail may be rested upon the provisions of section 143 of the code of criminal procedure, which reads as follows:
“A sheriff or other officer arresting a person under a warrant or other process, or holding a person in custody under a mittimus, in or upon which warrant or mittimus it shall appear that the person is to be admitted to bail in a specified sum, may take the bail and discharge the person from actual custody.” (Gen. Stat. 1901, § 5585.)
The original commitment was issued in strict com pliance with section 56 of the code of criminal procedure, which reads as follows:
“If the defendant is committed to jail, the magistrate shall make out a written order of commitment, signed by him, which shall be delivered to the jailer by the officer who executes the order of commitment. He shall indorse upon the order of commitment the sum in which bail is required.” ' (Gen. Stat. 1901, § 5496.)
That instrument contained a command to keep the accused in custody until he should be discharged by law, and constituted continuing lawful authority to hold the prisoner until it was supplanted by something sufficient for the purpose. • If it be true that the order of the district court did not ipso facto create a new and paramount authority for the detention of the prisoner, and could not do so until a copy of it under seal was placed in the sheriff’s hands, then the original writ was not superseded and custody by virtue of it continued to be lawful. The case is quite like that of The State of Mississippi v. Brown, 32 Miss. 275. After indictment found the accused was arrested upon a capias and held in custody. A mistrial ensued and an order was entered of record that the sheriff admit to bail in a sum named, with good security. The sheriff took a recognizance, which was broken, and in reversing a judgment discharging the sureties the court said:
“It is held in Pace v. The State, 25 Miss. 54, that, under the provisions of the act of 1822, Hutch. Code, 444, § 13, the sheriff is only authorized to take a recognizance of bail from a party whom he may arrest on the process of a circuit court.
“In this case it appears that the accused had been arrested under such process, "and for aught that appears in the record was in custody under that arrest at the time of the mistrial. He must be considered as in custody under the original arrest until it be shown that he was duly discharged. The order made by the court after the mistrial was in effect an order of recommitment until the defendant should give bail; and he was not discharged until he was bailed in virtue of the recognizance taken by the sheriff. He was in the meantime in custody under the original arrest by virtue of the process from the circuit court, and in such cases the sheriff has authority by the act above mentioned to take recognizances.” (Page'277.)
The commitment described in section 56 of the criminal code (Gen. Stat. 1901, § 5496) is in fact a common-law mittimus, and is within the purview of the language of section 143 (Gen. Stat. 1901, §5585). The fact that the order of the district court was effectual from the time of its making to increase the amount of bail and that the larger sum was not indorsed upon the mittimus did not change the character of the custody or deprive the sheriff of authority to ‘take bail. Such an omission is a mere irregularity within the meaning of section 154 of the criminal code, which reads as follows:
“No action upon a recognizance shall be defeated, nor* shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or magistrate to note or record the default of any principal or 'surety at the term or time when such default shall happen, or of any other irregularity, so that it. be made to appear that the defendant was legally in custody charged'with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties, undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.” (Gen. Stat. 1901, § 5596.)
Under this statute a recognizance would be good if, after bail had been fixed, no indorsement whatever of the amount were made upon the writ of detention. In the case of Trimble v. The State, 3 Ind. 151, a statute similar in terms to the one just quoted was relied upon to sustain a judgment upon a recognizance. The report of the decision reads:
“The sheriff has no power to fix the amount of bail; and a recognizance wherein said amount was fixed by him would, therefore, probably be void. But the sheriff has a right to take a recognizance in a sum fixed by the court, or an associate judge; and when he does take one in such a sum we do not think it void by reason of an omission, in the proper officer, to indorse such sum upon the writ. The plea, in this case, did not deny that the amount of bail had been fixed by the proper authority, nor that the sheriff took it in the amount fixed; but it simply denied that the amount had been indorsed upon the writ, and was, therefore, as we think, insufficient.” (Page 158.)
In the case of State v. Creech, 69 Mo. App. 877, 381, it was said:
“It further appeared that the amount of the bail-bond was fixed by an order of the court. This authorized the sheriff to take the bond, although there was no specification of said amount on the warrant. State v. Jenkins, 24 Mo. App. 433.”
The opinion in State v. Jenkins, swpra, reads thus:
“This was, accordingly, a case where the sheriff had the defendant, Jenkins, in custody ‘under warrant of commitment on account of failing to, find bail,’ within the language of section 1832, Revised Statutes; and he accordingly had the power to take the recognizance under the terms of the statute, unless we are to hold that he had no such power because the amount of bail required, instead of being ‘specified on the warrant,’ as the statute recites, had been fixed by an order of court entered of record. So to hold would be to stick in the bark of the statute.” (Page 434.)
In the case of George v. The State, 3 Kan. App. 566, 43 Pac. 850, the syllabus correctly states the law, as follows:
“When a prisoner is legally in custody, charged with a public offense, and the justice of the peace has ' ordered that he be released from such custody upon furnishing a sufficient recognizance in the sum of $300 for his appearance at the next term of the district court, and such a recognizance is furnished and is approved by the sheriff, and the prisoner is discharged from custody and given his liberty by reason of giving such recognizance, held, that upon a forfeiture of such recognizance a recovery thereon cannot be defeated because the justice of the peace neglected to indorse upon the order of commitment the amount of bail required.”
The fact that the sheriff did not retain personal possession of the commitment did not destroy his authority. The document was easily accessible and could have been produced at any time in justification of his conduct. Its preservation was a matter of importance, but the prisoner was in lawful custody under it and bail might have been taken by virtue of it even if it had been lost or if the sheriff had destroyed it.
“The sheriff undoubtedly derives his power to take the recognizance, under section 2788 of the code, from the judgment of the justice of the peace making the commitment; and his action must strictly conform to the requirements of the judgment. This judgment is certified to him by the mittimus, but the loss of the certificate does not vacate the judgment, nor deprive the sheriff of the authority to take bail. If notwithstanding its loss he does take a recognizance in exact conformity with the judgment - of the court, as set forth in the missing mittimus (as is affirmatively shown to have been done in the case at bar), the obligation will be valid and binding upon the principal and his sureties.” (Cornwell v. State, 53 Miss. 385, 390.)
The case under consideration is clearly distinguishable from that of The State v. Beebe, 13 Kan. 589, 19 Am. Rep. 93, the syllabus of which reads:
“Where a person charged with the commission of a criminal offense is at liberty on bail, and his sureties, with his consent, but without any copy of the recognizance, deliver him to the sheriff, taking his receipt therefor, held, that the sheriff, without having any copy of the recognizance, cannot lawfully hold the accused in custody against his will; and, therefore, that the accused in such a case may escape from the custody of the sheriff without committing a felony, and also that any other person may assist him to escape without committing a felony.”
When bail has been given and a prisoner discharged, all process for his detention becomes functus officio; and if the sureties afterward return him to custody the sheriff must have new authority for holding him. The statute makes express provision for such cases, as follows:
“The bail must deliver a certified copy of the recognizance to the sheriff, with the principal; and the sheriff must accept the surrender of the principal and acknowledge it in writing.” (Crim. Code, § 150; Gen. Stat. 1901, § 5592.)
In view of this statute the court rightly observed:
“There is no authority anywhere given to the sureties on a criminal recognizance to arrest their principal, or to hold him in custody, or to deliver him to the sheriff, without a copy of the recognizance; and there is no authority anywhere given to the sheriff to receive such principal, or to retain him in custody, unless he is also furnished with a copy of the recognizance. If the sheriff can hold a person in custody under such circumstances, without such copy, it is by virtue of some authority not found in the statutes. . . . Where a person' has been arrested on a criminal charge, and afterward set at liberty on a recognizance, then he is as much entitled to his liberty as he ever was before, and cannot again be deprived of his liberty except by following the law. There can be no, excuse for again arresting him, or holding him in custody, without written authority.” (The State v. Beebe, 13 Kan. 589, 595, 19 Am. Rep. 93.)
The case of The State v. Hollon, 22 Kan. 580, has no application to the facts of this controversy.
The only authority which can be given to a sheriff to execute a sentence is a certified copy of the judgment of the court pronouncing it. (Crim. Code, § 256; Gen. Stat. 1901, § 5701.) In such a case the full jurisdiction of the court has been exercised. The prisoner is no longer held as a subject of its orders, to be made from time to time. Detention for lack of bail is at an end. A new and affirmative step is to be taken, which nothing but the statutory kind of process can justify. Hence, as the court held, if a person sentenced to confinement in the penitentiary break away from a sheriff who is attempting to convey him there without possess ing a certified copy of the journal entry of the. judgment, he is not guilty of an escape.
In this case Clark was, at the beginning, rightfully imprisoned by the sheriff under a mittimus duly issued, upon which bail in a specified sum was indorsed. Lawful at its inception, the custody could not become unlawful until something occurred producing such result ; and once in existence, the power to take bail continued until some new fact revoked it.
The order of the district court was a further-command of record to continue to keep the prisoner in custody until bail in an amount specified should be furnished, and since the prisoner’was already in proper confinement it is difficult to perceive what function of substance a certified copy of the order had to perform.
“The record of the common pleas shows the order to commit made in open court. In such case a mittimus is not necessary — the order in court to the sheriff is his authority, and the evidence of it being preserved of record no writ or copy of the order was necessary.” (The State for Webb v. Heathman, Wright [Ohio] 690, 691,)
“A prisoner who has been properly and legally sentenced to prison cannot be released simply because there is an imperfection in what is commonly called the mittimus. A proper mittimus can, if needed, be supplied at any time, and if the prisoner is safely in the proper custody there is no office for a mittimus to perform.” (The People, ex rel., v. Baker, 89 N. Y. 460, 465.)
“But it is said further that the sheriff did not hold the prisoner under such authority as authorized the sheriff to take the bail. It fully appears that the sheriff held the prisoner under the judgment of this court reversing and remanding the cause and the specific direction therein to commit the prisoner to the Lincoln jail and the keeper thereof to await the action of the circuit court. No higher or greater authority is required by the law. The circuit court fixed the bail, and under these circumstances the sheriff, being in charge, accepted the bail. This is enough. Section 4380, Revised Statutes 1889, provides that it is sufficient if ‘it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at a term or time specified for trial.’ State v. Morgan, 124 Mo. 479, 28 S. W. 17. All of which amply appears in this record and the statute answers all the points made against the judgment. It is a wise and wholesome piece of legislation and should be enforced in the spirit of its enactment. There was no error in permitting the sheriff to testify he received the prisoner from the marshal of the supreme court and held him under the judgment of this court.” (State v. Austin, 141 Mo. 481, 487, 48 S. W. 165.)
This court has remarked upon several occasions the sweeping effect of section 154 of the criminal code (Gen. Stat. 1901, § 5596) upon the old law relating to recognizances. It creates a statutory estoppel against the pleading by the obligors in such instruments of any but the most substantial defenses. As the supreme court of Arkansas has well said:
.“This is not a criminal prosecution, but a common suit upon a bond for money, an action to enforce a civil contract between these sureties and the state. And we know of no rule requiring any greater strictness in construing this law than any other legislative act upon civil contracts, and instead of adhering to the utmost strictness, as in prosecutions for high crimes, we must give the law a fair and liberal construction to carry out the provisions of the statute and enforce the contract in the spirit of the law, and as it was understood between the parties, and such construction is clearly what was intended by the legislature, as shown by section 80 of the criminal code, in which it is enacted that no ‘irregularity, so that it be made to appear that the defendant was legally in custody charged with a public offense, and that he was discharged therefrom by reason of the giving of the bond or recognizance, and that it can be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate for the trial thereof, etc., shall render the bail-bond or recognizance invalid.’ ” (Pinson et al. v. The State, 28 Ark. 397, 400.)
The sheriff is an officer who has authority to take bail. Assuming the order of the district court to be of a higher character than the writ issued by the justice of the peace, it properly may be regarded as a precept of commitment in which bail in a specified sum appeared; and if strict formality required that a copy of it be issued to the sheriff, the failure to do so was an irregularity merely, the prisoner continued to be in lawful custody, and the sheriff had authority to take bail and discharge him.
The time and place of holding the next term of the district court of Logan county after April 15, 1903, were fixed by law, and all the matters specified by section 154 of the criminal code sufficiently appear in the recognizance.
No injury is shown to have resulted from the overruling of an objection to the admission of certain depositions because, though in the custody of the clerk, they had not been marked filed one day before the trial. Hence, the error, if any were committed, was not prejudicial. If the defendants had been misled or overreached in any particular, a different ruling might have been required.
“True, it was the duty of the clerk when he received it to have marked it filed. (Code, §§ 710-712.) But it was a purely formal act, which having been omitted the court should have ordered done at once. The omission of the clerk to note the fact of filing should not deprive the party of the right to use this testimony.” (Hogendobler v. Lyon, 12 Kan. 276, 281.)
One of the defenses to the action was that the principal in the recognizance was killed by accident in the city of Omaha, Neb., before forfeiture, and evidence to that effect was introduced. On the part of the state various officials of the city of Omaha, and of Douglas county, Nebraska, in which it is situated, testified to keeping, by virtue of city ordinances and state laws, records of deaths by accident in the city and county, upon which records the death of Clark did not appear. It is urged that the official character of the records was not proved by competent evidence. The legal authority for the records was a collateral matter. The fact that records actually were kept was the important thing and furnished a basis for the testimony to w;hich objection is made.' The weight of the evidence was materially increased because the witnesses believed they were acting under the compelling force of valid statutes and ordinances. If, however, those enactments had been in fact invalid, because, for example, they were unconstitutional, the evidence could not be rejected on that ground.
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.:
E. F. Sprague brought an action to recover damages for the destruction of - a planing-mill by fire, alleged to have been caused by sparks from a defective engine. It was claimed that the sparks ignited wooden coal-sheds and other structures owned or controlled by the railway company and located on its right of way, and from which the fire spread to the planing-mill. A former judgment in favor of the railway company was reversed and a new trial ordered on account of error in the instructions. (Sprague v. Railway Co., 70 Kan. 359, 78 Pac. 828.) From a judgment in favor of plaintiff the railway company now brings error. The petition set up the following, in addition to other acts of negligence:
“Said defendant railway company, contrary to its duty in that regard, by itself and its, agents and servants,'carelessly and negligently failed to have and keep its grounds and right of way in said city free and clear from dry and combustible materials, and carelessly and negligently permitted dry and combustible wooden sheds and wooden buildings, with wooden roofs, to be and remain upon its said grounds and right of way, close to its railroadrtracks, and where they were liable to and would be ignited by sparks and fire from its engines.”
The court instructed the jury as follows:
“I instruct you that it was the duty of the defendant railway company to keep its grounds in close proximity to its tracks owned and held by it for use in the operation of its road free and clear from combustible material and structures, in order that fires should not be set out and communicated by its engines. And if you should find from the evidence that the defendant did not do so, but negligently permitted combustible material and structures to be and remain on its grounds in close proximity to its tracks owned and held by it for use in the operation of its road, and that the same took fire from said engine No. 2319 of defendant, and that such fire spread to the plaintiff’s property and caused the fire in question, which plaintiff claims destroyed his property, and if you should also believe that the plaintiff was not guilty of contributory negligence, then your verdict should be for the plaintiff in such sum as the evidence shows he was damaged by reason of such fire.”
' In another instruction the jury were told that it was the duty of the railway company to exercise “ordinary and reasonable care to keep its grounds adjacent to its tracks owned and held by it for use in the operation of its road free and clear from combustible material and structures.” It is seriously urged that this same instruction, in substance, was approved in Railway Co. v. Ludlum, 63 Kan. 719, 66 Pac. 1045. The language of the instruction in that case was as follows:
“You are further instructed that it was the duty of the defendant to keep its right of way free from dry grass, weeds, and other combustible material, in order that fires may not be set out on the right of way by passing engines and from there communicated to adjoining farms.” (Page 725.)
The instruction was approved, and was proper in that case. The claim was that the railway company permitted “dry grass, weeds, leaves and vegetation” to remain upon the right of way, and that by reason thereof the fire was communicated to the property of plaintiff. The negligence relied upon and proved here was not in permitting weeds, dry grass or rubbish to accumulate upon the right of way — something which ordinary prudence would suggest should be cleared off, and which by ordinary diligence could be removed; but the claim relied upon was, and the evidence showed, that certain wooden buildings were permitted to stand upon the right of way and that these took fire and the fire was communicated therefrom to plaintiff’s property. There was no question in this- case of negligence in permitting rubbish to accumulate. The things permitted to be upon the right of way were wooden buildings and structures.
In effect the instructions stated the law to be that it is negligence per se for a railway company to permit combustible material and structures to be upon, or in close proximity to, its right of way. It is a matter of common observation that all wooden buildings, without reference to their age or condition, are combustible. It cannot be true that a railway company is required to construct its depots, warehouses, coal-sheds and other structures of fire-proof material, or that it is guilty of negligence if it fails in this duty, or that it is negligence per se'for a railway company to have upon its right of way buildings which are combustible.
Is the error in these instructions cured by other instructions wherein the jury were told that defendant would be liable if it “negligently permitted” combustible materials and structures to be and remain upon its right of way? We think not. While-the instructions are to be considered as a whole, the jury had been already told that it was the duty of the company to keep its right of way free from combustible materials and structures, which was equivalent to an instruction that a violation of such duty was per se negligence.
It is insisted, however, that the error is cured by certain findings of the jury by which the negligence of defendant company is fixed, irrespective of any negligence in reference to buildings. The findings upon which this claim is based are as follow:
“(5) Ques. Is it not a fact that switch-engine No. 2319, on the day of the fire and preceding the fire complained of, was equipped with a reasonably good, safe and approved system of apparatus for preventing the escape of fire and sparks ? Ans. No.
“(6) Q. If you answer the fifth question in the negative, then please state in what respect said system of apparatus in use upon said engine was bad or defective. A. By defective netting.
“(7) Q. Is it not a fact that said switch-engine No. 2319, upon the day of the fire, and previous to the fire, was in good condition and that its apparatus for preventing the escape of fire and sparks was in good condition? A. No.
“ (8_) Q. If you answer the seventh question in the negative, then please state any defect that existed in said switch-engine No. 2319 at the time of and immediately previous to the fire. A. Too coarse netting for switch-engine.”
“(21) Q. Did the fire originate from the improper construction of the engine, or from the faulty condition or want of repairs of said engine No. 2319? A. Faulty condition of netting.”
Ordinarily, where two or more specific acts of negligence are pleaded and relied upon, a finding to the effect that one act of negligence alone existed is sufficient to support a verdict for the plaintiff, where the act of negligence found can be said to be the proximate cause of the injury. The findings and theory upon which the case was tried, however, make it apparent that the jury coupled two acts of negligence together as the proximate cause — the defective netting of the engine, and maintaining combustible buildings on or near the right of way. This appears from their answer to question No. 18, where they were asked, in the event they should find that the fire was caused by the negligence of defendant, to state fully in what such negligence consisted. The answer was: “By defective sheds and engines.” In answer to question No. 8, with respect to what defect they found in the engine, they answered: “Too coarse netting for switch-engine.”
There was evidence that a finer netting can be used on a switch-engine than a road-engine, where greater speed is required. The care required of the company to keep its engines in proper condition always depends, to some extent, upon the circumstances under which the engine is used. Switch-engines as a rule are employed in and near railroad yards, and not usually through fields where grass, weeds and other combustible rubbish naturally accumulate. The jury may not have been willing to rest their verdict on the sole ground that the netting used in the switch-engine was too coarse. In our opinion they considered the switch-engine defective in view of the highly combustible structures which they found the company negligently permitted to remain so near to its right of way, and the error in the instruction with reference to the duty imposed upon the company to keep the right of way clear from combustible structures was not cured by the separate finding that the netting was defective.
It follows, therefore, that the judgment must be reversed, and the cause remanded for another trial.
Johnston, C. J., Gkeene, Burch, Mason, Smith, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
On December 24, 1901, a ceremony was performed purporting to unite in matrimony Andrew J. Brubaker and Melissa VanAikin, who thereafter for some six months lived together as man and wife. No legal union in fact was accomplished, for the rea-' son that the woman was already married. During their cohabitation Brubaker, conveyed various tracts of real estate to Mrs. Van Aikin. In July, 1902, he brought a suit against her and others claiming under her to set aside such conveyances upon the ground that they were executed because he believed her to be his wife and that such belief was occasioned by false and fraudulent representations made by her that at the time of her union with him she was unmarried. The case was tried without a jury. The court found in substance that Brubaker had notice of the prior marriage and. was not the victim of false pretenses, and denied him relief. He prosecutes error.
Various assignments of error have been made relating to trial rulings. These cannot be considered, for the reason that the motion for a new trial was not filed in proper time. After the evidence was submitted the cause was held for some time under advisement, and on June 1, 1904, the court announced and filed various findings of fact and conclusions of law, which included, in effect if not in express terms, a statement that the plaintiff was not entitled to recover. On the same day the. plaintiff filed motions to modify the findings and conclusions so that they should conform to his views of the evidence and law, and a motion for a judgment in his favor. At the next term of court — on September 6, 1904 — these motions were de- ^ nied. The plaintiff then filed a motion for a new trial, the hearing of which was postponed. Judgment was .at once rendered, however, for the defendants. The motion for a new trial was denied on September 15, 1904. The statute reads:
“The application for a new trial must be made at the term the verdict, report or decision is rendered; and except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” (Gen. Stat. 1901, § 4756.)
The word “decision” as here used clearly refers to, or at all events includes, the announcement by the court of the determination of the issues submitted to it in a cause tried without a jury. (18 Cyc. 428, 2d par. of note 41, citing Indiana cases, and, also, Clement v. Hartzell, 60 Kan. 317, 56 Pac. 504; Jenkins v. Kirtley, 70 Kan. 801, 79 Pac. 671; Marshall v. Golden Fleece M. Co., 16 Nev. 156, 172; 5 Encyc. Pl. & Pr. 936.) A decision in this case was made when the findings of fact and conclusions of law were filed. It was then incumbent upon the plaintiff, if he was dissatisfied with the rulings made during the progress of the trial, to invite a reexamination of them by a motion filed within three days and at the same term of court. It was not-necessary for him to wait until judgment was pronounced. . He could even bring his case to this court before that was done. (Surety Co. v. Ashmore, post.) The pendency of his motion for judgment did not affiect the matter. (City of Osborne v. Hamilton, 29 Kan, 1.) His motions to correct the findings and conclusions may perhaps be regarded as motions for a new trial, but they pi-eserve no question for review except as to the effect of the evidence. The plaintiff was not justified in withholding his motion for a new trial because he did not know just what judgment the court might finally render. The same situation arises whenever a jury returns a general verdict and special findings. If the losing party is dissatisfied with these he must challenge them at the time and in the manner pointed out by the statute. He may not wait until he sees how badly they hurt him before deciding whether he will attack them, and the rule is the same when’ these determinations are made by the court without the intervention of a jury.
The only question therefore.presented by the record is whether there was evidence to sustain the findings and judgment. No purpose would be subserved by reviewing in detail the facts developed at the trial. It ■is sufficient to say that the testimony supports .the findings, the findings support the conclusions, and all * support the judgment, which is affirmed.
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Six, J.:
Plaintiffs Vernon and Marian DeWerff appeal from the trial court’s denial of their request for an injunction to enjoin defendants Dale Schartz and Joseph Schermuly from pumping water from the Schermuly farmland. The DeWerffs also appeal the trial court’s award of damages to Dale Schartz and Schermuly based upon the wrongful issuance of a temporary restraining order.
LeRoy Schartz, originally named as a party defendant in this action, was dismissed at the pretrial conference.
The issues are: (1) Did the trial court err in allowing defendants Schermuly and Schartz to continue to pump water from behind the berm located on the Schermuly property, (2) did the trial court abuse its discretion in denying the DeWerffs’ request for an injunction to remove the northernmost of the two ditches on the north side of Schermuly’s property, and (3) did the trial court err in awarding Schermuly and Schartz damages for the wrongful issuance of the temporary restraining order?
We affirm on issues (1) and (2). We reverse and remand with directions on issue (3).
The DeWerffs and Schermuly are abutting owners of quarter sections of farmland located in Barton County, Kansas. Dale Schartz has been the tenant of the Schermuly property since 1976 and farms the property on a sharecrop basis.
The DeWerff land lies directly east of the Schermuly land. An elevated dirt township road runs between the two properties. Excess water from Schermuly’s property naturally drains in an easterly direction onto the DeWerffs’ land. In 1968, Schermuly leveled his quarter section for irrigation purposes, eliminating many low spots and depressions which had previously retained water after rainfall. To maintain the surface water retention capacity of his property, Schermuly constructed small berms along the entire east side of his property and along a portion of the south side. These berms directed tailwater from the property into a tailwater pit located in the northeast corner of the property. In addition, Schermuly dug two ditches on the north side of the property. The southernmost of these two ditches carried tail-water from the Schermuly property into the tailwater pit. The northernmost ditch took the water draining from other properties to a drainage ditch on the west side of the dirt township road. The water would be carried south in this ditch and then east towards the DeWerff property though culverts installed by the county under the road.
The southern eighty acres of the DeWerff property were previously owned by Frank Neff. After Schermuly completed his leveling activities, Neff constructed a dike along the west side of his property to repel waters draining from Schermuly’s property. The dike forced the water back onto the Schermuly property, so Schermuly and Schartz increased the height of the berm to prevent this. After the berm was heightened, the DeWerffs, who then owned only the north eighty of the quarter section, constructed a dike on the west side of their property, much like Neff had done on the south eighty. In 1981, the DeWerffs acquired the south eighty owned by Neff.
During periods of heavy rain, water would collect on the west side of Schermuly’s berm. Prior to this action being filed, Schermuly and Schartz would pump this water from behind the berm into the ditch on the west side of the dirt township road. The water would travel south to the culverts and then east towards the DeWerff property.
The DeWerffs initiated this action on April 22, 1985, seeking damages and injunctive relief. The DeWerffs alleged that the pumping activity unlawfully diverted and accelerated the flow of water onto their property. The same day, they procured a temporary restraining order without bond, enjoining Schermuly and Schartz from pumping water from behind the berm. The parties agreed to a controlled pumping agreement and the restraining order was lifted.
Schartz and Schermuly filed an answer and counterclaim, alleging that the DeWerffs had wrongfully caused the issuance of the temporary restraining order. The trial court, among other things, ordered that (1) Schermuly and Schartz could pump water from behind the berm only if the water in the township road ditch was lower than the water behind the berm and prior notice was given to the DeWerffs, (2) Schermuly and Schartz need not fill in the northernmost of the two ditches on the Schermuly property, and (3) Schermuly and Schartz were entitled to $2,718 each in damages resulting from the wrongful issuance of the restraining order.
1. CONTINUED PUMPING FROM BEHIND THE BERM
The DeWerffs contend the trial court abused its discretion in refusing to enjoin Schermuly and Schartz from pumping water from behind the berm into the township ditch.
Injunctive relief is equitable in nature and its grant or denial in each case is governed by the principles of equity. Absent an abuse of discretion, the appellate court will normally not interfere with a trial court’s decision granting or denying injunctive relief. See U.S.D. No. 503 v. McKinney, 236 Kan. 224, 226-27, 689 P.2d 860 (1984); Kansas State Bd. of Pharmacy v. Wilson, 8 Kan. App. 2d 359, 361, 657 P.2d 83 (1983).
Under common law, surface water was a common enemy of landowners. The landowner was free to elect the method of control. The enactment of the statutory forerunners to K.S.A. 24-105 and 24-106 modified the common law. A landowner’s right to deal with surface water in any manner was restricted. Clawson v. Garrison, 3 Kan. App. 2d 188, 195, 592 P.2d 117 (1979). K.S.A. 24-105 provides in relevant part:
“It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging” with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor.”
The rule in Kansas now is “that as to agricultural lands outside the incorporated limits of a city, upper proprietors may not divert their surface waters by artificial means onto the lands of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners.” Clawson v. Garrison, 3 Kan. App. 2d at 203 (citing Goering v. Schrag, 167 Kan. 499, 501, 207 P.2d 391 [1949]). The DeWerffs rely on this rule. They contend: (1) The pumping activity by Schermuly and Schartz constitutes an acceleration or increase in drainage of water onto the DeWerff property, (2) the pumping activity injures them, and (3) such activity should have been enjoined entirely, not merely regulated.
The evidence in the case is controverted as to whether the leveling and pumping activities actually increased the amount of drainage onto the DeWerff property.
According to the evidence, the increase in the amount of drainage of water onto the DeWerff property could range from 3.9 acre feet (assuming the tailwater pit was full) to 0 acre feet. The trial court apparently believed that the leveling of the Schermuly property did not affect its surface water retainage capability. That conclusion is borne out by the evidence.
The controlled pumping allowed by the trial court’s order does not appear to have sanctioned an increase of drainage of the Schermuly property onto the DeWerff property. Under the court’s order, water may be pumped from behind the berm only when the water in the ditch on the west side of the township road is below that in the berm and prior notice is given to the DeWerffs. The court was attempting to arrive at an equitable result whereby controlled pumping was permitted during those times when the township ditches were sufficiently low to contain and carry the water through its natural course.
A trial court is given discretion in determining whether to grant or deny an injunction. A trial court’s decision will only be overturned upon a showing of an abuse of discretion. An abuse of discretion exists when no reasonable person would take the view adopted by the trial court. One who asserts an abuse of discretion bears the burden of showing such abuse. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 695, 715 P.2d 2 (1986) (quoting Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 [1983]). In this case, the trial court’s order was structured to avoid further problems between the parties by incorporating the controlled pumping arrangement into a court order. The trial court did not abuse its discretion.
2. THE NORTHERNMOST OF THE TWO DITCHES ON THE NORTH SIDE OF SCHERMULY’S PROPERTY
The DeWerffs contend the trial court abused its discretion in denying their request for an injunction to require Schermuly to remove the northernmost of the two ditches on the north side of Schermuly’s property. The DeWerffs’ position is that the ditch diverts water and causes an acceleration of drainage onto their property, contrary to the rule reaffirmed in Clawson v. Garrison, 3 Kan. App. 2d at 203.
K.S.A. 24-106 provides in relevant part:
“Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, into any natural depression, draw, or ravine, on his own land, whereby the water will be carried by said depression, draw, or ravine into some natural watercourse, or into any drain upon a public highway, for the purpose of securing proper drainage to such land; and he shall not be liable in damages therefor to any person or persons or corporation.”
In Horn v. Seeger, 167 Kan. 532, 207 P.2d 953 (1949), the court approved the use of an open ditch to drain .water in its natural course to a natural watercourse.
The northernmost of the two ditches on Schermuly’s property carried excess water from neighboring lands to the township road ditch, which in turn carried the water to the ditch along the county blacktop. The natural course of the water was west to east, the direction of the northernmost ditch. Schermuly drained his property “by constructing open . . . drains . . . whereby the water will be carried . . . into any drain upon a public highway, for the purpose of securing proper drainage to such land.” K.S.A. 24-106. The construction of the northernmost of the two ditches was authorized by K.S.A. 24-106. The trial court did not abuse its discretion in refusing to grant the DeWerffs’ request for an injunction to require Schermuly to remove the ditch.
3. DAMAGES FOR THE WRONGFUL ISSUANCE OF THE TEMPORARY RESTRAINING ORDER
a) The Requirement of Malice
The DeWerffs contend the trial court erred in awarding Schermuly and Schartz damages for the wrongful issuance of the temporary restraining order.
The DeWerffs first suggest the trial court erred in awarding damages because the facts of the case do not indicate that they procured the order with malice. The trial court issued the restraining order without requiring the DeWerffs to post a bond. Under K.S.A. 60-903, a restraining order may be issued without bond.
A party may not maintain an action for the wrongful procurement of a restraining order (other than one upon a bond) without a showing of malice. Alder v. City of Florence, 194 Kan. 104, 110, 397 P.2d 375 (1964); Jacobs v. Greening, 109 Kan. 674, 676, 202 Pac. 72 (1921). To establish malice, it must be shown that the restraining order was obtained for any improper or wrongful motive. See Nelson v. Miller, 227 Kan. 271, 278, 607 P.2d 438 (1980).
Although we may question the results in Alder and Jacobs, the rule in those cases has not been modified. We are bound by it. We nevertheless must wonder how many trial judges realize when issuing restraining orders without bonds that they are denying the restrained party the opportunity to recover damages unless that party proves malice.
The trial court in this case did not specifically find that the restraining order was obtained with malice. Further, the record on appeál does not support a presumption that the trial court found that the DeWerffs acted with malice. When the trial court has not made a specific finding of fact, the following rule applies:
“ ‘[W]hen the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court.’ ” In re Lett & Jackson, 7 Kan. App. 2d 329, 331, 640 P.2d 1294, rev. denied 231 Kan. 800 (1982) (quoting Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 3, 608 P.2d 1032 [1980]).
We reverse and remand with directions to the trial court to make additional findings with respect to the question of whether the temporary restraining order was obtained with malice.
b) The Sufficiency of the Evidence on Damages
The DeWerffs contend that the evidence is insufficient to support the trial court’s conclusion that the damages suffered by Schermuly and Schartz were the result of the water being held behind the berm while the restraining order was in effect.
Schartz testified that he lost thirteen acres of wheat due to the fact the restraining order prevented him from pumping water from the Schermuly property. Viewing the evidence in the light most favorable to Schermuly and Schartz, we conclude this testimony supports the trial court’s finding that Schermuly and Schartz were damaged by the issuance of the restraining order. See DeGraeve v. Southwestern Bell Tel. Co., 9 Kan. App. 2d 753, Syl. ¶ 4, 687 P.2d 1380, rev. denied 236 Kan. 875 (1984).
The DeWerffs contend the trial court did not use the proper method of determining the measure of damages to the growing crops.
The issue of the proper measure of damages was never presented to the trial court. “[A] point not raised before, or pre sented to the trial court, may not be raised for the first time on appeal.” Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983) (citing Anderson v. Overland Park Credit Union, 231 Kan. 97, Syl. ¶ 6, 643 P.2d 120 [1982]).
c) The Damage Award and the Restraining Order
The DeWerffs contend the trial court erred in awarding damages for the wrongful issuance of the temporary restraining order because the restraining order was not wrongfully issued. They argue that the trial court’s permanent injunction ordering controlled, restricted pumping establishes that the restraining order, which stopped all pumping, was not wrongful.
To recover damages for the wrongful issuance of a restraining order, a party must establish that the temporary restraint imposed was wrongful. Tobin Construction Co. v. Holtzman, 207 Kan. 525, 530, 485 P.2d 1276 (1971). The tidal court’s temporary restraining order restrained Schartz “from accelerating or diverting surface waters onto the lands of the defendant in any manner whatsoever including by means of pumping into adjacent roadside ditches, or diverting [by] means of ditching into adjacent roadside ditches.” According to Schartz’s testimony, it was the inability to pump any water from behind the berm that caused his damages. The controlled pumping worked well. The trial court ordered controlled pumping. The order restraining Schartz from any sort of pumping activity was wrongful, in light of the final order issued in the case.
In summary, the award of damages must be reversed and remanded. The trial court shall make additional findings as to whether the DeWerffs obtained the restraining order out of malice. If malice is found, Schartz and Schumerly are entitled to damages in the sum of $2,718 each as ordered by the trial court. If there is no finding of malice, the damage award is set aside.
The order of the trial court is affirmed in part, reversed in part, and remanded with directions. | [
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Abbott, C.J.:
Tom Day appeals from the order admitting an unexecuted copy of B. H. Day’s will to probate and the appointment of Crane Day as executor of the estate.
Crane Day, Howard Day, and Tom Day are the sons and only heirs-at-law of their father, B. H. Day. B. H. Day executed a will on December 10, 1979. Evidence is strong that the will was placed in B. H.’s safety deposit box. Crane and Howard had access to the box. Tom did not. The will and a subsequently executed codicil, combined, are more favorable to Crane and Howard than to Tom; thus, it would be to their benefit that the will not be destroyed.
On June 3, 1985, B. H. executed a codicil to the December 10, 1979, will which set forth a specific deduction for advancements made to Tom and divided that amount between Crane and Howard, and changed a gift of two quarters of land from Howard to Tom. The original of the codicil was retained in the office of the lawyer who drafted it.
On April 29, 1986, B. H. executed a living trust instrument that was prepared by an Oklahoma lawyer and transferred most of his assets to that trust. A separate lawsuit is pending concerning the validity of that trust, and apparently that suit is awaiting the outcome of this appeal. It appears to us there are few assets to pass by the will if the trust is valid.
Evidence was introduced that the executed will was observed in the safety deposit box during the summer before the trust instrument was executed. The last entry on the bank’s record of visits to the safety deposit box is that of B. H., made on the day the trust instrument was executed. After B. H.’s death, the safety deposit box was opened, and it was empty. The executed will was not produced, and no direct explanation of what happened to it was offered. The trust instrument did not invalidate the will.
The trial court held that the proof of a codicil to a will establishes the will without further proof if the codicil clearly and unmistakably refers to the will so as to prevent all doubts of its identity, citing 80 Am. Jur. 2d, Wills § 1004.
Tom Day argues that the trial court did not apply the presumption that a will known to be in the testator’s possession which cannot be located after the testator’s death has been revoked. In re Estate of Mettee, 10 Kan. App. 2d 184, 694 P.2d 1325, aff'd 237 Kan. 652, 702 P.2d 1381 (1985).
The trial court, in admitting the unsigned copy of the will, based its decision on K.S.A. 59-2228 and 80 Am. Jur. 2d, Wills § 1004. K.S.A. 59-2228 provides: “A lost or destroyed will may be established if its provisions are clearly and distinctly proved.” 80 Am. Jur. 2d, Wills § 1004 states that proof of a codicil establishes a will if the codicil clearly and unmistakably refers to the will.
The application of K.S.A. 59-2228, with the common-law pre sumption, was addressed in Mettee. The court stated that the presumption of revocation and proof of a lost will were two distinct issues. The court held: “If the testator’s intent to revoke is rebutted, the will is deemed lost and may be admitted to probate if the provisions of K.S.A. 59-2228 are satisfied. If the presumption is not overcome, probate is denied on the basis of the inferred intent to revoke.” Mettee, 10 Kan. App. 2d at 187.
Accordingly, we must first determine whether the presumption applies. Although the record discloses the trial court’s discussion of the effect of the codicil upon the presumption, there was no such determination in the journal entry. Furthermore, the cases underlying the general rule of 80 Am. Jur. 2d, Wills § 1004 do not relate to the case at hand.
In Mettee, the common-law presumption of revocation if an original will cannot be located after the testator’s death was reaffirmed by-the Supreme Court. In re Estate of Mettee, 237 Kan. 652. There, the testator executed the original will and two photocopies with the required formalities. After the testator’s death, the original could not be located. The proponent attempted to admit the executed copy of the will to probate. The court held that the presumption of revocation must be rebutted in order to admit the will to probate. The will was denied probate.
There are no Kansas cases addressing the effect of a codicil upon the presumption of revocation. Other jurisdictions which have considered this issue report different conclusions. Some courts have held that an original codicil rebuts the presumption of revocation. In In re Smith Estate, 145 Mich. App. 634, 378 N.W.2d 555 (1985), appeal denied 424 Mich. 904 (1986), a copy of the will and the original codicil were admitted to probate. The court stated that under Michigan statutes a codicil is deemed an independent testamentary instrument. 145 Mich. App. at 638. In In re Estate of Kuszmaul, 491 So. 2d 287 (Fla. Dist. App. 1986), a copy of the will was found together with the original codicil. The court distinguished an earlier case, In re Estate of Baird, 343 So. 2d 41 (Fla. Dist. App. 1977), in which probate was denied when the original codicil was not accompanied by a copy of the will. Kuszmaul, 491 So. 2d at 288. As the original codicil and a copy of the will were attached, the Kuszmaul court deemed the presumption rebutted.
Other courts have held that the codicil is irrelevant to the presumption. In In re Estate of Bowles, 96 Ohio App. 265, 114 N.E.2d 229 (1953), the will could not be located, but the original codicil was found among decedent’s documents. The court rejected the claim that destruction of the will without destruction of the codicil could not constitute revocation. Bowles, 96 Ohio. App. at 280-82. As the codicil was dependent upon the will for its effectiveness, the court deemed both were presumed revoked. 96 Ohio App. at 282. In In re Steel, 37 Ohio Op. 2d 70, 219 N.E.2d 236 (1966), the court followed Bowles. The court remarked that the execution of a subsequent codicil only proves the will was in existence at that time. The codicil is dependent upon the will and cannot be used to substitute for a will which is lost or destroyed after the codicil is executed. 37 Ohio Op. 2d at 73.
Here, the original codicil was never in the possession of B. H., whereas he had continuous possession of the original will. The codicil was intended to modify the existing will; it was not intended to be an independent addition to the will. In contrast to Kuszmaul, a copy of the will was not kept with the original codicil. Also, there are no Kansas statutes declaring a codicil an independent document, as in Smith. In addition, the codicil could not be read as an independent document.
As we view the trial court’s decision, it relied solely on the fact that the codicil was in existence to overcome the presumption of revocation. We are satisfied the trial court can consider that the codicil is in existence and the facts concerning it in making its factual determination as to whether the presumption of revocation is overcome.
It is of some importance to consider that, in Mettee, the fact that two of the three executed will copies were in existence was not sufficient to overcome the presumption of revocation. If the failure to destroy all executed copies of a will is insufficient to overcome the presumption of revocation, it would seem inconsistent to hold that failure to destroy the codicil, standing alone, overcomes the presumption of revocation.
When the codicil was executed, it republished the will. The codicil’s execution has no relevancy on the question of revoca tion of the will at some later date. The facts concerning its continued existence may, however, shed some light on the testator’s intentions concerning the missing will.
Here, the codicil was left with B. H.’s long-time lawyer in Independence. B. H. had discussed a living trust with that lawyer, and he drew a trust instrument for B. H. that is similar to the one actually executed. B. H. did not execute that trust agreement. Instead, he went to Tulsa, Oklahoma, and had a trust instrument drafted which he subsequently executed. There is strong circumstantial and direct evidence in the record that he cleaned out his safety deposit box the day he executed the trust instrument and that his will was in that box. Obviously, there could have been some reluctance on the part of B. H. to go to his Independence lawyer’s office to pick up and destroy the codicil, having rejected that lawyer’s work and employed other counsel.
The proponents of the copy of the will did not present sufficient evidence as a matter of law to overcome the presumption of revocation. The trial court erred in holding the codicil overcame that presumption.
Having held the copy of the will to be inadmissible, the claim that the trial court erred in appointing Crane Day executor becomes moot.
Reversed and remanded with instructions to proceed with the estate as intestate and to appoint an administrator according to law. | [
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Abbott, C.J.:
Doris Miller, a nontenured teacher, appeals from summary judgment entered in favor of the Board of Education, Unified School District No. 470, (U.S.D. 470) in a breach of contract action for nonrenewal of her teaching contract.
The decision of the trial judge in this case is thorough and well reasoned, and reflects a great deal of thought. Basically, he holds that statutes providing for the termination without reason of a nontenured teacher prevents the enforcement of a negotiated agreement which clearly provides a different scheme.
The question presented on appeal is one of law: Whether a school board may, by a collectively negotiated contract, restrict its right to terminate a nontenured teacher.
Statutory Rights
At the heart of this question is the legislative intent reflected in the applicable statutes. Four acts control the formation, continuation, and termination or nonrenewal of teacher contracts: the Continuing Contract Law, K.S.A. 72-5410 et seq.; the Professional Negotiations Act, 72-5413 et seq.; the Due Process Procedure and Contract Termination Act, 72-5436 et seq.; and the Evaluation of Certificated Personnel Act, 72-9001 et seq.
The purpose of the Continuing Contract Law is to eliminate uncertainty and possible controversy regarding the future status of a teacher and a school concerning the teacher’s continued employment. Krahl v. Unified School District, 212 Kan. 146, Syl. ¶ 2, 509 P.2d 1146 (1973).
The Evaluation of Certificated Personnel Act mandates specific evaluation procedure for all teachers. The legislative intent for the act “is to provide for a systematic method for improvement of school personnel in their jobs and to improve the educational system of this state.” K.S.A. 72-9001.
The act, in pertinent part, requires:
“Every board shall adopt a written policy of personnel evaluation procedure in accordance with this act and file the same with the state board. Every policy so adopted shall:
“(b) Include evaluation procedures applicable to all employees.
“(c) Provide that all evaluations are to be made in writing ....
“(d) (1) Provide that every employee in the first two consecutive school years of employment shall be evaluated at least one time per semester by not later than the 60th school day of the semester . . . .” K.S.A. 72-9003. (Emphasis added.)
The act also provides:
“(f) The contract of any person subject to evaluation shall not be nonrenewed on the basis of incompetence unless an evaluation of such person has been made prior to notice of nonrenewal of the contract and unless the evaluation is in substantial compliance with the board’s policy of personnel evaluation procedure as filed with the state board in accordance with the provisions of K.S.A. 72-9003, and the amendments thereof.” K.S.A. 72-9004. (Emphasis added.)
Two statutes in pari materia should be read together and harmonized, if possible, so that they both may have effect. City of Overland Park v. Nikias, 209 Kan. 643, 646, 498 P.2d 56 (1972). Thus, courts read 72-9004(f) narrowly to mean that, while school districts must evaluate all teachers, they must show cause for nonrenewal only of tenured teachers. Burk v. Unified School Dist. No. 329, Wabaunsee Cty., 646 F. Supp. 1557, 1563 (D. Kan. 1986). To do otherwise “would totally obliterate the distinctions carefully drawn by the Kansas Legislature in providing for different procedures for renewal of tenured ■ versus nontenured teachers and principals.” Burk, 646 F. Supp. at 1561.
In Burk, the court held that the purpose of the Evaluation of Certificated Personnel Act — to improve school personnel in their jobs — does not extend to nontenured, nonrenewed teachers, because they will not remain in the school district’s system. 646 F. Supp. at 1563.
In a case involving a nontenured teacher and a simple decision not to renew, we held that no property right was involved and no hearing was required. Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, 156, 627 P.2d 335 (1981). Our Supreme Court has held that “[t]enured teachers cannot be dismissed for arbitrary reasons . . . .” Gillett v. U.S.D. No. 276, 227 Kan. 71, 77-78, 605 P.2d 105 (1980). Nontenured teachers do not enjoy that protection. “As to a simple decision not to renew a nontenured teacher’s contract, made at the end of the school year, the courts have held that no hearing need be provided, neither before the decision not to renew, nor after it.” Crane v. Mitchell County U.S.D. No. 273, 7 Kan. App. 2d 430, 433-34, 643 P.2d 1125, reversed on other grounds 232 Kan. 51, 652 P.2d 205 (1982). See Arneson v. Board of Education, U.S.D. 236, 8 Kan. App. 2d 178, 179, 652 P.2d 1157 (1982), rev. denied 232 Kan. 875 (1983).
In the present case, plaintiff was a nontenured teacher employed by U.S.D. 470 for only two consecutive years. U.S.D. 470 gave her notice of intent to nonrenew on April 4,1986, within the notice requirements of K.S.A. 72-5411 and K.S.A. 72-5437. Unless plaintiff s statutory rights were expanded by a valid contract, she has no cause of action.
Contractual Rights
Plaintiff contends that Article XI of the negotiated Master Agreement and, by incorporation, the evaluation procedure for certified personnel provide her with a shield against arbitrary nonrenewal. Defendant responds that if U.S.D. 470 increased the rights of nontenured teachers beyond statutory require- merits, it acted ultra vires, and the contractual provision is void.
Article XI of the negotiated Master Agreement reads as follows:
“All Faculty members will be evaluated each school year. Teachers in their first and second years of employment in USD 470 will be evaluated twice each year; the first evaluation to be completed by the 60th day of instruction of first semester and the second to be completed by the 60th day of instruction of the second semester. Teachers in subsequent years of employment with the district (third year or more) will be evaluated at least once, not later than February 15th of each year.
“An evaluation shall be based upon at least one formal visitation of the teacher’s classroom by his or her building principal or designated evaluator. A formal visitation of each year will be with prior notice. The specific day of the formal visitation will be designated and pre-conference shall be held between the evaluator and evaluatee to allow for the discussion of class plans and objectives. At the pre-conference, a Form 1 shall be completed. Subsequent formal or informal visitations may be at the discreation [ sic] of the evaluator on an announced or unannounced basis. A pre-conference is not required after the first formal visitation.
“A post-visitation conference must be held between the evaluator and evaluatee within three (3) working days after each formal visitation. During a post-visitation and [sic] conference, the evaluator will discuss the data collected during the visitation and the evaluatee will be presented with a copy of the observation data sheet, form 2, or Form 4. Any evaluation area in which the performance of the evaluatee was considered by the evaluator to be unsatisfactory will be noted on a Form 3. Such notice will place the evaluatee on a Plan of Assistance. Any information gathered during informal visitations that has a bearing on an unsatisfactory judgement [sic] must be documented and presented to the evaluatee at the next observation conference or sooner. The formal evaluation instrument, Form 4, will be completed by the evaluator in time to comply with the deadlines designated in paragraph one. Prior to a conference being held to discuss the results of the formal evaluation, the evaluatee will be given the opportunity for self-evaluation, by judging their own performance on a Form 4. The evaluatee has the right to make written response to any comments made by the evaluator during the conference. Any response must be turned in to the evaluator within two weeks after the conference so that it can be attached to the evaluation. All evaluations will be retained in the Personnel Office for three years.”
The plan of assistance program is also set out in detail in the agreement.
Plaintiff had five evaluations during her employment with U.S.D. 470. The evaluation form has four boxes for each evaluation area. The boxes are labeled “Meets or Exceeds Acceptable Standards,” “Needs Improvement,” “Unsatisfactory,” and “Not Applicable.” Plaintiff did not receive an “Unsatisfactory” rating on any evaluation area on any of the evaluation reports. She did receive comments as to how she might improve in certain areas, but certainly nothing that would give any indication that her work was unsatisfactory, or that her job was in jeopardy.
Although the trial judge specifically declined to decide the case on whether an “Unsatisfactory” rating is necessary to trigger the negotiated contract provision in question, we believe we would be justified in affirming the trial court on that basis. In any event, the trial court did not err for the following reasons.
School districts are creations of the state legislature. “ ‘A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication.’ (Citations omitted.)” Gragg v. U.S.D. No. 287, 6 Kan. App. 2d at 155.
A municipal corporation cannot bind itself by any contract beyond the scope of its powers, and anyone contracting with the corporation is deemed to know the corporate limitations in this respect. Thus, any attempt by a board of education to contract for terms violating specific statutory terms would be ultra vires and void. Gragg, 6 Kan. App. 2d at 155.
Burk v. Unified School Dist. No. 329, Wabaunsee Cty., 646 F. Supp. 1557, was decided prior to the last session of the legislature and, although Burk was an administrator, we believe the reasoning is also applicable to a classroom teacher. In Burk, the court reasoned:
“This interpretation, however, would clearly conflict with the Due Process and Administrators’ Acts, which by negative implication, provide that nontenured personnel may be dismissed for any reason or no reason at law.
“All statutes in pari materia (i.e., those enacted by the same legislature concerning the same subject matter) must be read and construed together. City of Overland Park v. Nikias, 209 Kan. 643, 646, 498 P.2d 56, 59 (1972). Such statutes must be construed in harmony if possible to the end that all may be given full force and effect. Id.
“The only way in which the Evaluation Act can be read in harmony with the Due Process and Administrators’ Acts is to read K.S.A. 72-9004(f) very narrowly. Construed in this manner, we read subsection (f) as merely requiring that the Board evaluate the employee at some time before nonrenewal and that the Board follow its own procedures. It does not require the Board to renew if the employee possesses certain qualities or nonrenew if the employee lacks certain qualities. That would clearly contradict the Kansas Legislature’s intent in enacting the Due Process and Administrator’s Acts.
“Furthermore, although the stated purpose of the Evaluation Act is ‘to provide for a systematic method of improvement of school personnel,’ K.S.A. 72-9001, there is no requirement that the employee, particularly a nontenured employee about to be nonrenewed, be given an opportunity to improve before notice of nonrenewal may be given. To imply such a requirement would put the Evaluation Act at odds with the fact that only tenured employees are entitled to special protection as provided in the Due Process and Administrators’ Acts. The only consistent interpretation of the Evaluation Act is that its purpose is to provide for the improvement of employees who remain in the school district’s employ.” 646 F. Supp. at 1563.
As to a contract right, the Burk court said:
“In the case at bar, the school board’s evaluation policy and other items relied upon by plaintiff, requiring that the employee be given the opportunity to correct his deficiencies, amount to de facto tenure for teachers and principals employed for less than two years. As we discussed above, this is in direct conflict with the Due Process and Administrators’ Acts, which provide nontenured employees no expectation of continued employment.
“A school district is an arm of the state ‘existing only as a creature of the legislature to operate as a political subdivision of the state.’ Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 4, 397 P.2d 357, 359 (1964). A school district or Board of Education has only limited authority to promulgate policies and enter into contracts. Any attempt by a district or board to enter into a contract or formulate a policy that violates state law is ultra vires and void. Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, 155, 627 P.2d 335, 339 (1981). As the court of appeals stated in Gragg:
“ ‘A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication. Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 4, 397 P.2d 357 (1964).
“ ‘One who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations in this respect. Weill & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 8, 479 P.2d 875 (1971).’ 6 Kan. App. 2d at 155, 627 P.2d at 338-39.
“Any attempt by the Board to enter into a contract or promulgate an evaluation policy giving an employee rights in conflict with the Due Process and Administrators’ Acts would be ultra vires and void. We must therefore hold that plaintiff had no contractual right to continued employment. Consequently, we will grant defendants’ motion for directed verdict on plaintiff s claim that he was deprived of a property interest in continued employment as principal of Wabaunsee High School.” 646 F. Supp. at 1564-65.
The legislature did not change the statutes, as it could have done if it desired a different result in future similar factual situations, thus adding credence to the Burk holding regarding the legislative intent. We thus conclude the legislature did not intend to authorize school districts to enter into contracts that would have the effect of defeating the two consecutive years of employment provision in K.S.A. 72-5445.
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Briscoe, J.:
Edward Neal Robertson, who is the guardian and conservator of his mother Ida Ludwig, appeals the district court’s dismissal of his action to recover funds withdrawn from joint tenancy accounts.
Paul and Ida Ludwig were husband and wife for 33 years. Edward, plaintiff in this action, is Ida’s son by a previous marriage. Dennis Ludwig and Elvira Fisher, defendants in this action, are Paul’s children by a previous marriage.
In August 1985, the health of both Paul and Ida began to decline. Ida was diagnosed as having senile dementia and, therefore, incapable of handling her business affairs. In October 1985, Ida was placed in a nursing home and Paul moved in with his daughter Elvira.
Paul and Ida held their life savings in three joint tenancy accounts at Argentine Savings and Loan Association (Argentine). Two of these accounts were certificates of deposit (accounts No. 10588 and No. 845) and one was a passbook account (account No. 174). The signature cards for accounts 845 and 174 indicate Paul and Ida signed as “owners (grantors).”
On August 9,1985, Paul and his son Dennis went to Argentine Savings and Loan Association and Paul instructed an employee of Argentine to add the names of Dennis and Elvira to the joint tenancy accounts. The names of Dennis Ludwig and Elvira Fisher were typed on the signature card and certificate of deposit for account 10588 and on the signature card and passbook for account 174. New cards were not made out. Dennis signed the signature cards for both accounts. Elvira signed the cards later and returned them to Argentine. The names of Dennis and Elvira were typed on the certificate of deposit for account 845. Employees of Argentine testified that a new signature card was prepared for account 845 and that Dennis and Paul signed it. Elvira testified she signed and returned the signature card to Argentine. This new signature card for account 845 could not be located and was not produced at trial. Only the original signature card bearing Paul’s and Ida’s signatures was produced.
The signature cards for accounts 174 and 845 provided:
“SPECIFIC CONDITIONS FOR JOINT ACCOUNTS: Ownership of this savings account is vested in the names appearing on the reverse side hereof, as joint tenants with the right of survivorship and not as tenants in common. It is understood that any one of the owners who shall first act shall have power to act in all matters related to this savings account whether the other owners be living or not.”
The card for account 10588 included similar language. Paul, Ida, Dennis, and Elvira were named as the account holders on the face of the passbook and on both of the certificates of deposit. On all three accounts, their names were followed by the phrase “as joint tenants with the right of survivorship and not as tenants in common.”
Two days before Paul’s death on May 8, 1986, Dennis withdrew two-thirds ($18,249.32) of passbook account 174, which contained $28,237.06. On May 8, 1986, Dennis and Elvira withdrew all of the proceeds of account 10588 ($22,790.02) and then divided the proceeds into three equal checks of $7,596.67. Dennis and Elvira placed one of the checks in a certificate of deposit in the names of Ida Ludwig and Edward Robertson. On May 14, 1986, Dennis and Elvira delivered that certificate of deposit and the passbook for account 174, along with personal items belonging to Ida, to Edward. On May 23, 1986, Elvira withdrew all funds ($2,501.89) from account 845. On May 28, 1986, Edward was named guardian and conservator of his mother.
On June 6, 1986, Edward filed a petition against Argentine, Dennis, and Elvira, seeking imposition of a constructive trust on all monies derived from accounts 174, 10588, and 845, or judgment against the defendants. Edward alleged that the names of Dennis and Elvira were added without authority; that monies were withdrawn from the accounts without authority; that the monies in the accounts were largely the result of Ida’s contribu tions; and that Paul’s will superseded such illegal contracts. The court granted an ex parte restraining order impounding the funds derived from the accounts. Edward filed an amended petition, alleging the joint tenancy accounts were not entered into with the consent of all parties and that Ida was incapable of consenting to the creation of the accounts.
Defendants filed an amended answer and counterclaim, alleging that, after Paul’s death, Edward and the defendants entered into a settlement by which the funds in the joint accounts were divided. Defendants claimed Edward breached the agreement by bringing this action. Edward moved to amend his petition for a second time, alleging fraud, mutual mistake, and severance of the joint tenancy by the addition of Dennis’ and Elvira’s names on the accounts. Nadine Wright, the named executrix of Paul’s will, moved to stay the proceedings and be added as a party plaintiff. She asked the court to order counsel for defendants to deliver the original copy of the will to her so she could obtain her appointment as executrix. Nadine’s motion to intervene and to stay the proceedings was denied.
On the day of trial, Edward moved to strike defendants’ trial brief and for sanctions. The court denied the motion to strike and for sanctions and the motion to amend his petition for a second time. Edward also moved for voluntary dismissal of Argentine as a defendant in the case. The motion to dismiss Argentine was granted and the trial proceeded. At the close of Edward’s case, defendants moved for a directed verdict and an order setting aside all restraining orders. The court first sustained both motions as to accounts 174 and 10588. Then, after the continuance of the trial to a later date to hear additional evidence, the court also sustained both motions as to account 845. Defendants’ counterclaim was dismissed.
The district court granted defendants’ motion for involuntary dismissal of Edward’s claim as to accounts 174 and 10588 on two different theories. First, the court found Edward had acquiesced in the division of the accounts by accepting and not paying over to Paul’s estate the one-third split. Second, the court found Ida and the defendants were joint tenants with equal ownership, and the division of the accounts fairly represented this equal ownership. As to account 845, the court found by the preponderance of the evidence that Paul intended to make Elvira a cotenant on the account with himself, Ida, and Dennis. Elvira was ordered to pay each of her cotenants one-third of the account.
The court found the addition of defendants’ names to accounts 174 and 10588, along with their signatures on the signature cards for these accounts, created an enforceable contract by which defendants, Paul, and Ida became joint tenants with the right of survivorship with identical interests in the accounts. Following Paul’s death, the joint tenancy continued under the terms of the contract with each party possessing the power to dispose of the funds in each account under the terms of the contract. The court found, however, that it had the power to impose a constructive trust on the funds to avoid unjust results. The division of accounts 10588 and 174 into equal shares among the joint tenants made the imposition of a constructive trust unnecessary. However, once it found the parties were cotenants as to account 845, the court imposed a constructive trust on proceeds from the account and ordered Elvira to pay equal shares to Edward and Dennis.
Effect of addition of names to existing joint tenancy account by one joint tenant without the consent of the other joint tenant.
(a) Is a new joint tenancy created?
On appeal, Edward contends the addition of defendants’ names to the three accounts did not create a joint tenancy among Paul, Ida, and defendants. Edward argues Ida’s consent was necessary for the creation of a joint tenancy among Ida and the defendants. The parties agree that Ida did not consent to the addition of defendants’ names to the accounts and, further, that she was not competent to consent. Defendants argue that Ida’s consent was not necessary to create a joint tenancy among the parties.
The distinctive characteristic of a joint tenancy is the right of survivorship. Upon the death of one of the joint tenants, the property descends to the survivor or survivors. The right of survivorship terminates only when the entire estate, without the tenants having disposed of their title or otherwise terminating the tenancy, comes into the hands of the last survivor. Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, 291, 524 P.2d 1127 (1974).
Although the presumption of joint tenancy with the right of survivorship as it existed under the common law has been abolished by statute (K.S.A. 58-501), a valid joint tenancy may be created by a contractual arrangement which confers equivalent legal rights and obligations upon the parties concerned. In re Estate of Smith, 199 Kan. 89, 93, 427 P.2d 443 (1967) (citing Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647 [1932]). K.S.A. 58-501 requires that the language used in such a grant clearly indicates a joint tenancy is intended. In re Estate of Smith, 199 Kan. at 93.
K.S.A. 58-501 provides in pertinent part:
“Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created .... Where joint tenancy is intended as above provided it may be created by:
“(a) Transfer to persons as joint tenants from an owner or a joint owner to himself or herself and one or more persons as joint tenants.”
In determining whether a joint tenancy account is created, general contract principles are applied. In re Estate of Powell, 222 Kan. 688, 690-91, 567 P.2d 872 (1977); Eastman, Administrator v. Mendrick, 218 Kan. 78, 82, 542 P.2d 347 (1975); Smith, 199 Kan. 89, Syl. ¶ 1. A joint tenancy account is created when the depositor signs a signature card naming himself and another “as joint tenants with right of survivorship and not as tenants in common.” Johnson, 215 Kan. at 290 (quoting Edwards v. Ledford, 201 Kan. 518, 524, 441 P.2d 834 [1968]). These “magic words” meet the clarity requirement of K.S.A. 58-501 and create an enforceable written contract. Johnson, 215 Kan. at 290; Edwards, 201 Kan. at 524. The provisions of the signature card constitute a contract in writing between the depositor and the bank, enforceable according to its terms, and a parol understanding at variance with such terms is inadmissible in the absence of fraud or mutual mistake. Powell, 222 Kan. at 690-91; Eastman, 218 Kan. at 82; Johnson, 215 Kan. at 290; Edwards, 201 Kan. at 524-25.
Under common law, “four unities” had to be present to create a joint tenancy: (1) interest — the tenants must have one and the same interest; (2) title — the interests must accrue by one and the same instrument or conveyance; (3) time — the interests must commence at one and the same time; and (4) possession — the property must be held by one and the same undivided possession. If any one of these unities is lacking, the estate is notone in joint tenancy. Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 (1966). Joint tenancy bank accounts created by contract have been held to satisfy the requirements of the “four unities.’* Edwards, 201 Kan. at 526; Simonich, 197 Kan. at 424.
Here, only the signature cards for accounts 174 and 10588 contained the additional signatures of Dennis and Elvira. The court heard testimony concerning the addition of their signatures to the signature card for account 845. The signature cards for accounts 174 and 10588 which were admitted clearly stated the accounts were held in joint tenancy with right of survivorship. The parties do not dispute that Paul directed a bank employee to add the defendants’ names to all three accounts and that, by this action, he intended to create a joint tenancy with the defendants on all three accounts. It is also undisputed that Ida, Paul’s joint tenant, did not consent and was incompetent to consent to the addition of the defendants’ names.
K.S.A. 58-501(a) states that a joint tenancy may be created by a transfer “to persons as joint tenants from an owner or a joint owner to himself or herself and one or more persons as joint tenants.” Pursuant to K.S.A. 58-501(a), Paul as a joint owner could have withdrawn all of the monies from the accounts and set up a new account with defendants as joint tenants. As a party to a joint tenancy account, Paul has a complete right of disposal. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 460, 574 P.2d 1382 (1978). Had Paul set up a new account, Ida could have then sought imposition of a constructive trust. See Walnut Valley State Bank, 223 Kan. at 460-61.
In the present case, Paul did not withdraw all of the monies from the accounts and set up a new account with the defendants as joint tenants. Instead, he attempted to work within his and Ida’s existent joint tenancy to create a new joint tenancy which included the defendants. We conclude that without the consent of his joint tenant he cannot unilaterally add parties to the existent joint tenancy. The effect of Paul’s action was to force Ida into a contract to which she did not consent. As stated in Johnson, 215 Kan. at 290, the creation of a joint tenancy account requires the signature of the depositor on the signature card, naming himself and another (or others) as joint tenants. In the present case, it is undisputed that both Paul and Ida were the “depositors” in the existing accounts. They were explicitly so designated on the signature cards of two of the accounts. As a depositor in these existing accounts, Ida’s consent would be required to create a joint tenancy among Paul, Ida, and the defendants in these existing accounts.
The “four unities” recognized at common law to create a joint tenancy are absent here. Clearly, the unity of time is not present. The interests of the parties did not commence at one and the same time. Ida’s interest in the accounts commenced when she and Paul opened the accounts. The creation of the new joint tenancy among Paul and the defendants was not initiated until 1985.
Defendants argue Paul had the right to dispose of his personal property throughout his lifetime and, therefore, he did not need Ida’s consent to add the defendants to the accounts. The cases cited by defendants, however, concern property held separately by a person who then creates joint tenancies or trusts, placing the property beyond the reach of a spouse. See Eastman, 218 Kan. 78; Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 (1972). In this case, there is no evidence that the funds belonged solely to Paul. To the contrary, by placing them in the account, it is presumed that Ida owned an undivided interest equal to that of Paul. In re Estate of Shields, 1 Kan. App. 2d 688, 692, 574 P.2d 229 (1977), aff'd 224 Kan. 604, 584 P.2d 139 (1978).
In Walnut Valley State Bank v. Stovall, 223 Kan. 459, the court considered the power of a creditor to garnish a joint tenancy account. In determining how much of the account could be garnished, it was necessary to determine the “interest of a judgment debtor.” 223 Kan. at 461. The court held there is a rebuttable presumption of equal ownership between tenants of joint tenancy property based upon a theory of donative intent. Each party is presumed to donate one-half of the deposits to the other joint tenant. The presumption may be rebutted by evidence of ownership in some other proportion. 223 Kan. at 462-63.
Here, the record contains no evidence which would rebut the presumption of equal ownership. Furthermore, the signature card for account 10588 contains language which expressly provides that any funds placed in the account by one of the parties is “intended as a gift to the other signatory parties to the extent of his or their pro rata interest in the account.” The signature cards for accounts 174 and 845 contain no such language. By presumption of law in accounts 174 and 845 and in the case of account 10588 by express contract, Ida and Paul were equal owners of the joint tenancy accounts.
(b) Is severance the result?
If Paul could not validly create the second joint tenancy account among Ida, the defendants, and himself, what is the effect of his attempt to do so? Edward makes two alternative arguments. First, he argues the addition of the names had no effect so Ida succeeds to the entire amount in the accounts by survivorship. Second, he argues the addition of the names severs the joint tenancy between Paul and Ida, creating a tenancy in common. Edward then argues Paul’s one-half interest would become part of Paul’s estate. Edward cites Kansas cases which hold that, upon a joint tenant’s inter vivos conveyance of his interest in real estate, the joint tenancy is severed and a tenancy in common is created. Hall v. Hamilton, 233 Kan. 880, 882-85, 667 P.2d 350 (1983); Berry v. Berry, 168 Kan. 253, 212 P.2d 283 (1949); Federal National Mortgage Ass’n v. Elliott, 1 Kan. App. 2d 366, 370, 566 P.2d 21 (1977).
Walnut Valley State Bank, 223 Kan. 459, is instructive, although factually different from the present case. Walnut Valley involved garnishment of a joint tenancy bank account by a judgment creditor of one of the joint tenants. The joint tenants were husband and wife. The court concluded the garnishment severed the joint tenancy and created a tenancy in common. The severance of the joint tenancy into a tenancy in common gave rise to a rebuttable presumption of equal ownership; that is, the husband and wife each owned one-half of the account. 223 Kan. at 462.
Just as a garnishment severs the joint tenancy, so may an inter vivos action of one joint tenant cause a severance of the joint tenancy. In In re Estate of Shields, 1 Kan. App. 2d 688, this court was asked to determine what interest a joint tenant succeeds to after he murders the other joint tenant. Our court held that, when one joint tenant murders the other, the joint tenancy is severed and a tenancy in common results. The murderer does not take the whole as a survivor, but is entitled to a one-half interest, with the heirs of the victim taking the remaining one-half interest.
Other jurisdictions have considered the effect of withdrawal of funds from joint tenancy accounts or the changing of names on accounts. Some have found such action terminates the tenancy (Kacirek v. Mangan, 489 P.2d 342 [Colo. App. 1971]; In re Wright Estate, 156 Mich. App. 1, 401 N.W.2d 288 [1986]), while others hold it does not (Matter of Estate of Morrow, 91 N.M. 81, 570 P.2d 912 [1977]). Those courts holding that name changes on the account sever the joint tenancy usually view such changes as equivalent to withdrawal of the funds and opening a new account.
We conclude Paul’s action severed his joint tenancy with Ida. Like the husband and wife in Walnut Valley State Bank and in In re Estate of Shields, Paul and Ida each retain a one-half interest in the funds. As regards Paul’s one-half interest, Paul did intend that defendants should receive his interest in joint tenancy. The signature cards for accounts 174 and 10588 are contracts which establish that intent. As regards account 845, the defendants’ names were placed on the certificate of deposit and the “magic words” establishing joint tenancy followed their names. Parol evidence further established Paul’s intent that defendants should receive his interest in account 845 in joint tenancy. We conclude defendants are joint tenants in Paul’s one-half interest as regards all three accounts.
Acquiescence.
In dismissing Edward’s action, the district court held he acquiesced in the division of funds by accepting and not paying over to Paul’s estate the funds he received. Although the court does not cite authority to explain its finding, defendants suggest the court’s finding is based upon principles of equitable estoppel.
The doctrine of equitable estoppel requires consistency of conduct. A litigant is estopped and precluded from maintaining a position regarding a transaction wholly inconsistent with his previous acts in connection with that same transaction. Browning v. Lefevre, 191 Kan. 397, 400, 381 P.2d 524 (1963). Arguably, Edward accepted and retained the benefits of the division of the funds, thus precluding his claim to the remainder of the funds. However, Edward’s main contention throughout this litigation has been that Ida is entitled to all of the funds as survivor. He only argues in the alternative that the funds should pass to Paul’s estate because of severance of the joint tenancy. We conclude that Edward’s acceptance of the funds offered by defendants is not so inconsistent with his position that he should be prevented from bringing this action.
Pretrial Reading of Deposition.
Edward also contends the trial court erred in reading his deposition and in denying his motion to strike defendants’ trial brief which contained portions of the deposition testimony. Edward bases his contention upon the fact that the deposition had not been admitted into evidence when it was read by the court. We find no error.
Edward does not state what prejudice he suffered as a result of the court’s reading of his deposition. The record indicates the court did read the deposition in an effort to understand Edward’s pleadings and proof before commencement of the trial to the court. At trial, the court heard Edward’s evidence and then granted defendants’ motion for involuntary dismissal because Edward had failed to prove his claim. As regards the deposition testimony, Edward does not state that the court’s decision to dismiss would have been altered in any way had it not read the deposition.
Denial of Motion to Amend Petition.
Edward contends the trial court erred in refusing to allow the amendment of his petition for a second time. Edward moved to amend his petition on September 29, 1986, to allege fraud, mutual mistake, and severance of the joint tenancy by the addi tion of defendants’ names on the accounts. As a result, he alleged proceeds of the accounts should be paid into Paul’s estate. The court denied the motion on October 2, 1986, the day of trial.
K.S.A. 60-215(a) provides:
“A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty (20) days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”
Whether an amendment will be allowed is within the broad discretion of the trial court. See Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 1002-03, 667 P.2d 879 (1983).
Here, the amended petition included new claims of fraud and mutual mistake. Defendants would suffer undue prejudice if the court required them to defend against these additional claims, which were made only three days before trial. Given the prejudice to defendants were these belated claims allowed and Edward’s delay in asserting these claims until three days before trial, we cannot conclude the court abused its discretion in denying Edward’s motion to amend his petition.
Denial of Motion to Intervene by Executrix.
The next issue is raised in Nadine’s appeal from the trial court’s order denying her motion to intervene in Edward’s action. Nadine’s appeal was consolidated with Edward’s appeal. Nadine, named as Paul’s executrix, filed a motion to intervene on September 29, 1986, three days before trial. Counsel for Edward argued the motion of Nadine to intervene. The court ruled on the motion on November 10, 1986, the day of trial on account 845. The court denied Nadine’s intervention and, in support of its finding, stated the executrix of the estate was not in existence at the time of trial.
Edward argues the court erred in not naming Nadine as a party. He argues she was a necessary party because, if the joint tenancy between Paul and Ida was severed, the executrix was a necessary party to garner funds into the estate. Defendants argue Nadine did not properly and timely move to intervene and further that this appeal is not timely.
Denial of a motion to intervene is a final order under K.S.A. 1987 Supp. 60-2102(a)(4). Campbell American Legion v. Wade, 210 Kan. 537, 502 P.2d 773 (1972). An appeal must be filed within'30 days of entry of judgment. K.S.A. 60-2103(a). Judgment is entered when a journal entry or judgment form is filed. K.S.A. 60-258.
Here, the journal entry, which included the judgment denying Nadine’s intervention, was not filed until March 27,1987. Notice of appeal was filed on April 2,1987, within the period prescribed by K.S.A. 60-2103(a).
Although Nadine concedes that she was not the executrix when she filed her motion, she contends counsel for defendants prevented her appointment by his refusal to deliver the original will to her. The record shows defense counsel was ordered to deliver the will the first day of trial, and again on the second day. According to the court, Nadine did not receive her letters testamentary until November 10, 1986. This was after the court had ordered involuntary dismissal against Edward on all but account 845. Nadine also failed to attach to her motion the pleading required by K.S.A. 60-224(c)(l), i.e., “a pleading setting forth the claim or defense for which intervention is sought.”
“Whether a motion to intervene is allowed is normally a matter of judicial discretion. [Citation omitted.] It depends upon the concurrence of three factors: (1) Timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor’s interests. [Citation omitted.]” American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976). (Emphasis added.)
The trial court was correct in refusing to add Nadine as a necessary party as she had not yet received her letters testamentary and did not comply with 60-224(c)(l) by filing an accompanying pleading. We find no abuse of discretion.
Defense Counsel’s Conduct Did Not Deny Edward A Fair Trial.
Edward’s final issue concerns nine allegations of misconduct by defense counsel which he contends prevented him from obtaining a fair trial.
Remarks and misconduct of counsel constitute reversible error when, because of them, the parties have not had a fair trial. A fair trial requires an adequate hearing before an impartial tribunal based on legally admissible evidence relevant to the issues involved, free from bias or prejudice. On appeal, reversible error will not be considered when based on misconduct of counsel unless objection is made in the trial court. An exception is made if counsel’s conduct permeates the entire proceeding and'was part of the trial strategy. See Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973).
Edward candidly admits that objection Was not made in the trial court to all of the conduct we are now asked to review. We have, however, reviewed each of Edward’s allegations concerning defense counsel’s conduct. We conclude, whether each allegation of misconduct is considered individually or as a whole, Edward has failed to establish that defense counsel’s conduct deprived him of a fair trial.
Reversed and remanded with directions to award Ida one-half of the proceeds from the three accounts; the remaining one-half of the proceeds is to be awarded to defendants as joint’ tenants. | [
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Rulon, J.:
Plaintiff, Hutchinson National Bank and Trust Company, appeals from the declaratory judgment granted defendant, Ida Brown, by the Reno County District Court. The primary issue on appeal is whether a unilateral pledge of a certificate of deposit, held in joint tenancy, severs any one of the four unities required for the continued existence of a joint tenancy. We find that the unity of interest is severed and reverse.
The essential facts are not disputed by the parties. The district court summarized the facts as follows:
“On May 22, 1981, Harry Brown purchased a $15,000 certificate of deposit at the Hutchinson National Bank. It was issued, at his request, in the names of Harry and his wife, Ida, as joint tenants. On May 21, 1984, the grandson of Harry, Dale Brown, applied for a loan of $15,000 at Hutchinson National Bank. Harry was with Dale. The Bank indicated that it would need some security for such a loan, and Harry agreed to pledge the certificate of deposit. Harry and Dale both signed the note and security agreement. Harry told Ida what he had done shortly afterwards. Harry died on January 19,1985, and the Bank paid the interest on the certificate of deposit to Ida until this case was filed. On March 27, 1986, Dale Brown filed a petition in bankruptcy. On July 11, 1986, the Bank filed this suit, asking that it be allowed to apply the $15,000 certificate of deposit against the note of Dale Brown.”
The district court concluded that (1) the pledge of the certificate of deposit in joint tenancy did not sever the joint tenancy; (2) Ida had no duty to inform the Bank that she did not consent to the pledge by Harry and was not estopped to contest the pledge; and (3) at Harry’s death, the certificate of deposit passed, by operation of law, to Ida free and clear of any lien or security interest of the Hutchinson National Bank.
Judgment was entered for Ida.
This court’s review of conclusions of law is unlimited. Utility Trailers of Wichita, Inc. v. Citizens Nat’l Bank and Tr. Co., 11 Kan. App. 2d 421, 423, 726 P.2d 282 (1986) (citing Baker v. R.D. Andersen Constr. Co., 7 Kan. App. 2d 568, 571, 644 P.2d 1354, rev. denied 231 Kan. 799 [1982]).
It is well settled that the creation and continued existence of a joint tenancy requires the coexistence of four unities: time, title, interest, and possession. Neaderhiser v. State Dept. of Social & Rehab. Serv., 9 Kan. App. 2d 115, 117, 673 P.2d 462 (1983) (citing Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 [1966]).
A joint tenancy may be terminated (1) by mutual agreement of the parties; (2) by any conduct or course of dealing sufficient to indicate that all the parties have mutually treated their interests as belonging to them in common; or (3) by operation of law upon the destruction of any one or more of the necessary unities. Carson, Executrix v. Ellis, 186 Kan. 112, 115, 348 P.2d 807 (1960); Federal National Mortgage Ass’n v. Elliott, 1 Kan. App. 2d 366, 370, 566 P.2d 21 (1977). The record in the present case does not indicate that (1) Harry and Ida mutually agreed to terminate the joint tenancy or (2) they mutually engaged in any conduct or course of dealing that would indicate they both treated their interest in the CD as belonging to them in common. The question, therefore, is whether the pledge destroyed one of the four required unities.
A pledge, by definition, “is a bailment of personal property as security for a debt . . . , the property being redeemable on specified terms and subject to sale in the event of default.” Columbia Casualty Co. v. Sodini, 159 Kan. 478, 484, 156 P.2d 524 (1945). Our Supreme Court has held that a pledge constitutes a lien on the property pledged, Walton v. Piqua State Bank, 204 Kan. 741, 754, 466 P.2d 316 (1970), and that a mortgage creates a lien upon real property. Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 962, 685 P.2d 866 (1984).
In Misco, the court set forth the following definition of a lien:
“A lien is a hold or claim which one has upon the property of another as security for a debt or charge, as a tie that binds the property to a debt or claim for its satisfaction, as a right to possess and retain property until a charge attaching to it is paid or discharged, as a charge imposed upon specific property by which it is made security for the performance of an act, and as being synonymous with a charge or encumbrance upon a thing.” 235 Kan. at 962 (citing Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 [1955]).
In the present case, the Bank relies heavily upon Hall v. Hamilton, 233 Kan. 880, 667 P.2d 350 (1983). The issue in Hall was whether a joint tenancy in real estate was subject to involuntary partition. The court held that one joint tenant has the right to sever his or her joint interest. Partition is one approach a cotenant may pursue to sever the joint tenancy. The court further stated:
“It is undisputed that any joint tenant may sever his or her joint tenancy interest in real property by . . . mortgaging the joint tenancy interest .... Once the joint tenancy interest is severed, a tenancy in common results.” 233 Kan. at 885.
The Bank contends that the plain language in Hall requires Kansas courts to find that a pledge acts as a severence of the joint tenancy interest because there is no legal distinction in the operative effect of a mortgage or pledge (other than the type of property encumbered). We agree.
We have reviewed the cases relied upon by the district court and cited by counsel but do not find them dispositive of the narrow issue before us.
Here, the pledge by Harry was a formal act which severed the original unity of interest required for the continued existence of the joint tenancy. The lien represents a charge against the certificate of deposit to secure the repayment of the note. By virtue of Harry’s unilateral pledge, Ida was deprived of her use and enjoyment of her undivided interest in the certificate of deposit.
The unilateral pledge severed the unity of interest, dissolved the joint tenancy as a matter of law, and created a tenancy in common. The severence of the joint tenancy gives rise to a rebuttable presumption of equal ownership. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 462, 574 P.2d 1382 (1978). Ida retains a one-half interest in the certificate of deposit unless the presumption of equal ownership is rebutted upon remand. Because remand is required, we need not reach the other issues raised by the Bank.
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Brazil, J.:
John Alfred Scott, conservator for L.M.S. and R.D.S., minors, appeals the decision of the district court setting aside a previous order allowing fees and expenses and disallowing $8,365.79 in conservatorship expenses.
The mother of L.M.S. and R.D.S., both minors, was shot and killed by the minors’ father. Shortly thereafter Scott filed a petition for the appointment of a conservator for L.M.S. and R.D.S., and Linda L. Pfalzgraf was appointed attorney for the minors to represent them “at all stages of the proceedings herein.” Scott was appointed as conservator for both minors; the order was filed December 1, 1983. During this same period, Scott filed another action asking that the children be adjudicated children in need of care, and they were placed in the care of Scott and his wife where they remained until November 1985. Pfalzgraf was appointed as guardian ad litem in the child in need of care proceedings.
On March 8, 1984, the court allowed the conservator attorney fees, the support and maintenance expenses requested by Scott, and a monthly allowance of $450 for future support and maintenance. On April 3, 1985, the court approved Scott’s annual accounting. In both instances the court ruled that notice of the time and place of the hearing was “not necessary or required by law.”
On November 7, 1985, Pfalzgraf filed a petition seeking to set aside the order allowing fees and expenses and the order approving the annual accounting because she, as guardian ad litem for the children in the child in need of care case, had not received notice of the hearings.
At this point Judge McDaniel apparently recused himself (nothing appears in the record), and Judge Renner ruled that Pfalzgraf should have been given notice and set aside both previous orders. At a hearing held before Judge Renner on May 28, 1986, the court disallowed total claimed expenses in the amount of $8,365.79, and ordered the conservator to reimburse the conservatorship in that amount.
On appeal Scott contends (1) that Pfalzgraf lacked standing to file the petition to set aside the orders, (2) that there should have been an evidentiary hearing before setting aside Judge McDaniel’s orders, and (3) that the court erred in disallowing expenses and ordering reimbursement. We affirm.
1. Who may contest a voidable order
Scott contends Pfalzgraf was never appointed guardian ad litem for the children in the conservatorship proceedings, her appointment as attorney under K.S.A. 59-3011 ended when he was appointed as conservator, and Pfalzgraf therefore had no standing to contest the orders approving his claims against the children’s estates. Scott claims, in effect, that K.S.A. 59-1717, K.S.A. 59-3030, and K.S.A. 1987 Supp. 59-2208 give the trial court absolute discretion to decide who will receive notice of its proceedings and yet issue orders that bind even interested persons who received no notice. This is not the law in Kansas.
Pfalzgrafs standing to ask the court to set aside its orders approving Scott’s claims is governed by K.S.A. 59-1703. Article 17 of chapter 59 of our statutes contains provisions applicable to all estates. K.S.A. 59-1701 et seq.; see In re Lake, 7 Kan. App. 2d 586, 588, 644 P.2d 1368, rev. denied 231 Kan. 800 (1982) (K.S.A. 59-1711 provides a procedure for removing guardians and conservators). K.S.A. 59-1703 provides in pertinent part: “[A]ny transaction which is affected by a substantial conflict of interest on the part of the personal representative ... is voidable unless: . . . (2) the transaction is approved by the court after hearing upon notice to interested persons.”
Scott’s claims involved a substantial conflict of interest. A large portion of the claims was based on alleged expenditures as guardian for the children’s support and maintenance; this included $450 per month for shelter expense. He also claimed over $5,000 in attorney fees for both the conservatorship and the juvenile proceedings. The claims covered a period of about thirteen months and amounted to about thirty percent of the total estate of the children as of the end of that period.
In Osment v. Trout, 156 Kan. 120, 122-23, 131 P.2d 640 (1942), the court declared, “Without elaboration, it may be said that an order made without notice and without appointment of a guardian ad litem authorizing a guardian to use assets of her ward to pay a claim proposed by her was not a final order or decision.” Consequently, the court concluded a successor guardian could properly appeal the probate court’s order approving the first guardian’s settlement which included the claim. 156 Kan. at 122-23. Although Osment arose under former statutes, it still supports the view that orders approving a conservator’s claim against his conservatee’s estate are not necessarily binding on the conservatee. By amending K.S.A. 59-1703 (Corrick) in 1975 to add the previously quoted provision, L. 1975, ch. 299, § 12, the legislature did override Osment to the extent of requiring the conflict of interest to be substantial and making the orders final but voidable rather than not final.
The question remains, though, whether Pfalzgraf was a proper person to contest the orders. We find the statutes do not specifically address this question. Pfalzgraf s petition sought to set aside the orders made without notice to her as guardian ad litem and “other interested parties,” and the court’s ruling setting aside the orders stated that notice should have been given to her as guardian ad litem for the children. While there is some question whether Pfalzgraf was the children’s guardian ad litem for purposes of the conservatorship proceedings, there is no question the court could have appointed her under K.S.A. 59-2205 once it recognized the problem of lack of effective notice to the children in its prior proceedings. We construe the court’s order as one which again appointed Pfalzgraf as the children’s guardian ad litem if her prior appointment had ended. In the situation presented by this case, we hold any person may petition the court as the next friend of the children to bring the conservator’s conflict of interest to the court’s attention, and the court may recognize that person or appoint another to represent the children’s interests. See In re Lake, 7 Kan. App. 2d 586 (husband as next friend sought change of wife’s guardian and conservator); K.S.A. 59-2205, 1939 Judicial Council Comment (“The appointment of a guardian ad litem is discretionary; unnecessary in merely formal matters. If a contest is imminent or substantial rights are affected, one should be appointed.”)
2. Evidentiary hearing
Scott further argues the court’s orders should not have been set aside without an evidentiary hearing. He contends the trial judge who entered those orders would have testified Scott’s attorney had consulted with the judge and followed the judge’s directions for handling Scott’s claims. These facts, even if true, would not create a need for an evidentiary hearing. The judge’s final order, entered without appointing an independent representative for the children, approved this procedure no matter how instigated, and the judge’s active participation in choosing the procedure would not validate an otherwise improper course of action. The trial court did not err in setting aside the previous orders without an evidentiary hearing.
3. Disallowed expenses
Finally, Scott claims the court erred in disallowing the shelter and health insurance expenses and some of the attorney fees he claimed from the children’s estates. He apparently believes both items come within K.S.A. 59-1717, which provides in part: “Every fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable.” This statute authorizes payment only for expenses, including attorney fees, incurred as the conservator of the children’s estates. However, K.S.A. 1987 Supp. 59-3018 provides in part:
“(b) The guardian of a minor shall be entitled to the custody and control of the ward and shall provide for the ward’s education, support and maintenance.
“(f) A guardian of a ward is not obligated by virtue of the guardian’s appointment to use the guardian’s own financial resources for the support of the ward.”
K.S.A. 59-3019 provides in part:
“A conservator shall be subject to the control and direction of the court at all times and in all things. Said conservator shall ... (3) pay the reasonable charges for the support, maintenance, and education of the conservatee in a manner suitable to the conservatee’s station in life and the value of the conservatee’s estate.”
Thus, the guardian is authorized to provide the conservatee’s support and maintenance and the conservator is authorized only to pay those expenses. Scott as guardian was, therefore, seeking to recover the costs of the children’s shelter and health insurance from Scott as conservator under the authority of K.S.A. 59-3026, which generally allows demands against a conservatee’s estate to be made in court, and not under K.S.A. 59-1717.
Both K.S.A. 59-1717 and K.S.A. 59-3019 require the court to determine what charges are reasonable for the permitted expenses. This leaves the determination to the trial court’s discretion, and this court will reverse that determination only when the court abuses its discretion. “If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
It is clear the trial court properly denied Scott’s claim for attorney fees he incurred in the juvenile case concerning the children. These fees were for his own benefit and did not constitute an expense of conserving the children’s estates.
Scott cites an Internal Revenue Service publication and a Social Security law service to support his claim the court abused its discretion in denying his claim for shelter and health insurance expenses. These authorities, of course, are not binding on the trial court. Scott asked the court to allow him a proportional share of his mortgage payment, real estate taxes, homeowners insurance premiums, utilities, and medical and dental insurance as part of the cost of the children’s support and maintenance, but admitted at the hearing he had to pay the same amount for these expenses whether the children lived with him or not. At the time in question, the two conservatees were somewhere between one and four years old. Given the age of the children, the size of their estate, their income, their possible future needs, and the temporary status of their placement with this guardian, we believe a reasonable person could take the view they should not be required to contribute toward the costs of the guardian’s home, utilities, and health insurance, which were unaffected by their presence. Consequently, we cannot say the trial court abused its discretion in disallowing these costs.
We note Scott’s reliance on the trial court’s original order is misplaced. That order was set aside following Pfalzgraf s petition. Thus, it no longer had any effect, and the trial court had to consider the case as if that order had never been made.
Finally, Scott claims that the judgment should not bear interest. K.S.A. 1987 Supp. 16-204 provides for interest on any judgment rendered by a court of this state. The district court was justified in requiring interest to be paid on the reimbursement.
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Rulon, J.:
Nancy Lou Jarvis appeals the district court’s decision upholding the parties’ agreement whereby Nancy promised not to hire a particular attorney to represent her in any future action against her former husband, Laurence Michael Jarvis, a practicing attorney.
The undisputed facts of this case are as follows:
Nancy Lou Jarvis and Laurence Michael Jarvis were married in November 1970. They had two children, Heather and Carey. In April 1982, Nancy filed for divorce on grounds of incompatibility. On October 31, 1982, after extended negotiations, Nancy and Laurence signed an agreement as a condition precedent to their separation agreement whereby Nancy agreed not to hire Bernis G. Terry to represent her or her children in any action against Laurence. That same day, they executed a separation agreement. The following month, a divorce decree was filed dissolving their marriage and incorporating by reference the separation agreement.
Nancy subsequently filed a motion to increase child support, to resolve problems with visitation, and to void the agreement restricting Nancy’s right to employ Bernis Terry in actions against Laurence. After a hearing, the court resolved the child support and visitation issues but took under advisement the question regarding the agreement. The court later held the agreement was valid and not contrary to public policy.
The sole issúe we must decide is whether the agreement restricting Nancy’s right to employ a particular attorney is void as against public policy. We find the agreement violates public policy and reverse.
Parties who are mentally competent may make contracts on their own terms. Corral v. Rollins Protective Services Co., 240 Kan. 678, 681, 732 P.2d 1260 (1987). A party who has entered into a contract is bound by it even though the contract may prove to be unwise or disadvantageous to him. Corral v. Rollins Protective Services Co., 240 Kan. at 681. Contracts are presumed legal and the burden rests on the party challenging the contract to prove it is illegal. In re Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 (1960). See Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P.2d 803 (1964). If an agreement is against public policy, however, it is illegal and void. Hunter v. American Rentals, 189 Kan. 615, 618, 371 P.2d 131 (1962). A contract “is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, or tends to interfere with the public welfare or safety.” Hunter v. American Rentals, 189 Kan. at 618.
In the present case, Nancy and Laurence made the following agreement:
“AGREEMENT FOR CONDITION PRECEDENT TO SEPARATION AGREEMENT
“IT IS EXPRESSLY AGREED that this Agreement is made a part of the consideration flowing to each party for their entry into a Separation Agreement in the divorce case of Jarvis vs. Jarvis, Case No. 111234.
“Both parties do acknowledge that without this Agreement neither party would or will enter into said Separation Agreement.
“Nancy L. Jarvis agrees without any reservations or limitation that she will never, under any circumstances or facts - hire, retain, or employ Bernis G. Terry or any member of any law firm he is now or is hereafter associated with, to advise or represent her in this divorce case (No. 111234) or any other litigation against Laurence M. Jarvis. This includes but is not limited to any appeal, any motion, or any hearing concerning any dispute or development of any nature in the divorce case or any other litigation. In other words, never again will Laurence M. Jarvis have to litigate any aspect of this case or any other with Bernis G. Terry representing Nancy L. Jarvis or his children. [Emphasis added.]
“Nancy L. Jarvis will be able to retain, employ or hire any other attorney of her choice should she desire to litigate against Laurence M. Jarvis.”
Nancy contends the agreement violates public policy because it restricts her right to secure the attorney of her choice. She specifically contends Rule 2-108 of the Disciplinary Rules of the Code of Professional Responsibility and Rule 5.6 of the Model Rules of Professional Conduct evince a public policy that individuals should be allowed to obtain the attorney of their choice and that agreements restricting this right are against public policy.
Although whether an attorney violates the Code of Professional Responsibility is a matter within the sole province of the Kansas Supreme Court, this court may consider the Code for guidance in deciding nondisciplinary actions. Niblock v. State, 11 Kan. App. 2d 30, 32, 711 P.2d 771 (1985), rev. denied 238 Kan. 878 (1986). See Farmco, Inc. v. Explosive Specialists, Inc., 9 Kan. App. 2d 507, 516, 684 P.2d 436 (1984).
Pursuant to Supreme Court Rule 225 (1987 Kan. Ct. R. Annot. 122), Kansas adopted the Disciplinary Rules of the Code of Professional Responsibility subject to some modification. The Kansas version of DR 2-108 provided:
“Agreements Restricting the Practice of a Lawyer. (A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits. (B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law, but he may enter into an agreement not to accept any other representation arising out of transaction or event embraced in the subject matter of the controversy or suit thus settled.” (1987 Kan. Ct. R. Annot. 133.)
The above rules were replaced in March 1988, when Kansas adopted a modified version of the Model Rules of Professional Conduct. The Kansas version of MRPC 5.6 provides:
“A lawyer shall not participate in offering or making: (a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer s right to practice is part of the settlement of a controversy between private parties.” (Emphasis added.) MRPC 5.6, Rules Relating to Discipline of Attorneys, p. 131 (March 1, 1988).
The comment to this rule provides:
“An agreement restricting the right of partners or associates to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.
“Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.” p. 131
Ethics opinions from other states also indicate restrictions on a lawyer’s ability to practice are against public policy.
In Oregon, for example, it has been held that a settlement agreement may not include a provision that one of the attorneys will never again take a case against the opposing party. Maru, Digest of Bar Association Ethics Opinions 9819, p. 456 (1975 Supp.). See also Maru, Digest of Bar Association Ethics Opinions 10734, p. 115 (1980 Supp.). (A settlement agreement which includes a provision whereby a lawyer agrees he will never again represent anyone who has a claim against the defendant in the matter being settled violates DR 2-108[B], which is an assurance of the public’s right to counsel through the lawyer’s right to practice.)
An informal opinion of the American Bar Association indicated an attorney “may not communicate or implement his client’s desire to require the opposing counsel not to represent a party against his client.” Maru, Digest of Bar Association Ethics Opinions 5622, p. 90 (1970 Supp.).
MRPC 5.6 and the comments thereto indicate that the agreement before us is contrary to the public policy of Kansas because it indirectly restricts Bernis Terry’s right to practice law as part of the condition of the divorce settlement between Nancy and Laurence and because it limits Nancy’s freedom in choosing an attorney. Consequently, the agreement is void and unenforceable.
We need not discuss the other issues presented in light of our disposition of the above issue.
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Davis, J.:
The defendant, Virgil K. Alexander, appeals a jury conviction for felony theft. K.S.A. 1986 Supp. 21-3701. The trial court sentenced defendant to one to five years’ imprisonment. Defendant raises five issues on appeal, the most significant of which is whether the trial court erred by allowing the jury to consider sales tax as part of the value of the property he was charged with stealing.
On December 19, 1984, at approximately 7:00 p.m., Donald Brooks, a Prairie Village, Kansas, police officer, joined two other Prairie Village officers at a shopping center at 71st and Mission Road. The three officers had received information that a “window smash or a smash and grab” might be attempted at Malliard’s clothing store. They “set up surveillance” in three locations on the west side of the Jones Store parking lot.
Shortly thereafter, the officers observed a brown 1977 Olds mobile with Missouri tags proceed through the parking lot and past the west entrance to the Jones Store. The driver of the Oldsmobile made a U-turn and parked in front of the west door of the Jones Store, in the lane of travel and behind a row of cars.
The Oldsmobile contained two black males. One of the men, identified by Officer Brooks as defendant, got out of the passenger side of the car and went inside the west door of the Jones Store. He was wearing a dark knee- or three-quarter-length overcoat and was not carrying anything. The brown Oldsmobile remained parked with the engine running. The driver remained seated in the car and kept looking from side to side and forward.
Five to seven minutes later, defendant came out of the Jones Store. He no longer wore the dark coat, but carried it in his arms. According to Officer Brooks, “the coat appeared to have something inside [it] as it formed a bundle in his arms.” Officer Brooks could not see what was inside the coat or what defendant did with the coat when he got back into the car.
The officers followed the brown Oldsmobile for about four blocks and stopped it. They had run a computer check on the license and found that the car was owned by an individual (not defendant) with a criminal record. They did not stop defendant outside the Jones Store because of possible danger to shoppers.
Officer Brooks approached the car from the passenger side, where defendant sat. Defendant identified himself. Officer Brooks shined his flashlight into the car and saw an open bottle of Wild Irish Rose wine lying on the front seat next to defendant. In the back seat, he observed five Christian Dior sweaters. The dark overcoat partially covered the sweaters, but on one of them the price and brand tags were visible. Officer Brooks did not see a sales receipt.
The officers removed defendant and the driver, identified as Vernon Johnson, from the car and placed them under arrest for violation of the open container law. Officer Brooks informed the two suspects of their Miranda rights. Defendant indicated that he wished to talk. Officer Brooks took defendant to his patrol car and, once inside, again read him Miranda warnings. After defendant stated that he understood the warnings, Officer Brooks asked him about the sweaters. Brooks testified:
“I asked Mr. Alexander where the sweaters had come from. He stated, We took them from the store. I then asked what store. He replied the Jones Store. Mr. Alexander then stated he didn’t pay for them. Mr. Alexander stated then he had children and needed money for gifts, so he took merchandise from the store while his partner waited for him outside. I asked if the driver of the vehicle knew what he had done in the store. Mr. Alexander stated, Yes, we knew what we were doing before we got there.”
Officer Brooks placed defendant under arrest for theft. At the police station, defendant refused to sign a form waiving his Miranda rights or to make a written statement.
Mike Gardner, a security officer with the Jones Store, arrived at the location of the arrest and identified the sweaters as Jones Store merchandise. He, however, could not identify from which Jones Store the sweaters had come. Later in the evening, at approximately 9:00 p.m., Officer Brooks returned to the Prairie Village Jones Store to locate the sweater display. He testified that the sweaters were displayed near the west entrance of the store and that the display was in disarray. Gardner testified that the disarray was not unusual during the Christmas season.
Trish Wesley, who was manager of the men’s department at the Prairie Village Jones Store on December 19, 1984, testified that the five sweaters were Jones Store merchandise, that the Prairie Village store had sold only one Christian Dior sweater on December 19, and that defendant did not have permission to remove any sweaters. She, however, could not identify from which Jones Store the sweaters had come, nor did she know if the Prairie Village Jones Store had lost five sweaters on the day in question. She testified that the sweaters cost $149.95 without tax and $156.74 with tax.
Defendant did not testify or present any evidence.
Defendant raises five issues on appeal: 1) Whether the trial court erred by allowing the jury to consider sales tax as part of the value of the stolen property; 2) whether the trial court lacked jurisdiction to hear the case; 3) whether the corpus delicti of felony theft was sufficiently established; 4) whether the trial court erred by refusing to suppress his statements to Officer Brooks; and 5) whether the trial court erred by failing to suppress all evidence obtained from the stop.
Defendant contends that the trial court erred by allowing the jury to consider sales tax as part of the value of the sweaters. The evidence indicated that the five sweaters would have sold for $149.95 on December 19, 1984, but with tax added would have cost $156.74. At the close of the evidence, defendant moved for a directed verdict on the charge of felony theft, arguing that the State should not be permitted to boost the value of unsold retail merchandise over the $150 felony threshold by tacking on sales tax.
The court denied defendant’s motion for a directed verdict, ruling that sales tax was an element of the value of retail merchandise and that the dispute over the value of the sweaters presented a question of fact for the jury. The court instructed the jury on both felony and misdemeanor theft.
The jury convicted defendant of felony theft. On motion for a new trial, defendant renewed his objection to the inclusion of sales tax in the value of the sweaters. The court adhered to its previous ruling and denied the motion.
In the motion for a new trial, the State asserted that the trial court properly submitted the issue of value to the jury because the sweaters bore price tags of $39 each or $195 total. Trish Wesley, the only representative of the Jones Store to testify about the value of the sweaters, however, stated that on December 19, 1984, the sweaters cost $149.95 without tax. The jury would have acted contrary to the evidence had it concluded that on the day of the theft the sweaters had a fair market value greater than $149.95.
We conclude on the facts of this case that the dispute over inclusion of sales tax in the value of the sweaters presented a question of law for the court.
The sweaters were taken from Jones Store merchandise offered for sale. Upon the retail sale of merchandise, Kansas law obligates a merchant to collect and forward a sales tax to the state. K.S.A. 79-3603, -3604. In no sense may a theft be characterized as a sale. See K.S.A. 79-3602(c). Because the sweaters had not been sold, the Jones Store did not owe, and the state was not entitled to collect, a sales tax on them. The loss from the theft of the sweaters was at most $149.95.
State v. Parsons, 11 Kan. App. 2d 220, 720 P.2d 671 (1986), on which the State relies, is clearly distinguishable from the present case. In Parsons, the defendant, a store clerk, stole the proceeds from a sale, including the sales tax paid by the customer. On appeal from a conviction for felony theft, he argued that the sales tax belonged to the State, not to the store, and, thus, that the store was not the “owner” of the tax, as required by K.S.A. 1986 Supp. 21-3701. We held that the store from which the theft occurred had an interest in the sales tax because it was required to collect and pay it to the State. 11 Kan. App. 2d, Syl. ¶ 2. In this case, the sweaters had not been sold. Because no sales tax had been imposed, none was stolen.
We hold that the trial court erred by allowing the jury to consider sales tax in its determination of the value of the sweaters. See Tunnell v. State, 99 N.M. 446, 659 P.2d 898 (1983); People v. Barbuto, 106 Misc. 2d 542, 434 N.Y.S.2d 120 (Sup. Ct. 1980).
Second, defendant contends that the trial court lacked venue because the State failed to prove that the sweaters were stolen from the Prairie Village Jones Store. Venue is a question of fact to be determined by the jury and may be established by proof of facts and circumstances from which the place of commission of the crime maybe fairly and reasonably inferred. State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978); State v. Pyle, 216 Kan. 423, 433, 532 P.2d 1309 (1975). Substantial competent evidence supported the jury’s determination that the theft occurred from the Prairie Village Jones Store.
Third, defendant argues that the State did not establish the “corpus delicti” of the theft because it did not prove that the Jones Store suffered the loss of five Christian Dior sweaters. See State v. Aten, 203 Kan. 920, 926, 457 P.2d 89 (1969) (“The corpus delicti in larceny is constituted of two elements: (1) that the property was lost by the owner; and (2) that it was lost by a felonious taking.”); Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385, 399 (1972) (“To establish the corpus delicti of theft, under the new law as under the old, it is necessary to prove (1) that property or an interest in property was lost by the owner, and (2) that it was lost as the result of the unlawful act of another who obtained or exerted control over such property.”).
Defendant’s contention that the State failed to establish the corpus delicti of the crime is really an attack on the sufficiency of evidence. Defendant would have us ignore both his admission to Officer Brooks that he took the sweaters from the Jones Store and Officer Brooks’ testimony that he saw defendant leave the Jones Store with a coat-covered bundle under his arm, stopped him some four blocks away, and found the five sweaters partially covered by the coat in the back seat of the car. We conclude that the State presented sufficient evidence to enable the jury to find defendant guilty beyond a reasonable doubt of theft. State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
Fourth, defendant contends that because he refused to sign a waiver of his Miranda rights, his statements to Officer Brooks were inadmissible. The trial court considered the admissibility of defendant’s statements in a hearing on his motion to suppress. The court found that the officer twice advised defendant of his Miranda rights and that defendant freely and voluntarily agreed to talk. “When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.” State v. Zuniga, 237 Kan. 788, 792, 703 P.2d 805 (1985) (quoting State v. Brown, 235 Kan. 688, Syl. ¶ 3, 681 P.2d 1071 [1984]). We find that substantial competent evidence supported the trial court’s determination that defendant’s statements were freely, voluntarily, and knowingly made. Contrary to defendant’s assertion, a waiver of Miranda rights need not be in writing. State v. Carpenter, 211 Kan. 234, 237, 505 P.2d 753 (1973). The circumstantial evidence adequately corroborated the officer’s testimony about defendant’s confession. State v. Brown, 236 Kan. 800, 804, 696 P.2d 954 (1985).
Finally, defendant contends that the trial court erred by failing to suppress all evidence obtained from the stop. He, however, did not raise this issue before the trial court, and we will not consider it on appeal. State v. Fisher, 233 Kan. 29, 31-32, 661 P.2d 791 (1983).
Reversed and remanded with directions to enter a conviction for misdemeanor theft and to sentence defendant accordingly. See State v. Piland, 217 Kan. 689, 693, 538 P.2d 666 (1975). | [
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Brazil, J.:
Candletree Townhouses (Candletree), defendant owner of two condominium units, appeals the trial court’s ruling that during the redemption period it was not entitled as owner to possession of the properties, including the rents and profits, under the provisions of K.S.A. 60-2414. We reverse.
Both units were subject to a mortgage in favor of Mid Kansas Federal Savings and Loan Association of Wichita (Mid Kansas) executed by the previous owners, Don W. Zimmer and Katherine A. Zimmer. On the same day the mortgages were executed, the Zimmers executed assignments to Mid Kansas which provided in part:
“Borrower, for and in consideration of Lender’s making said loan and for other valuable consideration, . . . assigns ... to Lender, the rents, profits, and in come derived from the real estate . . . [and] in case of default in the payment of the indebtedness . . . [lender is authorized to] receive . . . such rents, income and profits, to take possession of the premises without having a receiver appointed therefor, to rent and manage the same . . . and apply the net proceeds of the rents, income and profits from the real property ... on the indebtedness until all delinquencies, advances, and indebtedness are paid in full or unless sooner released.”
Both units were subsequently conveyed to Candletree by warranty deeds. Although it is not clear from the record, it is our understanding from the oral arguments that the Zimmers defaulted on both mortgages sometime after the units had been conveyed to Candletree, and that Candletree allowed Mid Kansas to assume the management of both units and receive the rents.
Also, following default, Mid Kansas filed a foreclosure action on each mortgage. The trial court held that the Zimmers were in default, ordered foreclosure on both properties, credited the Zimmers for funds which Mid Kansas had received under the assignments of rents, and granted judgments for the remaining balances due. The trial court ordered the sale of both units and granted Candletree a six-month redemption period in each case.
Following the confirmation of both sales, Candletree filed motions to compel Mid Kansas to surrender possession of the properties. The motions urged that Candletree was entitled to possession during the redemption period as a defendant owner, pursuant to K.S.A. 60-2414(a). The trial court denied Candle-tree’s motions and held that under K.S.A. 60-2414(a) the Zimmers’ assignment of rents and profits was valid and binding upon Candletree. It additionally found that Mid Kansas was a mortgagee in possession and entitled to retain possession until the mortgages were paid in full.
The right of redemption upon property sold under execution or order of sale is governed by K.S.A. 60-2414. It provides that during the applicable period of redemption “[t]he defendant owner in the meantime shall be entitled to the possession of the property.” K.S.A. 60-2414(a). This same provision indicates that both corporate and individual mortgagors may agree in the mortgage instrument to reduce or waive the period of redemption. K.S.A. 60-2414(a). However, a person as mortgagor may not agree to reduce or waive the redemption period “in a mortgage instrument against a dwelling or dwellings for occupancy by not more than two families or against agricultural land.” K.S.A. 60-2414(a).
A defendant owner’s right of redemption is also freely assignable or transferable “and the purchaser or assignee shall have the same right of redemption as the defendant owner.” K.S.A. 60-2414(k). Thus, the Zimmers’ right of redemption was fully transferred to Candletree. This view is consistent with the trial court’s orders granting redemption rights to defendant Candletree.
A defendant owner’s right to possession during the redemption period generally includes the right to rents and profits from the property. Home State Bank v. Johnson, 240 Kan. 417, 428-29, 729 P.2d 1225 (1986); First Federal Savings & Loan Ass’n v. Moulds, 202 Kan. 557, 561, 451 P.2d 215 (1969); Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 43, 397 P.2d 360 (1964); Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 443, 7 P.2d 86 (1932); Ropfogel v. Enegren, 7 Kan. App. 2d 644, 647, 646 P.2d 1138 (1982). The statutory provision concerning waste during the redemption period preserves this right to rents and profits from the property. K.S.A. 60-2414(p) authorizes the holder of the certificate of purchase to seek appointment of a receiver to prevent waste during the redemption period. However, it specifically protects the right to rents and profits as a part of the right of redemption:
“The receiver may rent, control and manage the premises but the income during that time, except the amount that is necessary to keep up repairs, prevent waste and pay real estate taxes and insurance premiums, shall go to the person who otherwise would be entitled to possession during the- period of redemption.” K.S.A. 60-2414(p).
On appeal, Mid Kansas urges that any redemption rights had been waived in the instant case. This contention is directly contradicted by the trial court’s conclusion that Candletree was entitled to a six-month redemption period. Mid Kansas argues that each mortgage contains language of waiver, but fails to isolate any specific language that would apply here.
The assignment of rents agreements do not contain an express waiver of the right of redemption. In Broadhurst, the Kansas Supreme Court held that a corporate mortgagor that had not waived its right of redemption could not separately waive its right to rents and profits during the redemption period. 194 Kan. at 43-45. The court stated: “The policy of protecting mortgagors in this state is too important to allow even a corporate mortgagor to waive its rights to possession and income without also waiving its equity of redemption.” 194 Kan. at 44. At that time the applicable statute allowed waiver of redemption rights by a corporate mortgagor, but did not yet authorize a similar waiver by an individual.
Public policy strongly supports the right of redemption. Earlier statutes did not allow any mortgagor to waive the statutory period of redemption. See Capitol B. & L. Ass’n v. Ross, 134 Kan. at 443. In Southwest State Bank v. Quinn, 198 Kan. 359, 361, 424 P.2d 620 (1967), the Kansas Supreme Court stated, “This court has always zealously guarded that right.”
Mid Kansas argues that the assignment of rents and profits itself establishes a waiver of these same rights during the period of redemption. As noted, Broadhurst rejects this position. Furthermore, the case authority cited by Mid Kansas does not establish this proposition and is distinguishable from the present case.
In Hall v. Goldsworthy, 136 Kan. 247, 250, 14 P.2d 659 (1932), the court considered the validity of an assignment of rents and profits during the period after the filing for foreclosure but before a sheriff s sale. The decision did not address the validity of such an assignment with regard to rents and profits during the redemption period. As Mid Kansas correctly notes, the applicable statute at the time did not allow waiver or assignment of the rights of redemption.
In Holton B. & L. Ass’n v. Gibson, 139 Kan. 829, 33 P.2d 138 (1934), after the filing for foreclosure, the trial court appointed a receiver to take possession and collect the rents. 139 Kan. at 830. The rental proceeds in dispute were from a period after default but before any formal judgment of foreclosure. 139 Kan. at 831-32. Again, the redemption period was not involved.
Similarly, Kershaw v. Squier, 137 Kan. 855, 856-57, 22 P.2d 468 (1933), and Farmers Union Jobbing Ass’n v. Sullivan, 137 Kan. 196, 197, 19 P.2d 476, modified 137 Kan. 450, 21 P.2d 303 (1933), did not directly involve the rights of the parties during the period of redemption. In these cases, no formal judgment of foreclosure had been entered and the creditors were claiming the right to rents and profits as a “mortgagee in possession.”
Finally, in Home Owners’ Loan Corp. v. Benner, 150 Kan. 108, 91 P.2d 9 (1939), after the filing of a suit to foreclose, the trial court ordered all rents paid to the clerk of the district court. 150 Kan. at 109. On appeal, the defendant mortgagor challenged the trial court’s subsequent order awarding the impounded rents to the mortgagee to apply to the mortgage obligation. 150 Kan. at 110. The defendant’s appeal challenged the order as a violation of the defendant’s homestead exemption rights. 150 Kan. at 110-11. The decision did not address the right to rents and profits during the period of redemption. 150 Kan. at 110-12.
In summary, these cases do not support Mid Kansas’ contention that a general assignment of rents and profits constitutes a waiver of the right to rents and profits as an incident of the right of redemption.
In addition, we understand each unit to be a single family condominium and therefore each unit is “a dwelling ... for occupancy by not more than two families.” K.S.A. 60-2414(a). As such, “any person, as mortgagor” is prevented by the statute from waiving the redemption rights.
At oral argument, Mid Kansas seemed to argue that the prohibition against waiver of redemption under 60-2414(a) applied only to waivers “in any mortgage instrument” and not to separate assignments as in the present case. Absent any authority for this argument, we must disagree. The assignments were executed by the Zimmers in conjunction with and at the same time as the notes and mortgages and provided that the assignments were required as additional security for performance of the terms and conditions of the notes and mortgages. The assignments were subject to the provision of K.S.A. 60-2414(a).
Mid Kansas argues that it is a “mortgagee in possession” and is entitled until the mortgage debt is satisfied to retain possession and all rents and profits, including any rents and profits from the property during the period of redemption. “The expression ‘mortgagee in possession’ has been adopted by the courts and law-writers as a convenient phrase to describe the condition of a mortgagee who is in possession of mortgaged premises under such circumstances as to make the satisfaction of his lien a prerequisite to his being dispossessed.” Stouffer v. Harlan, 68 Kan. 135, 137, 74 Pac. 610 (1903).
Candletree argues that Mid Kansas cannot be considered a “mortgagee in possession” after the foreclosure sale because a foreclosure sale terminates the relationship of mortgagor and mortgagee. We agree.
Bankers Mortgage Co. v. O’Donovan, 137 Kan. 309, 20 P.2d 809 (1933), relied upon by Mid Kansas, involved an action filed by a mortgagee in possession asking the court not to order a sale but merely fix a redemption period. The trial court ordered a sale and gave the defendant owner the possession of the property and the rents and profits during an eighteen-month redemption period.
The Supreme Court reversed the trial court, stating:
“It also is well settled that a mortgagee in possession may bring an action to compel redemption, or to have the rights of redemption barred. (Henthorn v. Security Co., [70 Kan. 808, 79 Pac. 653 (1905)]; Jaggar v. Plunkett, [81 Kan. 565, 106 Pac. 280 (1910)].) In such an action the time which the court may fix for defendant to redeem is not controlled by our redemption statute applying to judicial sales. (See Case v. Lanyon, 62 Kan. 69, 72, 61 Pac. 406 [1900].)” (Emphasis added.) 137 Kan. at 312.
The court held that since the mortgagee had not requested a judicial sale to determine the amount of a possible deficiency judgment it would be inequitable, under the facts, to add the cost of a foreclosure sale to the property and take the rents and profits from the mortgagee during the redemption period.
Other cases cited by Mid Kansas involving mortgagees in possession dealt with mortgagees who, like Bankers Mortgage, were attempting to compel redemption or have the rights of redemption barred, Henthorn v. Security Co. and Jaggar v. Plunkett; or purchasers in good faith treated as mortgagees in possession following defective foreclosure proceedings, Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610 (1903); Kelso v. Norton, 65 Kan. 778, 70 Pac. 896 (1902). None of the cases involved the right to rents and profits after a valid foreclosure sale.
More recent cases provide support for Candletree’s right to the rents and profits during the redemption period. As noted, in Broadhurst the court held that the right to rents and profits during the redemption period could not be waived without an express waiver of the right of redemption itself. 194 Kan. at 44.
In Moulds, the court held that the appointment of a receiver during the period of redemption is wrongful, absent a showing of waste. 202 Kan. ab 561-62. The court stated, “The right to possession, and to the rents and profits, of property being foreclosed, during the period of redemption is, under K.S.A. 60-2414(a), in the defendant owner of the property, and, except for waste, this right is absolute.” 202 Kan. at 561.
In Ropfogel, this court held that rents and profits from the redemption period in the possession of a receiver pursuant to K.S.A. 60-2414(p) are not subject to garnishment by a judgment creditor of the defendant owner. 7 Kan. App. 2d at 647-48. The court concluded:
“As we construe the Supreme Court cases, legislative history and the legislature’s reaction or inaction, it has been the public policy of this state to steadfastly protect a debtor and the debtor’s family by granting them a statutory redemption period. The debtor is given the right of possession during the redemption period and the rents and profits derived from the mortgaged property during that period are exempt from seizure by any creditor not authorized to levy by the redemption statute (K.S.A. 1981 Supp. 60-2414).” 7 Kan. App. 2d at 647.
In a recent case, the Kansas Supreme Court largely reaffirmed the right to rents and profits as a part of the right of redemption. Home State Bank v. Johnson, 240 Kan. at 429. However, in Johnson the royalties from an oil and gas lease during the redemption period were held to remain validly assigned because the oil and gas leasehold was not being foreclosed. 240 Kan. at 427-30.
This court recently considered the validity of an assignment of rents during the period after default but before the redemption period. Missouri Valley Investment Co. v. Curtis, 12 Kan. App. 2d 386, 745 P.2d 683 (1987). The holder of a second mortgage appealed the trial court’s order awarding post-default, preredemption period rent proceeds to the holder of the redemption rights. As noted by the court, the second mortgagee was not seeking the rents earned during the redemption period but only “those rents acquired after default and before the redemption period, which is allowed under Kansas law.” 12 Kan. App. 2d at 390 (citing Hall v. Goldsworthy, 136 Kan. at 250-52).
Mid Kansas’ status as a mortgagee terminated with the judicial sale of the property, and Candletree is entitled to the rents and profits during the redemption period under K.S.A. 60-2414.
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Meyer, J.:
Appellant B.L.M., natural father of S.M. and A.M., appeals the district court’s severance of his parental rights.
Appellant contends that he was denied his constitutional right to confront witnesses against him and to be present at the hearing because of the magistrate’s refusal to grant a continuance until such time appellant, an inmate of the Kansas State Penitentiary, would be available to attend. We agree that appellant was denied due process of law.
To properly address the constitutional issue, we pause to relate the events up to the severance hearing. At the time of the hearing, the appellant was incarcerated in the Kansas State Penitentiary, serving a three-to-ten-year sentence after pleading guilty to one count of indecent liberties with a child. The victim of this crime was appellant’s stepdaughter, P.P. Some time before the severance hearing, appellant’s counsel filed a motion with the court asking that appellant be released from prison so that he could attend the severance hearings. On grounds not before us in the record, the district court denied the appellant’s motion.
Thereafter, at the severance hearing before the magistrate judge, appellant’s counsel moved for a continuance after the State finished the presentation of its evidence and after appel lant’s counsel had already examined three witnesses in appellant’s case in chief. Finally, upon appeal to the district court, the appellant made a third motion to be released from prison so that he could be present in the proceedings in that court. This motion, like the two previous ones, was denied.
In In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), the court set forth certain fundamental maxims regarding the relationship of parent and child and proceedings to terminate this relationship:
“The parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” Syl. ¶ 1.
“A determination of the safeguards necessary to afford constitutional due process must be evaluated in the light of the nature of the proceeding and of the interests affected.” Syl. ¶ 2.
“The extent to which procedural due process must be afforded a person is influenced by the extent to which the person affected may be ‘condemned to suffer grievous loss’ and depends upon whether the person’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Syl. ¶ 3.
In the instant case, it is clear that the potential loss that appellant would be condemned to suffer is one of constitutional dimension; that is, the permanent termination of his parental rights. Considering the gravity of the nature of this proceeding, we hold that it far outweighs the State’s interest in summary adjudication. In re Cooper, 230 Kan. at 68-69; In re Brehm, 3 Kan. App. 2d 325, 327, 594 P.2d 269 (1979).
The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 56, 652 P.2d 205 (1982); Dedeke v. Rural Water Dist. No. 5,229 Kan. 242, 249, 623 P.2d 1324 (1981); Beebe v. Chavez, 226 Kan. 591, 599, 602 P.2d 1279 (1979). The Kansas Legislature has recognized the importance of these basic tenets of our law in the context of cases involving the severance of parental rights. K.S.A. 38-1552, dealing with the question of who may attend hearings in such cases, provides:
“The court may exclude from any hearing all persons except the guardian ad litem, interested parties and their attorneys, officers of the court and the witness testifying.” (Emphasis added.)
If a parent appears at the hearing in which his or her parental rights may be severed, the court may not exclude that person from the courtroom. Even if a person fails to appear at such a hearing after proper notice is given, the court must appoint an attorney to represent the absent parent. K.S.A. 38-1582(d). The Kansas Code for Care of Children is silent, however, with respect to the situation presented here, where the parent, a prison inmate, desires to attend a hearing but is denied this opportunity.
In State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1027, 686 P.2d 171, cert. denied 469 U.S. 1088 (1984), the supreme court concludéd that the common-law rule that a prisoner lacked the legal capacity to sue or be sued has been abrogated by what is now K.S.A. 1986 Supp. 21-4615, and, under the present law, a prisoner may sue or be sued in a civil action in Kansas. The court thereafter expounded on this right:
“The constitutional guarantee of providing for open courts and insuring a civil remedy for injuries to persons and property is a statement of our philosophy and a general rule which can be used to solve civil conflicts. This right is generally regarded as one of the most sacred and essential constitutional guarantees. ... In light of this guarantee, it is the policy and the obligation of the state to furnish and of the courts to give every litigant his day in court and a full and ample opportunity to be heard. . . . Since a prisoner can sue or be sued in this state he must be afforded the right to his day in court.” State ex rel. Stephan v. O’Keefe, 235 Kan. at 1027.
Although the appellant was represented by counsel at the severance hearing, appellant was denied the opportunity to be heard; he could not present any of his testimony in defense of the allegations of unfitness. The appellant was neither given a “day in court” nor a “full and ample opportunity to be heard.” Furthermore, a recognized benefit of an interested party’s presence in court is his ability to assist his counsel. This too, arguably, inured to appellant’s disadvantage.
The right to custody of one’s children being of constitutional gravity, a parent must be afforded the opportunity to be present at a severance hearing. Because appellant was denied this opportunity, he was denied one of the “essential elements” of fundamental due process. In re Reed, 8 Kan. App. 2d 602, 608, 663 P.2d 675 (1983). For this reason, the case must be reversed and remanded.
Assuming a new trial will take place in this action, we consider it provident to address another issue raised by appellant so as to avoid a second appeal on the issue. Specifically, appellant contends the trial court abused its discretion in allowing Frances Williams, an employee of the Department of Social and Rehabilitation Services who helped prepare the State’s case, to sit at the State’s counsel table during the severance hearing. The argument is without merit.
Both sides agree that Ms. Williams was present in the courtroom to help prepare and present the State’s case to the court. K.S.A. 38-1552, intended to preserve the confidentiality of severance hearings, grants the trial court discretion as to who may be present during a particular hearing. Considering Ms. Williams’ close involvement with the State’s case, as indicated by her testimony at trial, we conclude that the trial court did not abuse its discretion in not excluding her from the hearing.
Having concluded that the case must be reversed for constitutional reasons, we deem it unnecessary to address the insufficiency of evidence issue. The trial court’s order severing the appellant’s rights is reversed and the case is remanded for appropriate action.
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Briscoe, J.:
This is a workers’ compensation proceeding in which four actions have been consolidated. Richard E. Shreve and Mina Thompson, the wife of decedent Harold L. Thompson, brought claims against Harold Thompson Trucking and Kansas Fire and Casualty (its insurer), and against Murfin Drilling Company and Reliance Insurance Company (its insurer), for injuries arising out of an oil tank explosion and fire. Kansas Fire appeals the district court’s decisions in favor of the claimants.
Harold L. Thompson, doing business as Harold Thompson Trucking, was engaged in hauling salt water, fresh water, and crude oil to and from oil field operations. Thompson Trucking employed three persons, including Richard E. Shreve, who had worked for Thompson Trucking for six to eight weeks before the accident.
On September 14, 1981, Thompson and Shreve were cleaning an oil tank on a lease operated by Murfin. Murfin had contracted with Thompson Trucking to clean the oil tank. During the course of cleaning, an explosion and fire occurred, resulting in severe burns to both Shreve and Thompson. Thompson died as a result of the accident.
Both Shreve and Mina Thompson brought workers’ compensation claims against Thompson Trucking and Kansas Fire and against Murfin and Reliance for injuries arising out of the accident. The ALJ found that Shreve suffered a 90 percent permanent partial disability to the body as a whole. The ALJ further found Shreve was a statutory employee of Murfin and entered an award in favor of Shreve and against Murfin and Reliance. The ALJ found that Thompson was not a statutory employee of Murfin but was covered by Thompson Trucking’s policy with Kansas Fire and entered an award in favor of Thompson and against Thompson Trucking and Kansas Fire. The Director affirmed the award to Thompson but modified the award to Shreve, entering an order in favor of Shreve and against Thompson Trucking and Kansas Fire, rather than Murfin. The district court adopted the findings and conclusions of the Director.
I. COVERAGE UNDER KANSAS FIRE POLICY.
Kansas Fire contends the district court erred in finding the insurance policy issued by Kansas Fire covered Thompson Trucking’s tank cleaning business.
On September 14, 1981, the date of the accident, Kansas Fire provided workers’ compensation insurance to Thompson Trucking. Paragraph I of the policy reads as follows:
“Coverage A — Workmen’s Compensation: To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.”
The policy was obtained through an independent insurance agent. On the original application for coverage with Kansas Fire in 1979, the description of Thompson Trucking’s business was: “Insured provides a driver & diesel mechanic to Mobil pipeline for the purpose of transporting crude oil from tank batteries in the area to the pipeline entrances and dumping the oil into the line.” At all times subsequent to the original application, the classification assigned to the employees of Thompson Trucking and shown on the declarations page attached to the policy was “Truckmen.” There is a special insurance classification for “tank cleaning,” and, according to the insurance agent who handled the Thompson Trucking account, Kansas Fire does not insure against this risk.
During the preliminary hearing, Mina testified that she and Thompson asked the insurance agent if their employees would be covered by their workers’ compensation insurance if Thompson Trucking added a water hauling truck. During her deposition, however, she testified she asked the agent whether the trucking company would be covered if any changes were made in the business. She testified the agent told them there would not be any problem with coverage for changes since any additional premium or charges would be taken care of at the time of renewal or audit.
When the policy was renewed in September 1980, Thompson Trucking was only engaged in transporting crude oil. During an audit by the insurance company in January 1981, the only business of Thompson Trucking was transportation of crude oil.
The central issue presented in this case is one of first impression in Kansas. We are asked to determine whether the declarations page, specifically the classification of operations appearing on the declarations page, limits the scope of coverage in a workers’ compensation insurance contract. Kansas Fire argues it was never the intent of Kansas Fire to insure a tank cleaning operation. Murfin and Reliance counter by arguing the classification of operations does not determine what operations are in fact covered under the policy. Murfin and Reliance contend the classification of operations is used only by the insurance company to determine premium rates.
We begin our analysis by first reviewing the general rules for construction of insurance policies as stated in American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 739-40, 658 P.2d 1015 (1983):
“In construing an insurance policy a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished. . . .
“Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense . . . .” [Citation omitted.]
“ ‘ “. . . As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts are admitted, . . . then it is for the court to decide whether they come within the terms of the policy. . . .” [Citation omitted.]
“The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. If, however, the contract is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. . . .” [Citation omitted.]
“When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. . . . To be ambiguous the contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. . . . Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Citing cases.)” [Citation omitted.]
“ ‘ . . [W]here a contract is unambiguous it must be enforced according to its terms. . . .’ ” [Citation omitted.]’ ”
Unless specifically included by reference, the declarations page to an insurance contract is not an actual part of the contract. 1 Couch on Insurance 2d § 3:24 (1984) provides:
“Statements as to the nature of the coverage, appearing in bold black type on the back and top of the page of the policy immediately preceding the contract proper, may be considered as representing the construction placed upon the contract by the insurer itself even though they are not considered a part of the contract.”
Although the term “declarations page” is not used, the description is that of a declarations page.
“An insurance contract may thus consist of several separate documents. But statements in a collateral document do not become a part of the contract of insurance unless they are so referred to therein as clearly to indicate that the parties intended to make them a part of such contract. In the absence of such clear reference, the rights and liabilities of the parties to a contract of insurance are to be determined by the terms of the policy itself, to the exclusion of other papers not made a part thereof.” 1 Couch on Insurance 2d § 3:24.
In the present case, however, the caption and first line of the insurance policy states that Kansas Fire:
“[a]grees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy.”
Arguably, this language incorporates by reference the declarations recorded on the face sheet attached to the policy and, therefore, makes them a part of the insurance contract in this case.
We next must determine whether the classification of operations appearing on the declarations page limits the scope of coverage under this workers’ compensation insurance contract.
“Whether an employee is covered by a compensation policy is determined by the statutes of the state, the terms of the policy, and the general nature of his employment; and an employee entitled to coverage under the statutes should not be excluded from the coverage of a policy unless the exclusion is plain and unambiguous. The coverage of the policy is not restricted by the classifications of employees contained therein; and the fact that plaintiff s employment does not fall within the ‘Classification of Operations’ contained in the policy is not material in determining whether he is covered thereby.” 100 C.J.S., Workmen’s Compensation § 372, p. 88. Emphasis added.
In Black v. Swetnick, 281 App. Div. 997, 120 N.Y.S.2d 663 (1953), the court ruled that a policy covering “building employees, clerical employees and ‘all other employees’ ” included nurses. The court stated: “[T]he coverage of the policy is not restricted by the classifications; they are relevant only for the purpose of computing the premium.” 281 App. Div. at 998. See DeBonis v. Chuckrow, 2 App. Div. 2d 938, 939, 156 N.Y.S.2d 641 (1956).
A Texas court has held similarly in a case involving an ultrahazardous activity. In Maryland Cas. Co. v. Sullivan, 160 Tex. 592, 334 S.W.2d 783 (1960), the employer’s operation was classified as “seed merchant” although the company was engaged in both the sale and application of fertilizers and chemicals. The claimant was killed while applying insecticides by airplane. The policy provided “that if the employer engaged in other business operations than those described in the Declaration, together with all operations necessary, incident or appurtenant thereto, such declared business operation, or connected therewith, whether conducted at such work places or elsewhere, and such latter operations are not described or rated in the Declaration, then the employer shall pay the premium on such other operations.” 160 Tex. at 598. Nevertheless, the court held that risk of flying the airplane was not excluded by the terms of the policy.
Kansas Fire’s policy does refer to the classification of operations and premium amounts on the first page of the three-page policy in the following paragraph:
‘T. Premium: The premium bases and rates for the classifications of operations described in the declarations are as stated therein and for classifications not so described are those applicable in accordance with the manuals in use by the company.”
However, nowhere in the policy is there a direct statement that the purpose of the classification of operations is to determine the premium, nor is there a direct statement that the classification of operations is determinative of coverage. We do note that immediately under the column entitled “CLASSIFICATION OF OPERATIONS” on the declarations page, the following language appears: “Entries in this item, except as specifically provided elsewhere in this policy, do not modify any of the other provisions of this policy.” Following this statement, the word “Truckmen” appears as the delineated classification of operations for the insured, Thompson Trucking.
We have found no Kansas case which holds that the classification of operations is relevant only for the purpose of computing the premium. However, as Murfin argues, coverage does not depend on our reaching that conclusion if the policy provision concerning workers’ compensation coverage can be broadly interpreted to conflict with any limitations on the scope of coverage provided by the classification of operations.
Under the rules of construction of contracts, an ambiguity is said to exist if the words used in the contract may be understood to reach two or more possible meanings. Girrens v. Farm Bureau Mut. Ins. Co., 238 Kan. 670, 675, 715 P.2d 389 (1986); Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939 (1973). In this case, any limitation on the scope of coverage by the listed classification of operations of “truckmen” can be broadly interpreted to conflict with Coverage A, which provides: “To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.” Where an insurance contract is open to different constructions, that most favorable to the insured must be adopted. Girrens, 238 Kan. at 675; Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 681 P.2d 15 (1984).
“[I]f the terras of a policy are ambiguous, obscure, or open to different constructions, the construction most favorable to the insured or other beneficiary must prevail. That general rule applies with particular force to an ambiguous or doubtful provision in a policy or in an endorsement attached thereto which attempts to exclude from coverage liability in certain circumstances. [Citations omitted.] And as a concomitant to that rule, it is held in Kansas that if an insurer intends to restrict its coverage, it should use language clearly stating its purpose. [Citations omitted.]” Prickett v. Hawkeye-Security Insurance Company, 282 F.2d 294, 301 (10th Cir. 1960).
See United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978).
In the present case, we conclude that, even if the classification of operations could limit the scope of coverage in a workers’ compensation insurance contract, the claimants are still covered under the policy because the classification of operations and the workers’ compensation coverage provisions are conflicting or ambiguous. Furthermore, an insurance company wishing to limit the scope of coverage to that classification of operations listed in the declarations can do so by express exclusion. See Fyne v. Industrial Acc. Com., 138 Cal. App. 2d 467, 477, 292 P.2d 78 (1956) (policy had specific clause excluding injuries “ ‘sustained by any employees engaged in any operations other than those operations specifically rated and described as covered hereunder in the Classification of Operations schedule herein’ ”). See Maryland Cas. Co. v. Sullivan, 160 Tex. 592.
Here, the policy contained paragraphs (a)-(f) under its exclusion section. In this section the policy contained exclusions of any work place or state not described in the declarations, but none excluding operations not listed on the declarations page. Therefore, we conclude the tank cleaning operation was not excluded under the workers’ compensation insurance policy that Thompson Trucking had with Kansas Fire.
II. THOMPSON AS STATUTORY EMPLOYEE OF MURFIN DRILLING
Kansas Fire contends the district court erred in finding the decedent Thompson was not a statutory employee of Murfin at the time of his accident and death, pursuant to K.S.A. 44-503(a). No issue is raised as to Shreve’s status, who was determined to be a statutory employee of Murfin.
K.S.A. 44-503(a) provides in part:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him.”
As stated in Robinson v. Flynn’s Ferry Service, Inc., 6 Kan. App. 2d 709, 712-13, 633 P.2d 1166, rev. denied 230 Kan. 819 (1981), the principal purpose of 44-503(a) is:
“to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” ’ [Citations omitted.]”
In Robinson, this court enumerated the tests applied to determine whether work covered by a subcontract is a part of the principal contractor’s trade or business under the statute:
“ ‘(1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s “trade or business” . . . .’” 6 Kan. App. 2d at 713.
In the present case, Murfin was a production company that did contract drilling for oil and gas wells. A representative testified that, although Murfin did not maintain a crew or equipment to clean tanks, such a procedure was important to Murfin’s operation and, if it was not done, Murfin would be unable to produce oil. Thus, from this testimony, it appears the work done by decedent Thompson was part of Murfin’s business, thereby qualifying Thompson as a statutory employee of Murfin.
(a) Self-employed contractor.
In Allen v. Mills, 11 Kan. App. 2d 415, Syl. ¶¶ 2, 3, 724 P.2d 143 (1986), this court found that, by K.S.A. 1985 Supp. 44-508(b), the legislature excluded from the Act a self-employed person, and that a “person cannot be a contractor and an employee of himself and thereby be a statutory employee under K.S.A. 44-503(a).”
K.S.A. 44-508(b) provides the definitions of “workman,” “employee,” or “worker,” and states:
“Unless there is a valid election in effect which has been filed as provided in K.S.A. 44-542a and amendments thereto, such terms shall not include individual employers, limited or general partners or self-employed persons.”
This definition evidences the legislature’s intent to include a self-employed person under the Act. Here, it was uncontroverted that Thompson, as sole proprietor of Thompson Trucking, elected to be covered as an employee by his workers’ compensation insurance under 44-542a. This was not the fact situation in Allen. A self-employed individual, such as Thompson, could be found to be a statutory employee of a principal if he had elected to be included as a workman under the Act and the other conditions of 44-503(a) were met.
(b) Contract with individual or business.
In Robinson v. Flynn s Ferry Service, Inc., 6 Kan. App. 2d at 714, this court held that, where a principal contracted with the business and not with the owner-operator individually, 44-503(a) applied and the owner-operator was a statutory employee of the principal. Murfin and Reliance argue that Murfin contracted with Thompson individually and not with Thompson Trucking. This point is irrelevant if a self-employed individual who has elected to come under the Act can be a statutory employee under the provisions of the Act. Moreover, the only support given for their position is testimony from William Shropshire of Murfin in response to a question concerning whether Murfin called a contractor to clean the tanks involved in the accident. Shropshire responded: “Our field people obviously called Mr. Thompson and asked him to perform that service for us.” In another part of his testimony, Shropshire stated: “[I]f you get a hole in the tank you will call someone like Mr. Thompson’s trucking service to come out and move the oil from one tank to the other. When you have an occurrence such as this, you call someone to come out and clean.” We do not conclude from this testimony that Murfin was contracting with Thompson individually.
Contrary to the district court’s findings, we conclude Thompson was a statutory employee of Murfin Drilling.
III. THOMPSON’S AVERAGE WEEKLY WAGE
Kansas Fire next contends the district court’s finding of Thompson’s average weekly wage was not supported by substantial competent evidence.
It was uncontroverted that Thompson elected to be covered as an employee by his workers’ compensation insurance under K.S.A. 44-542a. However, his average weekly wage under K.S.A. 44-511 was at issue. After hearing the evidence, the ALJ determined Thompson’s average weekly wage for the 26 weeks preceding the accident was $216.39. Kansas Fire contends this finding was not supported by substantial competent evidence.
The evidence in the present case, viewed in the light most favorable to Thompson, indicated that, although Thompson did not receive a fixed salary, the Thompson Trucking account was used to pay his personal expenses. Mina Thompson, who kept the company books for her husband’s business, testified that she would write checks on the Thompson Trucking account for the personal expenses of both Thompson and herself. The amounts of these checks, written primarily for food, clothing, and home and auto insurance, were recorded under the heading “owner withdrawal” in the company ledger and fluctuated from month to month. None of the checks were made directly payable to Thompson or his wife and the withdrawals generally benefited both of them. This was the only evidence of income before the court. Mina testified that Thompson Trucking showed a tax loss for 1981 and no W-2 form was issued for Thompson. No personal or business income tax returns were presented.
K.S.A. 44-511(a)(3) provides:
“The term ‘wage’ shall be construed to mean the total of the money and any additional compensation which the employee receives for services rendered for the employer in whose employment the employee sustains an injury by accident arising out of and in the course of such employment.”
K.S.A. 44-511(b)(5) provides:
“If at the time of the accident the money rate is fixed ... on any other basis where the money rate is not fixed by the week, month, year or hour, . . . the average gross weekly wage shall be the gross amount of money earned during the number of calendar weeks so employed, up to a maximum of 26 calendar weeks immediately preceding the date of the accident, divided by the number of weeks employed, or by 26 as the case may be.”
Mina testified that during the 26 weeks preceding Thompson’s accident $5,626.05 was paid as owner withdrawals for personal expenses. The court divided this amount by 26 and arrived at an average gross weekly wage of $216.39. Kansas Fire argues this evidence is insufficient to establish Thompson’s average weekly wage when the checks were not issued directly to Thompson. It contends that, even if the personal expenditures were an adequate basis from which to determine the average weekly wage, a portion of these expenditures was attributable to Mina, who benefited from them and who also worked for the business.
The case of Justyna v. Logan Constr. Co., 10 Kan. App. 2d 249, 696 P.2d 977, rev. denied 237 Kan. 887 (1985), provides some guidance, but is not directly on point. Although the claimant in Justyna had an agreed wage of $315 per week, the claimant actually took a lesser wage when cash flow was low. We held that claimant’s benefits were correctly calculated on the basis of the wages he had actually received. In the present case, however, Thompson did not have a fixed salary nor does it appear he received one in the usual fashion.
“Generally, profits from a business, whether commercial or farm, are not considered as wages for purposes of establishing average wage. But close questions have arisen in connection with corporate officers, who may also be stockholders, whose remuneration is not fixed but depends to some extent on the fortunes of the business. One court has held that the employee’s share of profits was not the correct measure, but that the test should be the wage of another employee performing similar duties. When an amount of remuneration is specified, which can be taken in either cash or stock, the fact that the employee postponed exercising his option was held not to alter the fact that specified amount was an economic benefit which could form the basis of an average wage. But when the agreement was that the manager would be paid only when there were enough profits to bear the cost, this was found to be too speculative a contingency to construct an average wage upon — especially since, at the time in question, the corporation had not yet had any profits.” 2 Larson’s Workmen’s Compensation Law § 60.12(e) (1987).
Since many wage earners support their families (paying for their food, clothing, and home and car insurance) from their average weekly wage, the “owner withdrawals” from the Thompson Trucking account which were used as wages could reasonably be the basis for Thompson’s salary. We conclude the district court’s finding that Thompson’s average weekly wage was $216.39 is supported by substantial competent evidence.
IV. SHREVE’S 90 PERCENT PERMANENT PARTIAL WORK DISABILITY.
Kansas Fire also contends the district court’s finding that claimant had incurred a 90 percent permanent partial work disability was not supported by substantial competent evidence.
Houston v. Kansas Highway Patrol, 238 Kan. 192, 194, 708 P.2d 533 (1985), states the rules for determining permanent partial disability as follows:
“ ‘The test for determining permanent partial general disability is the extent to which the injured worker’s ability has been impaired to engage in work of the same type and character he or she was performing at the time of the injury.’
“ ‘In considering a permanent partial general disability under K.S.A. 44-510e, the work disability would be measured by the reduction, expressed as a percentage, in the worker’s ability to engage in work of the same type and character that he or she was performing at the time of the injury.’
“ ‘Where a claimant in a workers’ compensation case is found to suffer a permanent partial general disability, the pivotal question is, what portion of claimant’s job requirements is he or she unable to perform because of the injury?’ ”
See Ploutz v. Ell-Kan Co., 234 Kan. 953, 676 P.2d 753 (1984).
When viewed in the light most favorable to the party prevailing below, the district court’s judgment in the present case is supported by substantial evidence. Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987). See K.S.A. 77-621.
Dr. Mani, clinical director of the burn center at the University of Kansas Medical Center, testified that, as a result of the explosion and fire, Shreve suffered second- and third-degree burns to 55 percent of his body surface. Shreve underwent debridement, skin grafting, and wound care at the burn center from September 15 to October 25, 1981, at which time he was transferred back to the hospital in Hill City.
Dr. Hiebert, professor and program director of plastic surgery at the University of Kansas Medical Center, noted a 35 percent functional impairment to Shreve’s upper left shoulder, arm, and hand, including a decrease in grip strength and hyperextension of the thumb. Hiebert also noted a 15 percent functional impairment to the lower extremities because of Shreve’s inability to tolerate foot gear. An additional 15 percent functional disability to the body as a whole was caused by his inability to wear clothing without discomfort. Hiebert testified that he assigned a 5 percent impairment to the body as a whole as a result of chronic bronchitis, assumed to have been sustained in the fire, for a total 60 percent functional impairment to the body as a whole. Hiebert’s report also noted a 25 percent aesthetic disability which he testified was included in his 60 percent impairment rating. Therefore, Hiebert estimated an approximate 35 percent functional disability to the body as a whole.
Dr. Reddy, Shreve’s treating physician in Hill City, estimated total body disability as 50 percent. Kansas Fire urges that Reddy’s opinion regarding Shreve’s ability to return to work not be considered because of “apparent lack of foundation for such an opinion.” Reddy’s testimony indicated he was aware Shreve worked for an oil company driving a truck and that the job included some exposure to the weather. This appears to be sufficient foundation upon which to base his general conclusions of the effects of the sun on Shreve’s scar tissue.
The district court agreed with the ALJ’s and the Director’s findings that Shreve suffered from a permanent partial disability to the body as a whole of 90 percent.
“The distinction between functional disability and work disability has been accepted by this court in most instances without explanation. Functional disability is the loss of a part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury. Work disability generally carries a higher percentage of disability than functional disability.” Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 195, 558 P.2d 146 (1976).
Shreve testified that he had been a heavy equipment operator for a rock crushing and earth moving company prior to going to work for Thompson Trucking. Hired primarily for hauling salt water by truck and for tank cleaning, he worked approximately six weeks for Thompson Trucking before the accident on September 14, 1981. Although Shreve was released by his treating physician and returned to work in April 1984, he experienced medical difficulties. When exposed to sunlight or intense heat, the burned areas of his body would blister and bleed, exposing those areas to dust. Because of the burns to his rectal area, Shreve suffered difficulties during elimination, and sitting for prolonged periods led to perspiration which caused the burned area to blister and burn. Shreve testified that 80 percent of his duties for Thompson Trucking involved truck driving.
Viewed in the light most favorable to the party prevailing below, there was substantial evidence to support the district court’s finding that Shreve suffered from a permanent partial disability which rendered him unable to perform 90 percent of the jobs of the type and character he was performing for Thompson Trucking.
In summary, we affirm the district court on the coverage issue. There was substantial competent evidence to support the district court’s findings on the issues of Thompson’s wages and Shreve’s disability; the district court’s findings on those issues are also affirmed. We reverse the district court’s finding that Thompson was not a statutory employee of Murfin Drilling and remand for further proceedings consistent with this opinion.
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Davis, J.:
The defendant, Dennis K. Fraker, appeals a jury conviction for driving under the influence of alcohol, K.S.A. 1985 Supp. 8-1567(a)(2).
On January 4, 1986, a Kansas Highway Patrol trooper arrested defendant for driving under the influence of alcohol or drugs, K.S.A. 1985 Supp. 8-1567(a). The trooper issued a “Uniform Notice to Appear and Complaint” (citation). The citation was filed with the clerk of the district court on January 6, 1986, and the prosecution commenced based upon it. The State did not file a complaint or information.
At trial before the district magistrate judge, defendant moved to dismiss the charge for lack of jurisdiction. He contended that the prosecution could not be commenced on the citation. The magistrate judge denied the motion, and defendant was convicted and sentenced.
Defendant appealed to the district court and requested a jury trial. The court denied defendant’s motion to dismiss the DUI charge for lack of jurisdiction. Following conviction, the court denied defendant’s “Motion for New Trial,” which again raised the issue of the court’s jurisdiction, and imposed sentence.
On appeal, defendant contends that the trial court lacked jurisdiction over the DUI charge because the State never filed a complaint charging the offense, but only a traffic citation. We hold that a prosecution for driving under the influence of alcohol or drugs, K.S.A. 1985 Supp. 8-1567, can be commenced only by filing a complaint or information.
K.S.A. 22-2301(1) provides that “[u]nless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate.” See K.S.A. 1985 Supp. 22-2303(1) (authorizing commencement of a prosecution for a misdemeanor or traffic infraction by filing an information in the district court). K.S.A. 1985 Supp. 22-2202(8) defines “complaint” as follows:
“ ‘Complaint’ means a written statement under oath of the essential facts constituting a crime, except that a notice to appear issued by a law enforcement officer pursuant to and in compliance with K.S.A. 8-2106 and amendments thereto shall be deemed a valid complaint if it is signed by the law enforcement officer.” (Emphasis added.)
A traffic citation signed by a law enforcement officer may be used to charge an offense and “shall be deemed a valid complaint” if it is issued “pursuant to and in compliance with K.S.A. 8-2106 and amendments thereto.” K.S.A. 1985 Supp. 8-2106(a) provides as follows:
“(a) When a person is stopped by a police officer for any violation of any provision of the uniform act regulating traffic on highways, which violation is a misdemeanor or a traffic infraction and is not required to be taken before a judge of the district court, the officer may prepare and deliver to the person a written traffic citation. The citation shall contain a notice to appear in court, the name and address of the person, the state registration number of the person’s vehicle, if any, the offense charged, the time and place when and where the person shall appear in court, and any other pertinent information.” (Emphasis added.)
K.S.A, 1985 Supp. 8-2106(a) authorizes a police officer to issue a citation for a violation of the uniform act regulating traffic on highways (misdemeanor or traffic infraction) if the alleged offender is not required to be taken before a judge of the district court. K.S.A. 1985 Supp. 8-2104 specifies when a person stopped for violating the.uniform act regulating traffic on highways is required to be taken before a judge of the district court. Subsection (d) of 1985 Supp. 8-2104 provides as follows:
“(d) When any person is stopped by a police officer and is to be charged with violation of:
“(1) K.S.A. 8-262, 8-1567,8-1568, 8-1602,8-1603 or 8-1604 and amendments to any of such sections, or
“(2) any other statute defining a traffic violation which is a felony, the police officer shall take the person into custody and shall take the person without unnecessary delay before a judge of the district court . . . .” (Emphasis added.)
A police officer is required to take a person stopped for violating K.S.A. 1985 Supp. 8-1567 before a judge of the district court, and, therefore, K.S.A. 1985 Supp. 8-2106(a) does not give the officer authority to issue the person a traffic citation. K.S.A. 1985 Supp. 8-2106(d) emphasizes that a citation cannot be issued for the offenses enumerated in 1985 Supp. 8-2104(d):
“(d) Except in the circumstances to which subsection (d) of K.S.A. 8-2104 and amendments thereto apply, in the discretion of the police officer, a person charged with a misdemeanor may give written promise to appear in court by signing at least one copy of the written citation prepared by the police officer, in which event the police officer shall deliver a copy of the citation to the person and shall not take the person into physical custody.” (Emphasis added.)
In this case, the citation for driving under the influence of alcohol or drugs was not issued “pursuant to and in compliance with K.S.A. 8-2106 and amendments thereto” and, therefore, cannot be “deemed a valid complaint.” K.S.A. 1985 Supp. 22-2202(8). Because the State failed to file a complaint or information charging defendant with violating K.S.A. 1985 Supp. 8-1567, the court lacked jurisdiction over the offense. See State v. Shofler, 9 Kan. App. 2d 696, Syl. ¶ 1, 687 P.2d 29 (1984).
The State argues that K.S.A. 8-2108 provides authority for its decision to commence prosecution of defendant by filing a traffic citation. K.S.A. 8-2108 states as follows:
“In the event the form of citation provided for in K.S.A. 8-2106 includes information required by law and is signed by the officer preparing the same, then such citation when filed with a court having jurisdiction shall be deemed to be a lawful complaint for the purpose of prosecution under this act.”
K.S.A. 8-2108 does not sanction the use of an unauthorized citation as a complaint. Rather, it refers to “the form of citation provided for in K.S.A. 8-2106.” K.S.A. 1985 Supp. 8-2106 does not provide for the issuance of any form of citation to a person charged with violating K.S.A. 1985 Supp. 8-1567.
Defendant’s conviction for violating K.S.A. 1985 Supp. 8-1567 is vacated and the charge dismissed for lack of jurisdiction.
Conviction vacated and charge dismissed. | [
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Parks, J.:
Plaintiff, Kansas Lumber Company of Manhattan, Kansas, Inc., a subcontractor, brought this action to recover money owed by its contractor, Clarence Crowl, and to foreclose its mechanics’ liens on property owned by the defendants Wangs, Hwangs, and Chang (defendants). The trial court held that the liens were invalid because they lacked proper verification and granted defendants’ motion to dismiss the petition. Plaintiff appeals.
On March 1, 1985, plaintiff filed its petition alleging it had provided materials to defendant Crowl for construction of improvements on real estate owned by defendants. The petition further alleged that these materials were used on defendants’ land but that plaintiff had only been partially paid for the cost of the supplies. Plaintiff had filed two lien statements at an earlier date within the time period required by statute. These statements were not verified by a separate affidavit but included the following language in the body of the lien statements:
“STATE OF KANSAS COUNTY OF RILEY
) ) )
SS:
“NOW on this 15th day of November, 1984, before the undersigned, a notary public within and for the county and state aforesaid, personally appeared Jim Badders, Accountant and Authorized Agent of Kansas Lumber Company, who, being duly sworn, and upon his oath, deposes and states:
“That he is the Accountant of Kansas Lumber Company, of Manhattan, Kansas, which is engaged in the business of supplying building supplies. That he is an authorized agent of Kansas Lumber Company of Manhattan, Kansas, for the purpose of making this lien statement.
“That the name of the owners of the below-described property, commonly known as 1205,1207 and 1209 Kearney, Manhattan, Riley County, Kansas, which the undersigned claims a lien in are Cheng-Yuan Wang, a/k/a Johnny Y. Wang, and Pao-Mei Hsu Wang, a/k/a Linda Hsu Wang, husband and wife (70%); Ching-Lai Hwang and Grace Y. Hwang, father and daughter (15%); and Cheng S. Chang (15%).
“That the name of the claimant of the lien is Kansas Lumber Company of Manhattan, Kansas.
“That the description of the real property upon which the lien is claimed is as follows:
Lots Seven Hundred Sixty-two (762) and Seven Hundred Sixty-three (763), in Ward 3, in the City of Manhattan, Riley County, Kansas.
“That in August, 1984, Kansas Lumber Company entered into a contract with Clarence Crowl, who was the contractor for and agent of, the owners of the above-described property. Pursuant to said contract, claimant furnished materials, supplies and labor which were used or consumed for the said improvement of the above-described real property. That said materials, supplies and labor were last used and furnished for said property on or about August 15, 1984, on the property commonly known as 1205 Kearney, and on or about August 28, 1984, on the property commonly known as 1207 Kearney.
“That there is attached hereto, marked as ‘Exhibit A’ and incorporated herein by reference, an itemized statement of the amount claimed.
“That there is now due and owing to claimant, Kansas Lumber Company, for said materials, supplies and labor the sum of Twelve Thousand Four Hundred Forty-nine Dollars and Thirty-one Cents ($12,449.31), plus Two Hundred Eighty-six Dollars and Twenty-one Cents ($286.21) interest thereon as of October 25,1984, plus interest at the statutory rate from October 26,1984, until paid in full.
KANSAS LUMBER COMPANY,
Claimant
/s/ James G. Badders
BY: JAMES G. BADDERS,
Accountant and Authorized Agent
SUBSCRIBED AND SWORN TO BEFORE ME this 15th day of November, 1984.
Is/ Sharon K. Hughes
NOTARY PUBLIC”
The sole issüe on appeal is whether the trial court erred in concluding that plaintiff s lien statements were not properly verified.
A person who provides materials or services for the improvement of realty is provided with a lien for the cost of those materials or services by K.S.A. 60-1101. Similarly, a person who acts as a subcontractor by providing labor or materials to the contractor to be used for improvements to the land of another may obtain a lien upon that realty pursuant to K.S.A. 60-1103. In either case, the party claiming a lien must file a lien.statement in conformity with the following provision of K.S.A. 60-1102:
“(a) Filing. Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located, within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing:
(1) The name of the owner,
(2) the name of the claimant,
(3) a description of the real property,
(4) a reasonably itemized statement and the amount of the claim . . . .”
Although the mechanic’s lien provisions are liberally construed once the lien has been shown to have attached, the requirements for the lien to come into existence must be strictly met. Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704-05, 549 P.2d 1376 (1976); Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 100, 692 P.2d 397 (1984). Included within these requirements is the specification that the lien statement be “verified.” A verification has been held to mean an affidavit attached to the statement swearing to the truth of the matters set forth. Trane Co. v. Bakkalapulo, 234 Kan. 348, 672 P.2d 586 (1983). It has also been stated more generally that the verification requirement means the lien statement must be sworn to by the claimant before an officer having authority by law to administer and certify oaths and affirmations. Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 636, 400 P.2d 707 (1965). The verification must be absolute (Lewis, 10 Kan. App. 2d at 102) and the lack of a verification in the statement filed necessarily defeats the lien. D.J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 369-70, 430 P.2d 222 (1967).
Cases finding lien statement verifications to be flawed have fallen into one of three categories: (1) those which fail to reveal the agency of the signer so that they are not verifications by the claimant (Ekstrom, 194 Kan. at 636); (2) those which do not verify the truth of the statement because the verification wording merely acknowledges the statement’s execution (D.J. Fair Lumber Co., 199 Kan. at 369) or because the verification was not properly notarized (Halsey v. Pat Reichenberger Lumber, Inc., 5 Kan. App. 2d 622, 623, 621 P.2d 1021 [1981]); and (3) those verifications which are qualified. Lewis, 10 Kan. App. 2d at 102; DaMac Drilling, Inc. v. Shoemake, 11 Kan. App. 2d 38, 42, 713 P.2d 480 (1986). There is no issue raised in this case concerning the execution of the lien statement by an agent of the corporate claimant or the documentation of that agency. Furthermore, defendants did not allege the statement was not properly notarized. Defendants argue and the court held the statement was deficient because the wording of the verification did not verify the truth of the statement. They claim the language in plaintiff s lien statement merely acknowledged the proper execution of the document but did not attest to the truth of its contents. We believe this to be an unduly restrictive interpretation of the language used.
The plaintiff did not file a separate affidavit to attest to the truth of the representations made in the lien statement but, instead, put the lien statement itself in the form of an affidavit. The notarized documents filed by plaintiff state that they were executed by an authorized agent “being duly sworn and upon his oath.” An oath has been defined as “a declaration or promise made by calling on God to witness what is said.” In re Heath, Petitioner, 40 Kan. 333, 335, 19 Pac. 926 (1888). Oath is also defined as “[a]ny form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully” and as “[a]n affirmation of truth of a statement, which renders one willfully asserting untrue statements punishable for perjury.” Black’s Law Dictionary 1220 (4th ed. rev. 1968). Therefore, by making the statements included in the two lien statements after being sworn and upon his oath, plaintiff s agent attested to the truth of the statements’ contents.
Plaintiff s lien statement is distinctly different from that considered in D.J. Fair Lumber Co., 199 Kan. at 369, where the court found the wording of the “verification” amounted to a mere acknowledgment. In that case, the claimant’s president merely signed the statement which then included an attestation to the president’s authority and execution of the document by a notary. By contrast, plaintiff s lien statements included the oath of the claimant’s agent. Since the mere use of the word “oath” denotes a declaration of truth, the statements following the oath are “verified” by the party signing the document. The oath was sworn before a notary, an official authorized to administer oaths, K.S.A. 54-101, and could expose the signer to a perjury charge if the representations in the statement were false. K.S.A. 1986 Supp. 21-3805. In Lewis, this court discussed the reasons behind the strict application of the verification requirement, stating as follows:
“The apparent strictness of this requirement is not without purpose. The mechanic’s lien, once it attaches, clouds the interest of the landowner and takes priority over all subsequent encumbrances. K.S.A. 60-1101. The requirement that the person verifying the lien statement swear absolutely to the truth of the facts stated conveys to the signer both the significance of the ramifications of the lien and the duty to avoid perjury. K.S.A. 1983 Supp. 21-3805.” Lewis, 10 Kan. App. 2d at 100-01.
While plaintiff did not verify the lien statements with a separate affidavit, the inclusion of the lien statements within an affidavit accomplishes the same end. The purpose of assuring that a lien does not attach in the absence of a self-proved claim of right is satisfied.
The trial court also stated that the lien statement failed to include Badders’ attestation that he had knowledge of the veracity of the statements made. However, a promise of knowledge only becomes important if the verification is qualified. For example, in both Lewis and DaMac Drilling, the verification provision stated the contents of the lien statement were true to the best of the executor’s knowledge and belief. Without the inclusion of information in the document which would indicate that the executor’s knowledge was tantamount to the truth, the qualified verification did not verify the truth of the contents at all. When a verification is not qualified by any suggestion that the executor has limited knowledge of the true circumstances, there is no requirement to specifically dispel that possibility. If the contents of the statement are sworn to under oath, they are declared true absolutely. The attestation of knowledge sufficient to state the truth is implicit in the execution of a document under an unqualified oath.
It should finally be noted that in Cunningham v. Barr, 45 Kan. 158, 25 Pac. 583 (1891), a lien statement which included the same type of language as that in plaintiffs liens was found properly verified. Defendants seek to distinguish this case by pointing out that the Cunningham lien was executed before a district court clerk instead of a notary. This is a distinction without difference. Both a notary and a court clerk are authorized to administer oaths (K.S.A. 54-101) and the oath administered by a clerk is no more or less binding than that administered by a notary. While K.S.A. 60-1102 has certainly been amended over the years, the statutory verification requirement has not changed. In addition, while defendants contend Cunningham has been effectively overruled by successive case law, none of these cases refer to Cunningham or in any way indicate that a verification sworn within the text of the lien statement is defective.
We conclude that the ruling of the trial court, that plaintiff s verification of the liens is insufficient, is in error.
Reversed and remanded for further proceedings. | [
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Abbott, C.J.:
This is a farm mortgage foreclosure action. The Federal Land Bank of Wichita commenced a farm mortgage foreclosure against Ronald Wayne and Marietta Cummings. A judgment was taken on the note and the security (farmland) was sold. At the confirmation hearing, the trial court confirmed the sale, but would not allow a deficiency judgment. The Federal Land Bank appeals.
The facts are not in dispute. In 1980, the Cummings executed a promissory note to Federal Land Bank (FLB) in the principal sum of $142,000 plus interest. The note provided for 33 payments of $15,808.95. As security for the note, they gave a first farm and ranch mortgage to FLB. This is not a purchase money mortgage.
The Cummings defaulted on the loan and FLB commenced this action. The procedural history of this case is omitted because it is of no importance to the decision. The trial court granted judgment for $135,239.01 ($113,572.92 principal plus $21,666.09 accrued interest), with interest to accrue at the rate of $54.47127 per day, plus taxes and costs, and ordered the security sold.
The security consists of 125 acres of pasture and 180 acres of cultivated land. The land has oil production of approximately 2,000 barrels per year with a 14% decline. FLB submitted the only bid, which was in the amount of $70,890.22. $890.22 was for taxes and sale expenses, leaving $70,000 to be applied to partial satisfaction of the judgment.
At the confirmation hearing, the Cummings agreed to the confirmation, but objected to a deficiency judgment. There was no specific objection made, just a general statement that the Cummings objected to a deficiency judgment.
FLB called a loan officer as its only witness. Highly summarized, he qualified as an expert on land value, and stated he was previously responsible for loans in Graham County, where this land is located. He had appraised the land for the original loan in 1980, and appraised it again in 1985 and 1986. In 1980, he appraised it as having a value in excess of $142,000. He testified that he reappraised the land in 1985 in order to establish that the security was sufficient to protect FLB on the unpaid principal. The 1986 appraisal was made to determine the fair market value in order that FLB could determine its bid at the sale. The 1986 appraisal was $70,000 and that was the amount bid by FLB.
The Cummings were given an opportunity to present testimony, but declined to do so.
The trial court confirmed the sale, but denied FLB’s request for a deficiency judgment, stating that the allowance of a deficiency judgment would be inequitable and unfair. The trial court, in announcing its judgment, stated:
“First as to statement of counsel and evidence presented here would find as follows:
“That originally in 1981 Federal Land Bank appraised the ground in question in excess of $142,000, that today they come in and appraise the land at $70,000 in 1986. With that statement Federal Land Bank of Wichita, and it is their wish the court set up a policy which provides, allows them to appraise the property and then being able to appraise the property, land at their own appraised property values, not an independent appraisal by someone else. They then wish to buy at a reduced figure and take title in fee simple with right to sell at any particular price at a later date. They then wish to take a deficiency judgment, and in this case they wish to have approximately $70,000 deficiency judgment. If the court were to adopt the policy also recommended by the plaintiff herein, they would end up with the land itself free to sell at any particular price plus judgment of $70,000 against defendant. They then turn around and sell the property for $140,000, whatever figure and generate a $70,000 profit. They then execute on their deficiency judgment and collect another $70,000 and would have unjust enrichment of over $70,000 under the facts and scenario as requested by plaintiff herein. If the property were purchased by a third party, someone not a party to the action, the court would have no problem in awarding a deficiency judgment, but when the property is appraised by the plaintiff themselves, they purchase it at their value and they request the court to enter a deficiency judgment for the difference, allowing them to make a profit, the court finds that is not equitable, not fair, and the court would deny the motion for deficiency judgment in this case where the plaintiff themselves set a value in 1981 of $142,000 and then taking the property at a sheriff s sale, the court at this time denies the motion for deficiency judgment.” (Emphasis supplied.)
Both parties recognize the basic principle that mortgages are given to secure repayment of promissory notes, not in payment of the notes, and that generally a mortgagee is entitled to full payment of its note, regardless of the value of its security. When a note and mortgage are executed, the creditor has a right to the full amount of the note. The value of the collateral is immaterial insofar as the debt represented by the note is concerned. The value of the collateral may fluctuate wildly, but the fluctuation, either up or down, does not affect the amount of the underlying debt. The creditor is not required to accept the collateral as full payment of the debt, and a court may not require the creditor to do so, unless authorized by K.S.A. 60-2415.
Deficiency judgments are contemplated and permitted by Kansas law. Liberty Savings & Loan Ass’n v. Jones, 143 Kan. 422, 54 P.2d 937 (1936); Equitable Life Assur. Soc. v. Shearer, 142 Kan. 310, 46 P.2d 869 (1935); Security Benefit Ass’n v. Swartz, 141 Kan. 227, 40 P.2d 433 (1935); Hodgen v. Roy, 102 Kan. 197, 169 Pac. 1143 (1918); Schuler v. Fowler, 63 Kan. 98, 64 Pac. 1035 (1901); 55 Am. Jur. 2d, Mortgages § 658, p. 613.
K.S.A. 60-2415 provides:
“(a) Certificate of purchase. The sheriff shall at once make a return of all sales made under this article 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) Equity powers of court. The court may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the property must be bid in if the sale is to be confirmed; or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate.”
The statute gives the trial court the discretion to refuse to confirm the sale if it finds the bid substantially inadequate. In the present case, there is no finding by the trial court that FLB’s bid was substantially inadequate. In fact, the trial court confirmed the sale, which indicates that it found the sale to be regular and in conformity with law and equity. See K.S.A. 60-2415(a). In addition, the trial judge stated he would have no problem awarding a deficiency judgment if the sale had been to a third party.
As we see it, the problem in this case is that the trial court and landowners were laboring under the erroneous assumption that the trial court has discretion as to a deficiency judgment. Whether a deficiency judgment results is determined by a simple mathematical step after the sale is confirmed.
The trial court granted judgment in favor of FLB for the amount of its note pursuant to the agreement between the parties. The next event of significance is the sale of the security. The trial court had an opportunity to fix an upset price in advance of the sale, but declined to do so. After the sale, the trial court held a confirmation hearing. The evidence determines whether the trial judge confirms the sale or takes one of the following actions: (1) The trial court need not confirm the sale if it finds the bid is “substantially inadequate,” in which case it would order a resale; or (2) the trial court may give the creditor the option of either giving the debtor credit upon the judgment, interest, taxes, and costs for the value of the property, as determined by the trial judge, or reselling. Whether the trial court confirms the sale, orders a resale because the highest bid is “substantially inadequate,” or gives the judgment holder an option, the decision must be supported by the record. Once the sale is confirmed, any deficiency is simply a mathematical calculation, and the trial judge has no discretion in the matter but may do the mathematical calculations to clarify the record.
We conclude the trial court erred in denying a deficiency judgment. We are troubled somewhat by the fact the landowners and trial court were under the erroneous impression the trial judge could confirm the sale and deny a “deficiency judgment.” However, the record before us does not contain any evidence that would justify denial of confirmation (which requires a finding the bid is substantially inadequate), or give the creditor the option of allowing the landowners more credit against the judgment, interest, taxes, and costs, or reselling (which requires a finding that the value of the property is in excess of the amount bid). The landowners did not object to confirmation of the sale and offered no evidence as to the value of the collateral. The trial court confirmed the sale, and we have no cross-appeal from the order confirming the sale.
Based on the record before us, the trial court erred in denying FLB a deficiency judgment.
Reversed and remanded with directions to compute the deficiency. | [
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Briscoe, J.:
In an action brought by Moody Investments, Inc., to recover a real estate commission, the trial court on cross-motions for summary judgment granted Moody summary judgment against Miles Edward Baldwin and Irene S. Baldwin. The Baldwins appeal.
The facts of this case are not in dispute. The El Dorado Motel in El Dorado, Kansas, originally owned by Nola Wierson, was sold on contract to Fred and Lauretta VanDenberg in 1963. The VanDenbergs in turn sold it on contract to the Baldwins in 1965. The sale which resulted in the present dispute occurred in 1973 when the Baldwins sold the motel to Ronald and Pauline Jacobson and Moody acted as the real estate agent.
On August 27, 1973, the Baldwins and the Jacobsons signed a form real estate purchase agreement which provided: “Seller to pay Broker fee as agreed.” Moody also signed the contract. On October 31, 1973, the Baldwins entered into a formal real estate contract to sell the property to the Jacobsons. The contract provided for the Jacobsons to pay $2,970 a month to the escrow agent until the purchase price was paid in full. The contract also included the following provision:
“The first $1,505.00 of each monthly payment shall be applied on the Fred U. VanDenberg contract of June 27, 1963; the next $590.00 shall be applied to the Ñola M. Wierson contract dated May 20, 1965; the next $198.26 shall be applied to Moody Realty Co., Inc.; and the balance of said payment in the sum of $676.74 shall be paid to the Sellers; and such sums will be so paid until the amounts due as previously set out have been paid in full. In addition, Moody Realty Co., Inc., total consideration for commission is $23,700.00 and the payment of $198.26 includes interest at eight per cent (8%).”
A closing statement was prepared which provided that $23,700 was owed to Moody, “Subject to Escrow Contract.” A commission agreement had also been prepared on September 27, 1973, which provided:
“Baldwins and Moody agreement on commission on sale of El Dorado Motel is that $23,700.00 is to be amortized in formal contract at same term and interest rate and paid to Moody from monthly payment made to the escrow agent.”
The agreement was signed by M.J. Moody and Miles Baldwin.
On June 15, 1978, the Patels purchased the motel from the Jacobsons, assuming the Jacobsons’ contract with the Baldwins. Once the Patels signed the agreement to buy the motel and took over its operation, the payments to the Baldwins became spo radie, finally stopping altogether on February 28, 1986. The Baldwins were at this time the record owners, the Wierson and VanDenberg contracts having been paid. The Jacobsons apparently filed for bankruptcy during this period and the trustee abandoned their interest in the property.
The Baldwins then filed a foreclosure action against the Jacobsons and the Patels and within that action asserted the default provision of the contract between the Baldwins and the Patels. The Baldwins were granted foreclosure and awarded a money judgment for the balance owed under the real estate contract. Neither the petition filed by the Baldwins nor the judgment entered are included in the record. A sheriff s sale was held on August 1, 1986, at which the Baldwins bid in the amount of the judgment plus taxes and other expenses and received a certificate of purchase. The Patels subsequently paid the Baldwins the entire balance owed and the Baldwins surrendered the certificate of purchase to the Patels.
On December 8, 1986, Moody filed the present action against the Baldwins to recover the balance of the commission owed to Moody under the contract between Moody and the Baldwins. After receiving motions for summary judgment from both parties and hearing argument, the court entered summary judgment in favor of Moody. Following the court’s ruling from the bench, counsel for the Baldwins raised the issue of an alleged written agreement between Moody and the Baldwins which the Baldwins’ counsel discovered after the Baldwins’ answer was filed. The court held that, since the agreement was not mentioned in the pleadings, the order of summary judgment disposed of all issues in the pleadings. The Baldwins subsequently filed a motion for leave of court to amend their answer, which was denied.
ENTRY OF SUMMARY JUDGMENT (a) Is the broker entitled to commission when the contract is closed, but the buyer later defaults by failing to make installment payments?
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 756, 740 P.2d 1083 (1987).
The Baldwins argue under the facts of this case the trial court erred in granting summary judgment to the broker Moody. The Baldwins argue any time there is a default by the buyer in the terms of a contract, which results in the sale of the real estate not being consummated, any further obligation to pay the broker’s commission is terminated. They contend that, due to the failure to make installment payments, default, and foreclosure, the contract was not completed. This argument was not made to the trial court.
As a general rule, issues asserted for the first time on appeal are improper for appellate review. 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 preventing 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), rev. denied 238 Kan. 878 (1986). The issue presented by the Baldwins concerns a question of law which would be finally determinative of the case. If the rule suggested by the Baldwins applies, Moody would not be entitled to the commission as a matter of law. The facts from which the issue arises are agreed to by the parties. Therefore, although not raised below, the issue will be considered.
In suppoi't of their argument that subsequent default on the installment payments bars recovery of the commission, the Baldwins cite Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967). In Johnson, the court held that a broker’s right to a commission comes about only when the buyer performs in accordance with the contract. The buyer and seller executed a contract in which the buyer agreed to make three payments before the closing date. The buyer failed to make the final payment and, on the closing date, admitted he was financially unable to perform. The court stated that “the true test of a willing buyer is not met when he signs an agreement to purchase; it is demonstrated at the time of closing of title, and if he unjustifiably refuses or is unable financially to perform then, the broker has not produced a willing buyer.” Johnson, 50 N.J. at 548-49.
The Baldwins fail to point out that the Johnson rule was adopted by the Kansas Supreme Court in Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974):
“The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. The latter is subject to a qualification where failure in completion of the contract, or closing title, results from the wrongful act or interference of the principal.” Syl. ¶ 1.
“The term ‘able’ in the general rule that entitles a real estate agent or broker to a commission, if he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal, in the context of the rule means more than mere mental competence to make a contract or physical ability to sign it. The term ‘able’ refers to the financial ability of the broker-produced purchaser to complete the transaction.” Syl. ¶ 4.
The issue raised by the Baldwins turns on whether the deal was “consummated” within the meaning of the rule adopted in Allen. The Baldwins argue failure to make all of the installment payments prevented the deal from being consummated, due to the financial inability of the purchasers to perform. Allen did not involve default of a purchaser subsequent to the signing of a real estate contract. In Johnson, 50 N.J. 528, the closing of title clearly marked the completion of the transaction. Arguably, title did not pass here because of failure to make the installment payments.
This case, however, is distinguishable from Johnson. Here, the warranty deed was placed in escrow to be delivered upon completion of the installment payments. At least one jurisdiction has held that failure of the purchaser to make installment payments does not amount to failure to consummate the transaction. In Setser v. Commonwealth, Inc., 256 Or. 11, 470 P.2d 142 (1970), the Oregon Supreme Court recognized the rule that, in the absence of default by the seller, the broker’s right to a commission comes into existence only when the buyer performs in accordance with the contract of sale. However, the court held the adoption of that rule does not mean the buyer must completely perform all of the terms of an installment contract of sale before the broker is entitled to the commission. Instead, the sale is deemed consummated subject to defeasance only by subsequent failure to perform. According to the court in Setser, where the buyer fails to make the down payment or perform other acts necessary to the closing of the sale, the transaction is not consummated and the broker is not entitled to the commission.
The reasoning of Setser appears sound. Here, the contract of sale was executed, the down payment was paid, and monthly installment payments were paid for several years. Although title had not passed to the purchasers, it can be said the deal was “consummated.” To hold otherwise would make the right to the commission very tenuous. Brokers would not be entitled to their commissions until all installment payments were made, which, as in this case, could be a period of years.
(b) Is the broker entitled to commission when commission is payable out of monthly installment payments, purchaser defaults, seller forecloses, and property is redeemed for full amount due on contract?
The Baldwins argue the court erred in granting summary judgment because the sales contract provided the commission was to be paid only out of the monies paid into the escrow account. Once the installment payments stopped, the fund became depleted and the obligation to pay the commission ceased. Moody argues the court was correct in granting summary judgment because, by making the commission payable out of the installment payments, the parties intended that the commission be paid by the purchaser and not the seller. Therefore, since the Baldwins received the full amount due on the contract, they should pay the commission which was originally included as part of the contract price.
The trial court did not make findings of fact or law in granting summary judgment. However, it is clear from the transcript of the hearing on the motions for summary judgment that the court adopted the rule that, if the seller ultimately receives all of his money following foreclosure, the commission is owed. In adopting this rule, the court referred to the analysis used in two cases cited in Moody’s motion for summary judgment: Craig v. Mar- grave, 84 Nev. 638, 446 P.2d 653 (1968); Fletcher Realty, Inc. v. Hayslope Properties, 712 S.W.2d 478 (Tenn. App. 1986).
In both Margrave and Hayslope, the court found receipt of installment payments by the purchaser was a condition precedent to payment of the commission under the sales agreement. The issue in Hayslope was whether this condition was satisfied when a buyer defaults and the seller forecloses and bids in the property at the sale. In Margrave, the issue was whether failure to bid in the property at the sale excused the condition precedent. In both cases, the courts recognized two different rules applied in these cases. Under the first, where a broker is to receive a commission out of the purchase money as it is paid to seller, in the event of default by buyer and foreclosure where the seller bids in the property, the broker is entitled to the commission. The rationale is that, since the broker would be entitled to his commission if a third party purchased at the sale, the result should be no different if the seller himself bids in. The other rule is that the broker is not entitled to the commission. The rationale is that sellers have bargained to receive payments in money for their property and have required that the broker’s commission come from the purchase price and not the seller’s pockets. If an independent third party buys at the foreclosure sale, then the sellers receive purchase money from which to pay the commission. If the sellers bid in the property, they get the property back, not the money out of which the commission was to be paid. See Margrave, 84 Nev. 638; Hayslope, 712 S.W.2d at 481.
In this case, the trial court concluded that, under either rule, the commission was owed because the seller received the money upon redemption by the Patels. From this, it may be concluded the court found (1) the payment of the commission was made conditional by the sales agreement; (2) the condition was that the installment payments were paid by the purchaser; (3) this condition was satisfied by a third party’s redemption of the property and payment of the remainder due on the contract to the seller; and, therefore, (4) the commission is due. Although the court did not make these specific findings, its reliance on the cases discussed indicates this was the rationale of the court in granting summary judgment against the Baldwins.
The Baldwins’ argument on appeal is that the court errone ously interpreted the agreement. According to the Baldwins, the sales agreement expressly made the commission payable out of the escrow funds. Once the fund became depleted due to purchaser’s failure to make installment payments, the obligation to pay the commission ceased. The Baldwins argue the agreement here is the same as that in Donaldson v. LeNore, 112 Ariz. 199, 540 P.2d 671 (1975), as it provides for payments from the escrow account to the broker. While the agreements are similar, LeNore can be distinguished. Unlike the seller in the present case, the seller in LeNore did not achieve the sale of his land, either through foreclosure or otherwise. Therefore, LeNore affords us no guidance concerning the rights of the parties upon foreclosure and redemption.
The trial court was correct in granting Moody summary judgment. The sales agreement here did not restrict the commission to the escrow fund. Instead, it provided that a portion of each monthly payment should be paid to the broker. This is similar to the Margrave and Hayslope cases relied on by the court, and the rule of those cases should apply. The Baldwins have received the full amount owed under the contract. Therefore, the commission will not come out of their pockets but from the money paid by the Patels upon redemption. This is consistent with the intent of the parties as expressed in the words of the sales agreement. If the parties intended to restrict the commission to the escrow fund, they could have done so by stating so in the agreement.
DENIAL OF MOTION TO AMEND ANSWER FOLLOWING ENTRY OF SUMMARY JUDGMENT
At the hearing on the motions for summary judgment, following the court’s ruling from the bench in favor of Moody, the Baldwins’ counsel raised the issue of an alleged written agreement between the Baldwins and Moody. According to the alleged agreement, if the Jacobsons defaulted, the Baldwins could request Moody to operate and sell the motel to pay off the remaining indebtedness under the Baldwin-Jacobson sales contract. If Moody refused, the Baldwins could terminate Moody’s interest in the original escrow contract. According to counsel, the agreement was not discovered until after the answer was filed, when Moody’s' deposition was taken. The trial court held the pleadings did not refer to this agreement and the motion for summary judgment disposed of all pleadings to date. According to the court, the Baldwins’ claim amounted to a counterclaim or setoff and counsel should seek leave to amend the answer to allege this claim.
The Baldwins filed a motion for leave to amend their answer on May 22, fifteen days after the hearing. In the proposed amended answer, the Baldwins alleged that demand was made on Moody under the agreement to step in and operate the motel after default, but Moody refused. The Baldwins claimed Moody’s refusal resulted in a forfeiture of the commission. The court denied the motion to amend.
K.S.A. 60-215 governs amendments to pleadings, and provides, in pertinent part:
“(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty (20) days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”
The trial court has wide latitude and discretion in permitting or refusing amendments of pleadings and, absent a clear abuse of discretion, the trial court’s order will not be disturbed on appeal. Kinell v. N.W. Dible Co., 240 Kan. 439, 444, 731 P.2d 245 (1987). In Kinell, the Supreme Court upheld the denial of a motion to amend following summary judgment where two motions to amend had been granted prior to entry of summary judgment.
In view of the discretion given the trial court, denial of the motion to amend was not an abuse of discretion. Counsel knew of the newly discovered agreement before the hearing and could have moved for an amendment at that time. Given the failure of counsel to raise the issue or move for amendment before entry of summary judgment, the trial court did not abuse its discretion.
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Six, J.:
Defendant, Carl McMannis, appeals his jury convictions for possession of amphetamines with intent to sell, possession of marijuana, and possession of drug paraphernalia.
On April 14, 1986, Topeka police officers conducted a lawful search of the defendant’s home and found a small vial of white powder which tested for methamphetamine. The officers also found “sno-seals” (a waxed paper which is used to make a “pharmaceutical fold,” commonly used to package powdered drugs), two syringes, scales, a heat-sealing device, rolling papers, diluents, and an empty box for a “Deering Preparation System.” The officers also found marijuana.
POSSESSION OF AMPHETAMINES
Defendant contends the jury’s finding that he possessed “a stimulant known as amphetamines” is not supported by substantial competent evidence. We agree and reverse defendant’s conviction for possession of amphetamines with intent to sell.
The testimony at trial was uncontroverted that the white powder found in defendant’s possession was methamphetamine. Defendant, however, was charged with possession of amphetamines with intent to sell. The jury was instructed that to find defendant guilty, the State had to show that defendant possessed “a stimulant known as amphetamines.”
Amphetamine and methamphetamine are listed separately under Schedule II of the Controlled Substances Act. K.S.A. 1986 Supp. 65-4107(d)(l) and K.S.A. 1986 Supp. 65-4017(d)(3).
The Drug Enforcement Agency has assigned different controlled substance code numbers to amphetamine and methamphetamine. K.S.A. 1986 Supp. 65-4107(a); K.S.A. 1986 Supp. 65-4107(d)(l) and (3). Under the express terms of the statute under which defendant was convicted, amphetamine and methamphetamine are considered two different substances. Defendant was charged with and convicted of possession of amphetamines with intent to sell. The evidence at trial established that the controlled substance was methamphetamine.
The information-evidence-verdict relationship presented by this appeal is similar to the situation in State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986). In Houck, the defendant was charged and convicted of committing aggravated arson under K.S.A. 21-3718(l)(a) and K.S.A. 21-3719. However, the evidence of the case was that defendant committed aggravated arson under a different section of the statute, K.S.A. 21-3718(l)(b); K.S.A. 21-3719. The court reversed the conviction of aggravated arson, holding as follows:
“Whether the State’s evidence would or would not be sufficient to prove a charge under K.S.A. 21-3718(l)(b) is an academic question not properly before us. The State has the responsibility to appropriately charge the accused with the crime it believes the accused has committed. If the evidence introduced at trial does not support a conviction of the offense charged, the accused cannot be found guilty of some other offense which the State did not see fit to charge.” Houck, 240 Kan. at 135-36.
The evidence may establish that defendant McMannis committed a crime; however, it was neither the crime alleged in the information nor the crime on which the jury was instructed and the defendant convicted.
A similar result was reached by the court in State v. Guillory, 447 So.2d 1214 (La. App. 1984). In Guillory, the Louisiana Court of Appeals, interpreting that State’s version of the Uniform Controlled Substances Act, held that defendant’s conviction for possession of methaqualone had to be reversed when the record on appeal conclusively established that the drug was diazepam. Guillory, 447 So. 2d at 1215-16.
The State contends McMannis’s conviction should be affirmed because the evidence established that defendant possessed a stimulant with intent to sell. A conviction cannot be upheld when the State fails to prove the offense charged, even if the evidence establishes some other offense the State did not charge. Houck, 240 Kan. at 136.
The State also contends that the terms “amphetamines” and “methamphetamine” were used interchangeably through the trial. Once during trial, defense counsel questioned a detective about the behavior of a typical user of amphetamines. However, there was no evidence identifying the drug defendant possessed as amphetamine.
The State also contends the defendant did not object to the instruction at trial and this court’s scope of review is limited to determining whether the instruction was clearly erroneous. The argument is without merit. The defendant is challenging the sufficiency of the evidence to convict him, not the instructions give by the trial court. See Houck, 240 Kan. at 135.
Defendant contends the State failed to disclose exculpatory evidence and used prejudiced testimony in obtaining the convictions, thus denying him a fair trial. Defendant’s arguments involve certain testimony of one of the State’s witnesses, whose testimony related solely to the charge of possession of amphetamines with intent to sell. Because we have reversed the conviction on other grounds, we deem it unnecessary to address these contentions.
POSSESSION OF DRUG PARAPHERNALIA
Defendant contends the trial court was without jurisdiction to convict him of the crime of possession of drug paraphernalia because the information failed to allege an essential element of the crime.
Possession of drug paraphernalia is defined as follows:
“(a) No person shall use or possess with intent to use:
“(1) Any simulated controlled substance; or
“(2) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act.” K.S.A. 65-4152(a).
The information charging defendant with violating this statute stated:
“On or about the 14th day of April, 1986 in the County of Shawnee and State of Kansas, CARL M. MCMANNIS did then and there unlawfully and willfully use or possess with the intent to use, drug paraphernalia or any simulated controlled substance, to-wit: syringes, vile [sic], ‘sno-seals’, drug formula, sealing bags, scales, rolling papers, dilutant [sic], forceps, folds, roach stone, razor blade, pipe, snorting tube, ‘power hitter’, spoon, and magazine with cuts, contrary to the form of the statutes in such case made and provided and against the peace, and dignity of the state of Kansas.”
Defendant contends that because the information did not allege that defendant possessed the drug paraphernalia with intent to use it “to plant, propagate, cultivate, grow,” etc., drugs, the information failed to state an essential element of the crime, and the trial court was without jurisdiction to convict him. See State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979).
Possession of items generally considered “drug paraphernalia” is not unlawful unless the accused uses or possesses with intent to use the items in order to plant, propagate, cultivate, grow, etc., a controlled substance. K.S.A. 65-4152. The information only alleged that defendant did “use or possess with the intent to use, drug paraphernalia,” without alleging the purpose for which defendant possessed the items. Defendant contends that the allegations of the information in this case may be true and he would still be innocent of the crime of possession of drug paraphernalia. See State v. Jamieson, 206 Kan. 491, 493-94, 480 P.2d 87 (1971).
Though the defendant’s argument is of interest, we are not persuaded by it. The facts alleged in the information do constitute an offense “within the terms and meaning” of the drug paraphernalia statute. See State v. Slansky, 239 Kan. 450, 452, 720 P.2d 1054 (1986).
Drug paraphernalia is defined as items used to plant, propagate, cultivate, use, etc., controlled substances. K.S.A. 65-4150. Requiring the State to set out the purpose for which the defendant possessed the drug paraphernalia would be redundant. If the items were not used as drug paraphernalia, they would not be drug paraphernalia under the statute. The facts alleged constituted an offense “within the terms and meaning of the statute.” State v. Slansky, 239 Kan. at 452.
The information properly alleged the crime of possession of drug paraphernalia within the terms and meaning of the applicable statute. The trial court, therefore, had jurisdiction to convict the defendant of this charge.
POSSESSION OF MARIJUANA
In his brief, defendant does not argue any basis for reversing and remanding his conviction for possession of marijuana. Defendant’s arguments involving the testimony of one of the State’s witnesses, relate only to the conviction for possession of amphetamines with intent to sell. Recause defendant has not briefed the issue of why his conviction for possession of marijuana should be reversed, we deem this issue abandoned. See State v. Gardner, 10 Kan. App. 2d 408, 413, 701 P.2d 703, rev. denied 237 Kan. 888 (1985).
The defendant’s convictions for possession of marijuana and possession of drug paraphernalia are affirmed.
The defendant’s conviction for possession of amphetamines with intent to sell is reversed.
Affirmed in part, reversed in part. | [
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Miller, J.:
Steve Sims, the appellant, appeals from an order dismissing his third-party complaint against Scholfield Brothers, Inc., third-party defendant, in which Sims alleged that Scholfield, a car dealer, had violated the Kansas Lemon Law, K.S.A. 1986 Supp. 50-645(c).
The facts are not in dispute. In April 1985, Sims entered into a lease agreement with Scholfield for a new car. Under the terms of the lease, Sims was required to make payments of $256.32 per month for 48 months, and to pay the cost of all insurance, taxes, and license fees on the car. At the end of the 48 months, the lease would expire and Sims would have the option of returning the car or purchasing the car for its fair market value of $5,004.72. In accordance with the terms of the agreement, after it was executed it was assigned to Ford Motor Credit Co., Inc., the plaintiff herein.
Sims drove the car for some three months and made his payments to Ford Motor as required. The car did not perform to Sims’ satisfaction, however, and he returned it to Scholfield for repairs on several occasions. When the problems were not solved to his satisfaction, Sims abandoned the car at the offices of Ford Motor. Ford Motor treated the abandonment as a voluntary repossession and resold the car.
Ford Motor then filed this suit against Sims for the deficiency owed by him under the lease agreement. In defense of the action, Sims filed a third-party petition against Scholfield, claiming that Scholfield was liable to him for return of the “purchase price” of the car and for “collateral damages” under the provisions of the Kansas Lemon Law. The district court granted Scholfield’s motion to dismiss the third-party complaint for failure to state a claim on which relief could be granted. It is from this dismissal that Sims has appealed.
Sims contends the Kansas Lemon Law should be construed liberally in harmony with the U.C.C. as a part of the State’s consumer protection laws. When construed in that manner, he argues, his lease agreement was a consumer transaction covered by the act and, as such, the legislature intended the Lemon Law to afford protection against “the manufacturer, its agents or its authorized dealer.” Scholfield contends the liability section of the Lemon Law affords relief only against the manufacturer of the vehicle and that Sims was not a “consumer” within the meaning of the statute. The issues are of first impression in this state.
K.S.A. 1986 Supp. 50-645 provides:
“(a) As used in this act:
“(1) ‘Consumer’ means the original purchaser, other than for purposes of resale, of a motor vehicle; and
“(2) ‘motor vehicle’ means a new motor vehicle which is sold in this state, and which is registered for a gross weight of 12,000 pounds or less, and does not include the customized parts of motor vehicles which have been added or modified by second stage manufacturers, first stage converters or second stage converters as defined in K.S.A. 8-2401 and amendments thereto.
“(b) If a motor vehicle does not conform to all applicable warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer during the term of any warranties or during the period of one year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such warranties, notwithstanding the fact that such repairs are made after the expiration of any such term or such one-year period.
“(c) If the manufacturer, or its agents or authorized dealers, are unable to conform the motor vehicle to any applicable warranty after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a comparable motor vehicle under warranty or accept return of the vehicle from the consumer and refund to the consumer the full purchase price including all collateral charges . . . .” Emphasis added.
The interpretation of a statute presents a question of law and it is the function of the court to interpret the statute in order to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). Where the language of the statute is plain and unambiguous, however, courts must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Maxl Sales Co. v. Critiques, Inc., 796 F.2d 1293, 1297 (10th Cir. 1986); 73 Am. Jur. 2d, Statutes § 194.
The language of the Lemon Law is plain and unambiguous. Despite the use of the terms “manufacturer, its agent or its authorized dealer,” the statute clearly imposes liability only on the manufacturer of a nonconforming vehicle. When a motor vehicle cannot be made to conform to the applicable warranties, the statute obligates the manufacturer to replace the vehicle with a comparable vehicle under warranty or to accept return of the vehicle in exchange for a refund of the full purchase price. The statute does not impose any liability upon an authorized dealer, such as Scholfield. We therefore conclude that the Lemon Law was intended to provide a remedy against the manufacturer of the vehicle only and that it does not create a new consumer action against a dealer.
Scholfield further contends that, in any event, the Kansas Lemon Law does not apply to a lease transaction such as is involved here.
The statute defines “consumer” as an “original purchaser” and “motor vehicle” as a “new motor véhicle which is sold in this state.” Thus, under the plain language of the statute, it does not apply to a true lease transaction. Sims suggests, however, with out alleging any factual basis for his conclusion, that the so-called lease agreement here may have been a “disguised sale,” and he maintains that whether or not the lease was a true lease or was intended as a security instrument taken to finance a sale presents an issue of fact which the court cannot dismiss without an evidentiary hearing. In determining the issue, he urges the same rules should be applied as in U.C.C. cases.
The question then becomes whether the option to purchase in the lease agreement here transforms the lease into a sale. In determining the answer to similar problems, the U.C.C. has adopted the following test:
“Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” K.S.A. 1986 Supp. 84-1-201(37).
See Executive Financial Services, Inc. v. Pagel, 238 Kan. 809, 715 P.2d 381 (1986); Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 531 P.2d 41 (1975).
The general rule is, when no substantial question of fact remains, “the interpretation and construction of a contract becomes a question of law for the court to determine. [Citation omitted.] That being so, the construction of the terms and the effect of a written instrument can be determined as a matter of law.” Intercontinental Leasing, Inc., v. Lehr, 209 Kan. 132, 137, 495 P.2d 900 (1972).
The U.C.C. test provides no help to Sims in resolving the issue here. There is nothing in the case that indicates that either Ford Motor or Scholfield was financing Sims’ purchase of the car with a lease agreement. Although he had the option to purchase the car at the end of the lease term, he would have had to buy the car for its then agreed fair market value. He would not have acquired ownership for a nominal sum. The lease agreement designates Sims as the lessee and Scholfield as the lessor, and the facts indicate the transaction was a true lease and not a disguised sale.
The Lemon Law requires a “purchaser” and contemplates a sale. It is not concerned with the problems of “lemon leases.” See Barco Auto Leasing Corp. v. PSI Cosmetics, 125 Misc. 2d 68, 478 N.Y.S.2d 505 (1984).
Since the Kansas Lemon Law does not apply to true lease transactions and does not provide a remedy against new car dealers, the trial court did not err in dismissing Sims’ third-party action.
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Six, J.:
Excel Corporation (plaintiff-appellant) appeals the decision of the district court which affirmed the Department of Human Resources’ finding that Excel was liable to Monte K. Russell on his claim for wages under the Kansas Wage Payment Act, K.S.A. 44-313 et seq.
Excel contends that; (1) the hearing officer’s findings are contrary to the evidence and to the law of Kansas as to employment contracts; and (2) the hearing officer and trial court erred in interpreting K.S.A. 44-319(a)(3). This court finds no error and affirms the judgment.
Monte K. Russell worked at the Excel meat processing facility in Dodge City from June 13 to July 9, 1984. His job as a shank boner required him to use several pieces of specialized equipment, including a mesh arm guard, a steel apron, a mesh glove, and a meat hook.
The equipment was stored in a company provided locker at the job site. Excel owned the equipment and issued it to employees with the exception of the rubber boots and ceramic steel knife sharpeners (items not in issue). Excel attempted to keep the equipment and reuse it. It was Excel’s policy when an employee left to issue the same equipment to a new employee. Excel asserted all rights of ownership to the equipment in question. Russell was not permitted full possession or control over the equipment.
One morning when reporting for work, Russell discovered that his locker door was standing open with several pieces of safety equipment missing. The only items remaining in the locker were two hard hats and a hair net. He reported the theft and was informed that if he found the lock from his locker to demonstrate the locker had been burglarized, he would not have to pay the replacement cost of the missing items. He secured from Excel replacement equipment because he knew that he would not be allowed to work without it. In so doing, he signed an employee purchase card which authorized Excel to withhold the cost of the missing items from his pay. On returning to his locker, he found the broken padlock and turned it in. When Russell received his pay, a deduction had been made for the missing items. He spoke to the personnel office and was informed that the money would be deducted from his check until the items were paid for. Russell stopped working at Excel on July 9, 1984. When Russell left Excel’s employment, Excel kept the items of equipment Russell had purchased to replace those which had been stolen from the Excel locker room and paid for through the deductions from his wages.
On August 6, 1984, Russell filed a claim for wages with the Kansas Department of Human Resources (KDHR), claiming $185 in wages owed to him. The KDHR determined that Russell should not have been required to pay for the safety equipment and awarded him $165.94 in wages plus $17.98 in interest. Excel appealed to the Shawnee County District Court, which affirmed the KDHR decision. Excel now appeals to this court.
SCOPE OF REVIEW
The legislature has codified the applicable scope of review in the act for judicial review and civil enforcement of agency actions, K.S.A. 77-601 et seq. K.S.A. 77-621 provides in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following
“(4) the agency has erroneously interpreted or applied the law;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
This case involves the interpretation of a statute, K.S.A. 44-319, and an administrative regulation, K.A.R. 49-20-l(a)(2).
“The interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. In determining questions of law, the trial court may substitute its judgment for that of the agency only where the statute is clear and where the administrative agency is erroneous. Ordinarily, the interpretation placed on a statute by the administrative agency charged with its enforcement is entitled to a great deal of judicial deference and may be of controlling significance. [Citations omitted.]” D S G Corp. v. Shelor, 239 Kan. 312, 315, 720 P.2d 1039 (1986).
K.S.A. 44-319 AND K.A.R. 49-20-l(a)(2)
Counsel agreed at oral argument that the statute- regulation interpretation issue is one of first impression.
Excel contends that the KDHR hearing officer’s findings are not supported by the evidence and that the hearing officer erroneously interpreted K.S.A. 44-319 and K.A.R. 49-20-l(a)(2). K.S.A. 44-319 provides in part:
“(a) No employer may withhold, deduct or divert any portion of an employee’s wages unless: (1) The employer is required or empowered to do so by state or federal law; (2) the deductions are for medical, surgical, or hospital care or service, without financial benefit to the employer, and are openly, clearly and in due course recorded in the employer’s books; or (3) the employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee.” (Emphasis added.)
K.A.R. 49-20-l(a)(2) specifically identifies certain deductions which do not accrue “to the benefit of the employee”:
“The following deductions shall not be considered authorized deductions ‘accruing to the benefit of the employee’ within the meaning of K.S.A. 44-319(a)(3): “(A) Deductions made for cash and inventory shortages; breakage; returned checks or bad credit card sales; losses to employers resulting from burglaries, robberies, or alleged negligent acts.
“(B) deductions made for uniforms, special tools or special equipment which are not necessary to the performance of the assigned duties and are customarily supplied by the employer;
“(C) any other deduction not set out by K.S.A. 44-313 et seq. or permitted by these rules and regulations.” (Emphasis added.)
The KDHR hearing officer determined that the deduction from Russell’s pay was for an employer’s burglary loss and thus prohibited by K.S.A. 44-319 and K.A.R. 49-20-1(a)(2)(A). Excel contends that the hearing officer erred by not addressing K.A.R. 49-20-l(a)(2)(B), which, it claims, permits deductions for equipment which is necessary to the performance of the employee’s assigned duties and is not customarily supplied by the employer. It is apparent, however, that the hearing officer did consider Excel’s argument regarding the applicability of K.A.R. 49-20-1(a)(2)(B).
In paragraphs 23-25 of his findings of fact, the officer found:
“23) That Respondent interpreted paragraph (B) of K.A.R. 49-20-l(a)(2) to mean its logical converse, namely, that all deductions for uniforms, special tools, or special equipment would be considered ‘deductions accruing to the employee’s benefit’ within the meaning of K.S.A. 44-319(a)(3) so long as the equipment is either necessary to the performance of the assigned duties or is not customarily supplied by the employer.
“24) That in the considered judgment of the hearing officer, paragraphs (A), (B), and (C) of K.A.R. 49-20-l(a)(2) must be read together, in pari materia, to properly interpret them.
“25) That Respondent’s interpretation of paragraph (B) appears to be logically faulty, because it is inconsistent with paragraph (C), which prohibits rather than permits any other deductions not specifically authorized by law or regulation.
Respondent’s assumption is that items not specifically prohibited by paragraph (B) are implicitly approved by that paragraph. However, that argument is flatly contradicted by paragraph (C).” (Emphasis added.)
The hearing officer read paragraph (B) in conjunction with paragraph (A) and concluded that the deduction in this case was more in the nature of “a deduction for an employer’s burglary loss than a deduction for the use of safety equipment.”
“While the courts of this state need not always accept an administrative agency’s interpretation of its own regulations, [citations omitted], it has long been recognized that, in order to insure effectiveness and uniformity, an agency’s own interpretation of its regulations will be given great weight and, in some cases, controlling weight. [Citations omitted.]” Hemry v. State Board of Pharmacy, 232 Kan. 83, 85-86, 652 P.2d 670 (1982).
In the instant case, the hearing officer’s interpretation of K.A.R. 49-20-l(a)(2) is correct when the regulation is considered in its entirety.
THE SUBSTANTIAL EVIDENCE TEST
The final determination to be made is whether there was substantial evidence to support the hearing officer’s conclusion that the loss in the instant case was the result of a burglary.
Russell testified at the administrative hearing that when he began work, the equipment he needed was checked out to him by Excel. When asked about the equipment, Timothy Jeffries, the plant manager, testified that the company owned the equipment and allowed people to use it while working there. Russell testified that the equipment belonged to Excel and that the employees were not allowed to take the equipment home. Jeffries testified that Excel tried to keep the equipment to reuse it.
Russell further testified that one morning he came to work and discovered that his locker had been burglarized. He reported the burglary and was told that if he found the lock he would not be required to pay the replacement cost of the equipment. He signed the salary deduction authorization, and on returning to his locker found the broken lock. He then returned the lock to one of the supervisory personnel at Excel.
There was substantial evidence to support the hearing officer’s finding that the loss of equipment in question was the employer’s burglary loss and not an authorized deduction from the employee’s pay within the meaning of K.S.A. 44-319 and K.A.R. 49-20-1.
The decision of the trial court adopting the order of the KDHR is, therefore, affirmed.
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Briscoe, J.:
Ronald Denno (husband) appeals from the district court’s order establishing the value of certain marital assets.
Jurisdiction
Sharon Denno (wife) contends this court is without jurisdiction to consider this appeal because the appeal was not timely filed.
On January 2, 1987, a notice of appeal was filed in this case appealing an April 22, 1986, decision. The April 22 decision had not been journalized when the notice of appeal was filed. As a result, this court issued a show cause order directing the parties to respond to whether the appeal should be dismissed as interlocutory. After the show cause was issued, a journal entry was filed on March 13, 1987.
According to Supreme Court Rule 2.03 (1987 Kan. Ct. R. Annot. 7), a notice of appeal filed after the district court’s announcement of its decision but before judgment is entered by journal entry is considered “premature.” Carson v. Eberth, 3 Kan. App. 2d 183, Syl. ¶ 4, 592 P.2d 113 (1979). The notice of appeal lies dormant until judgment is entered. Under Rule 2.03, a notice of appeal prematurely filed has the same effect as though filed simultaneously with the actual entry of judgment. Carson, 3 Kan. App. 2d 183, Syl. ¶ 5. Therefore, although the notice of appeal was filed prematurely on January 2, 1987, it became effective on March 13, 1987, when the journal entry of judgment was filed. This court has jurisdiction to consider this appeal.
Motion for Rehearing
The parties were divorced on July 26, 1982. According to the terms of their separation and property settlement agreement, the husband was awarded a lien on the house owned by the parties for one-half of the amount of the parties’ equity. The lien was payable in full upon the occurrence of any one of four delineated events. The husband was also awarded an outdoor shed.
On January 15,1986, the wife filed a motion asking the court to determine the value of the husband’s lien as of February 8, 1986. In a letter decision on April 22, 1986, the court found the 1982 value of the house to be $18,750 and, due to improvements made in 1986, to have a present value of $22,800. The court also found the shed and its contents to have no value.
The husband raises three issues on appeal: (1) Whether there was substantial competent evidence to support the district court’s valuation of the house; (2) whether there was substantial competent evidence to support the court’s valuation of the shed and its contents; and (3) whether the court erred in refusing to consider the husband’s motion for rehearing seeking rehearing of the court’s April 22 findings. We need address only the third issue.
The husband moved for rehearing on May 2, 1986, and stated:
“In support of said motion it is shown to the Court that the findings made by the Court were not supported by the evidence, that the findings were, in fact, contradictory to the evidence presented at the said hearing; that the petitioner presented no evidence to contradict that presented by the respondent and therefore, respondent is entitled to have the Court reconsider its decision or to rehear the post-trial motion.”
Following the entry of his April 22 findings and upon motion by the husband, Judge Foster recused himself in a journal entry filed June 10. On July 14, the motion for rehearing was then taken under advisement by Judge Podrebarac. In a letter decision dated December 5, Judge Podrebarac refused to hear the motion. According to the judge, “a decision was made by Judge Foster and the only avenue is to appeal from that decision and . . . this court will not collaterally hear this matter when a decision has been made by a fellow judge.” By this ruling, the court neither granted nor denied the motion, but apparently concluded it had no jurisdiction to consider it.
The husband argues that the court erred in refusing to consider the motion under K.S.A. 60-259(f). We agree.
While a motion for rehearing is not one of the motions expressly designated in K.S.A. 60-2103(a), the husband’s motion in the present case stated specifically the alleged errors of the district court and the grounds he relied upon in challenging those errors. Looking through form to substance, we think the husband sought by this motion to alter or amend the judgment pursuant to K.S.A. 60-259(1). This same analysis was followed in Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922 (1966), where a motion for rehearing was treated as a motion to alter or amend judgment.
Although judgment has been entered, the trial court retains jurisdiction to consider a motion to alter or amend filed pursuant to K.S.A. 60-259(f). The purpose of K.S.A. 60-259(f) is to allow the trial judge the opportunity to correct prior errors. That opportunity looms even larger where the judge before whom the motion is pending is being asked to alter or amend the rulings of a judge who has recused himself or herself.
K.S.A. 1987 Supp. 20-3Ilf provides that motions for change of judge may be filed in post-judgment proceedings. If, as the court here held, the new judge may not hear a motion for rehearing, the party is deprived of the benefit of the change of judge.
Since the issues presented in the motion for rehearing are those contained in this appeal and we are remanding this case for the court’s consideration of the motion for rehearing, it would not be appropriate for us to address those issues before they are addressed by the district court. We do note upon our review of the record that, although the district court relied upon Peter Jancich’s appraisal in its valuation of the house, Jancich neither testified nor was his appraisal entered into evidence.
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Rees, J.:
Donald Patterson appeals from the denial of his K.S.A. 60-1507 motion prosecuted on the assertion that the trial court was without jurisdiction to convict him of aggravated sexual battery, a class D felony (K.S.A. 1987 Supp. 21-3518[l][a], [2]), upon his trial on an information charging rape, a class B felony (K.S.A. 1987 Supp. 21-3502[l][a], [2]). We affirm.
The jury was instructed on the elements of rape and on the elements of aggravated sexual battery as a “lesser included crime.” The latter instruction was given at defense counsel’s request and over the State’s objection. The jury was not instructed on the elements of attempted rape, a class C felony (K.S.A. 1987 Supp. 21-3502[1][a]; K.S.A. 1987 Supp. 21-3301[a], [c] [2]).
Briefly put, the jury was instructed (1) that for it to find Patterson guilty of rape it was necessary that it find he had sexual intercourse with the victim (by finger insertion— see K.S.A. 1987 Supp. 21-3501[1]), without her consent and when she was overcome by force or fear, and (2) that for it to find Patterson guilty of aggravated sexual battery as a “lesser included crime,” it was necessary that it find that he intentionally applied force to the person of the victim, who was not his spouse and who had not consented thereto, with the intent to arouse or satisfy the sexual desires of Patterson or the victim. Patterson was found not guilty ox rape but guilty of aggravated sexual battery.
On direct appeal, we affirmed Patterson’s conviction and sentencing. State v. Patterson, No. 57,940, unpublished opinion filed December 5, 1985. Whether the trial court was without jurisdiction to convict him of aggravated sexual battery was an issue neither raised nor addressed on the direct appeal.
The evidence and other matters reported by the record on appeal need not be reiterated or commented upon beyond these observations: We are satisfied that underlying the jury’s decision finding Patterson not guilty of rape but guilty of the “lesser included crime” of aggravated sexual battery was conflicting evidence on the question whether there was penetration. On the evidence adduced, there was room for the jury to find that there was penetration, that there was not penetration, or that penetration was not proved.
Patterson now argues that it was error to instruct and convict on aggravated sexual battery as a “lesser included crime.”
We are confronted with an issue of definition. K.S.A. 1987 Supp. 21-3107(2) enumerates four categories of included crimes. Clearly, aggravated sexual battery is not an included crime for the purposes of K.S.A. 1987 Supp. 21-3107(2)(d). The identity of statutory elements test is not met. Similarly, neither K.S.A. 1987 Supp. 21-3107(2)(b) nor K.S.A. 1987 Supp. 21-3107(2)(c) is of present moment. Thus, we arrive at a consideration of K.S.A. 1987 Supp. 21-3107(2)(a), which provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime.”
The question for our resolution is whether at Patterson’s trial it was error to convict him for aggravated sexual battery as a “lesser degree of the same crime.”
In speaking to the question whether a certain crime is an included crime of another, numerous Kansas appellate decisions discuss or apply the identity of statutory elements test, the operative test in deciding whether the lesser crime is an included crime for the purposes of K.S.A. 1987 Supp. 21- 3107(2)(d). See State v. Long, 234 Kan. 580, 587-88, 675 P.2d 832 (1984); State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651 (1978). State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985), is one of these cases. There it is held that sexual battery (K.S.A. 1987 Supp. 21-3517) and aggravated sexual battery (K.S.A. 1987 Supp. 21-3518) are not included crimes where rape is charged for the reason that the identity of statutory elements test is not met. 238 Kan. at 416-18. Galloway makes no mention of the question whether sexual battery or aggravated sexual battery is a “lesser degree of the same crime” for the purposes of K.S.A. 1987 Supp. 21-3107(2)(a). Thus, Galloway is neither controlling nor of material precedential value in the disposition of the question before us.
For the purposes of K.S.A. 1987 Supp. 21-3107(2)(a), it has been held that theft is a lesser degree of larceny than robbery (State v. Long, 234 Kan. at 592) and that manslaughter is a lesser degree of homicide than murder (State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 [1975]). The “same crime,” as that term appears in K.S.A. 1987 Supp. 21-3107(2)(a), was held to be larceny in Long and homicide in Gregory. Larceny and homicide were determined to be generic crimes. Long held robbery and theft to be embraced within “the same crime” as different degrees of larceny. Gregory held murder and manslaughter to be embraced within “the same crime” as different degrees of homicide.
Long and Gregory teach that inquiry for the existence of a K.S.A. 1987 Supp. 21-3107(2)(a) “same crime” is not restricted to the statutorily defined crimes appearing in Part II of our criminal code (K.S.A. 21-3301 et seq.).
With respect to whether there is a “same crime” of which rape and aggravated sexual battery may be lesser degrees on the adduced evidence, we find that rape and aggravated sexual battery are explicitly embraced within the statutory definition of “unlawful sexual act” (K.S.A. 1987 Supp. 21-3501[4]). By reason thereof, we are persuaded that for the purposes of K.S.A. 1987 Supp. 21-3107(2)(a), it correctly may be held that aggravated sexual battery is a lesser degree of “unlawful sexual act” than is rape.
Accordingly, we hold that on the adduced evidence in this case it was correct to submit to the jury the crime of aggravated sexual battery as a “lesser included crime” and that the trial court had jurisdiction to enter a judgment of conviction for aggravated sexual battery upon the jury’s verdicts of not guilty of rape and guilty of aggravated sexual battery.
As a second issue, Patterson contends that his trial counsel afforded him ineffective assistance. This contention is premised on trial counsel’s request for the aggravated sexual battery instruction. Inasmuch as we conclude there was no error in submission of the case to the jury with the inclusion of the challenged “lesser included crime” instruction, Patterson’s ineffective assistance of counsel contention necessarily fails.
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Briscoe, J.:
The Kansas Department of Revenue appeals from an order of the Board of Tax Appeals (BOTA) abating a sales tax assessment against News Publishing Company, Inc., (News Publishing) the publishers of The Hays Daily News. At issue is whether News Publishing is liable for the sales tax which was collected or should have been collected by its newspaper carriers when the carriers sold the newspapers to their customers.
The majority of the newspapers published by News Publishing are distributed by independent newspaper carriers who are mainly young people under the age of 16. News Publishing contracts with the carriers, selling the newspapers to the carriers at wholesale price, and, while indicating a suggested retail price, the individual carriers are allowed to establish their own prices. News Publishing provides no insurance for the carriers and they are not covered by workers’ compensation.
When a carrier enters into a contract with News Publishing, the circulation manager informs the carrier of the obligation to collect sales tax from customers, explaining that the tax should be remitted by the carrier to News Publishing, who in turn transmits the money to the Department of Revenue. News Publishing provides each carrier with a monthly sheet to aid the carrier in computing the sales tax. If the carrier fails to remit sales tax, a written reminder is sent and, if there is no response, the circulation manager calls the carrier to remind the carrier of his or her obligation. In extreme cases, the circulation manager personally visits the carrier. If all of these actions fail, News Publishing does nothing further to sanction the carrier or otherwise collect sales tax.
In September 1983, the Department of Revenue issued to News Publishing a “Notice of Assessment of Additional Sales Tax” based on a field audit for the period from August 1, 1980, through July 31, 1983. The assessment was based on unreported taxable sales of newspapers distributed by newspaper carriers. The unreported amount of Kansas sales taxes for this period as determined by the Department of Revenue was $6,332, plus statutory penalty in the amount of $633 and interest computed through October 31, 1983, in the amount of $1,917.
News Publishing appealed the assessment to the Director of Revenue, who held News Publishing was liable for the sales tax not remitted by its carriers. The Director determined the carriers were employees or agents of News Publishing, and News Publishing was the actual retailer who was responsible for collecting and remitting the sales tax. The Director also based her decision on what appears to be an estoppel theory after finding News Publishing “undertook the obligation of collecting and remitting the sales tax to the Department of Revenue.” News Publishing appealed from the Director’s order to the BOTA.
The BOTA held the carriers were not employees or agents of News Publishing, but were instead independent contractors. The BOTA also held News Publishing was a wholesaler to the carriers, who were the retailers. The BOTA concluded News Publishing can only become liable for the sales tax if the provisions of K.S.A. 79-3604 are satisfied. K.S.A. 79-3604 requires the payment of sales tax by the consumer and collection by the retailer, but contains the following exception, which shifts the duty to collect and remit the sales tax from the retailer to the wholesaler (vendor):
“Whenever the director of taxation shall determine that in the retail sale of any tangible personal property or services because of the nature of the operation of the business including the turnover of independent contractors, the lack of a place of business in which to display a registration certifícate or keep records, the lack of adequate records or because such retailers are minors or transients there is a likelihood that the state will lose tax funds due to the difficulty of policing such business operations, the director shall refuse to issue a registration certificate to such person and it shall be the duty of the vendor to such person to collect the full amount of the tax imposed by this act and to make a return and payment of said tax to the director of taxation in like manner as that provided for the making of returns and the payment of taxes by retailers under the provisions of this act. Whenever the director shall determine that it is necessary to refuse to issue a registration certificate to any retailer under the provisions of this section, he or she shall immediately notify the vendor or vendors to such retailer of such refusal and the resulting duty to collect and make a return and payment of said tax.” Emphasis added.
The BOTA relied upon 79-3604 to conclude that, because the Department of Revenue had failed to notify News Publishing of its obligation to collect the sales tax, the Department of Revenue could not assess that liability against News Publishing. The Department of Revenue filed a motion for rehearing, which was denied. The Department of Revenue then appealed directly to this court pursuant to K.S.A. 1986 Supp. 74-2426.
While the Department of Revenue raised several issues before the BOTA, in its appeal to this court it focuses upon the interpretation of 79-3604, more specifically its notice provisions. In its appeal to this court, the Department of Revenue does not assert that the carriers are employees or agents of News Publishing, or that News Publishing instead of the carriers is the actual retailer. The Department of Revenue argues 79-3604 is inapplicable to the facts of this case because the Department of Revenue had no duty to notify News Publishing of its liability until a carrier applied for a sales tax registration certification and the application was denied. The Department of Revenue points out the BOTA found that no News Publishing carrier had ever applied for or been denied a certificate of registration. News Publishing counters, and the BOTA found, that pursuant to 79-3604, its duty to collect and remit the sales tax was not triggered until the Department of Revenue notified News Publishing it had the duty to collect and remit the tax.
In reviewing the action of the BOTA, this court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily, or capriciously; (2) the administrative order was substantially supported by evidence; and (3) the action was within the scope of its authority. However, while matters of assessment and taxation are administrative in character and the judiciary may not substitute its judgment for that of the administrative agency, construction of statutory language is a proper judicial function. In re Order of Board of Tax Appeals, 236 Kan. 406, 409-10, 691 P.2d 394 (1984).
The legislative history of 79-3604 confirms the fact that the statute was amended in contemplation of the type of carrier-publisher situation presented in the present case. The minutes of the Assessment and Taxation Committee for the period of late January to early February 1970 reflect representatives of the newspaper industry testified before the committee and indicated that, while they opposed taxation on newspapers, if the legislation were passed, the industry wanted some method for the collection of the tax set forth in the statute.
This legislative history is important in that it establishes the 1970 amendment to 79-3604 was promulgated to answer the concerns of the newspaper industry should the legislature decide to no longer exempt the sale of newspapers from Kansas sales tax. The legislative history does not, however, answer the questions which we must decide — Is the statute applicable to the parties in this case; and, if applicable, did the Department of Revenue comply with the requirements of the statute when it attempted to impose the sales tax liability on News Publishing?
The entire matter of taxation is legislative and does not exist apart from statute. The legislature is empowered to provide the means and agencies for carrying out its responsibilities in matters of taxation. Joseph v. McNeive, 215 Kan. 270, 271, 524 P.2d 765 (1974). Where a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be. Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 (1982); Randall v. Seemann, 228 Kan. 395, 397, 613 P.2d 1376 (1980). Sales tax statutes are penal in nature and must be strictly construed in favor of the taxpayer. J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984). When there is reasonable doubt as to the meaning of a taxation statute, the statute will be construed in a manner most favorable to the taxpayer. See Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P.2d 1162 (1973); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 13, 114 P.2d 871 (1941).
The statute at issue here is clear and unambiguous. K.S.A. 79-3604 on its face requires retailers to collect the tax and subscribers (as consumers) to pay the sales tax. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 661, 562 P.2d 65 (1977). In addition, K.S.A. 79-3608 makes it unlawful “for any person to engage in the business of selling tangible personal property at retail . . . without a registration certificate from the director of taxation.”
The Department of Revenue argues that, if the carriers/retailers never make application and are thereby never denied registration, the Department’s duty to give notice to the vendor/ wholesaler never arises and the Department must look to the vendor to collect and remit the sales tax. This construction of 79-3604 distorts the clear language of the statute. Under 79-3604, the duty of a wholesaler (here, News Publishing) to collect sales tax does not arise until the director of taxation has refused the retailer’s application for a registration certificate and has notified “the vendor or vendors to such retailer of such refusal and the resulting duty to collect and make a return and payment of said tax.”
We next address the factual issue of whether the Department of Revenue complied with the notice provision of 79-3604. In support of its argument that News Publishing had notice of its duty to collect sales tax, the Department of Revenue relies on copies of newspaper articles which appeared in The Hays Daily News when 79-3604 was amended in 1970. Since these articles appear only in the appendix of the Department of Revenue’s brief and were not admitted before the BOTA, they are not properly before this court and cannot be considered. Supreme Court Rule 6.02(f), 235 Kan. lxviii. The Department of Revenue also relies on notices sent to the Kansas Press Association regarding the requirements of 79-3604. These notices were introduced before the BOTA and are included in the record on appeal. There is no evidence, however, that the Department of Revenue ever notified News Publishing directly of its obligation to collect the tax. In addition, notices sent to the Press Association, upon which the Department of Revenue relies so heavily, contain the following question and answer:
“Is it the responsibility of the Director of Revenue to notify the newspaper publisher in line with K.S.A. 79-3604 effective July 1, 1970, that the issuance of a sales tax registration certificate to an independent carrier or any retailer of newspapers has been denied and that it is the duty of the newspaper publisher to remit the sales tax?
“Answer: Yes. The following procedure will be followed in this instance. The Department of Revenue will mail a procedural outline to the newspaper publishers on June 1, 1970, instructing them to remit the retail sales tax on their sale of all papers to consumers and to independent carriers who sell to the ultimate consumer. In the event an independent carrier is not a minor or transient, and has a place of business in which to display a sales tax registration certificate or to keep records, the newspaper publisher should refer the name and address of the independent carrier to the Sales Tax Division, State Office Building, Topeka, Kansas, for review by the Director of Revenue as to the issuance of a retail sales tax certificate to the carrier. The independent carrier will be contacted by a representative of the Department of Revenue and if the sales tax application of the independent carrier is accepted, the newspaper publisher will be notified.”
There is no indication in the record that this procedural outline was ever provided to News Publishing.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when it can be ascertained from the statute. State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982). Given the clear language of K.S.A. 79-3604, we must conclude News Publishing was under no duty to collect the tax until it was notified that the carrier had been refused a certificate of registration and instructed regarding its duty to collect the tax. Since there was no evidence that News Publishing was so notified and instructed, the BOTA had substantial evidence to support its order that any sales tax owed is owed by the carriers and not by News Publishing.
As a final matter, News Publishing raises an issue regarding the constitutionality of the imposition of a duty upon the publisher to collect sales tax on behalf of the carriers. News Publishing also raised this issue before the BOTA which held that, as a quasi-judicial agency, it had to assume the statutes were constitutional, and refused to address the issue. Since administrative boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law. In re Residency Application of Bybee, 236 Kan. 443, 449, 691 P.2d 37 (1984). In this case, the issue of constitutionality would have to be raised by News Publishing in this court. However, News Publishing filed no notice of cross-appeal to preserve the issue of constitutionality for decision by this court. Absent the filing.of a cross-appeal, the issue of whether the statute is constitutional is not properly before us. Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985).
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Briscoe, J.:
This is a medical malpractice case brought by plaintiff David A. Williams, through his conservator, against Dr. Horace Greene and Stormont-Vail Hospital. The trial court granted summary judgment in defendants’ favor and plaintiffs appeal.
The sole issue on appeal is whether the trial court erred in granting summary judgment in favor of defendants based on plaintiffs’ failure to obtain expert testimony to establish proximate cause.
Plaintiffs alleged the defendants were negligent in prescribing and dispensing Valium to plaintiff Williams and that this negligence was the proximate cause of Williams’ cerebral damage. According to plaintiffs, Dr. Greene knew Williams was an alcoholic and therefore should not have prescribed Valium. Plaintiffs also alleged Stormont-Vail Hospital pharmacy was negligent in monitoring his Valium prescription.
In response to written interrogatories, plaintiffs stated they did not intend to present any expert testimony. After the close of discovery, the defendants moved for summary judgment and emphasized in their motions plaintiffs’ failure to identify any expert who would testify regarding defendants’ standard of care or causation. Defendants argued that plaintiffs were unable as a matter of law to establish either the governing standard of care or proximate cause without the aid of expert testimony. Plaintiffs countered that these issues were not technical or complex and were therefore within the common knowledge and experience of a jury. The trial court agreed with plaintiffs that the applicable standard of care could be established without expert testimony, but disagreed on the issue of proximate cause. With the following language, the trial court concluded that proximate cause could not be resolved by a jury without the benefit of expert testimony, and granted summary judgment:
“4. Under the facts of plaintiff s case, it would also appear that the PDR [Physician’s Desk Reference] and manufacturer’s warning label are insufficient to establish causation. Neither the warning label or the PDR gave specific warnings of the resulting hazards in the event the instructions and warnings were not followed. Additionally, this clearly is not a case where the causation factor can be determined through the common experience of mankind. Williams had a pre-existing condition of phlebitis which could have also contributed to his development of cerebral damage. The trier of fact cannot, without the aid of expert testimony, draw accurate conclusions on causation from the PDR or warning label. The effects of drugs on an individual’s body are too complex and not within the common knowledge and experience of mankind to permit the jury to determine without the aid of an expert.
“By reason of the foregoing, we conclude that defendants’ motions should be sustained and this case is hereby dismissed.”
The rules which govern the granting of a motion for summary judgment are well settled. A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 60-256(c). The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light most favorable to the nonmoving party. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341-42, 624 P.2d 971 (1981). Contrary to plaintiffs’ assertion, this does not mean the defendants, the moving parties here, had to prove in their summary judgment motions that they were not negligent. Defendants were entitled to prevail if they could establish that there was an absence of evidence to support plaintiffs’ case. As stated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 273-74, 106 S. Ct. 2548 (1986), when analyzing the import of Rule 56(a,) (b), and (c), Fed. R. Civ. Proc., which mirror the language of K.S.A. 60-256(a), (b), and (c):
“In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. . . .
“[W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. On the contrary, Rule 56(c), which refers to ‘the affidavits, if any’ (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment ‘with or without supporting affidavits’’ (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.”
Cf. Willard v. City of Kansas City, 235 Kan. 655, 681 P.2d 1067 (1984).
Turning to the present case, expert testimony is ordinarily required in medical malpractice cases to establish the standard of care and to prove causation. An exception to this rule is recognized, however, where the lack of reasonable care or the existence of proximate cause is apparent based on common knowledge or experience. Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978); Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910, 917, 636 P.2d 215 (1981). See Annot., 13 A.L.R.2d 11, § 5; 61 Am. Jur. 2d, Physicians, Surgeons, Etc. §§ 348, 350. In the present case,, plaintiffs relied entirely on the common knowledge exception and responded to defendants’ summary judgment motions by asserting no medical expert testimony was needed to establish plaintiffs’ claims of negligence. We have then in this case not a failure by the nonmoving parties to counter affidavits filed by the moving parties, but rather the exercise by the nonmoving parties of a conscious legal decision to assume the position that expert testimony was not required to establish their claims. This left for the trial court the legal issue of whether the plaintiffs’ claims fell within the common knowledge exception and expert testimony was not required, or whether the claims were beyond the exception and required expert testimony. If plaintiffs were wrong in their assertion that expert testimony was not needed, their claims failed for lack of evidence because they had not identified any expert testimony to support their claims either in discovery or in their response to the summary judgment motions.
Our review of the Valium warning insert supports the conclusion of the trial court that causation could not be determined in the case without the use of expert testimony. While the insert warns physicians to be cautious in administering Valium to alcoholics, there is nothing in the insert which indicates that cerebral damage or any injury for that matter will result from the misuse of Valium and alcohol. The Physician’s Desk Reference 1519 (1986) contains essentially the same information.
On appeal, plaintiffs do not dispute the trial court’s reasoning but instead attempt to argue for the first time that the trial court should have permitted causation to be established at trial through its examination of defendants and other treating physicians. This argument is not persuasive. First, it is well settled that matters not presented to the trial court may not be raised for the first time on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984); Broadway Nat’l Bank v. G & L Athletic Supplies, Inc., 10 Kan. App. 2d 43, Syl. ¶ 1, 691 P.2d 400 (1984), rev. denied 236 Kan. 875 (1985). Or conversely, plaintiffs cannot now recant the position they took in response to the summary judgment motions. Second, a party cannot avoid summary judgment on the mere hope that something may develop later during discovery or at trial. Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, Syl. ¶ 1, 545 P.2d 312 (1976); Meyer, Executor v. Benelli, 197 Kan. 98, 100, 415 P.2d 415 (1966). Plaintiffs had every opportunity to depose Dr. Greene or other witnesses in order to establish their theory of causation but failed to do so. According to Dr. Greene, plaintiffs failed to elicit any testimony from him at deposition which could establish causation. Dr. Greene’s deposition has not been supplied on appeal. Stephen Anderson, a pharmacist at Stormont-Vail, was also deposed. His only testimony concerning causation was as follows:
“Q. And can that [the combination of alcohol and Valium] cause any particular damage? I mean have you studied what damage can be caused by that?
“A. I am aware of the damage it can cause.
“Q. Tell me?
“A. It was in the papers just last month.
“Q. Tell me what damage can be caused?
"A. The Quinlan, was that her name?
"Q. Karen Ann Quinlan?
“A. Karen Ann Quinlan.
“Q. Can cause cerebral damage, can it not?
“A. Yes.”
Anderson, however, was not qualified as a medical expert and his general remarks fail to establish any evidence that Williams’ injury was caused by the combined use of Valium and alcohol. Further, if plaintiffs intended to use Dr. Greene or Williams’ treating physicians as experts to establish causation, they had a duty to supplement the interrogatory responses to include these experts, to list these experts pursuant to the discovery conference order, and to state this change of position in their response to the summary judgment motions. The trial court correctly concluded the defendants were entitled to judgment as a matter of law.
Another matter requires brief mention. Pursuant to a scheduling order, the court had scheduled a date for oral argument on all pending motions. Plaintiffs contend the court’s ruling on the defendants’ summary judgment motion before the date scheduled for oral argument on the motions precluded the plaintiffs from the opportunity to inform the court in response to the summary judgment motions that the plaintiffs intended to rely on the plaintiffs’ treating physicians and also the defendants to establish causation. Although it may have been a better practice for the trial court, prior to its ruling, to have notified counsel'of its intention to rule on the motion without benefit of the scheduled argument, the plaintiffs had numerous opportunities in responses to interrogatories (including supplementation), the discovery conference order, and defendants’ motions for summary judgment to notify the court of any intended change of strategy.
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Wahl, J.:
Respondent MBPXL Corporation appeals from an order of the district court assessing the costs of claimant’s vocational rehabilitation against respondent and ordering it to repay a government educational grant.
This is the second appeal in this workers’ compensation case. The action was originally initiated when claimant brought a workers’ compensation claim for right wrist and forearm disability that arose on approximately September 4, 1979. Claimant’s injury was the result of repeated cyclic activity in trimming meat with a boning knife, her designated job with respondent, a meat packing operation.
On September 9, 1982, the administrative law judge (ALJ) granted benefits according to the scheduled injury statute, finding that claimant had a 20 percent permanent partial loss of use of her right forearm. Claimant was awarded $8,224.36 in temporary total disability payments, $4,275.72 for the 20 percent permanent partial loss of use of the forearm, and all medical expenses incurred as a result of the injury. Claimant’s request for vocational rehabilitation benefits was denied based on the state of the record at that time.
Claimant appealed the award to the district court. In a memorandum opinion filed January 26, 1983, the district court framed the issues raised as: (1) whether the claimant’s injury was a personal injury by accident or an occupational disease; and (2) whether the claimant was entitled to vocational rehabilitation. The court upheld the administrative decision as to the nature and amount of the disability award, but reversed the denial of claimant’s request for vocational rehabilitation and ordered that an appropriate plan be developed.
Thereafter, claimant filed a motion for reinstatement of temporary total benefits during rehabilitation and requested payment of compensation in one lump sum. On March 9, 1983, the court ordered that claimant receive temporary total benefits once she was enrolled in an approved program. Another unsigned order, also dated March 9, 1983, which was apparently a proposed journal entry drafted by claimant’s attorney, further clarified that (1) the plan for rehabilitation was to be devised with representatives of the Vocational Rehabilitation Director; (2) the plan was to be furnished to both parties’ attorneys as well as the Director; and (3) either party could seek a hearing before the Director should a disagreement arise as to the rehabilitation plan. Both parties stipulate that the unsigned journal entry dated March 9, 1983, correctly states the orders of the district court.
On February 11, 1983, claimant appealed to this court contending the trial court erred in its finding that she suffered disability as a result of accidental injury rather than occupational disease. No cross-appeal was taken by respondent. An unpublished Court of Appeals opinion affirmed the district court decision (No. 55,433, filed September 22, 1983).
The last money due and owing claimant was paid on February 17, 1983. Claimant delivered a child in July 1983 and remained at home with her child until May 1985, when she sought a vocational assessment through the Wichita Vocational Assessment Center in preparation for entering a retraining program. Claimant was referred to the Wichita Center for an assessment of the functional limitations of her hands and the feasibility of medical assistant training. At that time, claimant stated her medical doctor had indicated she could not work as a medical lab assistant. Claimant experienced problems with swelling and numbness in her right hand when completing tasks requiring manual dexterity. The assessor failed to make a dispositive recommendation but indicated claimant would need to consider the functional limitations of her hands before entry into training for employment requiring good dexterity skills.
On October 7, 1985, claimant entered into a medical assistant training program at Bryan Institute in Wichita. She financed the program with a $2,295 guaranteed student loan and a $2,400 federal “Pell Grant.” On December 2, 1985, claimant filed a motion with Workers’ Compensation for costs of vocational rehabilitation and temporary disability benefits during the period of training. On December 18, 1985, respondent filed a formal objection.
On March 11, 1986, after conducting an evidentiary hearing and reviewing the briefs of both parties, the ALJ entered an award denying claimant vocational rehabilitation benefits. The award stated that, although claimant had good cause for delaying her entry into retraining, she failed to meet the conditions set by the district court in its March 9, 1983, order. The award noted claimant had failed to. obtain approval of the program from the vocational rehabilitation counselors, respondent’s counsel, or the ALJ. The ALJ further found that claimant had previously indicated she could not be a medical assistant because of medical restrictions and because her problem with manual dexterity prevented her from competently handling medical equipment. The ALJ concluded it was not the lack of administrative approval that defeated claimant’s request, but that she entered into a medical assistant vocational program against medical advice and with knowledge that she could not consistently perform the tasks attendant upon the job without difficulty. No review of the award was requested and it was approved by the Director of Workers’ Compensation on March 24, 1986.
On March 28, 1986, claimant filed a notice of appeal to the district court. On June 27, 1986, the district court found that claimant’s delay in entering a vocational rehabilitation program was justifiable and approved claimant’s retraining program as consistent with her vocational evaluation. The court noted that the evaluation stated claimant had a reading comprehension grade level of 12.9, a high average ability to handle small materials, and satisfactory basic skills. Respondent was ordered to repay claimant the $2,295 for her student loan and to repay claimant’s Pell Grant in the amount of $2,500. Claimant’s request for temporary total compensation during training was denied in light of Cowan v. Josten's American Yearbook Co., 8 Kan. App. 2d 423, 660 P.2d 78, rev. denied 233 Kan. 1091 (1983).
Claimant requested additional attorney fees but the request was denied. After a final hearing on August 7, 1986, a journal entry of judgment on the entire matter was filed on September 10,1986. On August 25,1986, respondent filed a timely notice of appeal with this court. On September 8, 1986, claimant filed a notice of cross-appeal, which she has now withdrawn.
As a preliminary jurisdictional matter, claimant contends respondent’s failure to take a timely cross-appeal in the original 1983 appeal precludes this court from addressing respondent’s vocational rehabilitation entitlement issues on this appeal. Respondent’s position is that the district court’s original judgment on vocational rehabilitation did not become appealable until the court entered a detailed order ruling on claimant’s plan and expenses, and a cross-appeal in the original action would have been premature.
Claimant’s contention is without merit. Respondent challenges subsequent orders issued by the district court. Respondent’s failure to challenge claimant’s basic entitlement to vocational rehabilitation on the first appeal does not preclude challenging later orders involving the specific implementation of the vocational rehabilitation award and the designation of expenses on this appeal. The issues raised by respondent had not yet ripened at the time of the prior appeal.
Turning to the merits of this appeal, we must consider whether claimant’s request to have her training expenses paid is barred by the exclusivity provision of K.S.A. 44-510d(b), which provides:
“Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in K.S.A. 44-510 and amendments thereto, and no additional compensation shall be allowable or payable for either temporary or permanent disability, except that the director may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten percent (10%) of the total period allowed for the scheduled injury in question nor in any event for longer than fifteen (15) weeks. The return of the employee to his or her usual occupation shall terminate the healing period.”
Respondent contends that this court’s holding in Cowan v. Josten's American Yearbook Co., 8 Kan. App. 2d 423, is controlling. In Cowan, the claimant sought compensation for the period he was engaged in a program of vocational rehabilitation in addition to and independent of his right to receive compensation for his scheduled injury under K.S.A. 44-501d. This court held, when a disability stems from a scheduled injury, compensation paid during vocational rehabilitation under 44-510g(g) is counted against, and is not independent of, the total compensation due under 44-50Id.
K.S.A. 44-510g is a comparatively new statute, having been enacted in 1974. It was considered in Antwi v. C-E Industrial Group, 5 Kan. App. 2d 53, 612 P.2d 656, aff'd 228 Kan. 692, 619 P.2d 812 (1980). Antwi focused on the issue of whether a disability finding, made after an injured workman had successfully completed a vocational rehabilitation program, should be based upon his ability to perform the work for which he had been rehabilitated or upon his ability to engage in work of the same type and character which he was performing at the time of his injury.
Neither Antwi nor Cowan addressed the issue before us — when a disability stems from a scheduled injury, are the costs of vocational rehabilitation training paid under K.S.A. 44-510g(d) counted against or are those costs independent of the total compensation paid under 44-510d? We must then construe the statutes and determine if we can ascertain the legislative intent. We are mindful of our mandate to look to the purpose to be accomplished by the statute (Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 630, 629 P.2d 187 [1981]), and, in workers’ compensation matters, to make the legislative intent effective by liberally construing the act to award compensation and benefits to the worker whenever reasonably possible (Brinkmeyer v. City of Wichita, 223 Kan. 393, 396, 573 P.2d 1044 [1978]).
K.S.A. 44-510g(a) states: “A primary purpose of the workmen’s compensation act shall be to restore the injured employee to substantial and gainful employment.” K.S.A. 44-510g(d) provides:
“When as a result of an injury or occupational disease which is compensable under the workmen’s compensation act, the employee is unable to perform work for which such employee has previous training, education, qualifications or experience, or when such employee is unable to perform other substantial and gainful employment, such employee shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore such employee to substantial and gainful employment and as provided in this section.”
K.S.A. 44-510g(g) directs: “The employer shall pay temporary total disability compensation during any period of vocational rehabilitation.”
K.S.A. 44-510d(a) and (b) and 44-510g(g) speak in terms of compensation to be paid for specific injuries and temporary total disability compensation to be paid during the period of vocational rehabilitation. K.S.A. 44-510g(d) speaks of a compensable injury for which the employee is entitled to vocational rehabilitation services, including retraining, which services are to be provided at the expense of the employer. A clear distinction is made between compensation and vocational rehabilitation costs. As stated in Clintsman v. St. Joseph Hosp. of Concordia, 11 Kan. App. 2d 199, 203, 717 P.2d 1074 (1986), “The entire thrust of the rehabilitation provisions of the Workmen’s Compensation Act is on training.”
By the very tenor and stated purpose of the vocational rehabilitation provisions, the legislature evinces a clear purpose to provide the vocational training in addition to the compensation for a specific injury. Although not necessary to the decision, in Antwi, 5 Kan. App. 2d at 61, the same conclusion was reached: “These rehabilitative benefits are in addition to the benefits to which a workman is otherwise entitled under the act.”
The district court in the present case did not err in limiting the application of Cowan to bar only claimant’s request for additional temporary total compensation during her vocational training course. The costs of such rehabilitative training may not be set off against the total compensation award and are not barred by the exclusivity provision of K.S.A. 44-510d.
Respondent next contends the district court erred in authorizing claimant’s vocational retraining program because claimant was found to be physically unsuited to work as a medical assistant, engaging in such occupation would violate medical restrictions, and she undertook retraining without the prior recommendation or approval of the Vocational Assessment Center.
Claimant had been medically informed that her injury made her unsuitable for medical assistant training. She was directed by the district court to consult a vocational rehabilitation counselor and to submit a plan, and each party would then have the right to a hearing before the Vocational Rehabilitation Director should a disagreement arise as to the plan. She was referred to the Wichita Vocational Assessment Center to determine the functional limitations of her hands and the feasibility of medical assistant training. The propriety of the trial court’s order becomes apparent when the results of claimant’s examination are considered. This assessment showed her highest occupational interest to be in the business and service area. She scored an “unsatisfactory” on measuring where the use of a ruler was required to measure inches and fractions of inches. She had a weak math score and had a “[l]ow average accuracy in work — lack of attention to detail.” The only reference to medical assistant training was a question by the evaluator about the area of medical lab assistant and claimant indicated, “My medical doctor said that’s out.” The vocational assessment report dated June 7, 1985, neither recommended nor disapproved the medical assistant training chosen by claimant.
Even recognizing the primary purpose of the Act to restore the injured employee to substantial and gainful employment, the worker may not unilaterally decide what training he or she may want to pursue and proceed to do so at respondent’s expense. Claimant entered her medical assistant training without approval of the vocational rehabilitation counselors, against medical advice, and without following the orders of the district court. To approve such an independent approach to rehabilitation training by a claimant would result in untold administrative and economic chaos and a total breakdown of the legislatively intended benefits to the injured worker of rehabilitation training. K.S.A. 44-510g(i) makes provision for the possibility that the worker may not follow the orderly process to rehabilitation training, as follows:
“[I]f the injured employee without good cause refuses to undertake the rehabilitation, educational or training program determined by the director to be suitable for such employee, or refuses to be evaluated under the provisions of subsection (e), the director shall suspend the payment of any compensation until the employee consents to undertake such program or to be so evaluated, and the director shall cancel the compensation otherwise payable if any such refusal persists for a period in excess of 90 days.”
If compensation may be cancelled for refusal to undertake rehabilitation, it is no injustice to deny retraining costs for failure to follow instructions.
The trial court erred in ordering respondent to repay claimant for her $2,295 student loan. Claimant’s motion for rehabilitation benefits should be denied.
Counsel agreed at oral argument before this court that the trial court lacked authority to order respondent to repay the $2,400 federal educational Pell Grant which claimant had obtained. K.S.A. 44-510g(h) specifically prohibits such reimbursement:
“The director shall cooperate with federal, state and other public or private agencies for vocational rehabilitation, reeducation or training, or medical or physical rehabilitation. The employer shall not be required to pay the reasonable costs of the employee’s board, lodging and travel where such costs are borne by any federal, state or other public agency, nor shall any costs for vocational rehabilitation, reeducation or training be assessed to the employer if such vocational rehabilitation, reeducation or training is in fact furnished by and at the expense of any federal, state or other public agency.”
The order of the district court is reversed and judgment shall be entered in accordance herewith. | [
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Per Curiam:
Clarence L. Coy, the son of Clarence E. Coy, was seriously injured by being run into by a car of the Missouri Pacific Eailway Company. His father brought an action against the company to recover damages. Upon the trial the court sustained a demurrer to the evidence of the plaintiff, who prosecutes error.
The evidence showed that a freight-car was standing upon a side-track laid along a public street in Iola, and was being unloaded. Several drays were standing near the car, and the boy, seeing them from a distance, came that way for the purpose of getting a ride on one of them. At a distance of about forty feet from the car he went upon the track on which it stood and walked between the rails until he had almost reached it. He then stooped over to gather some snow that lay on the track. At this moment a train, or a part of a train, was .backed against the farther end of the car, giving it a sudden impetus toward him. It struck him, knocked him down, and dragged him for some distance, breaking his arm and inflicting other injuries. There was evidence that no warning was given of the approach of the train, and the negligence of the company in that respect may be regarded as established. The demurrer was obviously sustained upon the theory that the boy’s own negligence contributed to his injury and precluded a recovery.
Former decisions of this court and of other courts have established the doctrine that it is negligence, as a matter of law, for one to walk or stand upon a railroad-track when there is no necessity or occasion for so doing, and that no recovery can be had for any injuries received under such circumstances from a moving car or engine and not knowingly or wantonly caused. (Railway Co. v. Schwindt, 67 Kan. 8, 72 Pac. 573; Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539; Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451.)
In the present instance the boy was not crossing the track, and there was no reason why he should have been upon it when the car was struck. The car itself prevented his seeing the approaching train. The case clearly falls within the doctrine stated unless this re- suit is prevented by the consideration that the injured boy was but twelve years old. His age, however, is important only as a mark of capacity. (Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996.) Whatever view might otherwise' be taken of the matter, the boy’s own testimony forbids any relaxation of the rule by reason of his tender years, for it shows a degree of intelligence, a knowledge of the methods of the operation of trains, and an appreciation of the danger to which his situation exposed him, such as might be looked for in a person of full maturity. This is illustrated by his statements that he did n’t think the railroad employees would couple to the car while it was being unloaded; that he did while standing on the track lean over and look past the car to see if there was any engine there, seeing several cars but no engine; that he did n’t think if a train should strike the cars that it would knock them very far; and that when the car bumped back he jumped backward, thinking it would not move very far. We think the trial court ruled correctly, and the judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
Grant G. Johnson held a policy of insurance issued by the Continental Casualty Company, the principal purpose of which was to provide indemnity to the amount of ten dollars a week- against loss occasioned by accidental injury, its phraseology being that usually employed in contracts of that character. It also contained a provision as follows;
“The loss of . . . time, as above provided, due solely to . . . sunstroke or freezing due solely to necessary exposure while engaged in his occupation, shall be deemed to be due to external, violent and purely accidental causes and shall entitle the insured to full benefits according to the terms of this policy.”
What is called a “health-insurance rider” was attached to and made a pa'rt of the policy, providing that for time lost by illness or disease the insured should be entitled to receive five dollars a week. Johnson was a flue-welder, and while engaged in that occupation was overcome by heat from the forge or furnace near which he worked and in consequence thereof became ill and suffered the loss of nearly a year’s time. He brought an action upon his policy alleging, that his loss was due to sunstroke, and recovered a judgment based upon that theory. The company prosecutes error, and rests its case upon one general contention, which if sound requires a reversal of the judgment, namely, that the word “sunstroke” as used in the policy referred only to an effect produced by the heat rays of the sun. If, however, the word was there employed in a sense that made it applicable to a condition resulting from' artificial heat the judgment must stand, for there was abundant evidence that the plaintiff suffered from sunstroke if that term may be used to describe a disorder so occasioned.
The only definition of sunstroke given in Webster’s International Dictionary is as follows:
“Any affection produced by the action of the sun on some part of the body; especially, a sudden prostration of the physical powers, with ■ symptoms resembling those of apoplexy, occasioned by exposure to excessive heat, and often terminating fatally.”
This language is not free from ambiguity, but seems to recognize two meanings of the word; in the one case as colloquially used in a popular and general sense, referring to any ill effects resulting from exposure to the direct rays of the sun, and in the other as accurately employed in a scientific and technical way to denote a specific ailment caused by excessive heat from any source. The Standard Dictionary gives but one meaning, as follows: “A sudden cerebral disturbance, often with apoplectic symptoms, due to exposure to excessive heat, generally that of the sun.” The definition of the Century Dictionary is not so explicit, but is probably open to the same construction. It is: /
“Acute prostration from excessive heat of weather. Two forms may be distinguished — one of sudden collapse without pyrexia (heat exhaustion), the other with very marked pyrexia (thermic fever). The same effects may be produced by heat which is not of solar origin.”
The Encyclopaedia Britannica thus defines sunstroke, giving heat-stroke as a synonym: “A term applied to^ the effects produced upon the central nervous system, and through it upon other organs of the body, by exposure to the sun or to overheated air.” In the course of the article introduced by the words just quoted it is said:
“While attacks of sunstroke are frequently precipitated by exposure, especially during fatigue, to the direct rays of the sun, in a large number of instances they come on- under other circumstances. Cases are of not unfrequent occurrence among soldiers in hot climates where there is over-crowding or bad ventilation in their barracks, and sometimes several will be attacked in the course of a single night. The same remark applies to similar conditions existing on shipboard. Further, persons whose occupation exposes them to excessive heat, such as stokers,«laundry workers, &c., are apt to suffer, particularly in hot seasons.”
The Encyclopedia Americana article "on the subject begins:
“Sunstroke, prostration due to exposure to intense external heat. Such exposure may be to the direct or indirect rays of a tropical sun or to the excessive heat of an engine-room. In either case heat and physical exertion combine to bring about the results. A high degree of humidity of the atmosphere is one of the most important features, since this hinders free evaporation from the body.”
The New International Encyclopedia treats the word as a synonym of heat-stroke, which it defines thus: “The effect produced upon the body by exposure to intense heat, whether from the sun, from furnaces, or from the atmosphere.” The Universal Cyclopedia furnishes this definition: “Fever due to excessive heat, but most commonly to exposure to the direct heat of the sun; indirect solar heat or artificial heat may have the same effect:”
A number of medical dictionaries apply the word to a specific fever caused by heat, regardless of its origin, as shown by the following definitions: “Heat-stroke, especially that due to exposure to the sun’s rays.” (»Billings, Nat. Med. Die.) “A popular term for insolation or heat-stroke.” (Gould, New Med. Die.) “A condition resulting from exposure to the heat of the sun or to heat from other sources.” (J. K. Fowler, Die. of Prac. Med.) “Heat-stroke, especially from direct sun-rays.” (Keating, New Pron. Die. of Med., 2d ed.) “Certain pathological conditions resulting from exposure to solar or artificial heat.”' (Quain, Die. of Med., 11th ed.)
The following-named works fail to recognize the application of the term to any case not resulting from solar heat, but whatever significance might otherwise attach to this fact is diminished if not destroyed by the further fact that they treat heat-stroke in the same way, the first five giving it as a mere synonym of sunstroke, and the others ignoring it altogether: Appletons’ Medical Dictionary, Lippincott’s Medical Dictionary, Dunglison’s Medical Dictionary, Foster’s Encyclopedic Medical Dictionary, the Encyclopedic Dictionary, Thomas’s Medical Dictionary, the Imperial Dictionary, Worcester’s Dictionary, Stormonth’s Dictionary, Zell’s Encyclopedia and Dictionary.
In the work of H. C. Wood, jr., on Sunstroke it is said:
“My own experience is that the only absolutely necessary, and the ever-present, immediate cause [of what the author calls sunstroke] is heat, solar or artificial. It was formerly believed that exposure of the head to the direct rays of the sun was requisite, but this is now well known not to be true. One of my own cases originated in a sugar refinery. Dr. Longmore tells us that out of sixteen cases seen by him in one epidemic, thirteen originated in barracks or hospital.” (Page 9.)
And in Herold’s Manual of Legal Medicine:
“This affection [sunstroke] is produced by exposure to great solar heat, over-exertion, and an insufficient supply of water. The term is also applicable to those cases occurring as a result of exposure to other sources of extreme heat.” (Page 421.)
And in volume 1 of Peterson & Haines’s Text-book of Legal Medicine and Toxicology:
“Exclusive of the effects of burns and scalds, heat may produce lethal effects by what is commonly known as sunstroke, heat-stroke, or thermic fever. This condition, presenting several different phases, usually occurs from exposure to the direct rays of the sun, but may be induced by exposure to any excessive external heat if óf sufficiently long duration.” (Page 173.)
In volume 3 of Wharton & Stille’s Medical Jurisprudence, fifth edition (§312), cases arising from exposure to the intense heat of the sun are spoken of as “true” sunstroke, and in Draper’s Legal Medicine (p. 461) it is said to be correct to speak of such cases as sunstroke, but in each instance the context seems to indicate that what is intended is merely a suggestion that the word as ordinarily employed is in a sense a misnomer.
It seems clear from these authorities not merely that it is permissible to apply the word “sunstroke” to a condition produced by artificial heat, but that it accords with the best usage to do so; that such condition is comprehended within the ordinary meaning of the word wherever it is used with care and precision, whether in technical scientific treatises or in works designed for the general reader. Where the word is used carelessly or ignorantly it may well be supposed that reference is had to any temporary discomfort resulting from exposure to the direct action of the sun. So in Insurance Co. v. Trefz, 104 U. S. 197, 26 L. Ed. 708, it was held that the statement of a witness that he had had an attack of sunstroke was not necessarily to be taken as an admission that his ailment was in fact a real case of sunstroke, properly so called. But in the drawing of an instrument of the character and importance of an insurance policy the presumption should be that language is selected to express with entire accuracy and correctness the agreements of the contracting parties. And in the present case the word “sunstroke” may be deemed to describe, or at least to be inclusive of, the condition properly called by that name,- whether occasioned by solar or artificial heat, unless some specialreason exists for giving it a different meaning.
There may bean apparent incongruity in calling that sunstroke which has no relation to any effect produced by the sun, but this is only to say that the word is not happily formed to suggest the idea it is employed to express. Etymology is not always a safe guide to the meaning of a term. It is no more imperative that sunstroke shall always mean a disorder caused by the sun than that lunacy shall denote only an aberration due to the influence of the moon. It is true, as urged by counsel for the plaintiff in error, that heatstroke is a more logically constructed phrase. Words, however, are not to be interpreted by any theory of how they ought to be used, but in accordance with the actual use to which they are put by those whose custom establishes a standard. The history of the word “sunstroke” seems to be that it was coined to describe any suddenly perceived ill effects of sun heat; as observation disclosed that a definite morbid condition ordinarily accompanied or followed such an incidént the word was applied to that condition in the belief that it was peculiar to cases having that origin; as advancing medical science revealed that such condition was a distinct disease, and might and often did result from artificial as well as from solar heat, the doctors, instead of at once inventing a new and more appropriate name, broadened the application of the old one, and their example was naturally and properly followed by others until the usage became general. Later, as a visible mark of the advanced learning on the subject, a more suitable term was originated to describe the disorder — “heat-stroke,” the growing employment of which may in time restore sunstroke to its primitive meaning. That this result has not yet been accomplished is evidenced by the fact that the new word is given in but two of the general dictionaries — the Standard and the Encyclopaedic — and there merely as the equivalent for the old one. We are not directly concerned with the past or future meaning of the word, but with its present significance, and that, as already indicated, we think is comprehensive enough to cover the defendant in error’s case.
The provision of the policy is that sunstroke “shall be deemed to' be due to external, violent and purely accidental causes” and shall entitle the insured to indemnity at the full rate. ' It is argued, not without plausibility, that this language points to a conception of sunstroke as something of sudden and unexpected occurrence, more or less in the nature of an accident, and that this conception is only appropriate to an attack brought on by exposure to the sun’s rays. But prostration resulting from heat emanating from a furnance may be as swift in its development and as start- ' ling in its effects as though it were occasioned by hot and humid weather. In each case there would be present some of the features of an accidental injury, but neither would justify a recovery upon an ordinary accident policy.
In the only reported cases bearing on the subject (Dozier v. Fidelity & Casualty Co. of New York, 46 Fed. 446, 13 L. R. A. 114, and Sinclair v. Passengers’ Ins. Co., 3 El. & El. [Eng.] 478, 107 E. C. L. [Eng.] 476, 7 Jurist, part 1 N. S. [Eng.] 367), in disposing of .the contention that the holder of an ordinary policy insuring him against accidental injuries is entitled to recover for disability due to sunstroke, it wás held that sunstroke is not an accident but a disease. These cases are frequently referred to by the medical and legal writers and seem to be regarded as definitely settling the proposition to which they are directed. The discussion in the case first named tends to support the view that sunstroke may be caused by artificial heat, and the decision is cited as having that effect in Peterson & Haines’s Text-book of Legal Medicine and Toxicology, at page 491. It might not be unfair to assume that the policy here involved was drafted in the light of these decisions. Whether so or not, we see nothing in its language to impair the effect of .the presumption that the word “sunstroke” was used in its strictly correct sense. If the company wished to limit its liability under this clause to disability occasioned by natural heat it could easily have so framed the policy as to make this clear, and it should have done so.
' The health rider is of course to be deemed a part of the contract. By its terms it covered sunstroke as well •as other diseases. But in the body of the policy that disease is singled out and expressly classified as an accident for the purposes of fixing the extent of indemnity afforded against that particular disorder. The liability of the company must be determined by the specific rather than by the general provisions.
Johnson had previously suffered a somewhat similar affliction while holding a like policy from the company, and made a claim and received payment upon the basis of its being ordinary sickness, covered by the rider. Evidence was offered by the company to show the full facts with reference to this matter but was'ruled out, and of this complaint is made. We do not think the evidence rejected had any tendency to show an interpretation of the contract by the parties or that the court committed error in' this connection.
The jury found that overwork was a contributing cause of Johnson’s ailment, and the plaintiff in error argues that this should prevent a recovery, because it shows that his condition was not due solely to heat. Severe exertion, according to the authorities already cited, renders one more subject to sunstroke. The fact that the jury found in the present instance • that there was over-exertion does not affect the liability of the company. To hold otherwise would be to make the mere negligence of the insured a defense. The established rule is to the contrary. (1 Cyc. 282.)
The judgment is affirmed.
All the Justices concurring. | [
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Meyer, J:
This is an appeal from the district court’s determination that appellee’s right of setoff had priority over appellant’s perfected security interest in proceeds of the debtor’s accounts receivable.
Appellant Bank of Kansas brought this action against Hutchinson Health Services, Inc., (hereinafter “Hutchinson Health Services” or “debtor”) to collect funds due under several loans. The Bank of Kansas had secured these loans with a security interest in, among other things, the accounts receivable of Hutchinson Health Services.
Hutchinson Health Services maintained its general checking account with appellee, Central State Bank. Central State had also loaned money to Hutchinson Health Services but did not take a security interest in the debtor’s accounts receivable.
On November 6, 1984, the debtor deposited a check from the State of Kansas in the amount of $100,864.00 into its general checking account. These funds represented medicaid cost reimbursement payments, that is, payments on accounts receivable by the Department of Social and Rehabilitation Services for the month of October. At the time of this deposit, Hutchinson Health Services’ bank account had a balance of $2,515.00. These monies, unlike the check from SRS, were not proceeds from the debtor’s accounts receivable.
On November 19, 1984, Central State Bank declared itself insecure on the indebtedness owed by Hutchinson Health Services and set off the balance of its bank account, which at the time totalled $26,229.00, the remainder of the November 6 deposit. Thereafter, the Bank of Kansas brought this collection action against Hutchinson Health Services. Central State intervened in the action, and the Bank of Kansas filed a motion to compel Central State to pay to it the funds set off from the bank account.
The trial court denied the motion, concluding that, although the Bank of Kansas had a perfected security interest in the accounts receivable of Hutchinson Health Services, Central State’s right of setoff took priority over this security interest. After proper K.S.A. 1986 Supp. 60-254(b) certification, Bank of Kansas now appeals.
Although not raised either at trial or discussed in its brief, counsel for Central State Bank at oral argument contended that Hutchinson Health Services’ use of medicaid reimbursement payments as collateral for its loan from the Bank of Kansas violated the Social Security Act, and that the Bank of Kansas therefore had no security interest in those funds. We disagree.
Appellee relies on the following provision of the Social Security Act in support of its conclusion that appellant’s security interest is invalid:
“A State plan for medical assistance must . . . provide that no payment under the plan for any care or service provided to an individual shall be made to anyone other than such individual or the person or institution providing such care or service, under an assignment or power of attorney or otherwise . . .” 42 U.S.C. 1396a(a)(32) (1982).
Kansas has implemented the provisions of this federal statute in K.A.R. 30-5-59(a)(ll).
The purpose of 42 U.S.C. 1396a(a)(32) was to curtail a practice under which
“some physicians and other persons providing services . . . reassigned their medicare and medicaid receivables to other organizations or groups . . . [which] purchased the receivables for a percentage of their face value, submitted claims and received payments in their name.” Danvers Pathology Associates, Inc. v. Atkins, 757 F.2d 427, 430 (1st Cir. 1985) (quoting H. R. Rep. No. 393, 95th Cong., 1st Sess. 48, reprinted in 1977 U.S. Code Cong. & Ad. News 3039, 3051).
This practice resulted in incorrect and inflated claims for services and created administrative problems with respect to determining “reasonable charges” and recovering overpayments. Danvers Pathology Associates, Inc., 757 F.2d at 430 (quoting H. R. Rep. No. 231, 92nd Cong. 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 4989, 5090).
In Matter of Missionary Baptist Foundation, 796 F.2d 752 (5th Cir. 1986), the court was presented with the identical issue here, that is, whether the debtor’s use of medicaid reimbursement payments as collateral for a loan violated 42 U.S.C. 1396a(a)(32). The case involved an accounts receivable financing arrangement entered into by Missionary Baptist Foundation and the First National Bank of Lubbock, Texas. The debtor’s primary source of income was medicare/medicaid reimbursement payments. In an attempt to alleviate its cash flow problems, the debtor negotiated a $500,000 line of credit with the bank and signed a security agreement giving it a security interest in its accounts receivable (i.e., the medicaid reimbursement payments). Under the financing arrangement, the debtor’s reimbursement payment would be sent directly to the bank and applied to the debtor’s loan balance, which would then be reextended to $500,000. The debtor eventually became overdrawn on its account, and the bank began collecting all of the debtor’s available assets to pay off the loan. Soon thereafter, the debtor filed bankruptcy.
In response to the trustee’s allegation that this financing arrangement was invalid under 42 U.S.C. 1396a(a)(32), the Fifth Circuit noted that such an interpretation of the statute “would undercut a vital means of financing medical assistance for the needy.” Missionary Baptist Foundation, 796 F.2d at 758. According to the court, the federal statute was aimed at preventing the “factoring” arrangement described above. The court concluded that the financing arrangement between the bank and the debtor did not come within the prohibition of the federal statute and held that “nothing in these arrangements . . . suggests] a violation of 42 U.S.C. 1396a(a)(32).” Missionary Baptist Foundation, 796 F.2d at 759.
The financing arrangement in the present case presents no threat of incorrect or inflated claims being made against SRS. The factoring process which the federal statute was intended to prevent was not involved here; SRS directly paid Hutchinson Health Services and the appellant had no opportunity to submit a false claim. We find the Fifth Circuit’s analysis persuasive and hold that 42 U.S.C. § 1396a(a)(32) does not prohibit a medical care provider from using medicaid reimbursement payments as collateral for bank loans.
The appellant Bank of Kansas contends the trial court erred in concluding that the proceeds from Hutchinson Health Services’ accounts receivable were not identifiable and that the Bank thus lost its perfected security interest in them. We conclude the trial court erred.
K.S.A. 84-9-306 provides:
“(2) Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.
“(3) The security interest in proceeds is a continuously perfected security interest if the interest in the original collateral was perfected but it ceases to be a perfected security interest and becomes unperfected ten (10) days after receipt of the proceeds by the debtor unless . . .
(b) a filed financing statement covers the original collateral and the proceeds are identifiable cash proceeds.” (Emphasis supplied.)
Appellant’s perfected security interest continued in the proceeds of the SRS check if these proceeds were “identifiable.” Although the Uniform Commercial Code (U.C.C.) does not define the term “identifiable proceeds,” the cases are almost unanimous in holding that proceeds are “identifiable” if they can be “traced” into the debtor’s bank account. Brown & Williamson T. Corp. v. First Nat. Bk. of Blue Island, 504 F.2d 998, 1002 (7th Cir. 1974); Universal C.I.T. Credit Corp. v. Farmers Bank of P., 358 F. Supp. 317, 324 (E.D. Mo. 1973); Ex Parte Alabama Mobile Homes, Inc., 468 So.2d 156, 160 (Ala. 1985); C.O. Funk & Son, Inc. v. Sullivan Equipment, 92 Ill. App. 3d 659, 662, 415 N.E.2d 1308 (1981), aff'd 89 Ill. 2d 27, 431 N.E.2d 370 (1982); Bank v. Mobile Home Sales, 26 N.C. App. 690, 694, 217 S.E.2d 108 (1975); Anderson, Clayton & Co. v. First Am. Bank, 614 P.2d 1091, 1094 (Okla. 1980). Indeed, the rule finds persuasive, although not binding, support in Kansas law. In Matter of Turner, 13 Bankr. 15 (Bankr. D. Neb. 1981), the court, applying Kansas law, stated:
“[I]t is already well-settled [that] [w]here a secured party’s cash proceeds are commingled in a general bank account, the secured party has successfully identified the proceeds by tracing them into the account or accounts into which the deposit was made.” Turner, 13 Bankr. at 22.
We hold that proceeds are “identifiable” within the meaning of K.S.A. 84-9-306(2) if the proceeds can be successfully traced into the debtor’s bank account, notwithstanding the fact that the proceeds are commingled with other funds.
Generally, other jurisdictions have borrowed tracing concepts from trust law in order to determine whether proceeds are “identifiable proceeds” within the meaning of their versions of K.S.A. 84-9-306. C.O. Funk & Son, Inc., 92 Ill. App. 3d at 663. Using these principles, the courts presume that general payments are first made from general funds and the security interest is only eroded to the extent the account balance falls below the amount of proceeds deposited; the debtor is presumed to have spent his own funds first. Turner, 13 Bankr. at 22; Bank v. Mobile Homes Sales, 26 N.C. App. at 694. This presumption from trust law is recognized in Kansas. In In re Estate of Miller, 225 Kan. 655, 659, 594 P.2d 167 (1979), the court stated:
“As a general rule, where a trustee has commingled trust funds with his own, and subsequently withdraws sums from the common mass for his own use, the cestui que trust is entitled to recover to the extent of the trust fund the lowest balance to which the mass has been depleted, for the reason that the trustee is presumed to have taken his own funds first.” (Emphasis supplied.)
Under K.S.A. 84-1-103, “the principles of law and equity” supplement the provisions of the Uniform Commercial Code. Applying the trust law tracing principles to this case, we conclude that, although the proceeds were commingled with other funds, they did not lose their identifiability. On November 6, 1984, the debtor had an account balance of $2,515.00. On that date, it deposited proceeds from accounts receivable totalling $100,864.00. Thirteen days after this deposit, $26,229.00 remained in the debtor’s account. No other funds had been deposited during this time. Under the trust law principles mentioned above, the debtor is presumed to have spent the $2,515.00 first. Any withdrawals thereafter simply dissipated the extent of the appellant’s perfected security interest in the proceeds. Under these undisputed facts, we hold that the $26,229.00 is “traceable” to the proceeds of the debtor’s accounts receivable and therefore are “identifiable” within the meaning of K.S.A. 84-9-306(2) and (3). The trial court erred by concluding otherwise.
Appellant next contends that the trial court erred in concluding that Central State Bank’s right of setoff had priority over the Bank of Kansas’ perfected security interest in these identifiable cash proceeds.
To properly address this priority issue, we must first determine the import of K.S.A. 84-9-104(i), which provides that the provisions of Article 9 do not apply “to any right of setoff.” Some jurisdictions have interpreted their versions of this statute to mean that the priority issue between a bank’s right of setoff and a security interest must be determined by the common law and is not affected by the U.C.C. Morrison Steel Co. v. Gurtman, 113 N.J. Super. 474, 274 A.2d 306 (1971). Others have interpreted the statute to mean simply that an individual exercising a right of setoff need not comply with the requirements of Article 9 (i.e., the process of attachment and perfection) in order to assert a setoff against their debtors, and that the statute does not entirely remove rights of setoff from the operation of Article 9. Nat. Acceptance Co. of America v. Va. Capital Bank, 498 F. Supp. 1078, 1083, 1085 (E.D. Va. 1980); Citizens Nat’l Bank v. Mid-States Devel. Co., 177 Ind. App. 548, 555, 380 N.E.2d 1243 (1978); Assoc. Disc. Corp. v. Fidelity Un. Trust Co., 111 N.J. Super. 353, 357-58, 268 A.2d 330 (1970); 1 Gilmore, Security Interests in Personal Property § 10.7, pp. 315-16 (1965). The latter position finds support in Article 9. K.S.A. 84-9-306(4)(d)(i) provides that in insolvency proceedings, a secured creditor with a perfected security interest in proceeds has a perfected security interest in proceeds commingled in a bank account, but its interest is “subject to any right of setoff.” Clearly, rights of setoff are not removed entirely from the operation of Article 9. We therefore construe K.S.A. 84-9-104(i) to mean merely that a bank exercising a right of setoff need not comply with the requirements of Article 9 to assert that right. However, the priority as between a right of setoff and a perfected security interest is governed by Article 9.
K.S.A. 84-9-201 states the general priority rule of Article 9 security interests. That statute provides in part:
“Except as otherwise provided by this act a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors.”
The relation between a bank and its depositor is that of debtor and creditor. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, Syl. ¶ 5, 606 P.2d 1009 (1980). A bank’s right of setoff is normally considered an unsecured claim, although its right is given secured status in bankruptcy. See 11 U.S.C. § 506(a) (1982). Nonetheless, the appellant’s security interest “is effec five . . . against creditors,” except as otherwise provided in Article 9. K.S.A. 84-9-201. There being no provision of Article 9 subordinating a perfected security interest in proceeds to a bank’s right of setoff, we hold that the perfected security interest prevails. Universal C.I.T. Credit Corp., 358 F. Supp. at 325; Citizens Nat’l Bank, 177 Ind. App. at 557; Assoc. Disc. Corp., 111 N.J. Super, at 355-58.
Appellee contends that Tuloka Affiliates, Inc. v. Security State Bank, 229 Kan. 544, 627 P.2d 816 (1981), establishes that a bank’s right of setoff has priority over a creditor’s perfected security interest in a debtor’s proceeds. We disagree. The Tuloka majority expressly stated:
“The funds in question here, however, did not come into the bank’s hands through any right of setoff. True, the bank had a right of setoff against the debtor trailer company, but it had no such right against the home company. The funds were debited solely on the express authority of the president of the home company, and their taking was not through any right of setoff. Accordingly, cases relative to proceeds taken by setoff are inapplicable herein.” Tuloka, 229 Kan. at 549.
In light of the majority’s express recognition that it was not dealing with any right of setoff, appellee’s reliance on Tuloka for the priority issue herein is misplaced.
At trial, appellee contended that because Countryside Villa Nursing Home (owned by Hutchinson Health Services) was in receivership, the appellant’s security interest was subordinated according to the provisions of K.S.A. 84-9-306(4). The argument is not persuasive. The appellant is not claiming proceeds in that corporation’s estate, nor is it asserting any claim against the appellee as a result of the receivership. Accordingly, the appellee’s argument that K.S.A. 84-9-306(4) gives it priority herein is without merit. See Nat. Acceptance Co. of America, 498 F. Supp. at 1084 n.5; Tuloka Affiliates, Inc., 229 Kan. at 550; Citizens Nat’l Bank, 177 Ind. App. at 553.
The district court’s ruling is reversed and the case is remanded with instructions to grant the Bank of Kansas’ motion to compel payment. | [
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Briscoe, J.:
This is an appeal by the Shawnee County Appraiser from the district court’s ruling that the airplanes owned by Kenneth Godfrey Aviation, Inc., and William H. Smith were exempt from ad valorem taxes under K.S.A. 79-201k.
Godfrey Aviation is an air service business with a fleet of eight airplanes. The company rents and charters the airplanes to the general flying public for use by the renter for whatever purpose, be it business or personal.
William H. Smith owns one airplane which he leases to Godfrey Aviation, which it in turn rents to the general public. Godfrey Aviation earns a management fee from Smith and Smith receives a portion of the rental fees as income. Smith, a psychologist, also uses his airplane for business trips, but he does not use it for personal trips.
The Board of Tax Appeals (BOTA) denied the applications of Godfrey Aviation and Smith for exemption from ad valorem taxes on their airplanes. Their motions for rehearing were also denied and they timely filed petitions for judicial review in the district court. Prior to the district court’s ruling, the cases were consolidated. The district court reversed the BOTA’s decision and held the airplanes exempt from ad valorem tax under K.S.A. 79-201k because they were used exclusively in the conduct of business.
The sole issue presented by this appeal is whether the owners’ airplanes were used exclusively in the conduct of business, thereby entitling them to exemption from ad valorem tax under K.S.A. 79-201k.
K.S.A. 79-201k provides:
“(a) It is the purpose of this section to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth of commerce within the state; to encourage the location of new business and industry in this state and the expansion, relocation or retention of existing business and industry when so doing will help maintain or increase the level of commerce within the state; and to promote the economic stability of the state by maintaining and providing employment opportunities, thus promoting the general welfare of the citizens of this state, by exempting aircraft used in business and industry, from imposition of the property tax or other ad valorem tax imposed by this state or its taxing subdivisions. Kansas has long been a leader in the manufacture and use of aircraft and the use of aircraft in business and industry is vital to the continued economic growth of the state.
“(b) The following described property, to the extent herein specified, is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
"First. For all taxable years commencing after December 31, 1982, all aircraft actually and regularly used exclusively in the conduct of a business or industry.” Emphasis added.
Godfrey Aviation and Smith used their airplanes exclusively in the conduct of business. The only question is whether the renters’ use of the airplanes for non-business purposes is to be considered in determining the exclusive nature of the use. The County claims that, because renters used the airplanes for non-business purposes, the airplanes were not being used exclusively in a business and thus did not qualify for exempt status under K.S.A. 79-201k. Godfrey Aviation and Smith claim their use of the airplanes alone is determinative of the right to an exemption.
In the present case, the facts are not disputed. The only question is one of statutory construction. The interpretation of a statute is a question of law and, although the BOTA’s interpretation of the statute in question should be given consideration and weight, the final construction of a statute rests with this court. In re Tax Appeal of Cessna Employees’ Flying Club, 11 Kan. App. 2d 378, 379, 721 P.2d 298 (1986).
In questions involving tax exemptions, several rules of statutory construction are applicable. Taxation is the rule, and exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. Statutory provisions exempting property from taxation are to be strictly construed and the burden of establishing exemption from taxation is on the one claiming it. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645-46, 693 P.2d 1187 (1985); Cessna, 11 Kan. App. 2d at 380.
The owners contend that Cessna is controlling. We disagree. In that case, Cessna owned nine airplanes which it rented to members for private flying. The BOTA refused to declare such airplanes tax exempt under K.S.A. 79-201k because Cessna had failed to establish that it was an established business. Specifically, the BOTA concluded that, because of Cessna’s lack of profit-making motive, Cessna’s ownership of the airplanes did not constitute a business. The sole question on appeal was whether Cessna’s activities constituted a business which would entitle it to fall within the exemption in 79-201k. The paragraph including the statement of the issue reads as follows:
“In this case the facts are not disputed. Both sides agree that Cessna owns planes, services and maintains those planes, and rents them to its members on an hourly basis. There is no dispute over what Cessna does — the question is solely whether what Cessna does is a ‘business’ which would entitle it to fall within the statutory interpretation. [Citation omitted.]” 11 Kan. App. 2d at 379.
The only issue decided in Cessna was whether the lessor’s nonprofit organization was a business under K.S.A. 79-201k. Whether a renter’s private use of an airplane would prohibit a business from exempting its airplanes from ad valorem taxation was not addressed.
As Cessna is not controlling, the issue presented is one of first impression. We are not, however, without any guidance from prior case law concerning this issue. Tax exemption statutes containing language similar to K.S.A. 79-201k have been interpreted by the Kansas courts. Where statutes are similar in form and substance and are intended for substantially the same purposes, decisions construing one are material in determining the rights and liabilities under the other. Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 457, 507 P.2d 281 (1973). In interpreting other tax exemption statutes, the Kansas Supreme Court has held ownership is not the controlling factor; “exclusive use” is the test. In re Board of Johnson County Comm’rs, 225 Kan. 517, 520, 592 P.2d 875 (1979). Furthermore, the question is not whether property is used partly or even largely for the purposes stated in the exemption provisions, but whether the property is used exclusively for those purposes. In re Application of Int’l Bhd. of Boilermakers, 242 Kan. 302, 747 P.2d 781 (1987); T-Bone Feeders, 236 Kan. at 646; Johnson County Comm’rs, 225 Kan. at 519; Cessna, 11 Kan. App. 2d at 380.
The phrase “used exclusively” in tax exemption statutes means that the use made of the property sought to be exempted from taxation must be used only, solely, and purely for the purposes stated, and without participation in any other use. T-Bone Feeders, 236 Kan. at 646; Johnson County Comm’rs, 225 Kan. at 519; Cessna, 11 Kan. App. 2d at 380. Contrary to the owners’ contention, we must consider not only the use of the property being made by the one claiming the exemption, but also all uses being made of the property.
In Johnson County Comm’rs, 225 Kan. 517, a for-profit corporation leased property to a nonprofit psychiatric hospital. The lessee was obligated to pay all property taxes. The lessee claimed the leased property was exempt from ad valorem taxes under K.S.A. 79-201b, which exempts all property “used exclusively for hospital purposes.” The issue was whether the property was “used exclusively for hospital purposes.” The court held the property was subject to ad valorem taxes, stating:
“The renting by the lessor and the physical use by the lessee constitute simultaneous uses of the property and when an owner leases his property to another, the lessee cannot be said to be the only one using the property.” Johnson County Comm’rs, 225 Kan. at 523.
Because one of the simultaneous uses of the property (renting for profit) was not an exempt use under the statute, the property was not exempt from ad valorem taxation.
In Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 694 P.2d 462 (1985), the taxpayers owned farm machinery and equipment which they rented to farmers for use in farming operations. The taxpayers claimed such equipment was exempt from property tax under K.S.A. 1983 Supp. 79-20B and 79-201j, which provided that all farm equipment “used exclusively in farming or ranching operations” was exempt from property and ad valorem taxes. One issue on appeal was whether the leased equipment was used exclusively in farming and ranching. The court held the leased equipment was not used exclusively in farming or ranching operations and was not entitled to tax exemption. The court noted that, when a taxpayer rents its equipment to an individual farmer for use on his own fields, there are simultaneous uses being made of the equipment: “(1) by the farmer fertilizing his fields and (2) by the [taxpayer] collecting a rental fee for the use of the machinery.” Farmers Co-op, 236 Kan. at 638. Since one of the uses was not an exempted use, the property was not exempt from taxation.
Furthermore, in reaching its decision, the court in Farmers Co-op noted that, although the stated purpose of the statute was broad (to foster the growth and development of agricultural endeavors), the legislature restricted and limited the exemption to property used exclusively in farming and ranching operations. According to the court, the more limited phrase and the legislative purpose outlined in the statutes indicated the emphasis was on farming and ranching, implying an intent by the legislature to limit the exemption strictly to those who farm or ranch. Because of the restrictive language of the exemption statute, the court was unwilling to extend the statute’s application to include those who rent farming and ranching equipment to farmers.
In the present case, the owners leased airplanes to individuals, who used the airplanes for non-business purposes. Two simultaneous uses were being made of the aircraft: (1) by the renters for non-business purposes, and (2) by the owners collecting a rental fee for the use of the airplanes, both of which must be considered in determining the availability of the exemption statute. Since the airplanes are exempt from taxation only if used in a business, the renters’ use for non-business purposes makes the property ineligible for tax exemption under K.S.A. 79-20lk because the airplanes are not used exclusively for business.
In addition, although the stated legislative purpose of K.S.A. 79-20lk is broad, the exemption itself is limited to airplanes used in a business and does not exempt from taxation airplanes in general. The more restrictive language used in the exemption portions of the statute implies an intent by the legislature to limit the exemption strictly to those who use such property in a business. Since the statute restricts application of the exemption to those cases where property is used exclusively in a business, it is not for the courts to expand the statute’s application to those cases where the property is used in part for business and in part for non-business activities.
Godfrey Aviation and Smith contend that, because their business profited from the renters’ use of the airplanes, the purpose of the statute (the promotion of business) was fulfilled. A similar argument was rejected in Stahl v. Educational Assoc'n., 54 Kan. 542, 38 Pac. 796 (1895). In that case, an educational association leased a house to a third party as a personal residence. The association used the proceeds from the rental for educational purposes and claimed the house was exempt. The association claimed that, although the house itself was not used solely for education, the rents were applied exclusively for the purpose of education. The court held the property was not exempt from taxation because it was not used exclusively for education and it was being used to earn a profit. Even though the nonexempt use (renting) furthered the exempt use (education) by generating funds for educational use, the court still had to consider both uses of the property. Since renting for profit was not an exempted use, the property was taxable.
■ In the present case, although the renters’ use of the airplanes for personal endeavors furthers a business and thus furthers the purpose of K.S.A. 79-201k, we are obligated under the “exclusive use” language of the statute to consider the renters’ personal use as a disqualifying use under the statute. This construction is further bolstered by the statute’s requirement that the airplanes must be “actually and regularly used exclusively in the conduct of a business or industry.” The owners’ airplanes in this case are not exempt from ad valorem taxation.
Reversed. | [
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Abbott, C.J.:
The trial court granted summary judgment against the plaintiff, John C. Riddle, III. He appeals.
Riddle brought this action under 42 U.S.C. § 1983 (1982) against the City of Ottawa and Oren K. Skiles, the director of the Department of Public Safety for Ottawa. Riddle’s petition alleged violations of his property interests under the Fourteenth Amendment, and his liberty interest in free speech under the First Amendment. Riddle, an employee of the Department of Public Safety, had been given a ten-day suspension without pay after he wrote a letter outlining certain grievances with the Department and sent it to the Ottawa City Commission, allegedly at the request of a city commissioner.
The rules concerning summary judgment are well known to this court and need not be repeated. See Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 756, 740 P.2d 1083 (1987).
A. Property Interest
Riddle argues he had a protected property and liberty interest which could not be taken without due process. Defendants argue that Riddle did not have a cognizable property interest in continued employment under the Fourteenth Amendment because he was suspended without pay and not discharged. Assuming Riddle has a property interest in public employment, temporary suspensions without pay are not de minimus and do implicate protected property interests. See Bailey v. Kirk, 777 F.2d 567, 575 (10th Cir. 1985), and cases cited therein.
“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount.” Board of Regents v. Roth, 408 U.S. 564, 569-70, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U.S. at 577.
Riddle’s interest in not being suspended without pay is a “ 'property interest’ for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). In Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), the United States Supreme Court said that a property interest in employment could be created by ordinance, but the sufficiency of the claim of entitlement had to be decided by reference to state law.
In Kansas, the law regarding a public employee’s property right in continued employment is that “the tenure of any office not provided for in the constitution may be declared by statute, and when not so declared such office shall be held at the pleasure of the appointing authority. ‘Kansas law clearly establishes the incumbent to a public office enjoys no property or vested interest in public office.’ ” Stoldt v. City of Toronto, 234 Kan. 957, 964, 678 P.2d 153 (1984).
In Stoldt, the Supreme Court found the applicable state law to be K.S.A. 15-204, which provided that the mayor, with the city council’s consent, could appoint certain officers, such as policemen, and other officers deemed necessary. A majority of the council members could remove any officer.
The Supreme Court noted that the statute did not provide for any term of office, and that it allowed a majority of the council members to remove any officer at will. The court held, based on the statute, that plaintiff did not have a constitutionally protected property right in his job as night watchman.
The City of Ottawa has a population of over 11,000 and is incorporated under the statutes of Kansas as a second class city operating under the city manager form of government. Cities operating under this form of government are subject to the provisions of the City Manager Plan Act, K.S.A. 12-1001 et seq. K.S.A. 12-1011 provides that “[t]he administration of the city’s business shall be in the hands of a manager. The manager shall be appointed by the commission, and shall hold office at the pleasure of the board.” K.S.A. 12-1014 gives the city manager the power to “appoint and remove all heads of departments, and all subordinate officers and employees of the city.” Ottawa City Code § 2-204 (1982), relating to the duties of the manager, duplicates the language of the statute.
K.S.A. 12-1014, which is applicable to the present case, does not provide for any term of office for city employees. Additionally, the statute does not place any limitation on the city manager’s power to remove an employee from office. The power to remove includes the power to suspend. There is no requirement in 12-1014 that a city manager have or give cause before he or she can remove/suspend a city employee from office.
Section 2 of Article 15 of the Kansas Constitution provides, in part:
“The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making appointment . . .
In Piper v. City of Wichita, 174 Kan. 590, 601, 258 P.2d 253 (1953), the Supreme Court noted:
“The city manager statute provides a comprehensive and all-inclusive form of government for cities that adopt it. It fully covers the field, In the absence of direct legislative mandate this court will not deprive the city manager of any power or relieve him from any responsibility the statute places on him.”
Riddle does not have a constitutionally protected property right in his job as a public safety officer for the City of Ottawa. Fie cannot point to any state statute, city code, or contract which addresses the duration of his employment or the criteria for his suspension. Therefore, he was not entitled to procedural due process before he was suspended for ten days without pay.
Riddle argues he was a permanent employee who could only be disciplined for cause under the express provisions of the Ottawa Personnel Regulations. He argues that these rules and regulations provide the basis for his legitimate claim of entitlement to continued employment. A copy of these rules ’and regulations has not been included in the record on appeal and, thus, the issue is not re viewable. In any event, the trial court considered the personnel rules and regulations and made a specific finding that “[a]ny employee may be subject to disciplinary action including demotion, suspension, warning or dismissal for cause.” These rules and regulations are not state law, however, and cannot override the clear provisions of K.S.A. 12-1014 or Ottawa City Code § 2-204. We note this same issue was before the federal district court in Wulf v. City of Wichita, 644 F. Supp. 1211, 1221-22 (D. Kan. 1986), where the court noted:
“Section 2.08.090 of the Code of the City of Wichita provides that the city manager shall remove employees. No language in the ordinance establishes either a duration of employment for city employees or criteria for the removal of such employees. The provisions of the ordinance create no legitimate claim of entitlement to continued employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 48 L. Ed. 2d 684 (1972).
“. . . . While the City’s personnel policy manual provides the accepted reasons for dismissal of employees, it does not state any limits on the duration of employment. Furthermore, the manual does not give rise to any valid expectation of continued employment because it is the unilateral expression of the City’s personnel policies. The Kansas rule remains that an employment manual, that is only a unilateral expression of company policy and is not bargained for, cannot alone be the basis of an employment contract.”
The trial court did not err in granting summary judgment to defendants on this issue.
B. Freedom of Speech
Riddle alleged he was suspended for ten days without pay because he sent a letter to the City Commission outlining his grievances with the Department of Public Safety. This letter was allegedly sent at the request of a city commissioner, and evidence is in the record that the city manager also solicited grievances. The law has been clear ever since Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), that a state cannot dismiss a public employee for exercising his or her right to speak out on issues of public concern. To allow a governmental unit to discharge a person because of his or her constitutionally protected speech would have an inhibiting effect on the exercise of that freedom. See Perry v. Sindermann, 408 U.S. at 597. To allow a governmental unit to suspend a public employee without pay for exercising his or her right to speak on matters of public concern would have the same inhibiting effect. When a reasonably prudent person concludes that a co-worker or employer is engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare, the public policy of this state that an employee reporting such violation be free from retaliation is involved. Palmer v. Brown, 242 Kan. 893, Syl. ¶¶ 1, 3, 752 P.2d 685 (1988).
However, a public employee’s right to free speech is not absolute. “[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” There should be a balance between the interests of a public employee, as a citizen, “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568.
In Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the United States Supreme Court expounded on the correct analysis to be applied to cases such as the one at bar. The first inquiry is whether Riddle’s letter can be fairly characterized as constituting speech on a matter of public concern. If it cannot be, it is unnecessary for this court to scrutinize the reason for his discharge. See Connick, 461 U.S. at 146. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48. The question is one of law, not fact.
If a public employee’s speech can be characterized as addressing a matter of public concern, it is the court’s responsibility to then balance the interest of the employee with the interest of the State in effectively and efficiently fulfilling its responsibilities to the public. One relevant inquiry is whether the action disrupted or undermined working relationships in the department. Also relevant is the manner, time, and place in which the letter was sent and whether this had a disruptive effect on the department or undermined the director’s authority. If this balance tips in favor of the employee, the employee still has the burden of showing that the letter was a motivating factor for his or her suspension. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). If Riddle meets this burden, then the burden shifts to the City to show, by a preponderance of the evidence, that it would have reached the same decision to suspend Riddle even in the absence, of the communication. For the same proposition, see Rankin v. McPherson, 483 U.S__, 97 L. Ed. 2d 315, 324-29, 107 S. Ct. 2891 (1987); Poison v. Davis, 635 F. Supp. 1130, 1137 (D. Kan. 1986).
The trial court found that the letter Riddle sent to the City Commission did not address a matter of public concern, but was a mere expression of his personal grievances. “[A]ppellate review of conclusions of law is unlimited.” Utility Trailers of Wichita, Inc. v. Citizens Nat’l Bank & Tr. Co., 11 Kan. App. 2d 421, 423, 726 P.2d 282 (1986).
A review of the letter Riddle sent to the City Commission shows that the majority of the letter addressed only his personal grievances. However, the letter did address at least one matter of public concern: that the fire trucks had to have a battery charger kept on them so they would start, despite the fact the batteries were new, because the radio system was a constant drain on the batteries. The community has a significant interest in knowing whether its fire department can respond quickly and efficiently in an emergency.
In Connick v. Myers, 461 U.S. 138, an assistant district attorney in New Orleans was discharged after distributing a questionnaire soliciting the views of her fellow staff members about certain concerns she had about the office. The attorney filed suit under 42 U.S.C § 1983, contending her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The United States Supreme Court applied the relevant analysis to the facts in Connick, and found that, with but one exception, the questionnaire did not address matters of public concern.
The United States Supreme Court went on to say, however, that because one of the questions in the survey did touch upon a matter of public concern and contributed to her discharge, the court had to determine whether the district attorney was justified in discharging his subordinate. The court applied the balancing test enunciated in Pickering and found that there was no demonstration the questionnaire impeded the assistant district attorney’s ability to perform her responsibilities. However, the court found that the questionnaire did disrupt the office and undermined office relationships. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Connick, 461 U.S. at 151-52. The Court also considered the time, place, and manner in which the questionnaire was distributed and found these factors to tip the balance in favor of the employer. The Supreme Court held the assistant district attorney’s being discharged did not offend the First Amendment.
The point of Connick is that, even though the majority of the questionnaire in that case, like the majority of the letter in the present case, did not address matters of public concern, the questionnaire, like the letter, did address one matter of public concern, causing the United States Supreme Court to apply the remainder of the Pickering balancing test. The trial court in the present case did not apply the balancing test, having initially determined that the threshold question, i.e., whether the letter addressed a matter of public concern, should be answered in the negative. Since the letter did address at least one matter of public concern, Connick mandates that the remainder of the balancing test be applied in the present case. The letter also contains allegations of pay raises without the receiver having met personnel requirements and of favoritism in promotions and pay raises. These issues are also of public concern. Summary judgment was granted prematurely on this issue, and the case is remanded to the trial court with directions to apply the remainder of the balancing test.
C. Right to Petition
Riddle points out that the trial court did not address his argument that his suspension violated his First Amendment right to petition the government for a redress of his grievances. Riddle makes no good faith effort to brief this issue, relying only on one short paragraph which he added as an afterthought to his brief under another heading. In view of remand of this case, the trial court should dispose of the issue, provided Riddle properly addresses the issue.
D. Immunity from Suit
Riddle contends Skiles is not immune from suit under the Kansas Tort Claims Act and specifically relies on K.S.A. 75-6104(d) (now K.S.A. 1987 Supp. 75-6104[e]). The present action was brought as an action under 42 U.S.C. § 1983, alleging violations of federal civil rights.
In Cook v. City of Topeka, 232 Kan. 334, 654 P.2d 953 (1982), the plaintiff brought an action under both the Kansas Tort Claims Act and 42 U.S.C. § 1983. The sole issue on appeal was whether one of the defendants was entitled to judicial immunity under the KTCA and the Civil Rights Act of 1871 (42 U.S.C. § 1983). At the outset of its analysis on this issue, the Supreme Court noted:
“The immunity issue relative to the Kansas Tort Claims Act is obviously a matter of state law. The immunity issue relative to the Federal Civil Rights Act of 1871 (42 U.S.C. § 1983) must be determined pursuant to federal law. [Citation omitted.]” 232 Kan. at 335.
In Lee v. Wyandotte County, Kan., 586 F. Supp. 236 (D. Kan. 1984), the defendant county contended that all of the plaintiffs’ claims, including their civil rights claims, were governed by the Kansas Tort Claims Act. The federal district court disagreed, stating:
“We hold at the outset that plaintiffs’ federal civil rights claims (which encompass their constitutional claims) are not subject to the state law limitations of the Kansas Tort Claims Act. [Citations omitted.] Plaintiffs’ state law claims, however, may be subject to the Kansas Tort Claims Act.” 586 F. Supp. at 239.
The trial court erred in applying the provisions of the Kansas Tort Claims Act to the present case. This does not end this court’s inquiry, however.
“[I]n analyzing a case under 42 U.S.C. § 1983, one must start with the basic concept that all persons, no matter what position they hold or what activity they are engaged in, may be liable for violations of a plaintiff s rights under the Federal Constitution and laws if the violation occurs under color of state law or custom.” Cook v. City of Topeka, 232 Kan. at 340.
Our Supreme Court also noted in Cook that our United States Supreme Court has recognized some exceptions to this extreme rule, including qualified or “good faith” immunity. 232 Kan. at 340. In Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980), the United States Supreme Court held the defendant has the burden of showing it comes within the qualified immunity exception to 42 U.S.C. § 1983.
In Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), the United States Supreme Court found that an objective standard should be applied in making a determination of whether a defendant was entitled to qualified immunity, saying:
“We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818.
Furthermore,
“Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subse quent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.” 457 U.S. at 818-19.
The trial court in the present case recognized the objective standard enunciated in Harlow, yet went on to hold:
“Thus, the question to be resolved in this case is whether Mr. Skiles knew or should have known whether his actions violated ‘clearly established’ standards, or stated another way, whether he had ‘good cause to act as he did.’ If he did so act, he is entitled to qualified immunity.”
The trial court applied a mixed subjective/objective standard and found that Skiles’ actions justified his being granted “immunity,” but did not expand upon which actions it thought justified the grant of immunity. The relevant inquiry is not whether Mr. Skiles knew or should have known his actions violated clearly established statutory or constitutional rights, or whether he had good cause to act the way he did, but whether a reasonable public official would have known he or she was violating someone’s clearly established statutory or constitutional rights by his or her conduct. The law concerning a public employee’s right to speak out on a matter of public concern without the fear of being dismissed from his or her job has been clearly established for at least two decades, and a reasonable public official would know this to be the law. On remand, the trial court should reconsider this issue in connection with its reconsideration of Riddle’s First Amendment freedom of speech issue.
Affirmed in part, reversed in part, and remanded with directions to reconsider the First Amendment and qualified immunity issues. | [
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The opinion of the court was delivered by
MASON, J.:
On January 5, 1889, Archy Brown recovered against A. P. Akeson and Hilda C. Akeson a money judgment, the last execution on which was issued May 18, 1892. On May 25, 1898, the Akesons executed to Brown a chattel mortgage, the material portions of which read as follow:
“Know all Men by these Presents: That Hilda C. Akeson, A. P. Akeson and wife, of McPherson county, state of Kansas, of the first part, is indebted to Archy Brown, of the second part, in the sum of four hundred and 30/100 dollars, to be paid as follows: One certain judgment, dated January 5, 1889, in favor of said Archy Brown against said first parties, said judgment to be and remain in full force and effect, with twelve per cent, interest from date of judgment.
“Now, therefore, in consideration of such indebtedness, and to secure the payment of the same, as aforesaid, said party of the first part does hereby sell, assign, transfer and set over to said party of the second part the property described in the following schedule, viz.: . . . And if from any cause said property shall fail to satisfy said debt, interest and costs aforesaid, said parties of the first part hereby agree to pay the deficiency.”
On May 15, 1903, Brown sued the Akesons, setting out the facts above stated, and adding, with other averments which do not require mention, that nothing had been realized from the mortgage and that the defendants were still indebted to the plaintiff. An answer and a reply were filed. When the case was called for trial the plaintiff made a statement of his case substantially in accordance with his pleadings. The defendants moved for judgment, The motion was allowed, and the plaintiff prosecutes error.
Two questions are presented: Did the fact that no execution had been issued for five years, and that an additional year then passed without revivor proceedings being had, preclude the plaintiff from maintaining an action upon the judgment? And, if so, can he maintain an action upon the promise contained in the mortgage that the mortgagors would pay any deficiency if the property should fail to satisfy the indebtedness therein referred to ?
The first question must be answered in the affirmative unless Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, and decisions there followed, are to be overruled. The plaintiff in error recognizes this, but invites a reconsideration- of the doctrine of that case and an acceptance of the views expressed in the dissenting-opinion filed therein. The matter is one of statutory-interpretation. If practical evils flow from the construction heretofore adopted they can be corrected by legislation. It is not desirable to treat the subject as still open. The prior decisions are approved.
In considering the second question it is to be noted that at the time the mortgage was made the judgment had been dormant for more than one year. If while the judgment had been in full force the defendants had given a mortgage to secure it, and the judgment had afterward been permitted to die, it might well be argued that the mortgage, being only an incident to the judgment, had died with it. But in fact the mortgage was executed to secure the payment of a judgment which was already dead — that is, one which was absolutely unenforceable by any method except through the. consent of the defendants. The giving of the mortgage did not revive the judgment. That result could only be accomplished by an order of the court made in conformity to the requirements of the statute. But the mortgage itself was a valid contract. It was open to but one objection, namely, that it was given to secure the payment of a sum of money by the mortgagors for which they could not otherwise be held; that is to say, it was a contract the only consideration of which was founded upon an obligation not legally enforceable. But although the judgment had completely lost its vitality it had never been paid, and the defendants owed a moral duty to the plaintiff to pay him its amount. This moral duty was based upon an antecedent legal obligation which had been extinguished but never performed, and therefore was a sufficient consideration to support a new promise. (6 A. & E. Encycl. of L. 680; 9 Cyc. 362, par. h.) The agreement incorporated in the mortgage that if the property failed to satisfy the debt the mortgagors would pay the deficiency was an express assumption of personal liability. It was supported by a valid consideration, and was capable of enforcement by action. (Henley v. Wheatley, 68 Kan. 271, 74 Pac. 1125.)
It is true that the plaintiff claimed that the judgment was still in force and that he attempted to use it as the basis of his action, but his petition stated all the facts necessary to entitle him to recover upon the terms of the chattel mortgage. His misconception of the status of the judgment did not affect his right to rely upon the subsequent promise to pay. The allegations regarding the judgment are not even surplusage. They are proper by way of inducement, as leading up to.the making of the mortgage. Moreover the judgment, although lifeless and- unenforceable, is not without a function to perform. It may be looked to for the purpose of ascertaining the precise amount of indebtedness which the mortgagors assumed and agreed to pay.
The judgment of the district court is reversed,, and the cause remanded with directions to deny the motion for judgment for the defendants on the pleadings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
M. L. Stalker, one of the plaintiffs in error, owned a crop of corn upon which he gave a chattel mortgage to the defendant in error. Afterward he sold and delivered the corn to his coplaintiffs in error, who converted it to their own use. The defendant in error then commenced this suit to recover the value of the lien which it- had on the corn by virtue of the chattel mortgage. The plaintiffs in error claim that the corn when mortgaged was exempt under section 3018 of the General Statutes of 1901, and that, the wife of Stalker not having joined in the mortgage, no lien was created thereby. The statute under which the exemption is claimed reads:
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process • issued from any court in this state, the following articles of personal property: Fifth. Two cows, ten hogs, one yoke of oxen, and one horse or mule, or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules. . . . Sixth. The necessary food for the support of the stock mentioned in this section for one year, either provided or growing, or both, as the debtor may choose.”
The defendant in error claims that the corn wás not exempt for the reason that the mortgagor did not own the stock mentioned in the fifth subdivision of the statute when the mortgage was executed. The plaintiffs in error insist that the exemption of the food mentioned in the sixth subdivision of the statute is absolute and does not depend upon the ownership of the stock mentioned in the preceding subdivision. The trial court held that the corn was not exempt. Whether this ruling of the court was erroneous or not is the only question presented. We think the court was correct.
Under the seventh subdivision of this section, which reads, “the grain, meat, vegetables, groceries, and other provisions on hand, necessary for the support of the debtor and his family for one year, and also all the fuel on hand necessary for their use for one year,” it was held, in the case of George v. Hunter, 48 Kan. 651, 29 Pac. 1148, 30 Am. St. Rep. 325, that a debtor who had an abundance of grain but none of the other articles named could not retain any part of the grain above the amount necessary for the support of his family for one year for the purpose of buying the articles which he did not have. It was contended in that case that the word “support,” as used in the subdivision being con sidered, meant enough to. support the family generally and not merely sufficient to supply it with bread for the time stated. It was held, however, that the more limited meaning was proper.
It seems that the purpose of subdivision 6 must be to exempt the food therein mentioned only in cases where it is made necessary because the debtor has the stock to be supported. The exemption of the stock suggests that provision must be made for its support, otherwise the exemption would be a burden rather than a favor. This precise question was decided by the supreme court of Michigan in the case of King v. Moore, 10 Mich. 538. The statute of that state was in substance the same as the statute of Kansas. It was there decided that the food exempt for the support of stock only applied when .the debtor had the animals mentioned.
In Wisconsin the statute is almost in the same language as that of this state, and it was there held, in the case of Cowan v. Main and others, 24 Wis. 569, that the food was not exempt where the debtor did not have the animals. In the opinion the court cited and followed the case of King v. Moore, supra, and quoted therefrom as follows:
“ ‘We are all clearly of opinion that this exemption cannot extend beyond what Is sufficient to keep such of the animals as the defendant may have at the time of the levy. This exemption is given to render that of the animals practically beneficial; as it would *be of little use to exempt the animals if the food necessary for their sustenance were liable to be taken from the owner. But if the debtor have none of the animals specified, the reason for exempting the food for them wholly fails. If he has none of the animals which the statute exempts, there is nothing upon which this exemption of the animals can operate, and the exemption of food for such animals, which is dependent upon it, fails with it.’ ”
The Michigan court further said:
“If the statute, in cases where the debtor has not the full amount of the property exempted by this section, had provided an exemption of money or other property for the purpose of enabling him to purchase enough to make up the deficiency, there might be good reason for holding the feed for the animals exempted, though he had not the animals at the time of the levy; but the statute has adopted no such principle.” (King v. Moore, 10 Mich. 538, 540.)
The case of Foss v. Stewart, 14 Me. 312, is to the same effect. The only case cited which holds to the contrary is Olin v. Fox, 79 Minn. 459, 82 N. W. 858. That case gives a contrary construction to a statute almost identical with that of this state. It cites and' seems to base the decision upon the case of Kimball v. Woodruff, 55 Vt. 229, but the decision of that case was placed upon the peculiar language of the Vermont statute, which materially differs from both the Minnesota and Kansas statutes.' The Minnesota court was divided, and Mr. Justice Lewis filed a dissenting opinion from which we quote-the following:
“It is true that exemption laws should be construed liberally, so as to carry out the legislative intent. Such statutes are founded upon the benevolent purpose of guarding debtors from want who have suffered from misfortune or improvidence. And if a strict and literal reading of such a statute leads to a conclusion out of harmony with its spirit, sufficient latitude should be granted to still preserve its purpose. The exemption laws of this state in reference to personal property . . . are based upon a logical system. First, there is a class of exemptions, found in the first five subdivisions, common to all debtors — the family Bible, books, musical instruments, church pew, burial lot, family wearing-apparel, and household goods, and, by the amendment of 1868, the sewing-machine. Then the statute deals with debtors with reference to their business or employment, the tools and. implements of a mechanic, the library of a professional man, the outfit of the printer or publisher, the wages of the laborer, and the stock enumerated in the sixth subdivision, and the necessary food for the same for one year’s support.
“While this section applies to all debtors possessing the stock, yet the legislature must have contemplated that the owners of the stock thus exempted were to some extent dependent upon it as their means of living. The object in exempting the food is to give full force and effect to the exemption of the stock. It would be a serious matter to leave the owner with his stock, but no food for them. Hence the exemption of the stock is made effective by providing the food. There is no object in exempting the food if there be no stock to consume it. If it had been the intention of the legislature to exempt the food without reference to the stock, how simple a matter to state it so.” (Page 461.)
In the Wisconsin case the court was of the opinion that if the debtor did not have the stock at the time of the levy upon the food, but had a present bona fide intention of immediately acquiring such animals, the food would be exempt. No such condition existed, however, in that case, nor does it exist here.
On the whole case we conclude that, as the mortgagor did not have the stock mentioned in the statute at the time the mortgage was executed, the corn was not exempt; that the signature of the wife was not essential to the validity of the mortgage; and that the mortgagee acquired a lien upon the corn, and may recover the value thereof from the plaintiffs in error. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The warrant issued in this case was very irregular and informal. Assuming, without deciding, that when issued it contained a sufficient charge to justify the .arrest of the petitioner, two questions remain to be decided: (1) Did the instrument at the time of the arrest of the petitioner, in March, 1906, retain the attributes of a warrant in full force, or was it functus officio ? (2) .Was the action barred by the statute of limitation at the time of the arrest of the petitioner?
It is contended on the part of the state, and authori- ■ ties are cited to sustain the proposition, that a warrant is not returnable at any particular time and continues in force until it is fully executed. We are not satisfied with this view of the law under our statute. It is true that a warrant is not made returnable at any particular time, but section 1755 of the General Statutes of 1901 seems to impose upon the sheriff the duty of making •due return of every writ or process delivered to him to be executed. It is not contemplated that a warrant shall never be returned unless the person thereby •ordered to be arrested should be apprehended and the warrant served. Nor is it the policy of the law that crimes, murder and treason excepted, should become the subject of judicial investigation and punishment many years after they are committed, unless the guilty person absents himself from the state or so conceals himself that process cannot be served upon him, or unless he conceals the fact of the crime.
The county attorney is the representative of' the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions. No crime can be prosecuted by indictment or information in his county without his signature to the indictment or information. (The State v. Brown, 63 Kan. 262, 65 Pac. 213; Gen. Stat. 1901, §§ 5540, 1777.) The county attorney is also the legal adviser of the sheriff and other county officers. (Gen. Stat: 1901, § 1779.) These things being true, it must be that the county officers, including the sheriff, are justified in acting upon the advice of the county attorney; and when the sheriff, by the direction of the county attorney, returns a warrant which has been placed in his hands for service to the court that issued it, this ends the official connection of the sheriff with such warrant, renders the warrant functus officio, and effects an abandonment of the prosecution by the state.
After the sheriff in this case had returned the warrant to the justice of the peace who issued it there remained nothing to evidence the pendency of an action against the petitioner except the complaint which had been filed before the issuance of the warrant. The legislature of this state has not provided what shall be deemed a commencement of a criminal prosecution, but the mere filing of a complaint and the issuing of a warrant thereon are not sufficient to toll the statute of limitations. Referring to the tolling of the statute, it was said in In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23:
“We think the better rule is that the complaint must be filed and the warrant issued within the period limited by the statute; that it must be issued in good faith, and with the intention that it be presently served, and that the officer must proceed to execute it according to its command; that he must make the arrest within a reasonable time and at the first reasonable opportunity offered him.” (Page 448.)
It follows that as the warrant under which the sheriff was acting was without vitality when he arrested the petitioner, in March, 1906, and as no fact existed to toll the running of the statute since June 25, 1901, no criminal action could be maintained against the petitioner for the offense alleged to have been committed in 1899. It also follows that the arrest and confinement of the petitioner were illegal.
It is the judgment of the court that the petitioner be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
It is very difficult to follow the argument of plaintiff in error, for the reason that in the first sixteen pages of its brief it gives a résumé of the facts which it claims the evidence establishes, without a reference to a page of the record where the supposed evidence may be found, and in its argument refers, not to the record, but to its own statement of facts. Some of the eight assignments of error, however, have been argued with appropriate references to the record, and we allow this to save the case from dismissal for a violation of rule 10.
We think the evidence copied in the brief of plaintiff in error is sufficient to justify the court in overruling its demurrer to the evidence of plaintiff below and in refusing the peremptory instruction asked by it.
It is urged that the court erred in instructing the jury that if they found certain facts they might allow the plaintiff exemplary, or punitive, damages. The petition does not very fully state the facts relied upon for this relief, but contains, in addition to the facts stated, conclusions of fact which the court probably would have required to be more definitely stated if a motion therefor had been filed by the defendant. The evidence fully justified the instruction.
Again, it is said the court erred in excluding as evidence the record of the judgment and writ of execution in the case of Duff & Repp Furniture Company against Mrs. David J. Read. We cannot so believe. The judgment was void on its face for want of jurisdiction. The record affirmatively showed that the summons in replevin was not served, and failed to show any appearance on the part of the defendant therein. (Bradley v. Harwi, 2 Kan. App. 272, 42 Pac. 411.) The mere recital in the record of the justice that the action was continued by consent, without a recital showing by whom' the consent was given, and with no showing of any appearance by the defendant, is not a sufficient showing of jurisdiction. A justice’s court in this state is not a court of general jurisdiction, and no presumption of jurisdiction prevails in its favor. (17 A. & E. Encycl. of L. 1084.) On the other hand the evidence aliunde tended to prove that there was no appearance by the defendant, and, as the record affirmatively showed that no summons had been served upon the defendant, it follows that the court had no jurisdiction oyer her, and its judgment and process therein were void. The record offered in evidence further affirmatively showed that the court had obtained no jurisdiction over the property and had no jurisdiction to adjudge the possession thereof. The property claimed had not been taken, and the court could, at most, only render a money judgment for damages. (Gen. Stat. 1901, § 5298.) Moreover, if the judgment and record had been valid as against Mrs. Read, they were of no force as against her husband, and could in no way justify an entrance into his house by force and the seizing and deporting of his personal property and the terrorizing of his daughter in charge thereof. The record of the judgment was properly excluded.
It is urged that, as the writ of execution was regular on its face, and as there was no evidence that the company by any of its officers was present or had directed the constable to do any of the acts complained of, the company is not liable therefor. The test is whether the wrongs complained of were committed within the scope and .as a very part of the acts which his duty in serving the writ required the constable to perform. (Mirick v. Suchy, ante, p. 715.) The defendant is presumed to have known all the facts. It had procured a void judgment for the possession of the mortgaged property, after the debt had been fully paid, against one not the mortgagor and not in the possession of the property, and without any service of summons or appearance. It had caused execution to be issued on such judgment, and had presumably directed the seizure of the property of another, the mortgagor, as it sent its own employees and conveyance to take the stove away. It had sold the stove to the mortgagor, had placed it in his possession, and, after the commencement of the action against his wife, had full knowledge that it remained in his possession in his house, and had no reason to suppose the possession had changed. It knew the writ of execution was worthless and void, and on its face was not against David J. Read or his property; yet, with all this knowledge it placed this writ in the hands of the constable for the only conceivable purpose of inducing the constable, under this color of authority, to enter the home of David J. Read and seize and remove his cook-stove.
Where a levy is made by an officer under a process which is irregular, unauthorized or void, the party suing out the process is a trespasser, and in such a case the officer becomes the agent of such party. (3 A. & E. Encycl. of L. 246; McLaughlin v. Davis, 14 Kan. 168; Connelly v. Woods, 31 Kan. 359, 2 Pac. 773.)
Again, it is urged that the court erred in allowing evidence of the value of the attorney’s services in prosecuting the action. If punitive damages were allowable at all, the jury could consider the expenses of the action without any evidence. (Titus v. Corkins, 21 Kan. 722.) Surely, then, evidence as to any necessary expense in prosecuting the action is admissible.
As to the instruction of the court with reference to the amount of the purchase-price of the stove which remained unpaid, if any, it is sufficient to say that it was based upon the evidence introduced by the defendant, and the latter has therefore no ground for complaint thereof. The jury by their verdict found the purchase-price was fully paid. The amount of the judgment for damages seems large, but the circumstances indicate the most wanton, if not malicious, oppression on the part of the defendant, and that the original plaintiff and his family were thereby terrorized and subjected to great humiliation and disgrace among their neighbors.
We cannot say that the amount of damages allowed in the verdict is so large as to afford a presumption of prejudice of the jury, or of error on the part of the court in denying the motion for a new trial. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendant was convicted on three counts charging illegal sales of intoxicating liquor, and on one count charging him with maintaining a nuisance in violation of the prohibitory law. Judgment was rendered against him, to reverse which he prosecutes this appeal.
The state challenges the jurisdiction of this court to investigate or determine any question involved in the merits of this appeal. It appears that on November 10, 1905, the trial court extended the time for the defendant to prepare and serve his bill of exceptions to-include December 11, 1905; that the state was allowed ten days thereafter to suggest amendments; and that the bill of exceptions was to be settled and signed upon five days’ notice. The bill of exceptions and suggested amendments were served within the time allotted. Notice was given and the bill of exceptions was settled and signed December 28, 1905.
Prior to the enactment of chapter 275 of the Laws of 1901 (Gen. Stat. 1901, § 4753) a bill of exceptions in a criminal prosecution could be settled only at the term of court at which the trial was had. By the provisions of this act authority was conferred upon the court to extend beyond the term the time for settling and signing a bill of exceptions. Before the passage of this act the time for settling and signing the bill of exceptions was definite and certain; namely, the term of court at which- the trial was had. By this act, although the court may extend the time, yet the order of extension must be as definite and certain as to the time within which the act shall be performed as before the passage of the act.
In making the order of extension in this case the court omitted to observe this requirement as to fixing the time when the bill of exceptions should be settled. ■The order is that the bill of exceptions shall be settled and signed upon five days’ notice after' it and the amendments thereto have been served. This leaves it for either of the parties to fix the time for settling and signing the ‘bill of exceptions by serving a five days’ notice upon the other. This is not in compliance with the statute,, and is ineffectual to extend the time beyond the term of court. This court is therefore without jurisdiction.
Were we permitted to examine the record we would find that under the extension order the time for serving the bill of exceptions and suggesting amendments expired December 21, 1905, and by giving to the order the effect which would be contended for by appellant— that the time could be made definite by adding to this period five days, which was the time for notice, making the time expire December 26 — the appellant’s position would be no better, because the bill of exceptions was not settled and signed until December 28, two days after the expiration of tlie time contended for.
The cause is therefore dismissed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff recovered damages for injuries occasioned by the collapse of a wooden runway suspended by iron rods from the ceiling of a building forming a part of the defendant’s smelting plant. Originally a runway along the south side of the building and another along the west side of the building met in such a manner as to permit access from one to the other. The runways were built in sections, and a portion of the south section of the west runway had been sawed out to permit the dismantling of some machinery in the plant. Plaintiff was engaged in removing- the hand-rails of the west runway when it fell. The only ground of negligence on the part of the defendant submitted to the jury was that a burr beneath a sleeper of the runway was gone from one of the hanging-rods. The jury returned a general verdict in favor of the plaintiff.
The defendant charged the plaintiff in general terms with contributory negligence. This question the court submitted to the jury in the following broad instruction :
“It was the duty of the plaintiff to exercise all reasonable and ordinary care to avoid injury to himself and to guard himself from any and all danger of injury from any cause of which he had notice or could have known by the exercise of reasonable care and prudence on his part; and, if he failed in this respect and was injured thereby, then he cannot recover for any injuries so received by him.”
Special findings were returned as follow:
“(1) Ques. What was the south end of the west runway fastened to? Ans. Six by six timber bolted to wall of engine-room.
“(2) Q. How far north of the south runway was the first set of hanging-rods on the west runway? A. Sixteen feet.
“ (3) Q. State whether a portion of the first section of the west runway north of the south runway had been sawed out. A. Yes.
“ (4) Q. About what length of the section referred to in question No. 3 was left standing after the portion was cut out? A. About nine feet.
“(5) Q. How long before this accident was the south end of the west runway cut out? A. Ten days or two weeks.
“(6) Q. What support remained to sustain that portion of the first section of the runway not cut out? A. Uprights, braces and hand-rails.
“(7) Q. State if the section of the runway fell when Hoke first went upon it and tested it. A. No.
“(8) Q. State, if Hoke pried both of the rails loose ■before the section of the runway fell. A. Pried one loose and was prying the second loose when he fell.
“ (9) Q. State if it was the remainder of the section of the west runway between the hanging-rods and south runway which had not been sawed out that fell. A. Yes.
“ (10) Q. ■ Did the section on the west runway north of the first pair of hanging-rods from the south, or any portion of said section, fall? A. No.
“(11) Q. ■ Was plaintiff standing on the portion of the runway that fell just prior to its falling? A. Yes.”
These findings show that the first pair of hangingrbds was nine feet north of the sawed end of the section which fell, and upon which plaintiff was standing when it fell; that the only support of that part of the runway was its own uprights and the hand-rails which the plaintiff undertook to remove; and that the part of the runway north of the first pair of hanging-rods did not fall. While the general- verdict finds that by the negligence of the defendant the burr in question was gone, the special findings exhibit a conspicuous danger in going upon the unsupported end of the mutilated platform and removing one of its sustaining parts, even if the burr had been in place. Contributory negligence of this kind was covered by the instruction quoted. The special findings cannot be reconciled with the general verdict and under the statute they are controlling.
The judgment is reversed and the cause remanded, with instruction to enter judgment in favor of the defendant for costs. | [
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The opinion of the court was delivered by
Graves, J.:
This is a suit for partition. George Cubitt died while the owner of the property in controversy. The plaintiff in error claims to be the heir at law of George Cubitt by adoption. The defendants in error deny the validity of the adoption. This presents the sole controversy in the case. The adoption proceedings were had under sections 4186, 4187 and 4188 of the General Statutes of 1901, which, so far as applicable to the points in dispute, read:
“Any parent may, with the approval of the probate judge of the county where such parent may reside, first obtained in open court, relinquish all right to his or her minor child or children to any other person or persons desirous of adopting the same, and shall not thereafter exercise any control whatever over such child or children so relinquished; and the person or persons so receiving into his, her or their charge such child or children shall exercise all the rights over the same that they would be entitled to were such child or children the legitimate offspring of said person or persons so receiving them.
“Any person may appear in the probate court of the proper county and offer to adopt any minor child or children as his or her own, provided such minor and his or her parents, if living and in the state, or guardian, if any, appear before such court and consent to such adoption; and if the probate court is satisfied that such consent is free and voluntary, the said court shall make its proceedings of record in the said probate court, declaring such minor child or children the child and heir of such person so adopting such minor; and then and thereafter such person so adopting such minor shall be entitled to exercise any and all the rights of a parent, and be subject to all the liabilities incident to that relation.”
“Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs at law of the person thus adopting them.”
The parents of the plaintiff resided in the state of Iowa, and separated there. The mother, Jennie Richardson, left the state of Iowa after the separation and removed with the plaintiff to Kingman county, Kansas. The father remained in Iowa, and has never been a resident of this state. The adoption proceedings presented to the trial court consisted of the entries in the adoption.record, the original papers and files being lost. From this record it appears that on January 18, 1886, Jennie Richardson appeared in the probate court with-the plaintiff, then five years of age, and filed a paper which, omitting the title, reads:
“In the Probate Court of Kingman county, State of Kansas.
“Jennie Richardson, the undersigned, a resident of Kingman county, .in the state of Kansas, parent of Harry Ralford Richardson, a , minor child aged five years, with the approval of the probate judge of said county first obtained in open court, does hereby relin quish all right to my said minor child, Harry R. Richardson, aforesaid, to George Cubitt, who is desirous of adopting him as his own child.”
“Approved this 18th day of January, 1886.
Wm. Green, Probate Judge.
“In witness whereof, I, the undersigned, probate judge of Kingman county, have hereunto set my hand and affixed the seal of said probate court, this 18th day of January, A. D. 1886. Wm. Green,
[seal.] Probate Judge.”
At the same time George Cubitt filed a paper which reads:
“Harry Ralford Richardson, a minor male «child, aged five years old, 21st of June, 1885, and Jennie Richardson, his mother, now appearing before the probate court of Kingman county, aforesaid, and the said Harry Ralford Richardson thereto consenting, I, George Cubitt, the undersigned, do hereby offer to adopt Harry Ralford Richardson, the minor child above mentioned, as my own son.
George Cubitt.
• Jennie A. Richardson.
“Done in the probate court of Kingman county, this 18th day of January, A. D. 1885.
■ Wm. Green, Probate Judge.
“In witness whereof, I, the undersigned, probate judge of Kingman county» have hereunto set my hand and affixed the seal of said probate court, this 18th day of January, A. d. 1885. Wm. Green,
[seal.] . Probate Judge.”
Thereupon, and as a part of the same transaction, the court made an order which reads:
“And Harry Ralford Richardson; the said minor, and Jennie Richardson, his mother, at the same time appear before said court, and consent to such adoption.
“And thereupon, the said probate court being satisfied that such consent is free and voluntary, the said court doth now make its proceedings of record in the said probate court; and doth declare Harry Ralford Richardson, the minor child aforesaid, the child and heir of Jennie Richardson, aforesaid, so adopting him.
Wm, Green, Probate Judge.”
At the close of these proceedings George Cubitt took possession of the plaintiif, who remained in and a part of the Cubitt family thereafter, until he enlisted in the naval service on board the battle-ship “Maine.” He reenlisted and is now serving at Manila, in the Philippine Islands, on the ship “Monadnoc.”
It will be seen that the name of Jennie Richardson appears in the order of adoption where the name George Cubitt should have been written. It is insisted that this defect in the order makes it void. This mistake was discovered by George Cubitt about four years after the adoption, and he undertook to cure it by having new proceedings of adoption and by having an order correcting the mistake entered nunc pro tunc. This last action of the court is assailed on several grounds, but in the view we have taken it will be unnecessary to consider them.
It is not denied that the mother of the plaintiif took him to the probate court for the purpose of having him adopted by George Cubitt, and that George Cubitt met her there for the purpose of taking the child as his own by legal adoption. They met in the probate court with an attorney, and with the assistance of the court attempted in good faith to do all that the law required legally to transfer the custody, control and heirship of the plaintiif from his parents to George Cubitt. All parties thereafter rested in the belief that by such proceedings a legal adoption had been accomplished.
When parties voluntarily submit important interests to a court of competent jurisdiction for determination, and such interests are adjusted by such court, and its judgment thereon is entered upon its records, and the parties interested acquiesce in and act thereon for many years, such record should not be lightly set aside or ignored. On the contrary, such judicial proceedings should be construed, when reasonably possible, so as to preserve and protect the rights and interests conferred thereby. (In re Evans, 106 Cal. 562, 39 Pac. 860; Van Matre v. Sankey et al., 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; Wilson v. Otis, 71 N. H. 483, 53 Atl. 439.) When a judicial record, considered as a whole, clearly indicates the order or judgment which the court intended to make, then all mere informalities, irregularities and obvious clerical omissions and mistakes will be overlooked, and the real act of the court will be recognized, upheld.and enforced according to the manifest intent thereof. (In re Evans, supra; Van Matre v. Sankey et al., supra; Wilson v. Otis, supra.)
The case of Wilson v. Otis, supra, is in most respects very similar to this case. In that case the decree of adoption consisted of a printed form, in which blank spaces were left where the names of the parties were to be written. None of these spaces was filled. The original papers were lost. The preliminary recitals of the decree, however, indicated fully what was before the court; the decree had the signature of the judge attached thereto, and showed that - child was adopted by -person. Who these persons were could be definitely ascertained by reference to the recitals. It was held that the real act of the-court was clearly apparent from the whole record, and the adoption was upheld.
In the case of In re Evans, supra, the parties entered into a written agreemént of adoption, presented it to the court, and asked to have a statutory decree entered thereon. The court indorsed its approval on the agreement and placed it on file. No other record was made. The parties thereafter acted upon the assumption that the proceeding was valid. The child made its home with its adopted parents for about ten years, when the adopting father died. The heirs disputed the validity of the adoption proceedings, but the court held that under such circumstances of acquiescence in a decree invited by the deceased it would require something more than irregularities to set aside the decree of adoption, and it was sustained.
Whether the action of the court taken in 1890 to correct the mistake made by writing the name of Jennie Eichardson in the order of adoption where the name of George Cubitt should have been written was in all respects regular and valid as nunc pro tunc proceedings need not be discussed. It was clearly a mistake that might be corrected at any time, and may now be considered as amended. (17 A. & E. Encycl. of L. 818; Wilson v. Otis, 71 N. H. 483, 53 Atl. 439; Dreyfuss v. Tompkins, 67 Cal. 339, 7 Pac. 732; Paige v. Roeding, 96 Cal. 388, 31 Pac. 264; Cauthorn v. Berry, 69 Mo. App. 404; The Security Company of Harford v. Arbuckle et al., 123 Ind. 518, 24 N. E. 329; Chissom et al. v. Barbour et al., 100 Ind. 1; People v. Ward, 141 Cal. 628, 75 Pac. 306; Allen and Dean v. Bradford and Shotwell, 3 Ala. 281, 37 Am. Dec. 689; Nabers’ Adm’r v. Meredith et al., 67 Ala. 333.) Mistakes in the names of the parties, dates, description of lands, amounts, and others of a similar character, may be corrected by the court upon its own motion, at any time, when it is clear from the whole record what the correct entry should be. (17 A. & E. Encycl of L. 820-822, and notes; Dickey v. Gibson, 113 Cal. 26, 45 Pac. 15, 54 Am; St. Rep. 326.)
The confusion in dates apparent in the adoption papers is a matter of little moment, as it is immaterial which of the dates is correct. It is clear that the plaintiff was regularly adopted by George Cubitt in the probate court, and whether in 1885 or 1886 can make no difference.
The father of the plaintiff, being a non-resident of the state, was not a necessary party to the proceeding. Besides, whatever rights he might be supposed to have to the custody or control of the plaintiff was cut off by the decree of divorce which his wife obtained, in which she was given the custody of the children. (In re Williams, 102 Cal. 70, 81, 36 Pac. 407, 41 Am. St. Rep. 163.)
On the whole case we conclude that the plaintiff was legally adopted by, and that he has a right of inheritance in the estate of, George Cubitt, deceased, the same as if he were a natural child of such decedent. The judgment of the district court is reversed, with directions to enter a decree in favor of the plaintiff in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant in his brief makes seventy-six assignments of error, by far the greater number of which relate to the manner in which the state was allowed to introduce its evidence.
The reason is not apparent for the allowance of suggestive and leading questions to the principal witness, Mrs. Parker, or for recalling her so frequently and allowing her to reiterate statements claimed to have been made to her by the defendant, embracing as they do matters entirely irrelevant to the issue and tending only to prejudice the jury against him. The interest manifested and malice admitted by this witness against the defendant indicate that she required no leading or suggestive question to elicit all she- knew favorable to the state. Also, her manifest acumen and perspicuous expression indicate that no repetition was necessary. These matters, however, are largely within the sound discretion of the trial court, and we cannot say that discretion was abused.
Her story, although uncorroborated, and denied by the defendant, believed as it appears to have been by the jury,'whose duty it is to weigh conflicting evidence, is sufficient to sustain thé verdict. Yet one can hardly read it without questioning whether it is really the truth or is another illustration of the verity of the lines:
“Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.”
We pass several objections to the exclusion of evidence offered by the defendant, in which we find no reversible error. The ruling of the court, however, excluding certain of the depositions offered by the defendant to prove his character as a peaceable, law-abiding citizen prior to the time of the homicide compels a reversal of the judgment.
That a defendant on trial charged with crime has the right to offer evidence of his previous good character and disposition as a peaceable, quiet citizen for the purpose of disproving guilt, and to have such evidence considered by the jury, no longer admits of question. (1 Wig, Ev. §§ 56, 60, 197; The State v. Douglass, 44 Kan. 618, 26 Pac. 476; The State v. Keefe, 54 Kan. 197, 38 Pac. 302.) Reputation is the evidence of character, and character is not to be established by the opinions or conclusions of witnesses, nor by the personal knowledge of the witness or by particular acts or circumstances, but, in the respect involved, is proved by evidence of the general reputation which one bears in the locality where, he resides as to that particular trait. The character of a man is the same in one place as in another, hence the place of residence and of the inquiry is immaterial.
A number of the depositions were offered in evidence by the defendant to prove his good character as a peaceable, law-abiding citizen. The depositions, no exceptions thereto having been filed, were all excluded on the statutory ground of incompetency and irrelevancy. The objection was made to each deposition as a whole, and not to any specific portion. It is urged that all the evidence in each deposition is remote, therefore incompetent, and is also a recital of the conclusions and personal knowledge of the witnesses, instead of testimony of the general reputation of the defendant. Whether the objection was that the evidence was too remote as to place or too remote as to time does not appear. As before indicated, remoteness as to place is immaterial; as to time, the authorities are that evidence may be too remote to be competent. No hard and fast rule is attempted to be laid down as to how far into time past the inquiry can be pursued. A reasonable time seems to be the concensus of opinion, to be determined by circumstances. Wigmore, in section 1617 of volume 2 of his new and excellent treatise on Evidence, says that on a charge of murder evidence of good reputation five years prior to the homicide is admissible, being within a time in which there is no presumption of a change of character. If the old adage, “the boy is the father of the man,” be true, evidence of character even more remote might well be considered as of probative value. No authority or logical reason, we undertake to say, can be found for excluding evidence of continuously good general reputation as a peaceable, law-abiding citizen from childhood to manhood and to within two to four years of the time of the homicide.
Some of the depositions were properly excluded for the reason that they contained no evidence of general reputation, and perhaps some portions of the others should have been excluded for the same reason. However, if any part be admissible, an objection to a deposition as a whole is insufficient to challenge attention to any particular defect. Much more, then, is it insufficient to require or justify the exclusion of the entire deposition. (Ottawa University v. Parkinson, 14 Kan. 159; First Nat. Bank v. Rush, 85 Fed. 539, 29 C. C. A. 333; 6 Encyc. Pl. & Pr. 588, et seq.; 1 Wig. Ev. § 18.)
Each of the witnesses in the depositions-testified to long acquaintance with the defendant and with the neighborhood in which he had lived, at and near Junction City, Ark., until he left that state, two to four years before the homicide, according to the recollection of the different witnesses. Witness Pendleton said in his deposition: “His reputation has been that of a quiet, peaceable citizen.” Price said: “I have never heard of anything against him before.” Bishop said: “Never knew of any complaints against him. If his reputation had been other than a quiet, peaceable citizen I would have known it.” Mahoney said: “His reputation as being a good and peaceable citizen is good.” Smead, after stating that he was a lawyer, was fifty years of age, and had known defendant twenty odd years, continued: “I knew his general reputation in the neighborhood where he lived from a little boy until he left the state. He was an honest, upright, law-abiding citizen — this was his general reputation in that neighborhood. He was a quiet, unassuming, hard-working, law-abiding, young man. This was the general reputation he bore during the years I knew him.”
That some of these expressions are subject to criticism is true, but mere forms of expression, where the meaning of the witness is apparent, especially where there is an opportunity for cross-examination, should not exclude testimony which is competent in its evident meaning. For instance, if there was any doubt that the witness Smead, in using the language “he was an honest, upright, law-abiding citizen — this was his general reputation in that neighborhood,” meant his general reputation was that heN was an honest, upright, law-abiding citizen, thexi the court should have admitted the evidence, and could have instructed the jury to consider only the evidence relating to the general reputation of the defendant as a peaceable, law-abiding-citizen and to disregard any personal opinion or knowledge of the witness as to the character of the defendant. That the defendant was entitled to all the favorable evidence he could procure and had at hand needs hardly to' be said. The admission of the unobjectionable portions of these depositions might at least have raised a reasonable doubt in the minds of the jurors as to the guilt of the defendant, especially considering the character of the evidence for the state. If so, the defendant was prejudiced by its exclusion.
It is no answer to say that the exclusion of the depositions was not prejudicial because three men, some of whom were shown to have been engaged in an illegal business, testified that they had known the general reputation of the defendant as a peaceable citizen in Junction City, Kan., for one or two years before the homicide, and that it was good, and no evidence to the contrary was offered by the state. If evidence of former peaceable character is, as it should be, of any value in cases like this, where the evidence seems almost in a balance as to whether the homicide was justifiable or criminal, it must be apparent that there is a wide difference between maintaining such a character for twenty years and the maintaining of it for one or two years.
The judgment is reversed and the case remanded, with instructions to grant a new trial.
Greene, Mason, Porter, Graves, JJ., concurring.
Johnston, C. J., Burch, J., dissenting. | [
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Per Curiam:
This case is reversed upon the authority of Kansas City v. Silver, ante, p. 851, and cases there cited. | [
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Per Curiam:
We have considered the errors assigned in the introduction of the evidence and in giving and refusing instructions in this case, and find no substantial error therein.
The evidence is conflicting, and.the jury in special findings found the facts upon which the plaintiff predicated negligence in his favor; and in response to spe cial questions by which the defendant sought to elicit findings of fact which would establish the contributory negligence of the plaintiff the jury answered: “We do n’t know.” This is equivalent to finding that the evidence was not sufficient to establish the facts sought to be elicited, the burden of proving which rested upon the defendant.
No motion was filed to set aside these negative findings, but a motion was filed for judgment in favor of the defendant on the special findings notwithstanding the general verdict. This was properly denied.
A motion was then filed for a new trial on the ground, with others, that the verdict was not supported by the evidence. As before said, the evidence was conflicting, and we think there was sufficient, regarded in a light favorable to plaintiff, to sustain the verdict. Certainly the unattacked special findings of the jury are sufficient to sustain the verdict and judgment.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The principal question discussed by the plaintiff in error, and the point upon which several of the errors assigned depend, is the legal effect of filing the amended petition. It is claimed that striking the words “Clay Manufacturing Company” from the title of the case caused a substitution of one plaintiff for another, one being a corporation and the other an individual; and that by,this substitution the amended petition presents ,a cause of action against the plaintiff in error different from that stated in the original petition, because owned by another person. It is insisted that the action between this substituted plaintiff and the plaintiff in error was not commenced until the amended petition was filed, and that, as this was more than six months after the completion of the sewer, the action was barred under the statute. It is conceded that section 139 of the code (Gen. Stat. 1901, § 4573) authorizes the amendment, but it is contended that such an amendment cannot relate back to the filing of the original petition so as to avoid the plea of the statute of limitations on the part of the plaintiff in error. This question has been before this court before, and was decided against the contention of the plaintiff in error. (Service v. Bank, 62 Kan. 857, 62 Pac. 670; Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814.)
Furthermore, we do not think the action of the court in this case amounted to a substitution of one party for another. It appears that no corporation existed by the name of the W. S. Dickey Clay Manufacturing Company, and that this description of the plaintiff was the result of a mistake or misapprehension of counsel in drawing the petition. The language stricken out was mere surplusage. The amendment did not affect the cause of action, nor mislead the defendant.
It is claimed that the court did not acquire jurisdiction of the plaintiff in error for the reason that it was not properly served with summons. The plaintiff in error raised this question by timely motions and objections, so that if the point is well taken it has not been waived by answer. It is evident from the return on the summons that the officer making service thereof attempted to show a full compliance with' all the statutes relating to that subject, and we think he succeeded in making legal service under section 4498 of the General Statutes of 1901, which reads:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having .charge thereof.”
It appears from the return that the plaintiff in error had an office in the city of Wichita, Sedgwick county, Kansas, and that summons was served upon the person in charge of such office, the other officers and persons named in the statute not being found in the county. This is sufficient. This section of the statute is not intended to apply to domestic corporations only, as contended .by the plaintiff in error, but covers all corporations alike.
It is also contended by the plaintiff in error that the bond sued on is void because not taken by a public officer, as required by law. The statute providing for such bond is section 5130 of the General Statutes of 1901, which reads:
“That whenever any public officer shall under the laws of the state enter into contract in any sum exceeding one hundred dollars, with any person or persons, for [the?] purpose of making any public improvements, or constructing any public building, or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.”
The city of Wichita made the contract for the construction of the sewer in question, and required the contractor to furnish the bond here sued upon. We think the distinction drawn by this contention between a city and its officers is.too narrow for practical purposes. Whatever a city does is of necessity done by a public officer.
It is further claimed that the contract is void because of a clause therein which reads: “None but citizens of the city of Wichita are to be employed on said work.” This clause, it is said, destroys competition, and is in violation of section 747 of the General Statutes of 1901, which reads:
“Before the building of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city en-' gineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to $100, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate. If no responsible person shall propose to enter into contract at a price not exceeding the estimated cost, all bids shall be rejected, and the same proceedings as before repeated, until some responsible person shall, by sealed proposal, offer to contract for the work at a price not exceeding the estimated cost. In no case shall the city be liable for anything beyond the estimated cost, or the original contract price for doing such work or making such improvement. All sidewalks shall be built by contract, advertised for as herein provided. Before any such work or improvement, except building sidewalks, shall be commenced, the money to pay therefor must be set aside in the city treasury by an appropriation ordinance, regularly passed and published, and it shall be the duty of the city treasurer to take notice of such ordinance and be governed therebyY
The case of Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034, is cited in support of this proposition. The facts in that case, however, differ from those in this in some important particulars. In the case cited the plaintiff, who sued to recover for material furnished to the contractor, was an active agent in procuring the city council to adopt the provisions which made the contract void. It was held to be invalid as to him because of his knowledge of, and participation in, the illegal features thereof. While in legal contemplation it may be permissible to attribute the act of taking a bond required by a city to the municipality, yet, in fact, it is of necessity the act of public officials. We think the bond in question was taken by public officers within the meaning of the statute, although executed to protect the interests of the city of Wichita. The necessity of knowledge on the part of material-men and laborers of the facts which make the contract ,void, before they will be deprived of the right to recover thereunder, is clearly stated in the third paragraph of the syllabus of the case just referred to, which reads:
“When a contract entered into by a city for paving streets is void for the reason that no opportunity is given therein for free competition in the purchase of the materials used, all the proceedings are void, and persons who furnish labor or material with full knowledge of the facts which constitute the proceedings illegal are bound thereby and cannot maintain an action against the surety of the contractor who has furnished a bond under the provisions of section 5180 of the General Statutes of 1901.”
In this case it does not appear that W. S. Dickey, when he furnished the pipe sued for, had any knowledge whatever of this clause in the contract. It does not appear that this clause constituted a part of the advertisement for bidders, or in any way affected the price for which the work was let. From all that appears in the pleadings or record this clause was inserted in'the contract with the consent of the contractor, after the bidding was closed. The burden is upon the person who attacks such a contract to show the facts which make it void; in the absence of such showing it will be upheld.
Other questions are presented in argument, but such of them as are not disposed of by the conclusions hereinbefore stated we do not deem material, and it is therefore useless to consider them. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
H. L. Ferris, being indebted to B. W. Gilliam, made him a deed to a tract of land as security. Gilliam executed a conveyance of the property to his niece, Carrie Thummel. She conveyed the, land to Ferris, who paid her a part of the debt and gave her a mortgage for the remainder. This mortgage was assigned to W. B. Becktold, who brought suit to foreclose it. The administrator and heirs of Gilliam, who had in the meantime died, intervened and asked that the transfer from Gilliam to Miss Thummel be set aside as having been obtained by undue influence, and that the mortgage be held to belong to the estate. Upon trial the court found in favor of the plaintiff and rendered judgment accordingly, from which the intervenors prosecute error.
For some time before Gilliam executed the deed to his niece she" had been doing most of his writing for him, and the plaintiffs in. error contend that the admitted facts establish such a confidential relation between them as to raise a presumption that she exercised undue influence upon her uncle, and thereby to cast upon her the burden of proving the contrary. Whether this contention is sound need not be determined, for Miss Thummel testified at great length concerning all the details of the transaction, and her evidence, if given credence, is sufficient to rebut such presumption.
It is further contended that inasmuch as most of the evidence was in the form of depositions this court should determine for itself from the record the disputed questions of fact, uninfluenced by the conclusions reached by the trial court. We would not be justified in doing so. The oral evidence introduced was relatively small in quantity, but a part of it bore upon the vitally important matter of the mental condition of Gilliam at about the time he executed the deed. Miss Thummel was not present at the trial. Oral testimony was given in direct denial of portions of her deposition. The trial judge was aided in resolving such contradiction by the opportunity of observing one of the parties. The conclusions formed from such observation were an aid in interpreting and weighing the other statements made by Miss Thummel. Therefore the reviewing court lacks a part of the information that aided the district court in its decision and cannot interfere with the result reached except upon the view that there was no evidence to support it. No useful purpose would be accomplished by reviewing the evidence at length. It is enough to say that upon an examination of the whole record no sufficient reason appears for reversing the judgment, which is accordingly affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Two of the findings of the court are challenged as not supported by any evidence. They are as follow:
“ (4) The court finds that in the month of February, 1898, there was an accounting had between the said Coffman and the said Hunter, and that at that time there was due the said Hunter $670; that the said Coffman, being anxious to keep the debt from increasing, agreed that the said Hunter should from that time on receive the rents and profits from the land and apply the same on the debt, and that said Hunter did receive the same.”
“(8) That the said Coffman and wife did not know until the year of 1903 that the said A. S’. Hunter, or the administrator of his estate, or the heirs of the said Hunter, or any of them, were making any claim to the fee-simple title to the land in question, but had always supposed and believed that they and each of them regarded the said warranty deed only as a mortgage, and as a security for the debt due from Coffman to Hunter.”
We have examined the record carefully and are satisfied that there is ample evidence to warrant each of these findings of fact. Under the well-established rule the findings of the trial court cannot be disturbed.
There remains but a single question, which'is, after all, the principal one raised by the plaintiffs in error. It is that the statute of limitations begins to run against a bill to redeem the moment the debt secured by the mortgage becomes due. It is urged that the right to foreclose and the right to redeem are reciprocal rights, starting together like two fellows in a foot-race, with a straight course, a five-years’ run, and no favors. In this case we are unanimously of the opinion that, as the court found that Hunter took possession for the purpose of collecting the rents and profits and of applying the proceeds upon the indebtedness, he occupied the position of a trustee, and that no statute of limitations would begin to run against a bill to redeem until his possession became adverse to the owner, or mortgagor. Until there was a renunciation of the trust, or some declaration or act to manifest a claim to hold adversely, there could be no adverse holding. (Reihl v. Likowski, 38 Kan. 515, 6 Pac. 886.) In McPherson v. Hayward, 81 Me. 329, 17 Atl. 164, it was said in the syllabus:
“Where the mortgagee’s possession was under an arrangement with the mortgagor, for him to hold possession of the property, and manage it until he should satisfy his claim from the proceeds, Such possession is not adverse until the mortgagee’s claim is satisfied, or he asserts an absolute title in himself, and gives distinct notice of it to the mortgagor.”
To the same effect see: 2 Jones, Mort., 6th ed., § 1152; Kohlheim v. Harrison, 34 Miss. 457; Knowlton v. Walker, 13 Wis. 264; 1 A. & E. Encycl. of L. 817 and cases cited; Wood, Lim., 3d ed., § 224.
Equity will not permit one who holds as trustee to change the character of his possession into an adverse one by mere silence. The statute, it is clear, did not begin to run until the notice of the adverse holding or denial of the trust was given to the defendant in error, or until he would be by law held to have notice through some declaration or act of Hunter or those claiming under him.
We think the judgment of the court below gave to the plaintiffs in error all that in equity they were entitled to have — a lien for the payment of the taxes and indebtedness. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was arrested, tried and convicted in the police court of the city of Topeka for a violation of section 54 of ordinance No. 2384 of that city. He appealed to the district court of Shawnee county, where he was again convicted and fined. He now appeals to this court.
The authority of the city to levy and collect license taxes is found in section 134 of chapter 122, Laws-of 1903, and the portion thereof applicable to this casé reads as follows:
“The mayor and council may levy and collect á license tax upon and regulate any and all callings, trades, professions and occupations conducted, pursued, carried on or operated within the limits of such city, including . . . express companies and agencies.”
Section 54 of ordinance No. 2384 of the city of Topeka is as follows:
“The sum of $100 per year on the business and occupation of express companies, corporations or agencies, in receiving packages in this city from persons in the city and transmitting the same by express from this city within this state to persons and places within this state, and receiving in this city packages by express transmitted within this state from persons and places in this state to persons within this city and delivering the same to persons in this city, excepting the receipt, transmission and delivery of any such packages to and from any department, agency or agent of the United States, and excepting the receipt, transmission and delivery of any such packages which are interstate commerce; the business and occupation of receiving, transmitting and delivering of the packages herein excepted is not taxed hereby.”
The agreed statement of facts and the uncontroverted evidence show that the United States Express Company at the time charged had and maintained two offices in the city of Topeka; that Jones was the managing agent of the company in the city; that in the conduct of the express business of the company Jones re ceived packages in the city of Topeka to be forwarded to other express offices in other cities and towns of the state of Kansas, as well as to other such offices without the state; that he received packages sent by express from other towns and cities within the state and delivered the same to the consignee within the city of Topeka; and that he collected and received within the city the express charges for such business, but he neither received nor delivered any packages consigned within the city to consignees within the city. Also, that he had neglected and refused to pay the license tax required of express companies and agencies under section 54 of such ordinance.
Several assignments of error are made, but only one question is presented for our consideration, viz., Is the receiving and delivering of packages and the collection of express charges, as carried on by appellant, a “business,” “calling” or “occupation” conducted, pursued, carried on or operated within the limits of the city of Topeka? It certainly cannot be regarded as a “profession” within the meaning of the statute. It probably would not be regarded as a trade, although, this word, in approved usage, has many shades of meaning; as used in the old adage — “every man to his trade”— it is synonymous with “calling” or “occupation.”
If appellant had been asked, “What is your calling?” or “What is your occupation?” it seems his only answer must have been, “I conduct an express agency.” The statute quoted itself seems to define express companies and agencies as callings or occupations by including them in the class as callings or occupations. Indeed, it would be a strange use, or rather misuse, of language if an act of the legislature should authorize the' imposition of a tax upon all horned cattle, including horses, or upon all draft animals," including poodle dogs. As in concrete numbers only things of The same kind can be added, so like things, not unlike things, are included in a class. If this be true, the meaning of the above statute and the ordinance enacted thereunder seems apparent.
The word “business” has, as used, different meanings. Webster’s International Dictionary gives seven definitions of it, only two of which are possibly applicable to the use of the word in the statute and ordinance cited. They are: (1) “Any particular occupation or employment engaged in for livelihood or gain, as agriculture, trade, art, or a profession.” (2) “Financial dealings; buying and selling; traffic in general; mercantile transactions.” The appellant seems to contend that the latter, and the city that the former, of these meanings should be adopted in interpreting the statute and ordinance. As before remarked, the contention of the city seems to accord with the legislative intent. In no other sense of the word could the “business” of express companies and agencies be included in a calling, trade, profession or occupation, as the language is used in the statute. “Calling,” “occupation,” “trade” and “profession” are given by Webster as synonyms of “business.” The words “business” in the ordinance and “businesses” in the statute are used with this meaning. The plural form of the word also supports this conclusion. Common usage also accords with it. Such taxes are usually called occupation taxes.
On the other hand it would be anomalous in both our state and national polity to tax “business” in the other sense contended for. Business in that sense is not regarded as requiring a license or as subject to taxation, unless it be a business of immoral or dangerous tendencies, which kind is licensed and taxed as a matter of police regulation.
Many authorities are cited, in cases relating to interstate commerce, that a state has no power to tax a business performed partly within one state and partly within another. In other words, although a state may tax intrastate business it cannot tax interstate business. The exclusive power is, by the constitution of the United States, delegated to congress to regulate interstate commerce; and the power to tax is a power to interfere with — to regulate. Hence, if any state could tax a business conducted partly within its borders and partly within the borders of another state it would interfere with and encroach upon the power delegated to congress.
Commerce is “business” under the second definition given above. It relates to the commercial transaction more than to the calling or occupation, and any burden placed upon the income of commerce between the states by local authority, or any impediment to its freedom, is an entrenchment upon the power of congress.
License taxes are occupation taxes (Fretwell v. City of Troy, 18 Kan. 271) and are imposed by municipalities by authority of the legislature for the purpose of equalizing the burden of municipal expense. Many callings — as, for instance, express agencies — enjoy police protection and all of the very nurherous advantages of municipal expenditures without necessarily exposing any or very little property to taxation. As was said by this court in City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486:
“There is no inherent vice in the taxation of avocations. On the contrary, business is as legitimate an object of the taxing power as property. Oftentimes a tax on the former results in a more even and exact justice than one on the latter. Indeed, the taxing power is' not limited to either property or avocations. It may, as was in fact done during the late war and the years immediately succeeding, be cast upon incomes, or placed upon deeds and other instruments. We know there is quite a prejudice against occupation taxes. It is thought to be really double taxation. Judge Dillon well says that ‘such taxes are apt to be inequitable, and the principle not free from danger of great abuse.’ Yet, wisely imposed, they will go far toward equalizing public burdens. A lawyer and a merchant may, out of their respective avocations, obtain the same incomer Each receives the same protection and enjoys the same benefits of society and government. Yet the one having tangible property pays taxes; the other, whose property is all in legal learning and skill, wholly intangible, pays nothing. A wisely-adjusted occupation tax equalizes these inequalities. But after all, these are questions of policy, and for legislative consideration. It is enough for the courts that both occupation and property are legitimate objects of taxation; that they are essentially dissimilar; that constitutional provisions regulating the taxation of one do not control that of the other; and that there are no constitutional inhibitions on the taxation of business, either by the legislature directly, or by municipal corporations thereto empowered by the legislature. Second. There is no inhibition, express or implied, in our constitution, on the power of the legislature to levy and collect license taxes, or to delegate like power to mu-' nicipal corporations.” (Page 154.)
The business of but a small relative proportion of the vocations upon which the municipalities of the state impose an occupation tax, under the authority of our statutes, is confined exclusively within the limits of the city which imposes the-tax. Three-fourths of the business of the lawyer who pays a license tax in Topeka may be in other cities of the state or in other states. Yet the lawyer follows his vocation within the limits of the city. A corporation might be engaged in wholesaling merchandise, and might have many branch houses in different cities in the state, and might even so conduct its business that its sales of goods would legally be held to be made at the numerous other places of business of its customers, so that very little of its business could be said to be done within the limits of any city in which it has a wholesale house in the sense that commerce must be intrastate to become the subject of local taxation, yet it would not be contended that one of its branch houses located in Topeka, or any other city of the first class, would not be subject to an occupation tax under an ordinance and the statutes above quoted.
The reason for the refinement between interstate commerce and intrastate commerce in the' decisions maintaining the power of congress to control interstate commerce does not obtain in- determining what vocations are intracity under the statute. It is' just and equitable that the express agency in question should, with many other vocations, bear some portion of the municipal expenses, which are incurred for their benefit as well as for the benefit of the property owners, and it is not equitable that such expenses should be borne by property owners alone. The finding of fact involved in the conviction that the appellant was conducting a business and engaged in a vocation within the limits of the city which is subject to a license tax will not be disturbed. (Western Union Telegraph Co. v. City of Fremont, 39 Neb. 692, 58 N. W. 415, 26 L. R. A. 698; Sacramento v. Stage Company, 12 Cal. 134.)
There is no contention, if the license tax is legal, that the appellant, 'as the business manager, is not responsible for its payment or that he may not be arrested and fined for his refusal to pay the same.
The judgment of the district court is affirmed.
Greene, Mason, Porter, Graves, JJ., concurring. | [
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Davis, J.:
The defendant, George W. Woodman, appeals from convictions of aggravated vehicular homicide, K.S.A. 1986 Supp. 21-3405a, and driving while under the influence of alcohol, K.S.A. 1986 Supp. 8-1567.
During the early morning hours of May 8, 1985, after visiting several night spots and friends throughout the preceding evening, the defendant and his friend, Richard Hamm, were on their way to see a mutual friend in Wichita, Kansas. The defendant was driving a 1979 Ford pickup truck. He proceeded east on Central Street, and as he approached the 1-235 exit ramp onto Central, both he and Richard Hamm observed a 1981 GMC pickup truck proceed down the 1-235 exit ramp. The 1-235 exit ramp intersects with Central Street. At the point of intersection, there is a traffic light facing the exit ramp and traffic overhead lights facing Central Street. These traffic lights control the flow of traffic on Central and the 1-235 exit ramp. When traffic on Central is stopped by a red light, traffic on the exit ramp is allowed to move onto Central by reason of a green light.
The defendant and Hamm saw the pickup truck driven by Billy Jenkins come off the exit ramp and slow down through the intersection. According to the defendant, Jenkins ran a red light and was trying to stop. According to Hamm, the Jenkins pickup truck was stopped in the middle of the intersection.
Defendant’s vehicle collided with Jenkins’ pickup truck, skidding some 92 feet prior to impact. Jenkins died shortly thereafter as a result of the accident. Blood tests revealed that defendant’s blood alcohol level was .211 shortly after the collision.
On August 22,1985, the defendant was charged with one count of aggravated vehicular homicide and one count of driving while under the influence of alcohol. Prior to trial, the parties stipulated that Billy Jenkins died as a result of the May 8, 1985, accident and that defendant’s blood alcohol level was .211 shortly after the accident. Following a jury trial, the defendant was found guilty as charged.
On February 4, 1986, the defendant was sentenced to a term of imprisonment of not less than one nor more than five years for aggravated vehicular homicide, and he was sentenced to a consecutive term of one year, together with a fine of $1,000, for driving while under the influence of alcohol. On appeal, the defendant contends (1) that the trial court lacked jurisdiction over the aggravated vehicular homicide charge because the information failed to allege every essential element of that crime; (2) that the trial court’s instruction on aggravated vehicular homicide was erroneous and prejudicial; (3) that the conviction for driving while under the influence of alcohol must be set aside because it is a lesser included offense of aggravated vehicular homicide; and (4) that the trial court erred in admitting evidence that defendant was on diversion for driving while under the influence of alcohol.
The defendant first contends that the information charging the crime of aggravated vehicular homicide must allege that the victim died as a proximate result of a violation of K.S.A. 1986 Supp. 8-1566 (reckless driving), K.S.A. 1986 Supp. 8-1567 (driving while under the influence of alcohol or drugs), or K.S.A. 8-1568 (fleeing or attempting to elude a police officer). According to the defendant, failure to include this element of causation in the information renders the charge fatally defective. State v. Jackson, 239 Kan. 463, Syl. ¶ 5, 721 P.2d 232 (1986).
K.S.A. 1986 Supp. 21-3405a provides:
“(1) Aggravated vehicular homicide is the unintentional killing of a human being, without malice, which is done while committing a violation of K.S.A. 8-1566, 8-1567 or 8-1568, and amendments thereto, or the ordinance of a city which prohibits any of the acts prohibited by those statutes.
“(2) This section shall be applicable only when the death of the injured person ensues within one year as a proximate result of the operation of a vehicle in the manner described in subsection (1).
“(3) Aggravated vehicular homicide is a class E felony.”
The information charging the defendant with aggravated vehicular homicide states:
“[Ojn or about the 8th day of May A.D., 1985, one GEORGE W. WOODMAN did then and there unlawfully, willfully [and] unintentionally kill a human being, to-wit: Billy N. Jenkins, without malice while the said GEORGE W. WOODMAN was operating a 1971 Ford Pickup Truck at 1-235 and Central Sheet in Wichita, Sedgwick County, Kansas, under the influence of intoxicating liquor . . . .”
The State contends that K.S.A. 1986 Supp. 21-3405a(l) defines the essential elements of the crime of aggravated vehicular homicide, while subsection (2) establishes the jurisdictional limits of the offense. Therefore, according to the State, it is unnecessary that the information charging aggravated vehicular homicide specifically recite subsection (2) so long as it is clear from the language of the information that the victim’s death, occurring within one year of the accident, was the result of defendant’s violation of 8-1566 (reckless driving), 8-1567 (driving while under the influence of alcohol or drugs), or 8-1568 (fleeing or attempting to elude a police officer).
We agree with defendant’s position that causation under subsection (2) of K.S.A. 1986 Supp. 21-3405a is an essential element of the offense of aggravated vehicular homicide. When the statute is considered as a whole, subsection (2) of K.S.A. 1986 Supp. 21-3405a does more than establish the jurisdictional limits for subsection (1). Death of the injured person within one year must be the proximate result of the operation of the vehicle by the defendant in a manner proscribed by subsection (1); that is, while committing a violation of 8-1566 (reckless driving), 8-1567 (driving while under the influence of alcohol or drugs), or 8-1568 (fleeing or attempting to elude a police officer).
Review of the history of K.S.A. 1986 Supp. 21-3405a supports our conclusion that the causation requirement of subsection (2) is an essential element of the offense of aggravated vehicular homicide. The crime of aggravated vehicular homicide was added to the Kansas Criminal Code in 1984. L. 1984, ch. 39, § 48. Subsection (2) of the current statute, K.S.A. 1986 Supp. 21-3405a, was included in the original legislation. The new crime of aggravated vehicular homicide was patterned directly after the statute defining vehicular homicide, K.S.A. 21-3405. K.S.A. 21-3405 was enacted in 1969 as a part of the Kansas Criminal Code. L. 1969, ch. 180, § 21-3405. Judicial Council Comments to K.S.A. 21-3405 provide':
“The section was intended to replace former K.S.A. 8-529(2). The material changes are (1) a description of the prohibited conduct and (2) a clear statement that the section applies to motor vehicles other than automobiles.”
It does not appear that there was any intent on the part of the legislature, in adopting K.S.A. 21-3405, to change the basic provisions of vehicular homicide set forth in K.S.A. 8-529 (Cor-rick). From the time of its enactment in 1937 (L. 1937, ch. 283, § 29) until its repeal in 1970 (L. 1969, ch. 180, § 21-4701), K.S.A. 8-529(a) (Corrick) read as follows:
“When the death óf any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.” (Emphasis added.)
Examination of some early cases involving prosecutions for vehicular homicide, as well as prosecutions for involuntary manslaughter charges stemming from felony driving offenses, establishes that an essential element of these offenses has always been a causal connection between the conduct of the defendant in driving his automobile and the resulting death of the victim.
In State v. Ashton, 175 Kan. 164, 262 P.2d 123 (1953), the defendant attacked the provisions of G. S. 1949, 8-529 on the basis that the statute was too indefinite and uncertain to specifically inform a person of what was prohibited thereby. The statute provided:
“(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.”
In rejecting defendant’s claim, the court noted, “We cannot agree the statute contains no act which is specifically forbidden. It prohibits the negligent driving of a vehicle (a) when the negligence is such as to be in disregard of the safety of others and (b) when such conduct is the proximate cause of death which ensues within one year.” State v. Ashton, 175 Kan. at 170. See State v. Miles, 203 Kan. 707, 457 P.2d 166 (1969); see also State v. Bowser, 124 Kan. 556, 261 Pac. 846 (1927).
In Bowser, the defendant claimed that contributory negligence was a defense to an action for manslaughter in the fourth degree resulting from the operation of his vehicle. The court, however, disagreed, finding that
“In a prosecution for manslaughter in the fourth degree caused by the alleged culpable negligence of defendant, while contributory negligence on the part of the decedent was not a defense, the court should have instructed the jury that the decedent’s negligence, if shown, should be considered with all the other evidence to determine whether the negligence of defendant was the proximate cause of the killing or whether defendant’s act or omission was culpably negligent under the circumstances.” State v. Bowser, 124 Kan. 556, Syl. ¶ 3.
Subsection (2) of K.S.A. 1986 Supp. 21-3405a sets forth an essential element of the offense of aggravated vehicular homicide in providing that a violation occurs when “the death of the injured person ensues ... as a proximate result of the operation of a vehicle in the manner described in subsection (1).” (Emphasis added.)
While we agree with the defendant’s position that causation is an essential element of the offense of aggravated vehicular homicide, we are not convinced that the information before us is fatally defective. “In determining the sufficiency of an information, it is not necessary to allege the exact words of the statute but the meaning must be clear as determined by the guidelines of K.S.A. 22-3201(2).” State v. Robinson, Lloyd & Clark, 229 Kan. 301, 304, 624 P.2d 964 (1981). K.S.A. 1986 Supp. 22-3201(2) provides in part that “[t]he complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged.” “A governing rule is that if the allegations of an information may be true and the defendant still is innocent of the offense defined by the statute the information is jurisdictionally defective. [Citation omitted.]” State v. Howell & Taylor, 226 Kan. 511, 513-14, 601 P.2d 1141 (1979).
The complaint in this case sets forth in a plain, concise written statement the essential facts constituting the crime charged. Although the information does not specifically allege that Billy Jenkins died as the proximate result of the defendant’s driving while under the influence of alcohol, the meaning of the allegation contained in the complaint is clear. The information alleges that the defendant unintentionally killed Billy Jenkins while driving under the influence of alcohol. We believe that the language used sufficiently invokes the causative factor that it was defendant’s conduct in driving the vehicle while under the influence of alcohol which caused the unintentional killing by the defendant of the victim, Billy Jenkins. See State v. Bishop, 240 Kan. 647, 732 P.2d 765 (1987). Giving plain meaning to the language used in the information, it becomes clear that if the defendant’s driving while under the influence was not the proximate cause of Billy Jenkins’ death, then it could not be said that he unintentionally killed Billy Jenkins by his driving under the influence.
Although it would be far better practice to include the specific allegation that the victim’s death was the proximate result of the defendant’s driving while under the influence, such allegation was not essential to establish the jurisdictional basis for proceeding with the prosecution of the defendant. K.S.A. 1986 Supp. 22-3201(2); State v. Robinson, Lloyd & Clark, 229 Kan. at 304 (“[I]t is not necessary to allege the exact words of the statute but the meaning must be clear as determined by the guidelines of K.S.A. 22-3201[2].”)
Defendant next contends that the trial court failed to properly instruct the jury on the elements of aggravated vehicular homicide. The trial court, over objection of the defense, gave PIK Crim. 2d 56.07-A, the instruction on aggravated vehicular homicide:
“The defendant is charged with the crime of aggravated vehicular homicide.
“To establish this charge, each of the following claims must be proved.
“1. That defendant unintentionally killed Billy N. Jenkins by the operation of an automobile;
“2. That the unintentional killing took place while defendant drove under the influence of alcohol or drugs;
“3. That the death occurred as a result of and within one year of the incident; and
“4. That defendant’s act occurred on or about the 8th day of May, 1985, in Sedgwick County, Kansas.”
Defendant specifically objected to subsection No. 3 of the court’s instruction. The basis of his objection was that the instruction failed to advise the jury that “[Billy Jenkins] must have died as a proximate result of [defendant’s] wrongdoing, his driving under the influence in this case.”
We agree that subsection 3 of the above instruction presents vague instructions to the jury concerning an essential element of the crime of aggravated vehicular homicide. The parties stipulated that Billy Jenkins died as a result of the accident and that defendant’s blood alcohol level was at .211 just after the accident. It would be entirely possible, under the instruction given by the trial court, for the jury to conclude that the defendant was guilty of the offense because the death occurred as a result of the accident or “incident” instead of as a result of the defendant’s driving while under the influence of alcohol.
While we have stated above that the language “unintentionally killed” was sufficient to invoke causation in interpreting the language of the information, we are not prepared to say such language in the instruction would necessarily suggest to the jury, without explicit instructions, that it was the defendant’s driving while under the influence that resulted in Billy Jenkins’ death. The failure of the court to spell out in subsection 3 the essential element of causation renders the instruction given by the trial court deficient.
The defendant’s entire theory was this: It was not his driving while under the influence of intoxicating liquor that proximately caused the death of Billy Jenkins, but, rather, it was Billy Jenkins’ running a red light which caused the death. Because there was substantial competent evidence that would justify a jury’s finding in accordance with the defendant’s theory, we find that the deficient instruction prejudiced the defendant. See State v. Kleber, 2 Kan. App. 2d 115, Syl. ¶ 2, 575 P.2d 900, rev. denied 225 Kan. 846 (1978).
In support of his theory, the defendant requested the following instruction be given:
“In order to find the Defendant guilty as charged in Count I of aggravated vehicular homicide, the State must establish that the decedent died within one (1) year from the 8th day of May, 1985, and that the death was the proximate result of the operation of the vehicle by the Defendant while under the influence of alcohol.
“The ‘proximate cause’ or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence or result of the wrongful act.”
We agree with the defendant’s position that the above instruction more clearly reflects our conclusion that the victim’s death must be the result of the defendant’s driving while under the influence of alcohol.
Further prejudice is demonstrated during final arguments. In his closing remarks, defense counsel argued, “Was it some wrongdoing on the part of this man that caused the death of Billy Jenkins or some intervening cause — Mr. Jenkins not stopping at the light, the car pulling on out into the intersection?” In response to this argument, the State argued: “Now, one of the things that interested me, Mr. Lyon mentioned to you about some intervening cause. You look through those instructions, folks. You won’t find an instruction that says that if there’s an intervening cause, the defendant’s not guilty. You won’t find that in there. What you do find are the claims that have to be proved.” Because of the erroneous instruction and resulting prejudice, we reverse defendant’s conviction for aggravated vehicular homicide.
The defendant next contends that the conviction for driving while under the influence of alcohol must be set aside because it is a lesser included offense of aggravated vehicular homicide. We agree.
Approximately five-and-a-half months after the defendant was convicted of both aggravated vehicular homicide and driving while under the influence of alcohol, the defendant filed a motion for new trial and arrest of judgment, alleging that the two convictions were multiplicitous. The trial court denied the motion as being untimely filed, but the defendant raises questions involving his fundamental right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, claiming that his constitutional rights would be violated by multiplicitous convictions. Under these circumstances, the issue may properly be considered for the first time on appeal. State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984).
K.S.A. 1986 Supp. 21-3107(2) provides in part:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(d) a crime necessarily proved if the crime charged were proved.” (Emphasis added.)
Driving while under the influence of alcohol is a misdemeanor. K.S.A. 1986 Supp. 8-1567. The elements of the offense are (1) driving a vehicle (2) while under the influence of alcohol. Aggravated vehicular homicide, a class E felony, is the unintentional killing of a human being done while committing one of the three specified traffic offenses. K.S.A. 1986 Supp. 21-3405a. One of the specified offenses, and the offense used to charge the defendant with aggravated vehicular homicide, is driving while under the influence of alcohol. Therefore, for this case, the elements of aggravated vehicular homicide are (1) the unintentional killing of a human being, (2) by the operation of a motor vehicle, (3) while driving under the influence of alcohol, (4) as long as the death occurred as a proximate result of and within one year of the aforementioned operation of the motor vehicle. K.S.A. 1986 Supp. 21-3405a. Because all of the elements of driving while under the influence of alcohol are required to establish the greater offense of aggravated vehicular homicide, driving while under the influence of alcohol is a lesser included offense of aggravated vehicular homicide pursuant to K.S.A. 1986 Supp. 21-3107(2)(d). In this case, the crime of driving while under the influence of alcohol is a lesser included offense of aggravated vehicular homicide, and 21-3107(2) bars conviction of driving while under the influence of alcohol. State v. Coberly, 233 Kan. 100, 109, 661 P.2d 383 (1983).
Given our disposition of this appeal, we need not address defendant’s final contention.
Reversed and remanded. | [
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Wahl, J.:
On February 9,1986, a semi-trailer driven by Harold M. Hickey left the southbound roadway of Interstate 35, crossed the median, and collided with two vehicles in the northbound lanes. All but two of the occupants of the two northbound vehicles were killed in the accident, a total of six dead. Hickey, suffering minor injuries, was taken to St. Luke’s Hospital for blood alcohol testing and medical examination. Hickey was charged with six counts of aggravated vehicular homicide, K.S.A. 1987 Supp. 21-3405a; one count of driving while intoxicated, K.S.A. 1987 Supp. 8-1567; and one count of driving at a speed not reasonable or prudent. K.S.A. 8-1335. After a jury trial, Hickey was found guilty on all counts. Hickey filed a motion, later amended, for a new trial. The motion was denied. Hickey was sentenced to terms of one to two years for each aggravated vehicular homicide conviction; one year and a $500 fine for driving while intoxicated; and a $100 fine for driving at a speed not reasonable and prudent. He filed a motion to modify the sentence, and that motion was denied.
Hickey appeals, contending first the trial court refused to give the jury a proper instruction regarding vehicular homicide. The instructions originally proposed by the trial court did not include an instruction for vehicular homicide under K.S.A. 21-3405. Hickey offered an additional instruction that addressed vehicular homicide as a lesser included offense under aggravated vehicular homicide. Hickey’s proposed instruction, the same for each named victim, read in part:
“The offense of aggravated vehicular homicide with which the defendant is charged includes the lesser offense of vehicular homicide. You may find the defendant guilty of aggravated vehicular homicide or vehicular homicide or not guilty. When there is a reasonable doubt as to which of the two offenses defendant is guilty, he may be convicted of the lesser offense only.
“If you cannot agree that the defendant is guilty of aggravated vehicular homicide, you should then consider the lesser included offense of vehicular homicide.”
The trial court agreed an instruction on vehicular homicide as a lesser included offense of aggravated vehicular homicide was appropriate, but used the instruction offered by Hickey as modified by the State. The instruction given, the same for each named victim, read in part:
“The offense of Aggravated Vehicular Homicide with which the defendant is charged includes the lesser offense of Vehicular Homicide. You may find the defendant guilty of Aggravated Vehicular Homicide or Vehicular Homicide or Not Guilty. When there is a reasonable doubt as to which of the two offenses defendant is guilty, he may be convicted of the lesser offense only. However, to convict the defendant of only Vehicular Homicide rather than Aggravated Vehicular Homicide, you must find that the defendant was not guilty of driving under the influence of alcohol. If you cannot agree that the defendant is guilty of Aggravated Vehicular Homicide, you should then consider the lesser included offense of Vehicular Homicide.” (Emphasis added.)
Both vehicular homicide and aggravated vehicular homicide involve the death of a person resulting from a defendant’s operation of a motor vehicle. The manner in which a defendant was driving when the fatal accident occurred determines whether a defendant can be found guilty of vehicular or aggravated vehicular homicide. If a defendant was driving so negligently that he created an unreasonable risk of injury to others, he can be found guilty of vehicular homicide, a class A misdemeanor. K.S.A. 21-3405. However, if a defendant was driving under the influence of alcohol, driving recklessly, or fleeing from or attempting to elude an officer, he can be found guilty of aggravated vehicular homicide, a class E felony. K.S.A. 1987 Supp. 21-3405a.
Hickey complains the vehicular homicide instruction given to the jury does not properly reflect the law. Aggravated vehicular homicide requires the death of the victim within one year as a proximate result of the operation of a vehicle in the manner described in subsection (1) of K.S.A. 1987 Supp. 21-3405a. Hickey was charged with causing a death while driving in violation of K.S.A. 1987 Supp. 8-1567. State v. Woodman, 12 Kan. App. 2d 110, 116-17, 735 P.2d 1102 (1987), established that, under K.S.A. 1987 Supp. 21-3405a, there must be a causal connection between the victim’s death and how the defendant was driving. In the present case, the jury had to find Hickey’s driving under the influence was the proximate cause of each victim’s death. The instruction given for aggravated vehicular homicide properly reflected the causal finding required under K.S.A. 1987 Supp. 21-3405a and Woodman.
Absent the causal finding to convict Hickey of aggravated vehicular homicide, conviction for the lesser included offense of vehicular homicide should be available. The instruction given for vehicular homicide, however, erroneously told the jury it could not find Hickey guilty of vehicular homicide if it also found him guilty of driving under the influence.
In a criminal action, a trial court must instruct the jury on the law applicable to the theories of both the prosecution and the accused when there is competent supporting evidence. State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987); State v. Davis, 236 Kan. 538, Syl. ¶ 4, 694 P.2d 418 (1985); State v. Farmer, 212 Kan. 163, 165, 510 P.2d 180 (1973). When a trial court refuses to give a specific instruction, the appellate court must view the evidence in the light most favorable to the requesting party. State v. Hunter, 241 Kan. at 644; State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983).
Hickey’s defense against the charge of aggravated vehicular homicide essentially centered on defeating the proximate cause requirement by showing conditions, other than Hickey’s drunk driving, which could have been responsible for the accident. The driving conditions at the time of the accident were extremely hazardous. Every witness at the accident scene testified that ice and sleet made driving very difficult and that many motorists had lost control of their vehicles and left the roadway. At the scene of the accident, Hickey indicated he had lost control of his vehicle when he tried to avoid someone “coming at him in his lane.” The record clearly shows there was a wrecker traveling northbound on the shoulder of the southbound turnpike traffic just before the accident. Further, Hickey was convicted of not driving at a reasonable and prudent speed for the existing road conditions. K.S.A. 8-1335. The jury could have found these other conditions were.the proximate cause of the accident.
The trial court recognized the possibility of something other than Hickey’s drunk driving causing the fatal accident. When agreeing to give an instruction for vehicular homicide as a lesser included offense, the trial judge stated: “The Court feels that under the given facts and circumstances of this case because of the — particularly because of the charge of speed unreasonable and [im]pmdent would be a possibility of finding the defendant guilty of vehicular homicide and so I’m going to give an instruction on that.” By then using the instruction for vehicular homicide as modified by the State, however, the trial court judge gave inconsistent instructions to the jury and potentially foreclosed the option of a conviction for the lesser included offense if the jury found Hickey guilty of driving under the influence. Although the complaint on appeal concerns the instruction for vehicular homicide, the essence of the complaint is that the Woodman causal requirement was presented in one instruction, and then taken away in another. “The propriety of the instructions to the jury is to be gauged by the consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case.” State v. Price, 233 Kan. 706, 711, 664 P.2d 869 (1983).
The jury was not given an instruction that properly stated the law in Kansas, and the convictions for aggravated vehicular homicide must be reversed.
We turn now to consider the admissibility of the blood alcohol tests. One blood sample, consisting of at least two tubes, was taken from Hickey at the hospital. One tube was used by the police to test blood alcohol content, and the other tube was drawn for the hospital to use in determining Hickey’s medical condition. As part of its testing, the hospital also tested Hickey’s blood for its alcohol content.
Hickey moved to have the blood alcohol test results suppressed because the oral and written notices of K.S.A. 1985 Supp. 8-1001(f)(l), applicable at the time, were not given. The district judge hearing the motion suppressed the results from the police testing because K.S.A. 1985 Supp. 8-1001(f)(l) was not followed, but he did not suppress the results from the hospital’s testing as that testing was not done by the State. The statutory requirements of K.S.A. 1985 Supp. 8-1001(f)(l), therefore, did not apply.
In the decision of Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988), the Supreme Court held that the notice provisions of K.S.A. 1985 Supp. 8-1001(f), now K.S.A. 1987 Supp. 8-1001(f), are mandatory, not directory. The district judge correctly suppressed the test results from police testing.
Hickey then argues that the results from the hospital’s testing should also be suppressed because the hospital was acting as the agent of the police when Hickey’s blood sample was drawn. At the time Hickey was transported to the hospital, it was for medical treatment, not blood alcohol content analysis. The medical technician delayed the drawing of any blood until the physician on duty ordered a blood sample for medical purposes. Hickey signed the consent to treatment form required by the hospital. The technician then drew blood from Hickey only once and then divided it into two tubes — one for the police and one for the hospital. The hospital tested its sample and the state trooper submitted the sample given to him to the KBI laboratories for testing.
In State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), the court considered the admissibility of a blood test when the blood was drawn from an unconscious person by the deputy district coroner prior to such person’s arrest. The court suppressed the test results, holding the deputy district coroner was acting as an agent of the state when he ordered the blood sample taken for the sole purpose of testing for alcohol. These are not the facts before this court. The blood in question was ordered drawn by a physician in the regular course of hospital procedure to determine the appropriate treatment for the patient. The blood testing done by the hospital was relevant to the medical history, diagnosis, and treatment of Hickey. It was a part of the regular course of hospital business. See Wadena v. Bush, 305 Minn. 134, 232 N.W.2d 753 (1975).
Such testing and record not having been made upon the request of a law enforcement officer is not subject to the proscription of oral and written notice under K.S.A. 1985 Supp. 8-1001(f)(l). There was no agency between the drawing technician, the hospital, and the arresting trooper. The court in State v. Gordon stated: “The Fourth Amendment prohibition against unreasonable searches and seizures applies solely to governmental action, not to the acts of private individuals. Burdeau v. McDowell, 245 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574 (1921).” 219 Kan. at 648. The trial court did not err in admitting the results of the hospital tests for blood alcohol concentration.
State v. Woodman, 12 Kan. App. 2d at 118-19, held that driving while under the influence, K.S.A. 1987 Supp. 8-1567, was a lesser included offense under aggravated vehicular homicide, K.S.A. 1987 Supp. 21-3405a. If convicted of aggravated vehicular homicide, conviction for driving while intoxicated is prohibited as multiplicitous under K.S.A. 1987 Supp. 21-3107(2)(d). The State concedes Woodman controls.
Hickey’s conviction for speeding is affirmed, his conviction for driving under the influence of alcohol is reversed, his six convictions for aggravated vehicular homicide are reversed, and the case is remanded for a new trial. | [
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Briscoe, J.:
The natural mother appeals the district court’s termination of her parental rights, raising two issues. She contends the district court committed reversible error in failing to require the preparation of a reintegration plan pursuant to K.S.A. 38-1565. She also contends the district court’s termination order failed to comply with K.S.A. 38-1583 because it was not supported by clear and convincing evidence that she was unfit by reason of conduct or condition, and that the conduct or condition was unlikely to change in the foreseeable future. We find no error.
The children who are the subject of this appeal were born March 19, 1984, and June 2, 1985. Their parentage is unclear. The mother claimed her stepmother’s uncle fathered the older child and that the infant was conceived following a rape. The mother was married in April 1984, but she denied that her husband, from whom she had since separated, was the father of either child. During the course of the severance hearing, a boyfriend testified he could be the father of the infant. The mother and her husband were present at the severance hearing and represented by counsel, as was the boyfriend. The putative father of the older child also appeared at the hearing and, under oath, denied paternity and relinquished any claim to the child.
When the State filed the child in need of care petition on November 1, 1985, it also included a request that the court terminate parental rights. The petition and accompanying affidavit set forth lengthy allegations of ongoing physical and medical neglect. Although the factual background of this case is painful to relate, we must do so in order to address the mother’s contentions that the termination of her parental rights was procedurally premature and also unsupported by clear and convincing evidence.
SRS first had contact with the mother in July 1985, following a referral from the State of Nebraska. This involvement included several visits and information on nutritional and medical services available through the health department, as well as resources available through a family support worker. Several months later, on Friday, October 18, 1985, the mother telephoned SRS and informed the social worker that her landlady had told her someone from SRS had been calling and asking questions about the children. The social worker informed her that no one from SRS had been in contact with anyone regarding the children. Later that day, however, SRS did receive a report that the children were left alone for extended periods of time and that the dwelling they were living in had no running water.
On October 21, 1985, an adult services worker visited the mother’s landlady and, on October 25, the mother contacted SRS and told an emergency assistance worker that she wanted her children placed in foster care or day care. On October 28, she called SRS and informed the social worker that she wanted to place the children in foster care or surrender them for adoption. She phoned SRS approximately one hour later, however, and informed the social worker that she had made arrangements for friends to care for the children.
The social worker and adult services worker arranged a meeting with the mother and on October 29 met with her and her two children at the mother’s home. The mother, holding the infant, met the social workers outside; neither the mother nor the infant was wearing a coat or shoes although it was a very cold, wet day. The social worker described the dwelling as a small cabin with one main room. The walls throughout the cabin were falling apart. The floor was dirty and covered with cigarette butts, loose change, and bits of food. There was one mattress, a porta-crib, and a playpen. The mother indicated that she lived alone with the girls; the infant slept in the crib and the older child on., the mattress with the mother. The cabin had no running water. The mother used a Bunsen burner to prepare food. Two open space heaters were their only source of heat.
The social worker, approaching the infant in her crib, detected a distinct odor of urine. It was apparent the infant had been lying in a diaper filled with feces for some time. Dried excrement was caked from the back of the infant’s legs up to her back. When the mother changed the diaper, the social worker noted some type of clear discharge from the infant’s vaginal area. The mother indicated both children had suffered from diaper rash since the previous July when they came to Kansas from Nebraska.
The social worker informed the mother that her housing was not appropriate and that the children needed immediate medical treatment. No attempt was made to remove the children at that time.
After the October 29 visit, the social worker contacted a health nurse because she was especially concerned about the children’s medical needs. The social worker and public health nurse ar ranged an unannounced home visit for the next morning. The social worker contacted the police department and requested that an officer accompany them. The next day the police officer, the nurse, and the social worker arrived at approximately 10:30 a.m. The mother answered the door and called behind her to a boyfriend to get dressed; they had just awakened. The police officer was refused entrance; however, the mother permitted the social worker and nurse to enter. The inside of the cabin had deteriorated substantially from the previous day. The floor was covered with pots and pans; the mother kicked them aside to allow the social worker and nurse to enter. The social worker noted a used sanitary pad and a diaper filled with urine and feces on the floor. The older child, who was eating from a box of cereal, turned the box upside down and proceeded to eat the cereal off the floor. The mother stated she usually gave the older child a box of cereal and crackers and told her to “go play.”
The nurse, who had first had contact with the mother in July 1984 when the mother sought treatment for herpes virus, described the dwelling as approximately 16 feet by 16 feet with no running water and with heat provided by two space heaters. All the windows were broken and stuffed with paper. She noted that a partition divided the kitchen area from a sleeping area. The floor was littered with cigarette butts, trash, and old food that was dried to the carpet. She saw roaches in the bed, in the baby’s crib, and on the baby. During the visit, several roaches fell out of loose ceiling tiles onto the nurse’s hair.
The nurse observed that the crib was actually a “porta-crib,” a smaller-sized crib with a mattress elevated to within eight inches of the top railing. Such a crib is inappropriate for a child of this infant’s age because, if she were to turn over, she could fall out. The crib mattress was bare plastic; there were three puddles of yellow liquid on the mattress and a urine-soaked diaper near the infant’s head. Also in the crib was a bottle containing solidified formula.
The nurse examined both children. The older child had “very thick, brown crusty matter” behind both ears and in her neck-fold. Her throat was reddened, the left tonsil was enlarged, and her left eardrum was completely occluded by wax. The bottoms of both feet were peeling, but the nurse detected no discharge or signs of infection. On her labia majora, the large lip to the opening of the vagina, the nurse noticed a hard, reddened elevation of the skin, something she had never seen before. The doctor who later examined this child told the nurse the elevation on the labia majora was either a callus or scar tissue. She could not see a hymenal membrane.
The nurse examined the infant and compared her height, weight, and head measurements with the height, weight, and head measurements which are normal for a baby girl of her age. Through this comparison, the nurse noted a variance between this child’s growth and that of a normal child. This infant’s head was growing faster than the rest of her body. She was growing in height, but not gaining sufficient weight for her height. As a result of these comparisons, the nurse became very concerned that this infant was not receiving proper nutrition.
The infant had no hair on the back of her head, which indicated to the nurse that the infant was rarely out of her crib. Her right eye deviated about 40 to 45 degrees from the midline; the nurse did not know if treatment would be initiated at this early age. The infant suffered from a bleeding rash that covered the entire diaper area, front and back. The mother told the nurse she was treating the infant’s diaper rash with baby powder and vaseline; the nurse, however, did not see either powder or vaseline. The nurse testified that this treatment was not recommended for the infant’s severe rash, and that the treatment was only compounding the problem. The infant had not been given any immunizations.
The infant’s ears had the same brown, crusty matter as her sister’s, both inside and behind the ears. Both eardrums were completely occluded with wax. This greatly concerned the nurse because the infant had no reaction to sound. An instrument which emits a high sound was placed against the infant’s head and she did not react. The nurse also noted that, during their visit, the infant had absolutely no expression. She did not cry, laugh, or smile.
The nurse was also able to feel the infant’s liver below the rib cage and down in the abdominal area, an abnormal condition. The nurse also observed one bowel movement which was “whitish-gray”; that, too, was abnormal. The nurse explained this was an indicator of some problem with the liver, bile duct, or stomach.
Following the medical assessment, the social worker and nurse believed the children’s environment was exposing them to significant risk, and that the children were in need of medical treatment. The social worker and health nurse decided to take the children into protective custody. When the police officer informed the mother that the children were being taken into protective custody, she reacted violently and was arrested for disorderly conduct and obstructing justice.
The children were examined later that day by a physician who found that neither child had been bathed recently and both suffered from chronic dermatitis. The doctor stated that the children were under an increased risk of contracting herpes from their mother because of their existing dermatitis. The older child masturbated in the presence of the doctor and social worker; the doctor noted this was not normal behavior for a 19-month-old child. He also confirmed that the four-month-old infant had had no immunizations.
SRS recommended that the child in need of care petition include a request for the termination of parental rights. No reintegration plan was developed. The State filed child in need of care petitions for both children and requested termination of parental rights. The parents stipulated that the children were children in need of care and the district court adjudged the children to be children in need of care on November 26, 1985. The hearing on the remainder of the termination petition was continued to January 1986.
During the two days of hearings, the mother testified at length. She informed the court that she had been relinquished by her mother at a very young age. Her father physically abused her as a very young child and began having sexual relations with her at age 13. She repeatedly ran away from home and various foster homes and detention centers. She was 16 when the first baby was born and 18 when the petition was filed. She admitted she was not providing adequate care for the children. Although she also admitted that she could benefit from parenting classes and would be willing to attend, she repeatedly stated she did not like or trust social workers, that she had problems with all social workers, and that she had not been able to work with them. The mother also stated she had been wrong in the past and would be willing to work with social workers; however, she stated she had not yet found the right social worker for her case.
The mother, the public health nurse, and the social worker testified that the mother had repeatedly refused offered services. The mother’s history, coupled with her repeated refusal of offered services in Alabama, Nebraska, Kansas, and Missouri, led the social worker to conclude that significant changes in her parenting skills would not occur in the near future. On January 31, 1986, the district court terminated all parental rights to both children and committed the children to the custody of SRS.
The mother contends the district court’s failure to require the preparation of a reintegration plan constitutes error.
K.S.A. 38-1565(a) provides:
“If a child is placed outside the child’s home and no plan is made a part of the record of the dispositional hearing, a written plan shall be prepared which provides for reintegration of the child into the child’s family or, if reintegration is not a viable alternative, for other placement of the child. If the goal is reintegration into the family, the plan shall include measurable objectives and time schedules for reintegration. The plan shall be submitted to the court not later than 60 days after the dispositional order is entered. If the child is placed in the custody of the secretary, the plan shall be prepared and submitted by the secretary. If the child is placed in the custody of a facility or person other than the secretary, the plan shall be prepared and submitted by a court services officer.” Emphasis added.
The wording of K.S.A. 38-1565(a) recognizes that reintegration may not be a viable alternative in all child in need of care cases.
K.S.A. 38-1581(a) permits the inclusion of a request for termination of parental rights in the initial child in need of care petition. K.S.A. 38-1581(a) states:
“Either in the petition filed under this code or in a motion made in proceedings under this code, any interested party may request that the parental rights of either or both parents be terminated.” Emphasis added.
This section “recognizes that the initial circumstances surrounding the filing of a petition may warrant termination of parental rights in the adjudicatory hearing. However, in most cases, termination is requested and considered only after extensive efforts to work the child back into the home.” Kan. Jud. Council Bull. 47, comment (June 1981).
Therefore, since the initial child in need of care petition may include a request for termination of parental rights and K.S.A. 38-1565(a) recognizes that reintegration may not be a viable alternative in all child in need of care cases, we conclude the development of a reintegration plan prior to termination of parental rights is not mandatory. We further conclude, under the facts of this case, that reintegration was not a viable alternative because the mother repeatedly refused services and evidenced no interest or potential in altering her living habits for the benefit of her children. The district court’s failure to require the preparation of a reintegration plan in this case was not error.
The mother further contends the district court’s termination of her parental rights is not supported by clear and convincing evidence.
K.S.A. 38-1583(a) sets forth the statutory standard for termination of parental rights:
“When the child has been adjudicated to be a child in need of care, the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” Emphasis added.
The standards of appellate review of parental unfitness were stated in In re Reed, 8 Kan. App. 2d 602, 605, 663 P.2d 675 (1983):
“On appellate review, the findings of the lower court, that a child is ‘deprived’ and a parent ‘unfit,’ will not be disturbed if there is substantial competent evidence to support them. [Citation omitted.] And, when reviewing the evidence, the appellate court considers it in the light most favorable to the party prevailing below. [Citation omitted.]”
The district court must find the parent unfit before parental rights may be severed. Reed, 8 Kan. App. 2d at 604. This court discussed the term “unfit” in In re Hambelton, 2 Kan. App. 2d 68, 71, 574 P.2d 982, rev. denied 225 Kan. 844 (1978):
“The Kansas Supreme Court has considered on several occasions what renders a natural parent unfit for custody. In the case of In re Armentrout, 207 Kan. 366, pp. 371-2, 485 P.2d 183, the Supreme Court defined ‘unfit’ as meaning, in general, “ ‘unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.’ ” The term ‘moral delinquency’ was not further defined. We would define it as being delinquent in one’s habits of life or mode of conduct.
“In the case of [In re Vallimont, 182 Kan. 334, 340, 321 P.2d 190 (1958)], the Supreme Court stated that a parent who neglects or refuses, when able to do so, to provide proper or necessary support or other care necessary for the child’s well-being is unfit. The court went further and stated that apart from other moral defects, the incapacity to appreciate and perform the obligations resting upon parents might render a parent unfit.”
K.S.A. 38-1583(b) lists factors the district court shall consider in making its determination. Any one of the factors listed therein may establish grounds for termination. The court should, however, evaluate all the applicable factors. K.S.A. 38-1583(e). Subsection (e) also provides that the court’s primary consideration shall be “the physical, mental or emotional condition and needs of the child.” The factors set forth in K.S.A. 38-1583(b)(4), (7), and (8) are clearly relevant to this case.
Under K.S.A. 38-1583(b)(4), the district court shall consider “physical, mental or emotional neglect of the child.” We have set forth the physical neglect of both children at length, and we will not repeat those facts here. The evidence indicates the children were not properly bathed, fed, housed, or provided with needed medical care. There is abundant evidence in the record to support the district court’s finding that the mother failed to care for the children “sufficiently to provide for [their] minimally acceptable needs.”
Under K.S.A. 38-1583(b)(7), the court shall consider that “reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family.” Under K.S.A. 38-1583(b)(8), the district court shall also consider “lack of effort on the part of the parent to adjust the parent’s circumstances, conduct or conditions to meet the needs of the child.” We will consolidate our review of the various agency efforts extended to this family with our review of the mother’s effort to adjust her conduct to meet her children’s needs.
We note from the record that the mother refused homemaker services in Nebraska. She also refused a counseling program for adults who had been sexually molested as children. In July 1984, the mother contacted a public health nurse about her own health and the infant’s rash. The public health nurse diagnosed the mother as having herpes, but the mother refused to accept follow-up treatment for herself and her child from public health services. She also refused available literature concerning nutrition, child care, and personal hygiene. In October 1985, before the children were removed from the home, the mother refused “in-home” services and told the social worker that “the kids would be better cared for by someone else.” On November 5, 1985, after the petition had been filed, the mother met with the social worker and again refused offered services. In sum, the mother did not accept offered assistance. Nor did she evidence any effort or desire to change her attitude or lifestyle in the foreseeable future so that she and her children could benefit from offered medical care or child care training.
Affirmed. | [
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Six, J.:
J.B., the natural mother of A.B. (age 5) and E.B. (age 2), appeals the district court’s decision adjudicating A.B. and E.B. as children in need of care. J.B. also contends that the disposition order entered by the court on March 2, 1987, violates the provisions of K.S.A. 38-1563.
We affirm the “child in need of care” adjudications. However, we reverse and remand as to the disposition order.
CHILD IN NEED OF CARE
J.B. contends that the court’s determination that, A.B. and E.B. are children in need of care is not supported by the clear and convincing evidence requirement of K.S.A. 38-1555.
An orthopedic surgeon testified that, when admitted to the hospital, E.B., the two-year-old, was suffering from numerous injuries. The doctor observed that the fractures suffered by E.B. were not likely to have been caused by accident. In the doctor’s opinion, the case raised suspicions of child abuse.
A hospital nurse testified that she talked to E.B. in the emergency room: “One of the things, I asked, I said did Mama hurt you, and he said — he said no. I said did Mama’s boyfriend hurt you? He said yes.”
E.B.’s five-year-old sister, A.B., told the police in a videotaped interview that R.W., J.B.’s boyfriend, had twisted E.B.’s leg in the playroom of the house.
While it is clear that the mother was not implicated in the physical abuse suffered by E.B., a parent may be held responsible for failing to take proper precautions to protect a child from abuse. See, e.g., In re Dodge, 8 Kan. App. 2d 259, 655 P.2d 135 (1982); In re Biggs, 17 Cal. App. 3d 337, 94 Cal. Rptr. 519 (1971).
E.B. was taken to the hospital with multiple injuries. There was evidence which tended to indicate that at least some of those injuries were inflicted by the mother’s boyfriend while the two children were under the mother’s care and control.
A.B.’s status as a child in need of care is based solely on the evidence concerning the injuries to her brother, E.B. Because there is sufficient clear and convincing evidence concerning E.B.’s adjudication as a child in need of care, the court *was justified in making an identical finding as to A.B. If the trial court observes abuse of one child, the judge should not be forced to refrain from taking action until the next child suffers injury. In re Brooks, 63 Ill. App. 3d 328, 339, 379 N.E.2d 872 (1978); In the Matter of T.Y.K. & D.A.W.R., 183 Mont. 91, 95-96, 598 P.2d 593 (1979).
We hold that there was sufficient competent evidence of a clear and convincing quality to demonstrate that both A.B. and E.B. were children in need of care.
THE DISPOSITION ORDER, K.S.A. 38-1563(h)
After determining that E.B. and A.B. were children in need of care, the trial court ordered that both children remain in the custody of the Department of Social and Rehabilitation Services (SRS) “for appropriate placement.” The court recommended physical placement of A.B. with her natural mother and physical placement of E.B. with his natural father. On appeal, the mother contends that the trial court erred in granting SRS custody of the children without complying with the provisions of K.S.A. 38-1563(h). We agree.
K.S.A. 38-1563 provides in part:
“(d) If the court finds that placing the child in the custody of a parent will not assure protection from physical, mental or emotional abuse or neglect or sexual abuse or will not be in the best interests of the child, the court shall enter an order awarding custody of the child, until the further order of the court, to one of the following:
“(1) A relative of the child or a person with whom the child has close emotional ties;
“(2) any other suitable person;
“(3) a shelter facility; or
“(4) the secretary.
“(h) The court shall not enter an order removing a child from the custody of a parent pursuant to this section unless the court first finds from evidence presented by the petitioner that reasonable efforts have been made to prevent or eliminate the need for removal of the child or that an emergency exists which threatens the safety of the child and requires the immediate removal of the child. Such findings shall be included in any order entered by the court.” (Emphasis added.)
The evidence at the March 2, 1987, disposition hearing indicated that the mother’s boyfriend had moved out of her home a few days after the February 11,1987, temporary custody hearing. Although not acknowledging the abuse, the mother indicated her willingness to comply with an SRS request that she not see the boyfriend.
In a letter to the district court dated February 25, 1987, a social worker and her supervisor requested permission to place E.B. with his mother following his dismissal from the hospital. The district court made the following notation: “Consent signed with the understanding that [the mother] will not allow any contact with [the boyfriend], and that she will allow SRS to check and confirm that there is no contact.”
The court in this K.S.A. 38-1563 disposition order removed A.B. and E.B. from the custody of their mother. “Custody” is defined by the Code for Care of Children in K.S.A. 38-1502(m):
“ ‘Custody,’ whether temporary, protective or legal, means the status created by court order or statute which vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court.” (Emphasis added.)
K.S.A. 38-1563(h) became effective July 1, 1986. Our review of the statute presents an examination of first impression.
The statute mandates disposition order findings. Because no such findings were made in the disposition order, we conclude that this case must be remanded.
We note that the mandatory language of K.S.A. 38-1563(h) which applies to disposition orders also applies to ex parte orders of protective custody, K.S.A. 38-1542, and to orders of temporary custody, K.S.A. 38-1543(i). The intent of the legislature is clear. A court shall not remove a child from the custody of a parent in a disposition hearing unless the court first makes the required findings and includes these findings in its disposition order.
The determination made by the district court that on March 2, 1987, A.B. and E.B. were children in need of care is affirmed. The order of disposition entered by the district court is reversed and remanded with instructions to comply with the legislative mandate of K.S.A. 38-1563(h), if the court’s decision is to remove A.B. and E.B. from the custody of a parent.
Affirmed in part, reversed in part, and remanded with directions. | [
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Davis, J.:
The defendant, Wallace E. Adams, appeals from convictions for aggravated assault and aggravated battery (K.S.A. 21-3410[a]; 21-3414[c]). He also appeals from the sentence imposed under the provisions of the mandatory firearms sentencing act, K.S.A. 1986 Supp. 21-4618.
The charges stem from an incident that occurred on March 6, 1986, in a car repair shop owned by Donald Duncan. Defendant entered Duncan’s shop and demanded from Duncan the return of certain personal property. Duncan denied that the items belonged to defendant and refused to return them. Defendant then pulled a gun from behind him, cocked it, pointed it at Duncan, and threatened to “blow [his] head off’ (“brains out”) or to “pistol-whip [him] to death” if he did not return the items. Defendant began to swing the gun in Duncan’s face. Duncan raised his arms to fend off the blows and was struck three or four times on the left arm. Defendant stepped back, pulled the hammer back on the gun, and again threatened to blow Duncan’s brains out. Defendant then held the gun by the barrel and hit Duncan on the ear or the side of the head with the butt of the gun. Twice more defendant cocked the gun, pointed it at Duncan, and threatened to shoot him before he drove away from the shop.
At trial, defendant did not dispute that he struck Duncan with the gun. He, however, claimed that the gun used was not a .38-caliber pistol, as alleged in the information, but a Daisy Model 57 replica of a .38 or .357 Magnum revolver, which fires plastic pellets. Although Duncan and three eyewitnesses testified that defendant used a .38-caliber revolver, no such weapon was ever found. Police did find the Daisy hidden in the rafters of the body shop where defendant worked. The State introduced the Daisy into evidence at trial.
Defendant first contends that the trial court erred by failing to instruct the jury on the lesser included offense of battery. He contends that a question of fact existed about whether he used the Daisy or a .38 revolver. He argues that the jury reasonably could have found that he used the Daisy and, thus, reasonably could have convicted him of the lesser included offense.
“The trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. See K.S.A. 1986 Supp. 21-3107(3). This duty arises, however, only when there is evidence under which the defendant may reasonably be convicted of the lesser offense.” State v. Bishop, 240 Kan. 647, 654-55, 732 P.2d 765 (1987) (citing State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 [1981]).
The pertinent statutes state as follows:
“21-3412. Battery. Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.
“Battery is a class B misdemeanor.”
“21-3414. Aggravated battery. Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which ....
“(c) Is done with a deadly weapon ....
“Aggravated battery is a class C felony.”
In his brief, defendant asserts that “[t]he State grounded its charge of aggravated battery solely upon the use of a deadly weapon, to-wit: a .38 caliber pistol” and argues that “the distinction between simple battery, K.S.A. 21-3412, and aggravated battery, K.S.A. 21-3414(c), depended entirely upon whether or not a real firearm was used.”
Contrary to defendant’s argument, whether he committed battery or aggravated battery did not depend merely on whether he used a “real firearm.” The allegation in the information that defendant used a .38 pistol did not require the State to prove at trial that the deadly weapon used was a .38. See State v. Lee, 197 Kan. 463, 419 P.2d 927 (1966), cert. denied 386 U.S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900 (1967). The trial court instructed the jury that to convict defendant of aggravated battery it must find “[t]hat it was done with a deadly weapon.” Even if the jury found that defendant used the Daisy, not a .38, it still had to decide whether or not the Daisy was a deadly weapon.
In State v. Hanks, 236 Kan. 524, 694 P.2d 407 (1985), the supreme court defined a deadly weapon as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” 236 Kan. at 537 (emphasis added); see State v. Bowers, 239 Kan. 417, 422, 721 P.2d 268 (1986) (objective test).
No question exists that a .38-caliber pistol is a deadly weapon, whether fired or used as a club. The jury, however, could have found that defendant used the Daisy, not a .38. Therefore, we assume for the purposes of this appeal that defendant used the Daisy.
The Daisy has been included in the record on appeal, and we, like the trial court, have had the opportunity to view it, to hold it, and to consider its physical characteristics. Although not as heavy as a .38 or .357 Magnum revolver — Washington County Sheriff Terry Taylor estimated that the Daisy weighed one-fifth the weight of a “real weapon” — the Daisy nevertheless is a solid, heavy object, approximately the size of an actual .38 or .357 Magnum revolver. Four eyewitnesses testified that the gun, when dropped by defendant, hit the floor with a heavy thud. In our opinion, no question exists that the Daisy is calculated or likely to produce death or serious bodily injury when used as a club. See State v. Killion, 95 Kan. 371, 379, 148 Pac. 643 (1915). Under the facts of this case, defendant was guilty of aggravated battery or nothing. See State v. McMillan, 217 Kan. 633, 538 P.2d 683 (1975).
Second, defendant contends that the trial court erred by failing to instruct the jury on the lesser included offense of simple assault. The trial court had a duty to instruct on simple assault if the jury reasonably could have found from the evidence that defendant did not assault or strike at Duncan with a deadly weapon. K.S.A. 21-3408; 21-3410(a).
Our supreme court has adopted a subjective analysis for determining whether an assault was committed with a deadly weapon. In State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), the defendant was convicted of aggravated assault on a law enforcement officer. The evidence supported the defendant’s claim that he pointed an unloaded .357 Magnum at the officer. The court held that “an unloaded revolver which is pointed in such a manner as to communicate to the person threatened an apparent ability to fire a shot and thus do bodily harm is a deadly weapon within the meaning expressed by the legislature in the assault statutes, K.S.A. 21-3408, 21-3410, and 21-3411.” 225 Kan. at 270-71; see State v. Johnson, 8 Kan. App. 2d 368, 657 P.2d 1139, rev. denied 233 Kan. 1093 (1983).
Again, we assume that defendant used the Daisy, not a .38 pistol. When we consider the physical characteristics of the Daisy, we conclude that defendant was guilty of aggravated assault or nothing. Defendant swung the Daisy, which is unquestionably an object capable of inflicting bodily harm, at Duncan’s head; Duncan raised his arms to fend off the blows. In addition, Duncan testified that he believed defendant pointed a real .38 revolver at him and that he was concerned that defendant might carry out his threats to shoot. No evidence was presented from which the jury reasonably could have concluded that defendant committed a simple assault.
Finally, defendant argues that the trial court erred by sentencing him under the mandatory firearms sentencing act. K.S.A. 1986 Supp. 21-4618. He contends that the Daisy is not a “firearm” within the meaning of the statute.
Whether a defendant used a firearm in the commission of an offense is a matter to be determined by the trial judge at the time of sentencing. State v. Mack, 228 Kan. 83, 85, 612 P.2d 158 (1980). On appeal, the trial court’s finding that the defendant used a firearm during the commission of a crime must be affirmed if supported by competent evidence. State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. Mack, 228 Kan. at 85.
In this case, the trial court did not find that defendant used a .38-caliber pistol; rather, the court assumed that defendant used the Daisy. The trial court held that the Daisy was a firearm because it (1) had the appearance of a real gun and (2) fired a projectile.
Disposition of defendant’s contention is governed by two recent supreme court decisions. In State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980), the defendant used a starter pistol to rob a 7-11 store. On appeal, he attacked his conviction for aggravated robbery and the imposition of a mandatory minimum sentence pursuant to K.S.A. 1978 Supp. 21-4618, arguing that the starter pistol was neither a “dangerous weapon” within the meaning of K.S.A. 21-3427 nor a “firearm.” The court rejected defendant’s contention that the starter pistol was not a dangerous weapon, employing a subjective analysis to conclude that “[t]he victim could not determine from viewing the gun that it was a starter pistol with a blocked barrel.” 227 Kan. at 177. The court, however, agreed with the defendant that the starter pistol was not a firearm. The court noted that “[a] firearm is consistently defined in terms of its design or capacity to propel a projectile by force of an explosion, gas, or other combustion.” 227 Kan. at 177.
In State v. Fowler, 238 Kan. 213, 217, 708 P.2d 539 (1985), the court held that a Crosman .177-caliber pellet gun was a firearm. The court gave the following reasons for its decision:
“[I]n the instant case an expert testified that the sudden release of compressed air is an explosion, and although the release of compressed air is a different type of explosion than one created by gunpowder, the principle is the same. He also testified a pellet gun could cause injury to a human being.
“It is clear that pellet guns are not toys. It is the opinion of this court that the legislature intended to deter criminals from using dangerous air pellet guns as well as guns powered by the explosion of gunpowder. The legislature sought to curb not only death caused by the use of firearms, but also injury to persons.
“We find the pellet gun described in this case fits within our definition of a ‘firearm’ because it is capable of and was designed to ‘propel a projectile by force of . . . gas 238 Kan. at 217.
In this case, two witnesses testified that the Daisy shoots plastic pellets. Sheriff Terry Taylor described the gun as “a Daisy Model 57, .25 caliber, 6 millimeter plastic pellet gun made by Daisy.” Defendant testified that the Daisy “shoots plastic bullets.”
The record, however, contains no testimony about how plastic pellets are discharged from the Daisy — whether by force of an explosion, gas, or other combustion, as required by Davis and Fowler, or by operation of a spring or other mechanical device. Our examination of the Daisy reveals that it does not propel pellets by means of gas stored in a C02 cartridge or pumped into the gun.
In appearance and function the Daisy resembles a .38 or .357 Magnum revolver. The plastic shells, two of which are in the record on appeal, resemble .38 or .357 Magnum shells. One shell fits into each of the six chambers of the cylinder. Pulling the trigger causes the cylinder to rotate and the hammer to rise and fall. What force or forces the striking hammer sets in motion, however, cannot be discerned from an examination of the features of the gun or from the appearance of the shells.
The trial court’s conclusion that defendant used a firearm in the commission of the offense is not supported by competent evidence. The court’s imposition of sentence pursuant to K.S.A. 1986 Supp. 21-4618 must be vacated and the case remanded for resentencing pursuant to K.S.A. 1986 Supp. 21-4501.
Convictions affirmed; sentences vacated; case remanded for resentencing. | [
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Rulon, J.:
C. G. Adkins (defendant) appeals from the district court’s judgment awarding $6,649.91 to Roy G. and Jean Phillips (intervenors-appellees) pursuant to the occupying claimants’ statute, K.S.A. 60-1004.
On March 29,1984, Adkins obtained title to property located at 1240 Scott in Kansas City, Kansas, and properly recorded his quitclaim deed in the office of the Wyandotte County Register of Deeds. Later,-the property was sold for $3,900.00 to the Phillipses at a judicial sale. Adkins, however, was not given proper notice of the sale.
On March 20, 1985, Adkins moved to set aside the sale of the property and the Phillipses’ motion to intervene was granted. In their response to Adkins’ motion, the Phillipses cross-claimed for the value of their improvements to the property pursuant to K.S.A. 60-1004.
The parties stipulated that the tax sale was void as to Adkins because of lack of proper notice, and after hearing the evidence the Wyandotte County District Court awarded the intervenors $6,649.91 compensation for good faith improvements they made to the property.
K.S.A. 60-1004(a) provides;
“Where any person while peacefully occupying realty under color of title in good faith, including mineral leases, has in good faith made improvements thereon or paid obligations in connection therewith, such person shall not be dispossessed by a party, establishing a superior right, claim or title until he or she is fully compensated therefor.” (Emphasis added.)
Adkins contends that improvements contemplated by the statute must be lasting and valuable and argues that the measure of compensation is not the occupying tenant’s expense but the value of the improvements made. We disagree.
Adkins cites Dreiling v. Colby, 170 Kan. 570, 228 P.2d 504 (1951); Blair v. Pooler, 160 Kan. 201, 160 P.2d 672 (1945); and McDonald v. Kelson, 79 Kan. 105, 98 Pac. 772 (1908), as support for his contention. Those cases, however, were decided under a different statute than that which controls today. G.S. 1935, 60-1901 required occupying claimants to be paid the full value of all lasting and valuable improvements. That is not the requirement of the present statute. K.S.A. 60-1004 only requires compensation for improvements made in good faith.
Adkins contends that most of the intervenors’ claimed expenses were either for cosmetic changes or routine maintenance and therefore not contemplated by K.S.A. 60-1004. Adkins further contends that the improvements made were inferior in quality.
Ray Phillips testified that, after purchasing the property at the sheriffs sale, he began to clean up and repair the property. Phillips further testified before the court that the new windows and new brickwork were needed but were ordered to match the intervenors’ business building located across the street from the property.
Although Adkins contends the mowing and cleanup expenses claimed by the intervenors were for routine maintenance, the record suggests otherwise. The intervenors hauled away six loads of trash and removed dead trees that were not only unsightly but which also created a dangerous condition.
The district court, after hearing the testimony and admitting the intervenors’ receipts for roof repair, tree removal, door and window installation, and new brickwork, granted the intervenors a judgment for $6,649.91. Under K.S.A. 60-1004, the costs of improvements made in good faith may be recovered by an occupying claimant. We find there is sufficient evidence in the record to support the district court’s judgment for reimbursement of $6,649.91 to the intervenors for good faith improvements.
Adkins further contends that he is entitled to rent from the intervenors, but he did not raise this issue in the district court. “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).
The decision of the district court is affirmed. | [
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Abbott, C.J.:
The natural parents of A.L.S., A.S., and M.S. appeal from a judgment terminating their parental rights. They challenge the sufficiency of the evidence and claim the doctrine of res judicata barred the court from considering evidence concerning parental skills and parent-child relationships which had previously been considered and found inadequate to sever parental -rights.
In February of 1980, a petition was filed alleging A.L.S. and her brother, J.S., to be deprived children. The parental rights to J.S. were severed in 1984, and he has been adopted. (Since J.S. is not subject to this appeal, he will not be referred to again, although he was involved in the proceedings until late 1984.) The parents stipulated that A.L.S. was a deprived child, and her custody was placed with the Department of Social and Rehabilitation Services (SRS) which, during part of the time, placed A.L.S. in the parental home.
In 1984, SRS attempted to have the parental rights to A.L.S. severed, alleging abuse, neglect, and that the family had “a long history of instability in terms of residence and employment as well as marital discord.” The trial court found the evidence was not clear and convincing as to A.L.S., and relieved SRS of custody. However, the trial court did not discharge A.L.S. from its jurisdiction.
M.S. was born in 1982 and A.S. in 1983. In September 1985, they were also alleged to be children in need of care, and A.L.S., A.S., and M.S. were placed in the temporary custody of the SRS in October. Reintegration plans were drawn and unsuccessful attempts were made to reintegrate the children into the home. On December 3, 1986, the parental rights to the children were severed, and this appeal followed.
I. Sufficiency of the Evidence
The parents argue there is not substantial competent evidence of a clear and convincing nature in the record to support findings of parental unfitness and that the parents’ conduct is unlikely to change in the foreseeable future.
The applicable law and our scope of review have been set forth by the appellate courts of this state on many occasions and need not be repeated. (See, e.g., In re J.G., 12 Kan. App. 2d 44, 734 P.2d 1195 [1987]; K.S.A. 38-1583[b], and 38-1583[c] and [e] where, as in this case, the parents do not have custody.)
The trial court ordered the father to comply with a reintegration plan which required his attendance and completion of parenting classes, completion of a psychological evaluation, completion of a drug and alcohol evaluation, and therapy, as recommended, until the therapist ended his treatment. The social worker discussed the reintegration plan with the father several times, and each time he told her he was not going to comply with the plan. The father did not complete a drug and alcohol evaluation, did not have a psychological evaluation performed, and did not attend parenting classes. He suggests in his brief that his noncompliance with these provisions of the reintegration plan should be downplayed because they may not have been appropriate in the beginning. The father’s failure to comply with the plan shows a failure to adjust his conduct to meet the needs of the children. The provisions of the plan with which he refused to comply were formulated with the best interests of the children in mind, and his belief that he did not need help in those areas is not an acceptable excuse for noncompliance. This, coupled with his refusal to accept the services offered to him by SRS, shows a total lack of concern for the children.
Although the father was ordered to maintain regular weekly visits with his children, he visited with them only once between November 22, 1985, and February 28, 1986. He then visited fairly regularly on a weekly basis up through June 6, 1986, at which time he ceased visitation up to and including December 3, 1986, when the parental rights termination hearings were concluded. The trial court found that the father failed to provide any care or nurturance for any of the three children, except for disruptively inconsistent visitation, and that he has emotionally and physically abandoned all three children as a functioning parent. Emotional neglect of the children is a factor the court can consider in determining whether to terminate parental rights. It is also significant that the father elected not to be present on the last three days of the hearings.
A reintegration plan was also developed and ordered for the mother. She complied with the majority of the plan, but she did not maintain a stable residence. When the social worker was assigned the case in September of 1985, the mother was living in the county jail. From September 27, 1985, to June 24, 1986, she lived in at least nine different residences, all of them unstable. For example, on May 12, 1986, the mother informed the social worker that she was living with her boyfriend. On June 16, 1986, she reported that she was residing with her boyfriend’s stepmother because her boyfriend’s wife had come back to him. She moved back in with her boyfriend on June 24, 1986. Her boyfriend’s wife was still there, but later left.
Under K.S.A. 38-1583(b)(l), the trial court shall consider a parent’s “[e]motional illness, mental illness, mental deficiency or physical disability ... of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental and emotional needs of the child.”
The therapist, who had been seeing the mother on a regular basis since February 26, 1985, testified that the mother operated on the emotional level of an adolescent; that when the mother became extremely focused in her relationships with men she was very unfocused on the needs of her child (referring to another child not subject to this appeal). For example, the mother faked a suicide attempt to prevent her boyfriend from going back to his wife. The therapist testified the mother was so engrossed in the manipulation of her boyfriend that she temporarily forgot that her child was unattended. The mother has not made progress with her emotional immaturity. The therapist felt the mother was unable to accept responsibility for her acts and was incapable of providing a stable home environment or emotional stability for her children. From July 22 to September 24, 1986, the mother did not visit her children at all. From September 24, 1986, until the end of November, she visited the children on a fairly regular basis, although she did miss some visits.
There is substantial competent evidence in the record to support the trial court’s decision that the mother was unfit to parent and that her parental rights should be terminated.
The mother also argues that the court erred in making the following finding:
“7. . . . the court was faced with both parents refusing to sign reintegration plans and made that order of December 12, 1985, for each parent to follow reintegration plans' previously established by SRS for each as the court’s intervention to try to reintegrate the children with their respective parents.”
While her argument is not clear on this point, the mother apparently believes that this finding shows the trial court felt she had not complied with the order. This is not correct. In fact, the trial court specifically found that the mother had worked at complying with the order and had partially succeeded. The court ordered each parent to comply with the reintegration plan. The record is clear that the mother did not sign the reintegration plan, and the father was not interested in the plan and would not sign it. There is nothing in finding No. 7 which can be construed as error.
II. Res Tudicata
The parents argue the doctrine of res judicata bars consideration of any evidence prior to November 16, 1984, which was the date the trial court found the evidence was not clear and convincing in support of the motion for termination of parental rights as to A.L.S. The res judicata issue applies only in the case of A.L.S.
The parents also argue that the doctrine of res judicata barred the trial court from considering any evidence prior to June 24, 1985 (the date the trial court ordered the custody of A.L.S. be returned to her parents). This argument was not raised in the trial court. Thus, we will not consider it. Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 (1984).
SRS contends the issue of res judicata is moot because virtually all of the substantive testimony presented at the hearing concerned events and actions of the mother and father after November 16, 1984. A review of the transcripts shows this is substantially correct. All of the witnesses came in contact with the mother, the father, and/or the children after November 16, 1984, and testified about events and actions of the parents subsequent to that time. SRS contends the only evidence considered by the trial court that was prior to November 16, 1984, was the court’s file of the case. The trial court found that it could, and properly should, take judicial notice of the contents of the court file. A court may take judicial notice of its own court file. K.S.A. 60-409(b)(4); K.S.A. 38-1506(a)(l); see State v. Lowe, 238 Kan. 755, 759, 715 P.2d 404 (1986).
Our examination of the record reveals the journal entry contains findings by the trial court which indicate that it may have considered some evidence of the parents’ conditions and conduct prior to November 16, 1984. Because of these findings, the applicability of res judicata, in relation to termination of parental rights, is properly before us.
Other jurisdictions have considered this question. In State ex rel Juv. Dept. v. Newman, 49 Or. App. 221, 619 P.2d 901 (1980), a father appealed from an order terminating his parental rights to his children. One of the father’s contentions was that the State was estopped from terminating his parental rights because it had unsuccessfully petitioned for termination in an earlier proceeding. In support of his position, the father argued.that all the facts upon which the State relied were known to it at the time of the earlier termination proceeding, with the exception of his conviction and incarceration in another state. While acknowledging that any factual basis for relief the plaintiff asserted in the first case should not be the basis for relief in a second case, the Oregon Court of Appeals noted that, in the case before them, there was at least one new substantial material fact: the father’s conviction and sentence, which had occurred between the first and second termination proceedings. The father still argued res judicata or collateral estoppel applied because, in Oregon, incarceration alone was insufficient to warrant termination, and because the other facts the State relied upon were, or could have been, considered in the first hearing and could not be readjudicated. The Court of Appeals stated:
“Although we do not accept the father’s argument, we do not go so far as to hold that collateral estoppel may never preclude relitigation of a fact in controversy in the first termination proceeding with respect to which there has been a final factual finding. As in other litigation, there must come a time when factual disputes reach a state of final repose — sound public policy demands it. But we need not pursue the extent to which collateral estoppel may be applicable to this type of proceeding because the father here takes the extreme view that if the second proceeding may be maintained at all, only facts arising subsequent to the first proceeding may be considered in the second one, and that position we reject.
“Termination of parental rights proceedings generally arise out of a continuing and cumulative set of circumstances, in which the child is within the juvenile court’s jurisdiction and, often, is subject to agency custody or supervision. An order denying a petition to terminate parental rights seldom leads directly to the termination of wardship or of agency involvement. It is one thing to say that such an order bars a second termination proceeding when there has been no change in the operative facts which led to the initiation of the first proceeding; it is very different — and clearly wrong — to contend that, if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one.” 49 Or. App. at 225-26.
The Oregon court analogized the case to an Oregon Supreme Court case, Greisamer v. Greisamer, 276 Or. 397, 555 P.2d 28 (1976), where a father had appealed a child custody award to the mother in a dissolution proceeding when he had been awarded custody in the prior separation proceeding. The father contended the principle of res judicata prevented the court from considering any evidence of his conduct prior to the separation proceeding. The Oregon Appeals Court noted the Oregon Supreme Court had disagreed and had stated in Greisamer:
“ ‘[T]he father’s deficiencies existing at the time of the first decree if they are relevant to the inquiry must be put on the scale just as they were put on the scale in the first proceeding. It is apparent that the father was awarded custody in spite of his shortcomings only because the mother was not in a position economically at that time to do even as well as the father, and that if the mother had not been so handicapped the custody would have been awarded to her in order to serve the best interests of the two children. It is patent, then, that the evidence relating to the husband’s custodial qualification's existing at the time of the first proceeding are an essential ingredient in the second proceeding in determining what would best serve the children’s interests.
“ ‘This conclusion does not offend the policy underlying the principle of res judicata. This is not an instance where the plaintiff is seeking to readjudicate a question previously decided; plaintiff is asking only that facts previously considered but which are essential to decide an existing and new dispute, be used as evidence.’ 276 Or. at 401.” 49 Or. App. at 226-27.
In People In Interest of J.R., 711 P.2d 701 (Colo. App. 1985), a mother, whose parental rights to her children were terminated, argued on appeal that the doctrine of res judicata barred the relitigation of claims between the State and herself because these claims were merged into a prior court order denying the State’s petition to terminate her parental rights. The Colorado Court of Appeals disagreed, stating:
“Although the policy of limiting litigation is sound, that policy should not be applied so as to deprive the state in its role as parens patriae from seeking a resolution which will best serve the interests of the children. [Citations omitted.]” 711 P.2d at 703.
The same issue was before the Supreme Court of Nebraska in In re Interest of V.B. and Z.B., 220 Neb. 369, 370 N.W.2d 119 (1985). The Nebraska court, like the Oregon court, analogized parental rights termination cases to child custody cases. In child custody cases, the Nebraska Supreme Court had held that the doctrine of res judicata could not prevent a court, in a subsequent custody proceeding, from deciding what is best for the children at that time. The courts are to look at “changed circumstances” when the prior order is no longer in the best interest of children. The Nebraska Supreme Court stated:
“In determining whether a change of circumstances exists so as to modify a juvenile court’s previous order to a decision terminating parental rights, the court can use the time period prior to the previous order in conjunction with the time period after the previous order to determine whether there is a requisite change of circumstances since the original disposition order. [Citation omitted.] When a second termination proceeding is not itself barred, the proof is not limited by res judicata or collateral estoppel principles to facts or evidence which was not considered in, or which came into being after, the first proceeding. Matter of Newman, 49 Or. App. 221, 619 P.2d 901 (1980).” 220 Neb. at 372.
The Connecticut Supreme Court, in the case of In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983), stated:
“The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. [Citations omitted.] Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.”
The progress, or lack of progress, of a parent or a child cannot be determined without a knowledge of the conditions that existed at the time the case commenced and the changes that occurred during the cause of action. The court, as well as the experts involved, must be free to examine all of the circumstances, evidence, prior facts, prior orders, and other relevant information in order to arrive at a correct conclusion. Here, the trial court found that in 1984 the evidence was not clear and convincing that the parents were unfit, or that they would remain unfit for the foreseeable future. The case and the issue of unfitness remained open for future review by the trial court.
Future changes that would justify reviewing evidence considered in prior termination proceedings could be triggered by nothing more than a continued course of conduct, i.e., a failure to change or to improve as a parent. We are satisfied that a change of circumstances occurred after November 16, 1984. Therefore, the trial court is allowed to consider the prior events and prior family history in this parental severance case.
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Briscoe, J.:
Consolidated Oil Well Services, Inc., (Consolidated) brought this action to foreclose on its lien for labor and materials and to obtain a determination of lien priority. Consolidated appeals the district court’s decision granting to the defendants landowners, H.W. and Ruby Freidline, a first and prior lien on the leasehold equipment and fixtures.
On January 7, 1980, the Freidlines as lessors entered into an oil and gas lease with James D. McGeehee, James L. McGeehee, and A. Wesley Karns as lessees. We will reference only those portions of the lease which are relevant to our decision. Under the terms of the lease, the lessors’ royalty share was 3/16ths of all oil produced. The lease also provided that, if the value of the royalty oil sold from the leased premises fell below $8,000 per year, the lessees were to pay lessors the difference between the value of royalty oil received by lessors and $8,000. Monthly payments of $500 were to be made toward the annual guarantee of $8,000. If the lessor had not received $8,000 at the end of the year when the monthly payments plus the royalty payments were totaled, the difference became due. Lessees were also to pay for any damage caused to growing crops. Also included in the lease and central to the present litigation is the following lien provision:
“(f) LESSORS shall have and are hereby granted a lien of all equipments and fixtures placed upon the leased premises by LESSEES, in the operation of this lease, to satisfy any loss or damage suffered by LESSORS because of the failure of the LESSEES to carry out the terms and conditions of this lease on their part to be perfected.”
The lease was recorded in the office of the Register of Deeds of Montgomery County on February 27,1980. The leasehold was subsequently assigned to Alfa Resources, Inc., which contracted with State Oil Co., Inc., to operate the lease.
Consolidated performed labor and provided materials to the oil wells on the leasehold at the request of State Oil. When Consolidated was not paid for its labor and materials, it filed a lien pursuant to K.S.A. 55-207 on December 16, 1983, and January 9, 1984. Notice was given as required by the statute. On February 3, 1984, Consolidated filed the present foreclosure action on its lien against State Oil, Petro Wireline Services, Inc., and the Freidlines. The action was consolidated with a foreclosure action filed by Kansas Oil Patch Service and Repair, Inc. Both Petro and Kansas Oil were also asserting liens arising from unpaid labor and materials. The Freidlines answered in both actions, asserting priority of the lien which they contend was created by their lease. The Freidlines have never contended that Consolidated’s lien was invalid, but only that it was subsequent to the Freidlines’ lien.
In a journal entry filed on December 12, 1984, the district court determined that Consolidated had a valid lien and ordered that, if Consolidated was not paid, the lien should be foreclosed. In a subsequent journal entry filed July 3,1986, the district court held the lease terminated by its own terms and that the Freidlines should be given first priority on the lien created by the lease for the total amount of $13,089. The district court held the Freidlines’ lien was created by express contract and attached when the lease was recorded on February 27,1980. The damages awarded the Freidlines included unpaid guaranteed royalties for 1983,1984, and 1985 in the amounts of $1,007.54, $5,140.40, and $6,391.96, respectively, plus crop damage in the amount of $550. Only Consolidated has appealed the district court’s decision.
Two issues are presented on appeal: (1) Was a valid lien created by the provision in the Freidlines’ oil and gas lease; and (2) does the lien have priority over a valid statutory lien for labor and materials?
As to the first issue, Consolidated argues that K.S.A. 55-207 requires a lessor to file its lien under the provisions of that statute. K.S.A. 55-207 provides in pertinent part:
“Any person, corporation or copartnership who shall under contract, express or implied, with the owner of any leasehold for oil and gas purposes, or the owner of any gas pipe line or oil pipe line, or with the trustee or agent of such owner, who shall perform labor or furnish material, machinery and oil-well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well, or who shall furnish any oil-well supplies or perform any labor in constructing or putting together any of the machinery used in drilling, torpedoing, operating, completing or repairing of any gas well, shall have a lien upon the whole of such leasehold, or oil pipe line or gas pipe line, or lease for oil and gas purposes, the building and appurtenances, and upon the material and supplies so furnished, and upon said oil and gas well for which they were furnished, and upon all the other oil wells, fixtures and appliances used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furnished and labor performed ....
“Such lien shall be preferred to all other liens, or encumbrances which may attach to or upon such leasehold for gas and oil purposes and upon any oil pipe line, or gas pipe line, or such oil and gas wells and the material and machinery so furnished and the leasehold for oil and gas purposes and the fixtures and appliances thereon subsequent to the commencement of or the furnishing or putting up of any such machinery or supplies.”
The Freidlines argue that, by its very language, 55-207 does not apply to them and that their lien created by express contract is a valid first lien on the leasehold equipment.
We agree that K.S.A. 55-207 does not apply to the type of claim the Freidlines seek to secure. The statute provides for the creation of liens in favor of persons providing labor and material for oil and gas wells or pipelines. The lien asserted by the Freidlines does not fall into that category. When their lease was recorded, the Freidlines sought to create a lien for any loss of royalty payments and damage to crops caused by any future breach of the lease by the lessees.
If K.S.A. 55-207 is inapplicable to the Freidlines, what effect should be given to the lease provision containing the lien language? The Freidlines contend not only that a lien was created by the lease provision, but also that it has priority over Consolidated’s lien. We conclude that, at best, the lease provision gave the Freidlines an equitable lien enforceable against its lessees.
Kansas does recognize equitable mortgages and liens. Where one party advances money to another upon the faith of an agreement by the latter to secure its payment by a mortgage upon specified lands, but which mortgage is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of the execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. Garnett State Savings Bank v. Tush, 232 Kan. 447, 453, 657 P.2d 508 (1983); Beck v. Brooks, 224 Kan. 300, 302-03, 580 P.2d 882 (1978); Hill v. Hill, 185 Kan. 389, 396, 345 P.2d 1015 (1959). An equitable lien is not a right of property in the subject matter of the lien nor a right of action therefor, nor does it depend upon possession; but is merely a right to have the property subjected to the payment of a debt or claim, and it applies as well to charges arising by express engagement of the owner of property as to a duty of intention implied on his part to make the property answerable for a specific debt or engagement. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 272-73, 553 P.2d 254 (1976).; Hill v. Hill, 185 Kan. at 397-98. Although an equitable lien is usually based upon an implied contract, an equitable lien may also be created by an express contract. 51 Am. Jur. 2d, Liens § 26, p. 165. The Freidlines point to no authority, however, to support the district court’s conclusion that their equitable lien has priority over Consolidated’s statutory lien.
The Freidlines do cite Moyer v. Hezlep, 123 Kan. 735, 257 Pac. 229 (1927), in which a chattel mortgage given to a bank to secure promissory notes was given priority over subsequently filed labor liens. The court in Moyer held that liens created pursuant to 55-207 are given preference only to those liens which attach subsequent to the commencement of labor or the furnishing of supplies. The present case is distinguishable. There is no question that the chattel mortgage in Moyer created a valid and enforceable lien which was prior in time to a subsequently filed labor lien. Here, although the lease containing the lien was recorded prior to the filing of Consolidated’s lien, the lease provision is not comparable to a chattel mortgage.
A competing lien to be perfected or choate must be definite in the identity of the lienor, the property subject to the lien, and the amount of the lien. United States v. L.R. Foy Construction Company, 300 F.2d 207, 210-11 (10th Cir. 1962) (citing United States v. New Britain, 347 U.S. 81, 98 L. Ed. 520, 74 S. Ct. 367 [1954]). In the present case, the lease provision is definite only as to the identity of the potential lienors (the Freidlines) and the property potentially subject to the lien (leasehold equipment and fixtures). The lease provision is indefinite as to amount. Until and unless the Freidlines suffer loss or damage under the lease, they have no claim to pursue under the lease provision. Therefore, the Freidlines’ equitable lien was not a perfected lien when it was recorded on February 27, 1980.
In addition, the Freidlines’ equitable lien was not perfected prior to Consolidated’s statutory lien. Consolidated’s first lien was filed on December 16, 1983. The district court found the Freidlines’ lien covered damages sustained from 1983 through 1985 and had priority over Consolidated’s lien. In their original answer, the Freidlines claimed damages in the amount of $1,007.54 for the unpaid minimum royalty payable in 1983, plus $1,000 for royalties payable in the first two months of 1984. They also claimed $550 for crop damage. The earliest date upon which the Freidlines could assert a claim for a sum certain for loss or damage under the terms of the lease was December 31, 1983, when the unpaid minimum royalty payable for that year was due. Even if we were to assume that the lease provided the Freidlines with an automatic lien upon any loss or damage caused by the lessees, this lien would not arise until December 31,1983, a date subsequent to the filing of Consolidated’s lien. Although the crop damage was also claimed by the Freidlines, the court first had to determine when that damage arose and the amount of that damage. Under 55-207, if the Freidlines’ equitable lien attaches subsequent to Consolidated’s lien, Consolidated’s lien is preferred.
As between Consolidated’s prior valid statutory lien and the Freidlines’ equitable lien, the statutory lien must be given priority. The Freidlines point to no Kansas authority to support their assertion that a lien provision included in their express contract with their lessees must be given priority when asserted against a prior valid statutory lien. Consolidated relies upon and complied with the clear provisions of K.S.A. 55-207. Its lien must be given priority over a subsequent equitable lien.
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Briscoe, J.:
Petitioner Kenneth L. Frazee appeals the district court’s affirmance of the denial of his good time credits, contending (1) the district court erred in finding the unit team at the Kansas State Penitentiary did not abuse its discretion in awarding Frazee only 85 percent of the available good time credits; and (2) denial of good time credits without any type of due process violated the 14th Amendment to the United States Constitution.
Initially, Frazee had a medium custody classification and resided in A cellhouse. In 1984 when he was reclassified as minimum custody, prison authorities ordered Frazee to move to B cellhouse. Frazee refused to move. When the unit team made its annual review, it decided to award Frazee only 85 percent of the available good time credits because he had refused to move to B cellhouse. The policy at the penitentiary was not to award 100 percent of the available good time credits to anyone residing in A cellhouse. Inmates residing in A cellhouse are “unassigned,” i.e., they are not eligible for assignment in educational or vocational training programs. Frazee unsuccessfully pursued the appropriate grievance procedure in an attempt to obtain the remaining 45 days of the available good time credits. Frazee then filed a petition for writ of habeas corpus which was dismissed by the district court.
GRANT OR DENIAL OF GOOD TIME CREDITS WITHIN DISCRETION OF PENAL AUTHORITIES
Frazee contends the penal authorities’ refusal to award an inmate good time credits solely because he refuses to move from one cellhouse to another is an abuse of discretion.
K.A.R. 44-6-124 addresses the awarding of good time credits. Guidelines for the awarding of good time credits as well as the discretion applicable in the awarding of good time credits are specifically described in K.A.R. 44-6-124(a) and (b), as follows:
“For parole eligibility, award of good time credits shall be limited as follows:
“(1) Inmates with no class I offenses during the review period shall receive at least 50% of good time credits allocated for that period.
“(2) Inmates with no class I or II offenses during the review period shall receive at least 60% of the good time credits allocated for that period.
“(3) Inmates with no class I, II or III offenses during the review period shall receive at least 70% of the good time credits allocated for that period.
“(4) Inmates with no class I, II, III or IV offenses during the review period shall receive at least 80% of the good time credits allocated for that period.
“(5) The balance of the credits above the percentages listed in paragraphs (a)(1) to (a)(4) shall be awarded by the unit team based on factors of good work, behavior, and on other performance factors related to effective rehabilitation of the inmate.
“(b) Award at discretion of unit team and based on merit. The unit team shall refuse to award all or part of that portion of the credits over which they have discretion for poor behavior or work, for malingering in educational programs, or for other relevant reasons determined, explained and documented by the unit team. Inability to work or participate in programs due to legitimate health problems, or for other reasons beyond the inmate’s control shall not be considered grounds, standing alone, for refusing to award good time credits.”
In the present case, Frazee is contending the unit team abused its discretion in failing to award him 45 days of good time credits which were a part of the “discretionary” 20 percent of good time credits available to Frazee under K.A.R. 44-6-124(a)(5) and (b).
It has generally been held that the grant or denial of good time credits is totally within the discretion of penal authorities. United States v. Hedges, 458 F.2d 188, 190 (10th Cir. 1972). In Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966), the defendant was acquitted in criminal proceedings on charges of assaulting another inmate. Nevertheless, the penal authorities took away defendant’s good time credits because of the assault. In holding that the authorities had not abused their discretion, the court stated that a “[violation of prison rules, although not a violation of a criminal law, may well be sufficient to warrant . . . the cancellation of good time [credits] earned, and is conclusive on the Courts in the absence of a showing of an abuse of discretion.” Smoake, 359 F.2d at 388.
Here, the unit team refused to award 100 percent of the available good time credits because Frazee refused to move to B cellhouse where he could have participated in rehabilitation programs. Since refusal to award good time credits was based on grounds relating to behavior and rehabilitation, and was within the percentage limits set out in the regulation (K.A.R. 44-6-124[a][5] and [b]), the district court did not err in finding the penal authorities had not abused their discretion.
Frazee argues he had a back problem which prevented him from moving to B cellhouse and pursuing rehabilitation programs. Under K.A.R. 44-6-124(b), inability to work or participate in programs due to legitimate health problems shall not be considered grounds, standing alone, for refusing to award good time credits. Here, no evidence in the record indicates the penal authorities were aware of Frazee’s back problem and nothing in the record, other than his own testimony, indicates that Frazee was unable to participate in rehabilitation activities. Consequently, it cannot be said the penal authorities based their refusal to award credits on an impermissible basis such as Frazee’s physical inability to participate in rehabilitation programs.
DUE PROCESS INAPPLICABLE TO GRANT OR DENIAL OF GOOD TIME CREDITS
Frazee further contends his due process rights under the 14th Amendment to the United States Constitution were denied. He claims good time credits were established by statute and, therefore, he has a “liberty interest” in them, entitling him to notice and an opportunity to be heard before being denied 45 days of good time credits.
Although a prisoner’s rights as a citizen may be diminished because of imprisonment, “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Prisoners have protection under the due process clause and may not be deprived of life, liberty, or property without due process of law. Wolff, 418 U.S. at 556. A person is not entitled to due process protections, however, unless the nature of the interest is one within the contemplation of the liberty or property language of the 14th Amendment. Jago v. Van Curen, 454 U.S. 14, 17, 70 L. Ed. 2d 13, 102 S. Ct. 31 (1981); Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
In Wolff 418 U.S. at 557-58, the Court held that, because revocation of good time credits already earned involves the taking of a liberty interest, the minimum requirements of procedural due process must be met before such credits are taken from an inmate. Good time credits already earned, the Court reasoned, are a protected liberty interest because the State has created a statutory right to such credits and recognized their deprivation as a sanction authorized for major misconduct.
In Kansas, since the legislature has statutorily created a right to credits earned by good behavior (K.S.A. 1987 Supp. 22-3717[o]; K.A.R. 44-6-124), and since Kansas has recognized that forfeiture of such credits is a sanction for serious misconduct (K.A.R. 44-12-1301 [1987 Supp.]; 44-12-1302), an inmate who has already earned good time credits has a liberty interest protected by the 14th Amendment due process clause should penal authorities contemplate the subsequent taking of earned good time credits for disciplinary reasons. Williams v. Maschner, 10 Kan. App. 2d 79, 81-82, 691 P.2d 1329 (1984).
The penal authorities contend, however, that Frazee has no present liberty interest in the possibility of receiving all of the good time credits available under K.A.R. 44-6-124(a)(5) because such a possibility of earning credits does not create a vested right. We agree.
In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), the penal authorities had decided to grant an inmate parole but, prior to his release, they changed their decision. The issue was whether the 14th Amendment applied to pre-release rescission of a parole grant. The Court held that, although the possibility of parole provided no more than a mere hope that the benefit would be obtained and thus was not protected by due process, the State, by its parole statute, had created a legitimate expectation of parole. The expectancy of release provided in the state statute was entitled to some measure of constitutional protection. The Court cautioned, however, that the state statute had a unique structure and language and, thus, whether any other state statute provided entitlement must be decided on a case-by-case basis. See In re Uphoff, 7 Kan. App. 2d 301, 641 P.2d 406 (1982).
The present case is distinguishable from Wolff and Greenholtz. Unlike the inmate in Wolff, Frazee did not yet possess any good time credits at the time the penal authorities acted. He clearly did not possess an unqualified right to receive the remaining 20 percent of good time credits available under K.A.R. 44-6-124(a)(5). Furthermore, unlike the statute in Greenholtz, the regulation here (K.A.R. 44-6-124) did not create a legitimate expectation that the discretionary 20 percent of good time credits would be awarded. Our regulation is broadly worded, giving penal authorities a large amount of discretionary power. Because the potential to receive good time credits available under K.A.R. 44-6-124(a)(5) is not a protected liberty interest, Frazee was not entitled to notice and an opportunity to be heard before being denied that portion of good time credits.
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Per Curiam:
This is a workers’ compensation case in which Excel Corporation (Excel) appeals from the district court’s finding that Debra Jean Williams suffers from a 100% permanent partial disability and from the court’s refusal to assess the entire award to the Workers’ Compensation Fund (Fund). The Fund cross-appeals the district court’s award and its assessment of any portion of the award to the Fund.
Williams was first employed by Excel, then doing business as MBPXL, in Wichita, Kansas, in November 1976. Medical records indicate that in September 1977, Williams developed pain, weakness, and numbness in her right hand. The treating physician at that time, Bernard T. Poole, M.D., suspected that Wil liams was suffering from right carpal tunnel syndrome and placed her right hand in a brace which kept her away from work for approximately twelve days. After that period Williams reported no symptoms and was released to return to work.
On November 14, 1977, Excel filed a “Form 88” with the Division of Workers’ Compensation listing Williams as a handicapped employee with an impairment described as “carpal tunnel right.” Williams left the employ of MBPXL in November 1977.
Williams was rehired by Excel on November 28, 1983, and performed duties as a meat trimmer at the Dodge City plant. Her work duties consisted of removing a piece of meat from a conveyor belt with a hook held in her left hand, trimming the meat with a knife held in the right hand, and returning the trimmed meat to the conveyor belt. In January 1984, Williams complained of swelling and aching in her hands, which was later diagnosed to be bilateral carpal tunnel syndrome.
Surgery was performed on Williams’ right hand in July 1984, and six to eight weeks later she returned to work described as light duty. Williams terminated her employment with Excel in August 1985 and returned to Wichita.
Following a hearing before the Administrative Law Judge (ALJ), findings were entered holding that the Form 88 filed six years prior to the present injury did not prove knowledge of any prior handicap, and an award for a 50% permanent partial disability was assessed against Excel. This award was affirmed by the Workers’ Compensation Director.
This matter was presented to the Ford County District Court and that court entered a finding that Williams was 100% permanently partially disabled. The district court further found that, by virtue of the filing of the Form 88, Excel received the benefit of the statutory presumption of knowledge that it had hired a handicapped person, and assessed 75% of the award against Excel and the remaining 25% against the Fund. A timely appeal was filed by Excel, and the Fund timely cross-appealed.
The appeals filed in this matter present two issues for determination by this court. The first issue is the contention of Excel that the district court’s finding of 100% permanent partial disability is not supported by substantial competent evidence. The second issue presented is the contention by both Excel and the Fund that the district court improperly applied the provisions of K.S.A. 44-567.
On July 1, 1985, all appeals from agency actions became subject to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., unless specifically exempted by statute. K.S.A. 1986 Supp. 77-603. It is not disputed that the Workers’ Compensation Act is subject to the provisions of the KJRA.
Excel contends that this court is granted the power to reweigh the evidence under K.S.A. 77-623 and that this court should in effect make its own determination as to the issues of fact. This point is not well taken. K.S.A. 77-621 limits the scope of judicial review of administrative agency decisions and provides in subsection (c):
“The court shall grant relief only if it determines any one or more of the following:
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
K.S.A. 77-621 codified the existing case law on review of agency decisions and provides that the court may substitute its judgment on questions of law. On disputed issues of fact, the well-established rule concerning this court’s scope of review has not changed, and that scope of review was most recently stated in Baxter v. L. T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987). This court must view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the findings of the trial court.
The testimony of three orthopedic surgeons was placed before the district court, with the testimony of all three indicating that Williams suffered from carpal tunnel syndrome in the right hand. The testimony of Dr. Tyrone D. Artz indicates his opinion that Williams had a recurrent right carpal tunnel syndrome, a left carpal tunnel syndrome, and a snapping of the right thumb and left middle and ring fingers. It was the opinion of Dr. Artz that a person with carpal tunnel syndrome should be permanently restricted from knife work such as that being performed by Williams. The testimony before the district court from Dr. George L. Lucas differed somewhat from the testimony of Dr. Artz; however, there was agreement that a patient with carpal tunnel syndrome in one hand was more likely to develop it in the other hand. All of the medical testimony indicated that repetitive gripping and twisting can aggravate and possibly cause carpal tunnel syndrome, and all medical testimony indicated that the recommendation would be that a patient with thé syndrome not perform the type of duties claimant was performing at the time of her injury.
The record does not indicate any testimony specifically stating that Williams had sustained a 100% permanent partial disability; however, Dr. Artz rated Williams’ total permanent functions impairment to the body as a whole at thirteen percent.
“The distinction between functional disability and work disability had been accepted by this court in most instances without explanation. Functional disability is the loss of part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury. Work disability generally carries a higher percentage of disability than functional disability.” Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 195, 558 P.2d 146 (1976).
The evidence in this case, when reviewed in a light most favorable to Williams, indicates sufficient evidence to support the district court’s finding of a 100% permanent partial disability.
Both Excel and the Fund contend that the district court improperly applied the provisions of K.S.A. 44-567. Excel argues that the responsibility for all compensation and benefits to Williams should be assessed against the Fund because “but for” the previous occurrence of Williams’ carpal tunnel syndrome, her present injury to her hands would not have occurred. K.S.A. 44-567(a)(A).
The record shows that, although she denied any previous injury, Williams had previously been diagnosed as suffering from carpal tunnel syndrome. Although the record contains evidence that a carpal tunnel injury predisposes one to such injuries, there is nothing indicating that “but for” the previous problem, Williams’ current carpal tunnel syndrome would not have occurred.
Williams and Dr. Lucas testified that Williams had been symptom-free before her employment in 1983, and Dr. Lucas stated that the type of activity performed by Williams alone can result in the injury. Dr. Poole was the only witness asked whether “but for” her preexisting carpal tunnel problem Williams would have had the syndrome seven years later, and he could not make such a judgment. The district court was correct in not applying K.S.A. 44-567(a)(A).
K.S.A. 44-567(a)(B) provides:
“[Wjhenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director finds that the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the director shall determine in a manner which is equitable and reasonable and based upon medical evidence the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workers’ compensation fund.”
The Fund argues that the district court’s assessment of 25% against the Fund and 75% against Excel was not based on medical evidence. We agree.
There was ample testimony that a carpal tunnel injury could be aggravated by returning to the same type of duty, but there was no testimony that Williams’ previous problem contributed to her present injury. Dr. Poole testified that Williams suffered from right carpal tunnel syndrome in 1977, but he released her to return to work symptom free and had not seen her since that time.
Although Williams’ right hand first had been diagnosed in 1977 and Dr. Artz later diagnosed a present bilateral involvement, Dr. Artz testified that he could not tell which of Williams’ hands had become involved first or whether there had been a previous injury. Dr. Artz also testified that a “normal” person doing Williams’ work could develop bilateral carpal tunnel syn drome within ten days to two weeks. Dr. Lucas testified that the type of work alone could have caused Williams’ injury.
The medical testimony agreed that a previous injury could aggravate or contribute to the present injury, but none of the testimony could say that it did. Williams, as mentioned above, does not recall her first injury. The burden was on Excel to establish the extent Williams’ preexisting impariment contributed to her resulting disability. Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 788, 529 P.2d 679 (1974). Excel did not meet this burden, and there should be no assessment against the Fund.
The Fund also contends that Excel’s Notice of Handicap, Disability or Physical Impairment did not prove that Excel had knowledge of Williams’ handicap when it employed her. In light of the findings above, that Excel failed to meet its burden establishing that there was a preexisting impairment which contributed to the present disability, this question is not relevant.
The district court’s finding of 100% permanent partial disability is affirmed, the assessment of 25% against the Workers’ Compensation Fund and 75% against Excel is reversed, and this case is remanded with directions to assess 100% against Excel. | [
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Six, J.:
Plaintiff Sherry Wornkey brought this action to recover past due child support and to obtain a declaratory judgment. Sherry requested the trial court to determine that a 1975 Geary County order entered pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) did not nullify a prior Pawnee County support order from the parties’ divorce. The trial court held that the Geary County URESA order did not nullify the Pawnee County support order and ordered the defendant, Steven Wornkey, to pay past due support totalling $11,158.08.
Steven appeals. He contends the trial court erred (1) in granting summary judgment, (2) in refusing to estop Sherry from asserting the predominance of the Pawnee County divorce decree order awarding child support, and (3) in computing the amount of past due child support.
This court finds no error in the trial court granting summary judgment enforcing the Pawnee County order and affirms that ruling. However, we find the trial court erred in determining the amount of past due child support. We remand for a determination of the proper amount of child support arrearages.
This case presents issues of first impression concerning the relationship between a URESA child support order and a prior divorce decree child support award.
On June 5, 1972, Sherry and Steven were divorced by the Pawnee County District Court. Sherry was granted custody of the couple’s son Shawn (born August 4, 1971). Steven was ordered to pay child support in the amount of $125 per month or the full amount of Steven’s dependency allotment available to Steven during his military service, whichever was greater.
In 1975, Steven was stationed at Fort Riley in Geary County and by March of that year was eight months behind on child support. On March 20, 1975, Sherry initiated an intrastate proceeding under URESA, K.S.A. 23-451 et seq., in Pawnee County. The petition and the court certification were sent to the District Court of Geary County, Kansas, which heard the matter on April 29, 1975.
At the Geary County hearing, Sherry did not appear but was represented by the assistant county attorney. Steven appeared pro se. Sherry’s verified URESA petition was presented as evidence of Steven’s duty of support. Steven orally moved for a reduction of child support. The court found that Steven owed $1,000 in back child support and ordered him to pay $75 per month child support, $25 to apply towards the arrearages and $50 to apply to present support. Once the arrearage was paid off, the child support would be $75. Steven has paid the $75 per month to Sherry for child support since the Geary County order was entered on April 29, 1975.
On May 2, 1986, Sherry filed this action in the Pawnee County District Court, seeking a declaratory judgment that the Geary County District Court’s URESA order did not nullify the Pawnee County District Court’s prior support order in the divorce decree. Sherry further requested the court award her the arrearages for the difference between the Geary County and Pawnee County orders.
Sherry moved for summary judgment. The trial court granted Sherry’s motion, ruling that the Geary County order did not nullify or supersede the Pawnee County order. The trial court also granted Sherry’s motion to revive the child support judgments dating back to August 31, 1979, and requested counsel to submit their calculations on the amount of arrearages. The court accepted Sherry’s calculations and awarded her $11,158.08 in back child support.
SUMMARY JUDGMENT
Steven first contends the trial court erred in granting summary judgment because there remained genuine issues of material fact.
Summary judgment should be entered only if there is no genuine issue as to any material fact after the party against whom the motion was filed has failed to controvert a showing by affidavit, deposition, or otherwise that the moving party is entitled to judgment. Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979).
Steven contends two facts remain controverted: (1) whether Sherry’s URESA petition mentioned the Pawnee County divorce decree; and (2) whether and when Sherry had notice of Steven’s oral motion to reduce the amount of Pawnee County child support at the Geary County URESA hearing.
As to Steven’s first alleged controverted fact, we have examined Sherry’s URESA petition and concluded that it does not mention the Pawnee County decree. Steven’s contention that this is a controverted fact is without merit.
Steven also contends the issue of whether and when Sherry had notice of the oral motion to reduce child support involves controverted facts and is relevant to his estoppel defense. Steven’s estoppel defense relates to Sherry’s claim that the Geary County order was void because she did not have notice of Steven’s oral motion to reduce child support. Steven claimed that Sherry should be estopped to claim the Geary County order was void because she had notice, either constructive or actual, of the oral motion.
Whether Sherry had notice of Steven’s oral motion to reduce child support is irrelevant to the authority of the Geary County court to issue its order. As a general rule, a proceeding under URESA is an independent action to determine and enforce a duty of support. K.S.A. 23-453. Thompson v. Kite, 214 Kan. 700, 703, 522 P.2d 327 (1974). A responding court must “conform its support order to the amount allowed in the other action” only if the URESA petition makes a demand for the support awarded in a prior proceeding and the actions involved are contemporaneous or nearly contemporaneous. K.S.A. 23-479; In re Marriage of Straeck, 156 Cal. App. 3d 617, 624, 203 Cal. Rptr. 69 (1984); State on Behalf of McDonnell v. McCutcheon, 337 N.W.2d 645, 649 (Minn 1983); Bjugan v. Bjugan, 710 P.2d 213, 215-16 (Wyo. 1985). In this case, Sherry did not specifically request the $125 per month awarded by the Pawnee County District Court. Rather, Sherry merely requested a “fair and reasonable” amount of support. The authorities are legion that a responding court in a URESA action may enter a valid support order different from the order entered in a prior support action. See Annot., 31 A.L.R.4th 347, 356-57.
Because the Geary County District Court had the authority to enter an order of support different from that awarded in the divorce decree, and because Sherry merely requested a “fair and reasonable” award (as opposed to the $125 per month), her lack of notice of Steven’s oral motion to reduce the amount of child support does not render the Geary County District Court’s order void. There is nothing to suggest that the amount awarded by the Geary County court was not “fair and reasonable.” Sherry invoked the jurisdiction of the Geary County District Court to issue a “fair and reasonable” order of support. This is exactly what she received. The Geary County order is not void due to Sherry’s lack of notice of Steven’s oral motion to reduce support.
Steven contends that the trial court failed to make adequate findings of fact and conclusions of law to support its decision because it incorporates by reference the law as set out in Sherry’s motion and brief for summary judgment.
There is no objection in the record to the trial court’s findings and conclusions. A litigant must object to inadequate findings and conclusions at the trial court level in order to give the trial court an opportunity to correct them. Burch v. Dodge, 4 Kan. App. 2d 503, 507, 608 P.2d 1032 (1980). “In the absence of an objection, omissions in findings will not be considered on appeal.” Green v. Geer, 239 Kan. 305, 311, 720 P.2d 656 (1986).
EFFECT OF URESA ORDER
Steven contends the trial court erred in concluding that the Geary County District Court’s URESA order did not modify the Pawnee County District Court’s prior support order in the divorce decree. We disagree.
An initial question that must be addressed is whether one district court of this state may, in a URESA action, supersede another district court’s support order issued under K.S.A. 60-1610(a) (Weeks). The trial court concluded that the Geary County court could not and did not nullify the Pawnee County order.
In Nixon v. Nixon, 226 Kan. 218, 596 P.2d 1238 (1979), the court held:
“ ‘A court, which, in an action for divorce, makes an order, under the provisions of K.S.A. 60-1610(a), providing for the support of a minor child, retains jurisdiction of the matter of support to the exclusion of the jurisdiction of other courts of coordinate jurisdiction of this state.’ ” 226 Kan. at 221 (quoting Wheeler v. Wheeler, 196 Kan. 697, Syl. ¶ 2, 414 P.2d 1 [1966]).
At the time Nixon and Wheeler were decided, 60-1610(a) provided:
“The court shall make provisions for the support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (if) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state.” (Emphasis added.)
Since the Nixon case, 60-1610(a) has been amended to read as follows:
“The court shall make provisions for the support and education of the minor children. The court may modify or change any prior order when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents.” (Emphasis added.) K.S.A. 1987 Supp. 60-1610(a)(1).
We note that the language of the prior version of 60-1610(a) giving the divorce court exclusive continuing jurisdiction was removed in 1982. L. 1982, ch. 152, § 9. However, because the Geary County order was issued in 1975, we must apply the law existing at that time in determining whether the Geary County District Court had jurisdiction to modify the prior order.
K.S.A. 23-482 provides that a URESA action may be used “if both the obligee and the obligor are in this state but in different counties.” Except in the limited situations noted herein, the responding court (here, the Geary County District Court) may make its own determination as to the proper amount of support and enter an order awarding the obligee an award less than, greater than, or equal to a prior support order. K.S.A. 23-473; K.S.A. 23-480; State on Behalf of McDonnell v. McCutcheon, 337 N.W.2d 645; and see cases cited in Annot., 31 A.L.R.4th at 356-57. Consequently, we hold that the Geary County District Court had jurisdiction to issue a URESA support order, even though the Pawnee County District Court had initially ordered support under 60-1610.
Sherry contends that Wheeler v. Wheeler, 196 Kan. 697, establishes that the Geary County District Court had no jurisdiction to modify the Pawnee County decree. Upon initial inquiry, Wheeler would seem to be controlling. Wheeler held that one Kansas district court, acting as the responding court in an interstate URESA proceeding, lacked jurisdiction to supersede an order of child support of the divorce decree of another Kansas district court. However, further analysis reveals that Wheeler is distinguishable in that it was decided under the prior version of URESA. The prior version of URESA did not specifically provide for intrastate application and thus did not allow one Kansas district court to modify the support order of another Kansas district court. See K.S.A. 23-419 et sec/.(Corrick).
The question remains whether the Geary County order modified or nullified the Pawnee County order. The effect of the URESA order on the prior support order is discussed in K.S.A. 23-480:
“A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court.” (Emphasis added.)
Under the express provisions of K.S.A. 23-480, the URESA order does not nullify the previous support order unless the URESA order specifically so provides. See In re Marriage of Popenhager, 99 Cal. App. 3d 514, 521-23, 160 Cal. Rptr. 379 (1979); In re Marriage of Enewold, 709 P.2d 1385, 1387 (Colo. App. 1985); Nomer v. Kossman, 100 Idaho 898, 902, 606 P.2d 1002 (1980); Faribault-Martin-Watonwan v. Jacobson, 363 N.W.2d 342, 345 (Minn. App. 1985); Campbell v. Jenne, 172 Mont. 219, 223-24, 563 P.2d 574 (1977); Coogan v. Fennell, 379 N.W.2d 791, 796 (N.D. 1985); Thompson v. Thompson, 366 N.W.2d 845, 847-48 (S.D. 1985); Cass v. Lassiter, 2 Va. App. 273, 279, 343 S.E.2d 470 (1986); Bjugan v. Bjugan, 710 P.2d at 216.
The Geary County District Court’s URESA order did not nullify the Pawnee County District Court’s support order. Indeed, the Geary County order does not mention the Pawnee County order. Because the Geary County order did not specifically provide that it was nullifying the Pawnee County order, the Pawnee County order remained enforceable and valid. The trial court did not err in concluding that the Geary County order did not modify the Pawnee County order.
LACHES AND ESTOPPEL
Steven contends that Sherry, by her laches, should be barred from bringing this suit to collect back child support. We disagree.
In Strecker v. Wilkinson, 220 Kan. 292, 552 P.2d 979 (1976), a divorce decree initially ordered the father to pay his former wife $25 per week child support, which was later reduced to $10.00 per week. The wife moved to Texas and denied the father visitation rights. She later fled to California. The father obtained an order from the Kansas district court stating that the child support obligation had been terminated. Seven years later, while the child was still a minor, the mother brought an action to recover back child support due under the modified order. The Supreme Court rejected the father’s argument that the mother’s action was barred by laches, reasoning that support of children is a matter'of important social concern. Child support is an obligation a parent owes the state and the children. This obligation, the court stated, continues through the child’s minority, and an action to enforce the obligation may be brought at any time during the child’s minority. 220 Kan. at 298. Under the facts and circumstances of Strecker, the court concluded that the mother’s action for past support was not barred by laches. 220 Kan. at 298-99.
The facts under review by this court are similar to the facts of Strecker. In both cases, the child was a minor at the time the mother instituted the action for back child support. Further, the father in Strecker ostensibly relied upon the Kansas order terminating his child support obligation, much like Steven in this case obstensibly relied upon the Geary County order. Because of the similarity of facts between this case and Strecker and the strong public policy requiring parents to support their children, we hold the trial court did nor err in concluding the doctrine of laches did not bar Sherry’s claim.
The Nevada Supreme Court held that a mother was not es-topped from enforcing the child support provisions of a divorce decree, even though the father had complied with and the mother had accepted payments in accordance with a URESA order awarding a lower amount of support. Foster v. Marshman, 96 Nev. 475, 478-79, 611 P.2d 197 (1980). In Faribault-Martin-Watonwan v. Jacobson, 363 N.W.2d at 346, the court reached a similar conclusion. The trial court did not err in rejecting Steven’s estoppel defense.
AMOUNT OF ARREARAGE
Steven contends the trial court erred in computing the amount of past due child support. We agree.
After the trial court determined that the Geary County order did not modify the Pawnee County order, it asked the parties to submit calculations to determine the amount of past due child support. Sherry had filed a motion for revivor of judgments, extending Steven’s liability for support to August 31, 1979.
Sherry concluded the amount of back child support and interest totalled $11,158.08. Sherry arrived at this figure by applying $50 of the $75 Steven was paying to current support, and the other $25 to past due support. Because the initial $125 support order was never modified, Sherry contended the $1,000 arrearage continued to grow and was never paid off. Thus, Sherry concluded that Steven’s monthly deficiency for the seven years of non-dormant judgments was $75 per month. To this $75 monthly debt, Sherry added interest compounded monthly, applying the rates prescribed by K.S.A. 1987 Supp. 16-204. For the succeeding months, Sherry added the $75 monthly deficiency to the prior month’s deficiency and interest and added interest compounded monthly to that amount.
Steven calculated the amount of back support to be $4,200 and the interest thereon to be $2,118.39. Steven arrived at this amount by applying the $75 monthly payments to current support, leaving a $50 per month deficiency. Multiplying the $50 per month deficiency times 84 months (seven years), Steven determined the principal to be $4,200. Steven added to this amount the simple interest on each of the 84 judgments, applying the rates prescribed by K.S.A. 1987 Supp. 16-204.
The trial court adopted Sherry’s calculations. In so doing, the trial court erred for two reasons.
First, regarding the computation of interest, it is settled that interest on judgments may not be compounded. A judgment creditor may only receive simple interest on an award. Hamilton v. Netherton, 194 Kan. 683, 685, 401 P.2d 657 (1965).
Second, the trial court erred in accepting Sherry’s argument that there existed a $75 per month deficiency. Under the Pawnee County order, Steven was ordered to pay $125 per month in support. Later, after Steven owed $1,000 in past due support, the Geary County court ordered him to pay $75 per month. Initially, $25 of the $75 payment was to be used to pay off the $1,000 deficiency, and the other $50 was for current support. After the $1,000 was paid off, the amount of current support was to be the entire $75 per month. The trial court concluded that the $1,000 was never paid off because it grew monthly during the time in which Steven paid only $75 per month. This, we hold, is error. In Dallas v. Dallas, 236 Kan. 92, 95, 689 P.2d 1184 (1984), the court held that underpayments in child support are credited against current support and deficiencies constitute separate judgments and separately collect interest at the statutory rate.
On remand, we instruct the trial court to determine the amount of arrearages as follows: First, the trial court must determine at what point in time Steven paid off the $1,000 judgment plus the interest on that judgment. On April 29, 1975, Steven was ordered to pay off the $1,000 judgment in $25 monthly installments. If that judgment was paid off before August 31, 1979 (the date of the first non-dormant judgment), then the trial court should credit the entire $75 per month payment against Steven’s current support obligation of $125, leaving a monthly deficiency of $50. If the $1,000 judgment plus interest was not paid off until some point after August 31, 1979, the trial court should apply $25 of Steven’s $75 monthly payments until the judgment is satisfied. Thereafter, the court should apply the entire $75 to current support. Dallas, 236 Kan. at 95.
We affirm the trial court’s sustaining of Sherry’s motion for summary judgment enforcing the Pawnee County divorce decree order for child support. We reverse the trial court’s ruling as to the amount of back child support awarded and remand with instructions to determine the proper amount of arrearages.
Affirmed in part, reversed in part, and remanded with instructions. | [
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Elliott, J.:
First National Bank of Shawnee Mission (Bank) appeals the trial court’s dismissal of its case and the award of attorney fees to James V. Hundley.
On July 23, 1981, James V. Hundley executed a promissory note to Bank in the amount of $16,244.96. The note was due on November 20, 1981, in a single payment. The instrument expressly subjected the loan to the Kansas Uniform Consumer Credit Code (UCCC).
On September 4, 1986, Bank notified Hundley in writing that the note had not been paid and that he should make arrangements to repay or renew the note. Bank attempted to notify Hundley again on September 22, 1986, in a letter sent by certified mail, return receipt requested. The letter was, however, returned unclaimed. Neither notice contained any reference to the 20-day right to cure provisions in K.S.A. 16a-5-lll.
After Hundley failed to make any payment on the loan, Bank filed a petition on October 8, 1986. Hundley’s answer, filed November 7, 1986, claimed that Bank’s failure to provide him with a 20-day right to cure notice, pursuant to K.S.A. 16a-5-110 and K.S.A. 16a-5-lll, precluded it from recovering. Hundley further claimed that this violation entitled him to an award of attorney fees pursuant to K.S.A. 16a-5-201(8).'
On December 18, 1986, Hundley filed a motion for judgment on the pleadings or, in the alternative, to dismiss for failure to comply with the statute. The trial court, after hearing argument and reviewing the record, sustained Hundley’s motion and dismissed the case without prejudice. In addition, the trial court awarded Hundley $750.00 in attorney fees pursuant to K.S.A. 16a-5-201(8).
Bank appeals both decisions. Hundley cross-appeals, claiming the trial court erred in granting only $750.00 in attorney fees instead of the requested amount of $2,094.85.
Bank contends that the trial court erred when it held that Bank had to provide Hundley with a 20-day right to cure notice under the UCCC. There is no question that the UCCC applies in 'this case.
K.S.A. 16a-5-110(l) states:
“After a consumer has been in default for ten (10) days for failure to make a required payment in a consumer credit transaction payable in installments, a creditor may give the consumer the notice described in this section. A creditor gives notice to the consumer under this section when he delivers the notice to the consumer or delivers or mails the notice to the address of the consumer’s residence . . . .” (Emphasis added.)
K.S.A. 16a-5-lll(2) provides:
“[A]fter a default consisting only of the consumer’s failure to make a required payment in a consumer credit transaction payable in installments, a creditor may neither accelerate maturity of the unpaid balance of the obligation nor take possession of collateral because of that default until twenty (20) days after a notice of the consumer’s right to cure (section 16a-5-110) is given. Until twenty (20) days after the notice is given, the consumer may cure all defaults consisting of a failure to make the required payment by tendering the amount of all unpaid sums due at the time of the tender, without acceleration, plus any unpaid delinquency or deferral charges. Cure restores the consumer to his rights under the agreement as though the defaults had not occurred.” (Emphasis added.)
The crucial phrase in these two subsections is “payable in installments.” The legislature has provided a definition in K.S.A. 1987 Supp. 16a-l-301(27), which states:
“ ‘Payable in installments’ means that payment is required or permitted by agreement to be made in . . . (c) two or more periodic payments with respect to a debt arising from a consumer loan.”
The consumer transaction in the present case simply does not fit within the definition of “payable in installments.” The note was to be paid back in a single payment. Because the transaction does not involve an installment contract, the requirements in K.S.A. 16a-5-110(l) and K.S.A. 16a-5-lll(2) are not triggered.
Defendant’s reliance on First Northwestern Nat. Bank v. Crouch, 287 N.W.2d 151 (Iowa 1980), is simply misplaced. While the Iowa Supreme Court required the creditor to give a 20-day cure notice even when the consumer loan was to be paid back in a single installment, the Iowa version of the UCCC does not contain the limiting language describing a consumer loan transaction payable in installments. See Iowa Code §§ 537.5109, 537.5110 (1987).
Defendant also argues that because the parties voluntarily subjected the present transaction to the provisions of the UCCC, Bank should have to bear the burden of the right to cure notice, as well as enjoying the benefit of a higher interest rate. Defendant is entitled to whatever protection the UCCC provides, but he is not entitled to more than the statute offers.
In summary, we hold that a 20-day right to cure is not required as a condition precedent to the filing of a petition to collect on a consumer loan transaction calling for a single payment or installment. See generally Murray, Summary Repossession, Replevin & Foreclosure of Security Interests, 46 J.K.B.A. 93 (1977).
Concluding that Bank was not required to give Hundley notice of a right to cure necessarily vacates the trial court’s award of attorney fees under K.S.A. 16a-5-201(8). Consequently, we need not address the issues raised by Hundley on cross-appeal.
The judgment is reversed and remanded to the trial court for further proceedings. | [
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Briscoe, J.:
Defendant, Greg Kirby, appeals his conviction on one count of burglary (K.S.A. 21-3715) and one count of theft (K.S.A. 1986 Supp. 21-3701).
Defendant contends the trial court erred (1) in denying defendant’s motion to suppress evidence which was seized; and (2) in denying defendant’s motion to suppress' his confession. Defendant argues the court should have suppressed the evidence because it was obtained pursuant to an illegal stop and as a result of an illegal search and seizure. He argues his subsequent confession was also tainted by the illegal search and seizure.
In the early morning hours of April 17, 1986, Shawnee County Deputy Sheriff Schmelzle was patrolling northbound on Urish Road in rural Shawnee County when he observed a pickup truck parked on the side of the road at about the 400 block of Urish Road. The truck was facing south with its headlights off and its domelight on. As the deputy approached, the domelight was switched off and, as he passed, the truck was started and driven south. The deputy turned around and followed the truck. At the suppression hearing, the deputy testified he decided to follow the truck because of reports of deer poaching in that area.
As the deputy followed the truck, he observed there were some articles in the truck bed covered by a tarp. He also observed that the truck had no license tag but did have a small piece of paper taped in the window. After following the truck to SW 10th, the deputy stopped the truck. The deputy approached the cab of the truck and shined his flashlight into the cab to check for weapons, but saw no weapons or anything else out of the ordinary. He asked the driver and his passenger for identification. Each provided the deputy with a Kansas driver’s license. The deputy identified the driver as defendant and the passenger as John Keith, Jr. The deputy asked defendant what was under the tarp. His response was unresponsive: he stated they had been working on the truck all day. The deputy then asked if he could look under the tarp. Defendant asked the deputy if he had a search warrant, to which the deputy responded in the negative.
As the deputy walked back toward his patrol car, he looked into the bed of the truck and saw what he believed to be the outline of the back of a TV underneath the tarp. He then radioed the sheriff s department for assistance. The sheriff s department in turn called for a back-up from the Topeka police department.
Officer Steve Taylor of the Topeka police department responded to the call. When the police officer arrived, he was advised of the situation by Cpl. Bentley, who had also recently arrived from the sheriff s department. Taylor and Bentley proceeded to remove the tarp from the back of the truck. In the truck bed were a microwave oven, a VCR, a 19-inch color TV, a 13-inch black and white TV, and various VHS video tapes. After the tarp was removed and the items recovered, the officers ordered defendant and his passenger to get out of the truck and then patted them down for weapons. The officers recorded the serial numbers of the items and ran them through the computer to determine if they were reported stolen. None of the items were reported stolen. Defendant and his passenger were then asked if they owned the property, to which they responded in the negative. They claimed they found the items along the road.
A warrant check of defendant’s and the passenger’s names was also conducted with negative results. Officer Taylor then looked through the passenger window into the pickup cab where he saw a leafy substance which he believed to be marijuana, along with an orange package of ZigZag papers lying in a Frisbee. On the basis of his belief that the truck contained marijuana, the officer had the truck and its contents towed to police headquarters. An inventory search of the vehicle was then conducted, which resulted in the rediscovery of the television sets, the VCR, and the microwave oven. Defendant and the passenger were not taken into custody but were left on Urish Road to find their way home.
Later that same day, Mrs. Zayac, a neighbor of Robert Clark, notified the police department that the Clark residence had been broken into and burglarized. The Clarks had asked Mrs. Zayac to watch their house while they were on vacation. After the Clarks returned, Robert Clark contacted the police department on April 21 to report what items had been taken. He later went to the police department and positively identified the items seized from the truck as items stolen from his residence.
On April 22, defendant contacted the police department and asked how he could recover the truck. The police department contacted the sheriff s department concerning defendant’s inquiry. Detective Mike Ramirez of the sheriffs department told the police department that defendant would have to talk to him to recover the truck.
Defendant contacted Ramirez by telephone and, on April 22, the defendant went to the police station to meet with Ramirez. The detective read the defendant the Miranda warnings before the interview. During the interview, defendant signed a statement which implicated both himself and Keith in the burglary of the Clark residence. Defendant was then arrested and charged with burglary, theft, criminal damage to property, and possession of marijuana.
On May 27 and 28, a preliminary hearing was held and the court found there was probable cause to bind defendant over for trial. The defendant filed a motion to suppress the evidence seized and his confession. A suppression hearing was held and the motion was denied both as to the evidence and the confession.
The defendant waived his right to a jury trial and then stipulated that the testimony heard during the preliminary hearing would be the same if the witnesses were called again at trial. Additionally, it was stipulated that the defendant was an employee of Aard’s Trash Company and that Mrs. Zayac would testify that she told defendant the Clarks were out of town on the day their house was burglarized. The defendant, however, renewed his objection as to the admissibility of the items seized from the truck and the confession. The State dismissed one count of criminal damage to property and one count of possession of marijuana. The court then found defendant guilty of burglary and felony theft.
Suppression of Evidence Seized
The trial court denied defendant’s motion to suppress and held the evidence seized from the truck bed was admissible. In reaching this conclusion, the court first held the initial stop was reasonable and the marijuana subsequently seen in plain view justified the towing of the truck, which led to the inventory search of the truck, yielding the items found in the truck bed.
Defendant contends the stop was unreasonable and in violation of the Fourth Amendment because the officer lacked a reasonable and articulable suspicion to justify the stop. Defendant further contends the subsequent search was not justified whether the initial stop was proper or not. Defendant argues that, if the stop was improper, the subsequent search was tainted; if the stop was proper, the subsequent search was still improper because it exceeded the limited scope of a permissible search incident to a stop.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 35 L. Ed. 734, 11 S. Ct. 1000 (1891).
In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the United States Supreme Court concluded a “stop and frisk,” the on-the-street stop of an individual by the police and subsequent pat-down of the individual for weapons, did entail a seizure of the individual and a search. In concluding that the stop and subsequent limited search were not violative of the Fourth Amendment, the Court pursued a two-pronged inquiry: Whether the officer’s action in stopping the individual was justified at its inception, and whether the search was reasonably related in scope to the circumstances justifying the initial stop. The Court found a “stop and frisk” — “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” — is not police conduct subject to the warrant clause of the Fourth Amendment requiring “probable cause” to justify the search and seizure. The conduct involved is, instead, tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. 392 U.S. at 20. As further stated by the Court, there is no ready test for determining the reasonableness of a search or seizure other than by balancing the need to search or seize against the invasion which the search or seizure entails.
Our legislature has codified the “stop and frisk” in K.S.A. 22-2402, which provides:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
The Kansas Supreme Court has held that a “stop and frisk,” under our statute, requires that the officer have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, oris about to commit a crime. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). “Reasonable and articulable suspicion” does not rise to the level of probable cause. The reasonableness of the search is determined by the trial court from the facts and circumstances of the case. State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973).
The issue before this court is whether the trial court’s denial of the motion to suppress was based on substantial evidence. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979); State v. Parks, 5 Kan. App. 2d 644, 645, 623 P.2d 516 (1981). The trial court found the deputy’s articulated suspicion to justify his stopping the truck was reasonable. The deputy stated the stop was based upon his knowledge of deer poaching in the area, the early morning hour, the fact the truck headlights were off and the domelight was on, a tarp was covering something on the truck bed, and the absence of a license tag.
In each case involving a Terry stop, whether the officer has a reasonable and articulable suspicion to justify a stop will depend upon facts unique to that case. In a number of cases, the Kansas Supreme Court has recognized that the location, time of day, previous reports of crime in the area, and furtive actions of suspects may well justify a stop. State v. Holthaus, 222 Kan. 361, 564 P.2d 542 (1977) (stop reasonable where police investigating possible burglary observe pickup drive by twice and driver interested in police activity, driver appeared nervous as police approached, and driver’s story on how he obtained truck was suspicious); City of Garden City v. Mesa, 215 Kan. 674, 527 P.2d 1036 (1974) (police justified in asking defendant for identification as he stood in doorway of business at four in the morning); State v. Hazelwood, 209 Kan. 649, 498 P.2d 607 (1972) (stop reasonable where police, after working burglaries and while looking for suspects, observed a man duck into an alley and hide behind vehicles at four in the morning). It is equally clear, however, that the time of day and reports of crime in the area will not in and of themselves justify an investigatory stop. In Jackson, 213 Kan. 219, the court held unreasonable the stop of a man walking alone on a rural highway at 2:50 in the morning. Although the incident occurred during early morning hours, there was no evidence of furtive conduct, police knowledge of crime in the area, or any other suspicious conduct.
In Epperson, 237 Kan. 707, the court held unreasonable a stop of two men at two in the morning when they appeared startled by the appearance of a patrol car, one reached down to the floorboard area, and both got out of the car and began walking away. The officer was patrolling in the area because “[t]here was a problem with burglaries in this particular area.” According to the court, the officer had no knowledge of a prior crime, he did not observe any criminal offense, and the car was lawfully parked near a club which was open. The actions of the men were not indicative of criminal conduct and the fact that the men were well-dressed occupants of an expensive car did not fit the profile of burglary suspects. According to the court, the officer was suspicious but had no objective fact upon which to form a belief that the men were involved in criminal activity.
In the present case, the trial court had substantial evidence upon which to base a finding that the deputy had a reasonable and articulable suspicion to justify the stop. Although none of the facts cited by the court in and of themselves would support reasonable suspicion, taken together, these facts are sufficient. The deputy was aware of reports of deer poaching in the area. A pickup truck parked on a rural road with its lights out and with something in the truck bed covered with a tarp would support the officer’s suspicions. In addition, the absence of the license tag would give the officer grounds to check the validity of the temporary sticker. See State v. Hayes, 8 Kan. App. 2d 531, 660 P.2d 1387 (1983) (valid stop when license tag partially obscured). The facts of this case are also distinguishable from Epperson. In that case, defendant was stopped in town, near businesses that were open.'Here, defendant was stopped on a rural road after his truck was observed parked with its lights off. The tarp covering something in the truck bed is an additional objective fact which tended to implicate defendant in poaching, a type of fact not found in Epperson.
Defendant argues that, even if the initial stop was legal, the subsequent search and seizure of his truck and the articles contained in it were not. The State argues the search and seizure were proper. According to the State, the marijuana was observed in plain view, justifying the towing of the truck and the subsequent inventory search. The State relies on the inventory search to validate the search and seizure of the items in the truck bed.
We agree with the defendant that the search of the truck bed was illegal. The search consisted of removing the tarp, removing items found in the truck bed, and running the serial numbers of the items through police computers to determine if they were stolen. This search exceeded the scope of a Terry search. The sole justification for a Terry search is the protection of the police officer and others nearby and it must, therefore, be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for an assault against the police officer. Terry v. Ohio, 392 U.S. at 29. The preservation of evidence is not a permissible purpose. Terry, 392 U.S. at 29; Epperson, 237 Kan. at 715.
The duration of the Terry stop in the present case was also excessive. “ ‘[T]he brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.’ ” United States v. Sharpe, 470 U.S. 675, 685, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985) (quoting United States v. Place, 462 U.S. 696, 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637 [1983]).
Here, the defendant was detained while an illegal search of the truck was conducted. Deputy Schmelzle testified that he took pictures of items removed from the passenger compartment and truck bed one-half hour after the truck was originally stopped. Therefore, defendant was detained at least one-half hour after the original stop.
While the Supreme Court has refused to set any time limit on a proper Terry stop, it has recognized that “[o]bviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Sharpe, 470 U.S. at 685. In determining whether a Terry stop is too long, the Supreme Court looks to “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at 686.
This court has recognized that a Terry stop, based upon less than probable cause, is limited in its scope and duration. Any involuntary detention beyond questioning and a pat-down for weapons must be supported by probable cause. State v. Parks, 5 Kan. App. 2d at 645. In the present case, the State points to no facts which would justify the continued detention of defendant after the officer’s initial questioning of the defendant. Although the deputy did suspect stolen property was in the truck bed, nothing in the record indicates the deputy had either a reasonable and articulable suspicion to detain or probable cause to search. The deputy did not question defendant about what he thought was a television underneath the tarp. Instead, he called for backup and an illegal search was conducted after the arrival of the additional officers.
The continued detention of the defendant directly affected the observation of the marijuana. The plain view exception requires (1) the initial intrusion which afforded authorities the plain view must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the “incriminating character” of the article must be “immediately apparent” to searching authorities. State v. Galloway, 232 Kan. 87, 91, 652 P.2d 673 (1982). Since the initial intrusion, here the continued detention of defendant, was illegal, the first part of the plain view test is not met. The marijuana was not observed by the deputy when he lawfully conducted his initial investigation after stopping the truck. Only after defendant was detained beyond the initial stop was the discovery made. As a result, the discovery of the marijuana does not fall within the plain view exception and the resulting tow-in and inventory search of the truck were improper.
Suppression of Subsequent Confession
Having concluded the search of the truck bed was illegal and the evidence seized should have been suppressed, we must next consider whether the defendant’s subsequent statements were so tainted by the illegal search as to also be rendered inadmissible. State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1977). According to the United States Supreme Court, evidence is not “fruit of the poisonous tree” merely because it would not have come to light except for the illegal police activity. Instead, the inquiry is whether the evidence objected to came to light by “exploitation of that illegality.” Brown v. Illinois, 422 U.S. 590, 599, 45 L.Ed. 2d 416, 95 S. Ct. 2254 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Knapp, 234 Kan. 170, 176, 671 P.2d 520 (1983).
Defendant argues that he was forced into presenting himself to the detectives to get the truck back, which would not have occurred had there been no illegal search and seizure of the truck. Defendant also contends that Miranda warnings alone are not sufficient to purge the taint of the illegal seizure. The State responds that, if the search and seizure were illegal, the taint of the illegality was sufficiently attenuated to still allow the admission of defendant’s confession.
In Knapp, 234 Kan. 170, Syl. ¶ 3, the Kansas Supreme Court sets forth four factors to be considered in determining if evidence obtained following an illegal arrest is sufficiently attenuated to allow admission of the evidence: (1) Whether Miranda warnings were given; (2) the temporal proximity of the illegal arrest and the statement, confession, or consent to search; (3) the purpose and flagrancy of the officer’s misconduct; and (4) other intervening circumstances. See Brown v. Illinois, 422 U.S. 590. Although the Supreme Court has not directly addressed a case involving a confession following an illegal search, other courts have considered the factors set forth in Knapp in illegal search cases. Wilkerson v. United States, 432 A.2d 730 (D.C. 1981); People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577 (1977). See Childers, 222 Kan. 32 (statement following illegal search not excluded because not triggered or induced by illegal search).
Here, in following the analysis of Knapp, we find Miranda warnings were given to defendant by Detective Ramirez before the questioning began.
As regards the second factor in Knapp, we are to consider the temporal proximity between the illegal search and the confession. In Wong Sun, 371 U.S. at 488, the United States Supreme Court found sufficient attenuation where “several” days had passed. In contrast, in Brown, 422 U.S. at 604, the court found no attenuation where only two hours had passed. In the present case, the confession was made five days after the search, which would weigh in favor of attenuation.
In weighing the third factor, the flagrancy and purposefulness of the police conduct, we consider whether the illegal search was undertaken in bad faith. State v. Knapp, 234 Kan. at 177-78. There is no evidence from the facts which would indicate the initial stop, detention, and search were conducted in bad faith.
As regards the fourth factor, “other intervening circumstances,” two important questions arise: First, were the acts of the defendant in returning to the police station to obtain the release of the truck and in making the confession acts of free will sufficient to purge the primary taint of the illegal search (Wong Sun, 371 U.S. at 486)? Second, was the confession primarily the result of the police confronting the' defendant with illegally obtained evidence, thus clearly an “exploitation of that illegality” (Brown, 422 U.S. at 599)?
In the present case, the defendant made the initial contact with the police to obtain the release of his father’s truck. Defendant initiated this contact four days after the burglary. He was told he would have to talk with Detective Ramirez. When setting up the meeting by telephone, Detective Ramirez told defendant that the vehicle contained property which had been reported stolen and that he wanted to talk to the defendant about it. The record does not indicate whether Detective Ramirez ever confronted the defendant with the evidence seized.
In Wong Sun, 371 U.S. at 491, the United States Supreme Court recognized that an act of free will by the defendant will sufficiently purge the taint of the earlier illegality. There, Wong Sun had been released on his own recognizance following a lawful arraignment and returned voluntarily several days later. In the present case, although defendant made the initial contact with the police and his contact was several days after the illegal search, he contacted the police because they had possession of his father’s truck. However, defendant knew the sheriffs department had possession of items seized from the truck; that Detective Ramirez knew the items had been reported stolen; and that Detective Ramirez wanted to talk with defendant about the stolen items. Armed with this knowledge, defendant went to talk to Detective Ramirez anyway. We conclude this was an act of free will sufficient to attenuate the confession.
We next consider whether defendant’s confession was the result of the police confronting defendant with the illegally seized evidence, or the result of defendant exercising his own free will. In most cases where the defendant is confronted with the illegally seized evidence, unless there is some other intervening circumstance, such as an act of free will, the confession will be “an exploitation of the illegality.” 4 LaFave, Search and Seizure § 11.4(c), p. 403 (2d ed. 1987). The theory is that the defendant is induced into confession because he is caught “red-handed.” See Ruiz v. Craven, 425 F.2d 235 (9th Cir. 1970); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); People v. Robbins, 54 Ill. App. 3d 298. Defendant’s argument that “but for” the illegality, the statement would not have been made has specifically been rejected by the Supreme Court. Brown, 422 U.S. at 599. The issue instead is the exploitation of the illegality.
In the present case, we have no evidence that defendant was actually confronted with the seized evidence. As the trial court found, defendant was not under arrest, nor did he feel any fear or pressure from the police to either initially contact them or subsequently meet with the detective. His motive in going to the station and giving a statement was purely personal. Upon consideration of the factors set forth in Knapp, we conclude the trial court had substantial evidence to find that defendant’s initial contact with police and his later meeting with the detective were acts of “free will which purge the taint” of the original illegality.
Since the confession was properly admitted, but the items seized from the truck were not, the question becomes whether the admission of the seized items was reversible error. Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986); State v. Logan, 8 Kan. App. 2d 232, 236, 654 P.2d 492 (1982), rev. denied 232 Kan. 876 (1983).
Although an uncorroborated extrajudicial confession is insufficient to sustain a conviction (Opper v. United States, 348 U.S. 84, 89-90, 99 L. Ed. 101, 75 S. Ct. 158 [1954]; State v. Tillery, 227 Kan. 342, 346, 606 P.2d 1031 [1980]), we have more than that here. While it is true the trial court erred in denying the motion to suppress all of the evidence seized at the April 17, 1986, stop, which would include all of the items removed from the truck, photographs made, and the officers’ testimony, the stipulated evidence would remain for consideration along with the confession. The parties stipulated that defendant was an employee of Aard’s Trash Company and that Mrs. Zayac would testify she told defendant the Clarks were out of town on the day their house was burglarized. This remaining evidence, when viewed in the light most favorable to the prosecution, was sufficient to support the defendant’s convictions of burglary and theft.
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Davis, J.:
This is an appeal from a permanent injunction issued against the owners and operators of Crestview Manor Nursing Home (collectively referred to as “Crestview Manor”) requiring them to allow Terry McGeeney, M.D., to continue treating patients residing at the home. Crestview Manor revoked Dr. McGeeney’s privilege.to practice medicine because he allegedly refused to abide by its operating policies. The Kansas Department of Health and Environment (KDHE) filed this action on behalf of Dr. McGeeney’s patients, who had been advised by Crestview Manor to choose another physician or move from the home.
In a well-reasoned opinion, the trial court based its permanent injunction upon the right of each resident to choose his or her personal physician, carefully balancing the residents’ interests in exercising this right with Crestview Manor’s interests in resident care and in maintaining smooth and consistent administration of health services. We find no abuse of discretion and affirm.
Injunction is an equitable remedy and its grant or denial in each case is governed by the principles of equity. The granting or denial of an injunction is discretionary. Absent an abuse of discretion, the appellate court does not normally interfere. U.S.D. No. 503 v. McKinney, 236 Kan. 224, 226-27, 689 P.2d 860 (1984); Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 668 P.2d 172 (1983); Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 373,582 P.2d 1123 (1978); Kansas State Bd. of Pharmacy v. Wilson, 8 Kan. App. 2d 359, 657 P.2d 83 (1983).
KDHE, the licensing agency for adult care homes in Kansas, administers the adult care home licensure act, K.S.A. 39-923 et seq., and enforces the rules and regulations promulgated thereunder. K.A.R. 28-39-76 et seq.
Crestview Manor is a licensed intermediate care facility (ICF) subject to the adult care home licensure act. Any ICF receiving Medicaid funds must also conform to 42 C.F.R. § 442.1 et seq. (1987), authorized under 42 U.S.C. § 1302 (1982). K.A.R. 28-39-78 and 42 C.F.R. § 442.311 (1987), which are essentially identical, set forth the residents’ bill of rights.
The present controversy arose when Terry McGeeney, M.D., requested that all laboratory procedures for his patients at Crestview Manor be performed at his office. Crestview Manor informed Dr. McGeeney that services in his office-run laboratory did not meet Crestview Manor’s quality of care policies because the laboratory was not certified. The letter stated, “Effective April 5, 1987, your privilege to practice medicine at Crestview Manor is revoked.”
On March 18, 1987, Crestview Manor notified Dr. McGeeney’s patients at the facility that Dr. McGeeney’s privilege to practice medicine at Crestview Manor had been revoked. The letter stated: “If he/she/you choose to retain Dr. McGeeney, it will be necessary to move from Crestview Manor on or before April 4, 1987. . . . Any resident who is currently under Dr. McGeeney’s service and does not move from Crestview Manor or make arrangements for another physician by April 4, 1987, will be transferred to the service of our Medical Director.”
The legal representative of one of Dr. McGeeney’s patients at Crestview Manor filed a complaint with KDHE. Concern was expressed about the effect on the resident’s health and welfare of being required to change physicians or move to a different nursing home.
Ry letter dated March 27, 1987, KDHE notified Crestview Manor that the March 18, 1987, letter to its residents was in violation of rules and regulations governing the operation of adult care homes. KDHE interpreted its regulations to forbid licensees of adult care homes from involuntarily discharging a resident except for medical reasons, for the welfare of the resident or others, or for nonpayment of rates and charges, and to require licensees of adult care homes to assure each resident the right to choose a personal physician.
In a response, Crestview Manor defended its decision to deny Dr. McGeeney practice privileges and to require his patients to find another physician or move. Crestview Manor alleges that Dr. McGeeney has been uncooperative with staff, delinquent in his care of patients, derogatory about the care at Crestview Manor in his medical record entries, and lax in keeping patients’ records.
On April 3, 1987, KDHE filed this action, requesting that the court enjoin Crestview Manor from requiring residents to choose between using a physician other than the physician of their choice or moving from the facility. KDHE requested and received an ex parte restraining order.
On April 17, 1987, the matter was heard by the district court. The parties agreed that the case could be decided on stipulated facts. Both parties filed briefs.
On June 24, 1987, the district court permanently enjoined Crestview Manor from enforcing the terms of its March 18, 1987, letter to its residents or in any way requiring existing residents of Crestview Manor to utilize a physician other than the physician of their choice.
The district court held that an ICF resident’s right to choose his or her personal physician is protected by the guarantees set forth in the residents’ bill of rights. The residents’ bill of rights requires the licensee to assure residents “their rights as persons and citizens,” including the rights to be informed of a medical condition by a physician unless medically contraindicated, to participate in planning medical treatment, and to refuse examination or treatment, K.A.R. 28-39-78(a)(2), and the right to privacy, K.A.R. 28-39-78(a)(9).
The court found that any one of these guarantees was broad enough to encompass and protect a resident’s choice of a personal physician. The court concluded that “an ICF must protect the residents’ right to choose a physician and cannot require a resident to change physicians unless some interest of the ICF is so overwhelming that an exception to the resident’s right is appropriate.”
The court balanced the interests of Crestview Manor residents in exercising the right to choose a personal physician with Crestview Manor’s interests in resident care and in maintaining smooth and consistent administration of services. The court recognized three instances in which an ICF’s interests may override a resident’s right to treatment by a physician of his or her choice. First, the court indicated that the interest of an ICF in preserving its residents’ lives may override the right to choose a physician. The court, however, found, “In the present case, nothing before the Court shows that Dr. McGeeney’s patients were in danger of losing their lives because of his treatment.” Second, the court noted that an ICF has an interest in protecting innocent third parties, but found that the protection of third parties was not a concern in this case. Third, the court recognized that an ICF has an interest in setting internal standards and procedures, “but it would be a rare case where a physician[’s] refusal would require an ICF to ignore a resident’s protected right to choose a physician.”
In granting the injunction, the trial court adopted KDHE’s interpretation of its regulations. According to KDHE, the right of each resident to choose his or her own physician is implicit in the residents’ bill of rights, K.A.R. 28-39-78. This interpretion finds support in recent changes in federal law governing nursing homes that receive Medicare and Medicaid funds:
“(c) REQUIREMENTS RELATING TO RESIDENTS’ RIGHTS.—
(1) GENERAL RIGHTS.—
(A) SPECIFIED RIGHTS. — A skilled nursing facility must protect and promote the rights of each resident, including each of the following rights:
(i) FREE CHOICE.- — -The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment.” Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 4201(c), 101 Stat. 1330-165 (1987) (Medicare); Pub. L. No. 100-203, § 4211(c), 101 Stat. 1330-188 (1987) (Medicaid).
State and federal regulations provide that a resident shall be transferred or discharged from the facility involuntarily only for (1) medical reasons, (2) the welfare of the resident or others, or (3) nonpayment of the rates and charges imposed by the adult care home. K.A.R. 28-39-78(a)(3); 42 C.F.R. § 442.311(c) (1987); see Omnibus Budget Reconcilation Act of 1987 Pub. L. No. 100-203, § 4201(c)(2)(a), 101 Stat. 1330-166; Pub. L. No. 100-203, § 4211(c)(2)(a), 101 Stat. 1330-190.
KDHE’s “interpretation of its regulations will not be disturbed on appeal unless the interpretation is clearly erroneous or inconsistent with the regulation[s].” Kansas Bd. of Regents v. Pittsburg State Univ. Chap, of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983) (citing Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 440, 271 P.2d 773 [1954]; McClanahan v. Mulcrome, 636 F.2d 1190 [10th Cir. 1980]).
KDHE’s interpretation of its regulations to require Crestview Manor to accord each resident the right to choose his or her personal physician is neither clearly erroneous nor inconsistent with the regulations. We find no abuse of discretion by the trial court in its grant of a permanent injunction.
Crestview Manor contends the court erred in ruling that the sole issue was whether an ICF can force an existing resident to change his or her physician or move from the facility. Crestview Manor argues the court failed to consider its interests adequately, including its legal duty to provide care for its residents as required by state and federal regulations. The issue, Crest-view Manor contends, is whether an owner or operator of an ICF in Kansas can revoke a physician’s practice privileges.
Crestview Manor contends it has the authority to revoke a physician’s practice privileges because “[t]he final responsibility and supervision of a resident’s health care is the obligation of the facility and the facility’s administrator under the laws and regulations of Kansas.”
Contrary to Crestview Manor’s contention, K.A.R. 28-39-88(c) provides that “[t]he health care of the resident shall be under the supervision of a physician.” See 42 C.F.R. § 442.346(a) (1987); Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 4201(b)(6)(A), 101 Stat. 1330-164; Pub. L. No. 100-203, § 4211(b)(6)(A), 101 Stat. 1330-187. K.S.A. 39-923(a)(3) defines an ICF as “any place or facility . . . caring for three or more individuals . . . unable to sufficiently or properly care for themselves and for whom reception, accommodation, board and supervised nursing care and treatment is provided, and which place or facility is staffed to provide . . . licensed nursing personnel plus additional staff and is maintained and equipped primarily for the accommodation of individuals not acutely ill or in need of hospital care or skilled nursing care but who require supervised nursing care.” (Emphasis added.)
Crestview Manor argues that K.A.R. 28-39-88(c)(l), which provides, “The facility shall ensure, to the fullest extent possible, that . . . [t]he resident’s physician sees the resident whenever necessary,” authorizes the facility to terminate Dr. McGeeney’s practice privileges. By providing that the facility’s duty is to “ensure, to the fullest extent possible,” (emphasis supplied) the regulation recognizes the limitations on the facility’s ability to supervise the physician-patient relationship. K.A.R. 28-39-88(c)(l) does not give the facility authority to choose a resident’s personal physician.
Crestview Manor contends that the regulations give it supervisory authority over resident health care. Federal regulations state that the duties of the resident services director “must include coordinating and monitoring each resident’s overall plan of care.” 42 C.F.R. § 442.304 (1987) (emphasis added). “The licensee shall have and implement written resident care policies and procedures for meeting the total medical, nursing, nutritional and psychosocial needs of residents.” K.A.R. 28-39-84 (emphasis added); see 42 C.F.R. § 442.305 (1987). The administrator of an ICF is responsible for the “overall management” of the facility, including planning, organizing, and directing the operation of the facility, and implementing operational policies and procedures for the facility. K.A.R. 28-39-83(c)(l), (2); see 42 C.F.R. § 442.303(b)(1) and (2) (1987).
Although the regulations grant an ICF broad supervisory authority over the facility’s management and require an ICF to coordinate and monitor each resident’s plan of care, they require that the health care of the resident be under the supervision of a physician. K.A.R. 28-39-88(c). As noted by the trial court, except in extreme circumstances, not present in this case, an ICF’s responsibilities can be performed without impinging on its residents’ right to choose their personal physicians.
Crestview Manor cites Foote v. Community Hospital of Beloit, 195 Kan. 385, 405 P.2d 423 (1965), to support its contention that an ICF has authority to exclude a licensed physician from the facility. Foote, however, involves a hospital, which, by definition, has an organized medical staff of physicians. See K.S.A. 65-425. Adult care homes are specifically excluded from the medical care facility licensure statutes. See K.S.A. 65-442a (“Nothing in this act shall be construed to apply to any adult care home licensed under the provisions of article 9 of chapter 39 of the Kansas Statutes Annotated.”).
K.S.A. 65-431 provides in part:
“Boards of trustees or directors of facilities licensed pursuant to the provisions of this act shall have the right to select the professional staff members of such facilities . . . and no rules and regulations or standards of the licensing agency shall be valid which, if enforced, would interfere in such selection or employment.”
“The board of directors of a hospital is thus given plenary power to select its professional staff and the state has expressed a policy not to interfere’ with that selection.” Foote, 195 Kan. at 387.
The hospital’s authority to select its staff reflects the liability it assumes for patient care. The long-established rule in Kansas is that “ ‘[a] private hospital is bound to exercise toward a patient such reasonable care as his known condition may require, the degree of care being in proportion to his known physical and mental ailments. The extent and character of the care that a hospital owes its patients depends upon the circumstances of the particular case, and the measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in the community and required by the express or implied contract of the undertaking.’ ” Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 49, 510 P.2d 190 (1973) (quoting Goheen v. Graber, 181 Kan. 107, Syl. ¶ 3, 309 P.2d 636 [1957]); Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 695, 442 P.2d 1013 (1968).
Crestview Manor argues that it must have authority to select its staff of physicians to shield itself from liability. It cites Juhnke v. Evangelical Lutheran Good Samaritan Society, 6 Kan. App. 2d 744, 634 P.2d 1132 (1981), as holding an adult care home liable for the acts of a person who is neither an employee nor an agent of the home. In Juhnke, a resident was seriously injured when another resident pushed her to the floor. This court recited the general rule that “the proprietors of a nursing home are under a duty to exercise reasonable care to avoid injuries to patients, and the reasonableness of such care is to be assessed in the light of the patient’s physical and mental condition.” 6 Kan. App. 2d at 748. Juhnke provides no authority for Crestview Manor’s asserted right to revoke a physician’s staff privileges and thereby deny residents the right to choose a personal physician.
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Brazil, J.:
This is a workers’ compensation case in which the Board of County Commissioners (Board) and the Great American Insurance Company (Great American) appeal the district court’s calculation of Harmon Ridgway’s average weekly wage and the court’s conclusion that Harmon Ridgway sustained a 40% permanent partial disability.
Harmon Ridgway worked for the Ford County Sheriffs Department as a civil process officer for eighteen years. As a process server, Harmon delivered summonses, subpoenas, and executions. Because Harmon used his own car to perform his duties as a process server, the county paid him $225.00 a month under a leasing agreement. The county also paid for gas, oil, and tires. In addition, Harmon received $35.00 a month for cleaning his uniform.
On December 18, 1985, Harmon suffered a back injury as he stepped from his car while in the course of his employment. As a result of this accident, Harmon resigned in April 1986.
The Administrative Law Judge (ALJ) determined that Harmon had suffered a personal injury by accident on December 18, 1985, and that such accidental injury arose out of and in the course of his employment with the Board of Ford County Commissioners. Furthermore, the ALJ determined Harmon’s average weekly wage to be $434.58. This sum included the $225.00 per month Harmon received for using his own car and the $35.00 per month he received for cleaning his uniform. The ALJ concluded Harmon had suffered a 30% permanent partial general bodily disability. The Director approved the ALJ’s award.
Pursuant to K.S.A. 44-556 and K.S.A. 77-601 et seq., Harmon and the Board together with Great American each filed a petition for judicial review. The district court increased the permanent partial disability award from 30% to 40% on appeal, but otherwise affirmed the ALJ’s decision.
The Board and Great American appeal the district court’s decision, alleging it erred in determining Harmon’s average weekly wage and in determining Harmon’s permanent partial disability to be 40%.
The Board and Great American contend that the lease payments and uniform allowance given to Harmon do not constitute “wages” as that term is defined under K.S.A. 44-511; consequently, Harmon’s award should be limited to the salary he received for performing his duties as a process server.
K.S.A. 44-511(a)(3) provides:
“The term ‘wage’ shall be construed to mean the total of the money and any additional compensation which the employee receives for services rendered for the employer in whose employment the employee sustains an injury by accident arising out of and in the course of such employment.”
“[T]he primary purpose of workers’ compensation benefits is partial replacement of actual or potential wage loss.” Fogle v. Sedgwick County, 9 Kan. App. 2d 129, 673 P.2d 465 (1983), aff'd 235 Kan. 386, 680 P.2d 287 (1984).
Although this particular issue has not been treated in Kansas, other jurisdictions with similar statutes have considered the issue.
Not every payment made to an employee by an employer constitutes “wages” for purposes of computing an injured employee’s average monthly wage. Moorehead v. Industrial Commission, 17 Ariz. App. 96, 99, 495 P.2d 866 (1972) (workers’ compensation case where claimant claimed his average weekly wage included his travel expenses).
In Bosworth v. 7-Up Distributing Co., 4 Va. App. 161, 355 S.E.2d 339 (1987), the employee used his own car for his employment-related travel. In return, his employer paid him an automobile allowance of $75.00 per week to cover the costs of depreciation, tires, oil, gas, and other expenses associated with the operation of his automobile in his employment. The issue on appeal was whether such payments were made in lieu of wages and, thus, should be included in determining the employee’s average weekly wage for purposes of workers’ compensation. According to the court, the question was whether the allowance represented a payment made in consideration for work and constituted an economic gain to him. Bosworth v. 7-Up Distributing Co., 4 Va. App. at 163.
The appellate court held that the allowance paid to the employee was in effect a reimbursement for business-related expenses and did not represent an economic gain to him; therefore, such payment was properly not included in the determination of the employee’s average weekly wage. 4 Va. App. at 164. In reaching this decision, the court noted that the “automobile expenses, which were incurred solely to meet the travel obligations of his employment, fall within the category of expenditures for an activity that he would not have pursued except for his employment.” 4 Va. App. at 164. The evidence indicated that the employee’s car expenses exceeded the car allowance provided by the employer. Consequently, the court noted, the car allowance did not represent an economic gain to the employee and could not be included in the average weekly wage calculation. 4 Va. App. at 165. See also Moorehead v. Industrial Commission, 17 Ariz. App. at 99 (“ ‘wages’ do not include amounts paid to the employee to reimburse him for employment-related expenditures of a nature which would not be incurred but for his employment. Such payments are simply not intended as compensation for services rendered. Before any part of such allowances or reimbursements can be considered as a part of the employee’s ‘wages’ there should be some showing that the payments are more than sufficient to reimburse the employee for the work-related expense so that in effect the excess can be considered as extra compensation to the workman for his services performed”).
In Lumbermen s Mutual Casualty Co. v. Babb, 67 Ga. App. 161, 19 S.E.2d 550 (1942), the employee received a salary of $100.00 per month plus $15 as operating expenses for his automobile which he used in the discharge of his duties. One issue on appeal was whether the director erred in fixing compensation on the basis of a salary of $115 per month instead of on the basis of $100 per month. The court held:
“This was a payment to the claimant of $115 for the services rendered by him to the employer, and should be counted as salary although $15 of it consisted in payment to him for the expense of the operation of his automobile.” 67 Ga. App. at 165.
See Filippone v. Indust. Comm’n, 41 Colo. App. 322, 590 P.2d 977 (1978); Hobbs v. Industrial Commission, 23 Ariz. App. 422, 533 P.2d 1159 (1975).
In the present case, the issue is whether the car and uniform allowances provided by the Board represented a payment made in consideration for work and constituted an economic gain to Harmon. The car allowance provided to Harmon by his employer does not appear to be simply reimbursement for expenses incurred during the course of employment, but, in fact, appears to constitute a real economic gain to Harmon.
Harmon testified that he received $225 per month for using his own car to perform his duties as a process server. In addition, he received $35 per month from his employer to clean his uniform. Harmon testified as follows:
“They offered to, sure, but see, I had bought that old junker that didn’t cost me but a little bit of money, had it paid for. All I had to carry was liability, $51.00 every six months, I think that’s about it, and if nothing went wrong with it radically, I just pocketed $225.00, that’s all, and I come out a long way to the good. That was just extra wages the way I looked at it.”
According to Harmon, the $225 “was gravy.”
Regarding the uniform allowance, Arlyn Learning, the Ford County Sheriff, testified as follows: “Q. So what the employee does with the $35.00 is his business as long as his uniform is clean? A. That’s correct.”
The evidence indicates that the $225 car allowance that Harmon received from his employer represented a financial gain to Harmon and was not simply reimbursement for out-of-pocket work-related expenses. Consequently, the car allowance was properly included in the calculation of Harmon’s average weekly wage under K.S.A. 44-511(a)(3). Regarding the uniform allowance, it is not clear whether Harmon used the entire $35 to clean his uniform. Although an employee could spend the $35 in any manner he chose, it is not clear that Harmon, in fact, spent the $35 on something other than cleaning his uniform. Consequently, since the record does not affirmatively indicate the $35 allowance constituted true economic gain for Harmon, the $35 should not have been included in the calculation of Harmon’s average weekly wage under K.S.A. 44-511(a)(3).
The Board contends no substantial evidence exists to support a finding that Harmon sustained a 40% permanent partial disability to the body as a whole as a result of his accidental injury.
“In workers’ compensation cases, the scope of review by an appellate court is to determine whether the district court’s judgment is supported by substantial evidence. The evidence is viewed in the light most favorable to the party prevailing below and if there is substantial evidence to support the district court’s factual findings, the appellate court has no power to weigh evidence or reverse the final order of the district court.” Baxter v. L. T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987).
The governing statute for determining the extent of permanent partial general disability is K.S.A. 44-510e, since the disability involved in this case is not covered by the schedule in K.S.A. 44-5 lOd.
K.S.A. 44-510e(a) provides in part:
“Permanent partial general disability exists when the workman is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d, as amended. The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury, has been reduced.”
The Kansas courts have held that the test for determining permanent partial general disability is “the extent to which the injured worker’s ability has been impaired to engage in work of the same type and character he was performing at the time of the injury.” Carr v. Unit No. 8169, 237 Kan. 660, 664, 703 P.2d 751 (1985); see Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984).
In Davis v. Winchester Packing Co., 204 Kan. 215, 460 P.2d 617 (1969), the claimant suffered a back injury in the course of her employment. One issue on appeal was whether the award for claimant’s permanent partial disability was supported by substantial evidence. The evidence indicated that the claimant had a 15% functional disability. The examiner found that this amounted to a 75% permanent partial work disability. The director concluded that there was sufficient evidence ‘“to sustain the examiner’s finding that the claimant is suffering a 75% permanent partial work disability of the body as a whole and that this is the amount of disability he . . . should be compensated for even though his . . . functional disability is somewhat less.’ ” 204 Kan. at 217. The Supreme Court affirmed this finding and held that there was substantial competent evidence to support a finding of a 75% permanent partial work disability. 204 Kan. at 220. The court observed that the claimant in this case had no special skills or training; that all her past jobs required lifting, walking, bending and stooping; and that, since her release from the job, she had been unable to find other employment because of her injury. Expert testimony indicated that, because of her injury, the claimant would have trouble lifting or standing for long periods of time. According to other testimony, she would not be able to find employment because of her injury. 204 Kan. at 219-20. This evidence was sufficient to support a finding of 75% permanent partial work disability, despite the 15% functional disability rating. See Webb v. Globe Construction Company, 213 Kan. 681, 518 P.2d 419 (1974); Davis v. Winchester Packing Co., 204 Kan. at 217, 220; Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 663 P.2d 1144, rev. denied 233 Kan. 1091 (1983).
In the present case, the ALJ determined that Harmon had suffered a 15% functional impairment of the body as a whole. Based on this impairment and the other evidence at trial, the district court determined Harmon had suffered a 40% permanent partial work disability to the body as a whole.
Dr. Carl K. Zacharias, the physician who treated Harmon for his back injury, testified that Harmon was suffering from a degenerated lumbosacral disc and that his motion was limited. According to Zacharias, Harmon’s back condition would not improve but would become progressively worse. Furthermore, Zacharias stated that it would be detrimental to Harmon’s condition to continue working. Zacharias rated Harmon’s injury as a 15% partial and permanent impairment to the body as a whole. In the award, the ALJ stated that he found the medical opinion of Dr. Zacharias more persuasive than that of Dr. Eyster.
Harmon testified that he was still suffering from pain in his lower back. According to Harmon, his position as a process server required him to get in and out of his car and this action particularly caused him pain. Harmon stated that he resigned from his position because of the injury and that he could not perform his duties as a process server. According to Harmon, simply sitting for long periods of time aggravated his injury.
Although evidence exists to the contrary, there is substantial evidence to support a finding that Harmon’s ability to engage in employment of the same type and character has been diminished or reduced by 40% and that, therefore, Harmon sustained a 40% permanent partial disability to the body as a whole as a result of his accidental injury.
The Board contends that any permanent partial disability based upon work disability would be substantially lower than the functional impairment rating of 15%. The Board reasons, therefore, that his award should be based on the functional disability of 15%.
“Where the percentage of work disability exceeds the percentage of functional disability, computation of the award may be based on the percentage of work disability. [Citations omitted.] Conversely, it recently has been held that computation of an award may be based on functional disability where the percentage of work disability is not proved, is less, or is none.” Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 45, 588 P.2d 482 (1979).
See Grounds v. Triple J. Constr. Co., 4 Kan. App. 2d 325, 332-33, 606 P.2d 484, rev. denied 227 Kan. 927 (1980).
The extent of an employee’s work disability is “the extent to which the worker’s ability to engage in work of the same type and character that he was performing at the time of his injury has been reduced.” Fogle v. Sedgwick County, 9 Kan. App. 2d at 130. In the present case, the district court found Harmon had sustained a work disability of 40%. Since the percentage of work disability (40%) exceeds the percentage of functional disability (15%), computation of Harmon’s award may be based on the percentage of work disability. Desbien v. Key Milling Co., 3 Kan. App. 2d at 45.
Affirmed in part, reversed in part, and remanded with directions to exclude the uniform allowance in calculating the average weekly wage. | [
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Davis, J.:
Angele Warwick appeals from an order denying her motion to increase child support. She filed an action under the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., to restrict visitation with her children by her former husband, Robert Gluck, a nonresident of Kansas. Gluck appeared through counsel and sought extended visitation with the children, but objected to Warwick’s several motions to increase child support on the ground that the court lacked jurisdiction to consider them. The issue on appeal is whether the district court had personal jurisdiction over Gluck for the purpose of increasing child support. The district court found that the action was initiated by Warwick under the UCCJA which “specifically excludes jurisdiction toward or any increase in child support.”
Warwick and Gluck obtained a divorce in Philipsburg, St. Maarten, a protectorate of the Netherlands, in February 1983. By the terms of a separation agreement, Warwick became the guardian of the parties’ two minor children. Gluck became the children’s co-guardian. He agreed to pay $100 a month for child support.
In June 1983, Warwick and the children moved to Johnson County, Kansas. On May 3, 1984, Warwick filed a petition pursuant to the UCCJA in the District Court of Johnson County, requesting that the court restrain Gluck from removing the children from its jurisdiction, order him to undergo a psychological evaluation, and supervise his visitation with his children. The court issued an ex parte order granting the requested relief.
In response to the petition, Gluck filed a motion to dismiss, contending that the court lacked jurisdiction under the UCCJA. Alternatively, he asked that the court permit his children to visit him in St. Maarten during the summer.
The court held a hearing on May 24, 1984. Gluck appeared through counsel. On redirect examination, Warwick was asked by her counsel how much Gluck paid for child support. Gluck’s attorney objected “to this in this proceeding,” arguing that the UCCJA does not provide a basis for an order increasing child support. At the conclusion of the hearing, the court held that it had limited jurisdiction under the UCCJA and entered orders permitting Gluck to visit his children in Kansas City during the first ten days of June and requiring the parties to undergo a professional evaluation to determine the advisability of visitation in St. Maarten.
On August 1, 1984, Gluck filed a motion requesting that the court allow his children to visit him in St. Maarten for approximately two weeks prior to the start of school. Two days later Warwick moved for an increase in child support. She acknowledged that the UCCJA “does not provide for the plaintiffs motion herein,” but asserted that the court has jurisdiction to increase child support “under the common law concepts of parens patriae.” In his response to Warwick’s motion, Gluck contended that the court lacked personal and subject matter jurisdiction.
On November 27, 1984, the court held a hearing on pending motions. It granted Gluck visitation with his children in Kansas on weekends, but rejected his request to take the children to St. Maarten. The court expressed doubts about its ability to enforce an order increasing Gluck’s child support obligations. The order, entered on March 1, 1985, states, “Child support will not be increased at this time.”
On July 8, 1985, the court granted Gluck’s request for visitation with his children during the summer in Kansas City and in Naples and Fort Myers, Florida, where they were to visit their grandparents.
On October 17, 1985, the court addressed motions filed by the parties. In an order filed on October 24, 1985, the court denied Warwick’s motions to increase child support and to impose sanctions for Gluck’s failure to comply with discovery requests concerning his financial ability to make increased child support payments. The court held that the UCCJA “does not confer on this Court any jurisdiction to vary child support orders.”
Warwick filed a timely motion to alter or amend the October 24 order, contending that the court erred by holding it did not have jurisdiction to increase child support. In his response, Gluck argued that the court’s ruling was correct because he had “not been personally served nor voluntarily entered his appearance in the case.” In the alternative, Gluck contended that child support should be decreased, not increased, or that Warwick should be ordered to share in transportation exoenses incurred in visitation.
On December 4, 1986, before the court ruled on the motion to alter or amend, Warwick filed another motion to increase child support. She asserted that the “court has jurisdiction over the parties and the subject matter under the common law doctrine of parens patriae” and that Gluck had submitted to and had invoked the court’s jurisdiction by seeking affirmative relief in the case. On May 15, 1987, the court denied the motion to increase child support. In a journal entry filed on May 29, 1987, the court stated, “[T]his is an action initiated by the petitioner under the Uniform Child Custody Act and the Uniform Child Custody Act specifically excludes jurisdiction toward or any increase in child support.”
By its terms, the UCCJA does not grant a court subject matter jurisdiction to order a party to pay child support or any other monetary obligation. The UCCJA grants the court jurisdiction to make a “custody determination.” K.S.A. 38-1303(a). “Custody determination” is defined as “a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person.” K.S.A. 38-1302(b). (Emphasis added.)
Although a court is not granted subject matter jurisdiction to decide child support issues by the UCCJA, the jurisdiction of a Kansas court to modify a child support order of another state is well-established and is based on the common-law duty of a parent to support his or her child, Keller v. Guernsey, 227 Kan. 480, 608 P.2d 896 (1980); and on equity principles, Burnworth v. Hughes, 234 Kan. 69, 670 P.2d 917 (1983).
On appeal, Gluck does not contend that the district court lacked subject matter jurisdiction to order an increase in child support. Rather, he contends that the court lacked personal jurisdiction over him.
Personal jurisdiction has not been at issue in the cases that have upheld the district court’s authority to modify a child support order on the basis of common law or equity.
In Keller v. Guernsey, the nonresident mother filed an action in Wyandotte County, Kansas, seeking an order for future support of the parties’ minor children. Personal service was obtained on the respondent. 227 Kan. at 481. On appeal, the Supreme Court held that the district court had subject matter jurisdiction based upon the parents’ common-law duty of support. 227 Kan. at 488.
In Burnworth v. Hughes, the father initiated an action under the UCCJA to obtain custody of his minor children or, in the alternative, visitation rights. The nonresident mother appeared to contest both custody and visitation. The mother “never filed a counterclaim specifically praying for an order for child support.” 234 Kan. at 71. Nevertheless, the trial court ruled that it “had jurisdiction to consider the custody and visitation rights raised in plaintiff s petition and also had jurisdiction to enter a child support order since plaintiff had consented to the jurisdiction of the court.” 234 Kan. at 71. The court ordered the father to pay support at the rate of $600 per month and continued the custody hearing pending his compliance with the child support order. On appeal the father did not contest the trial court’s finding that it had personal jurisdiction over the parties. Rather, he contended that since his former wife had not requested an increase in child support, the trial court lacked subject matter jurisdiction to order child support increased or to make visitation contingent upon his payment of child support obligations.
The Supreme Court, relying upon the case of Howarth v. Northcott, 152 Conn. 460, 208 A.2d 540 (1965), 17 A.L.R. 3d 758, held that “[i]n a proceeding relating to child custody or visitation, a court may order child support payments and condition visitation rights upon the noncustodial parent’s payment of reasonable child support.” 234 Kan. 69, Syl. ¶ 4. The Supreme Court based this holding on the broad powers given a court of equity to act in the best interests of the child. 234 Kan. at 73-75.
In arriving at its decision, the Burnworth court relied on decisions defining the power and authority of a court of equity:
“In a proceeding which is equitable in character, the court has the power and authority to make a full and final adjudication of all matters properly before it when necessary for a complete and final adjudication. The court is not compelled to leave such matters for separate and future litigation. Row v. Artz, 168 Kan. 71, 73, 211 P.2d 66 (1949). Stated in another way, where a court of equity has all the parties before it, it will adjudicate upon all the rights of the parties connected with the subject matter of the action, so as to avoid a multiplicity of suits. Seibert and Lykins v. Thompson, 8 Kan. *65 (1871).” 234 Kan. at 75. (Emphasis added.)
In both Row v. Artz and Seibert and Lykins v. Thompson, cited in Burnworth, the court had personal jurisdiction over all the parties to the action. In Row v. Artz, 168 Kan. 71, 73, 211 P.2d 66 (1949), the Supreme Court noted as follows:
“The original action and the expanded issues were equitable in character. The court had jurisdiction of the subject matter and the parties. The equitable powers of chancery courts have been greatly expanded. They have power and authority to make a full and final adjudication of all matters properly before them when necessary for a complete and final adjudication. They are not compelled to leave such matters for separate and future litigation.” (Emphasis added.)
In Burnworth the Supreme Court was not faced with a challenge to the in personam jurisdiction of the district court, but rather addressed the question of whether a Kansas court has the power and authority to award child support when “the question of child support had never been made an issue in the formal pleadings filed by the parties.” 234 Kan. at 74.
A court must have in personam jurisdiction to enter an order to pay child support. Kulko v. California Superior Court, 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978). The same is not true of a custody determination made pursuant to the UCCJA. A petitioner need not establish that the nonresident spouse has “minimum contacts” with the forum state, Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), to bring an action under the UCCJA. “Rather, custody is in effect an adjudication of a child’s status, which falls under the status exception of Shaffer v. Heitner, 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977). A court may therefore adjudicate custody under the [UCCJA] without acquiring personal jurisdiction over an absent party given reasonable attempts to furnish notice of the proceedings.” In re Marriage of Hudson, 434 N.E.2d 107, 117 (Ind. App. 1982), cert. denied 459 U.S. 1202 (1983); see Unif. Child Custody Jurisdiction Act § 12, Commissioners’ Note, 9 U.L.A. 149 (1979).
“[Jurisdiction over the person of a defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.” Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971).
Warwick does not contend that Gluck has been served with process in the method prescribed by statute; the record indicates that he was served notice by mail. Rather, Warwick argues that Gluck submitted to the jurisdiction of the court by (1) seeking extended visitation in the action she filed under the UCCJA; (2) approving the trial court’s March 1, 1985, order; and (3) requesting a decrease in child support.
During oral argument Warwick conceded that Gluck’s appearance by counsel in response to her UCCJA petition and his request for increased visitation did not subject him to the in personam jurisdiction of the court. Gluck raised lack of personal jurisdiction as a defense in his responsive pleadings and, therefore, did not consent to the court’s exercise of jurisdiction over him. See K.S.A. 60-212(h); Haley v. Hershberger, 207 Kan. at 465; Small v. Small, 195 Kan. 531, 536-38, 407 P.2d 491 (1965); Lillis v. Lillis, 1 Kan. App. 2d 164, 165, 563 P.2d 492 (1977).
Warwick argues that Gluck submitted to the personal jurisdiction of the court by approving the March 1, 1985, order, which stated, “Child support will not be increased at this time.” Apparently, Warwick contends that this order amounts to an assumption of jurisdiction over the matter of child support and that by approving the order Gluck consented to the jurisdiction of the court.
Although the order indicates a hearing was held by the court on November 7, 1984, the hearing actually was held on November 27, 1984. At this hearing the court questioned its personal jurisdiction over Gluck and elected to leave the support issue alone:
“There is no question in my mind but what I have got jurisdiction of the youngsters and Mrs. Warwick. In other words, I can make orders and I can expect them to be enforced because they are within reaching distance. I do have questions about my jurisdiction over the gentleman in San Marti-— . . .
“I am going to leave the support issue alone, the original orders.”
The record reflects that the court refused to exercise jurisdiction over Gluck with regard to child support matters, electing to “leave the support issue alone.” Under these circumstances Gluck did not waive his objection to the court’s personal jurisdiction by approving the March 1, 1985, order.
Warwick also contends that Gluck submitted to the jurisdiction of the court by requesting a decrease in child support. His request for a decrease in child support, however, was a plea in the alternative. Gluck’s initial response negates the conclusion that he consented to the in personam jurisdiction of the court by his alternative pleading for a decrease in child support:
“Plaintiff s [Warwick’s] reliance on Dipman v. Dipman, 6 Kan. App. [2d 844,] is misplaced inasmuch as the defendant has not been personally served nor voluntarily entered his appearance in this case. His appearance under the Uniform Child Custody [Jurisdiction] Act was secured by mailed notice. This court has the discretion to deny jurisdiction in child support matters.”
The district court’s jurisdiction in this case was quasi in rem, not in personam. The court did not acquire personal jurisdiction over Gluck as a result'of his participation in the UCCJA action filed by Warwick. See Baggett v. Walsh, 510 So. 2d 1099 (Fla. App. 1987); Fox v. Webb, 495 So. 2d 879 (Fla. App. 1986); In re Marriage of Schuham, 120 Ill. App. 3d 339, 458 N.E.2d 559 (1983).
To hold that Gluck consented to the in personam jurisdiction of the district court by seeking visitation rights with his minor children would be unfair. Gluck did not choose to litigate the issue of visitation in Kansas courts. Rather, Warwick’s presence with the children in Kansas and her decision to file an action under the UCCJA to limit his visitation rights left him no choice. “Principles of fairness preclude the exercise of personal jurisdiction where connection with the state resulted from an effort to encourage visitation with the noncustodial parent.” Kumar v. Superior Court, 32 Cal. 3d 689, 703, 186 Cal. Rptr. 772, 652 P.2d 1003 (1982); see In re Marriage of Malak, 182 Cal. App. 3d 1018, 227 Cal. Rptr. 841 (1986); Ferguson v. Ferguson, 411 N.W.2d 238 (Minn. App. 1987).
Affirmed. | [
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Brazil, J.:
Reicelynn Cook appeals from the district court’s denial of her motion to allow the late filing of a notice of appeal following her convictions of felony theft, K.S.A. 1986 Supp. 21-3701, and burglary, K.S.A. 21-3715.
Defendant Cook contends that the district court erred in denying her motion to allow the late filing of her notice of appeal. She contends that the fact that no notice of appeal was filed suggests that she received ineffective assistance of counsel. Finally, she contends that, pursuant to Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), the district court should have held a hearing to determine whether she waived her right to an appeal. For the reasons that follow, we disagree with Cook’s contentions and affirm the district court.
Cook’s notice of appeal was not filed within the statutory time allc wed, which is within 130 days of sentence. K.S.A. 1986 Supp. 21-4603(3); K.S.A. 1986 Supp. 22-3608(1). In State v. Moses, 227 Kan. 400, 403, 607 P.2d 477 (1980), the court noted that there is no provision authorizing district courts to extend the time for appeal in criminal cases. An exception to this general rule “has been recognized only in those cases where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982).
Here, the district court correctly determined that Cook did not meet any of the Ortiz exceptions and that it did not have jurisdiction to extend the statutory time for perfecting an appeal.
Cook is correct in her contention that she is entitled to effective assistance of counsel on appeal. In Douglas v. California, 372 U.S. 353, 9 L. Ed 2d 811, 83 S. Ct. 814, reh. denied 373 U.S. 905 (1963), the United States Supreme Court held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as of right. In Evitts v. Lucey, the Court held that “[a] first appeal as of right ... is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” 469 U.S. at 396.
Nothing in the record, however, indicates that Cook requested counsel on appeal and was either denied counsel or provided counsel who failed to perfect the appeal. Cook was advised of her right to appeal her conviction and was told that, if she could not afford the services of an attorney on appeal, the Kansas Appellate Defender would be appointed to represent her. The record contains no indication that Cook desired to exercise her right to appeal but was precluded from doing so. In State v. Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130, 137 [5th Cir. 1979]), the court noted: ‘“A defendant properly informed of his appellate rights may not “let the matter rest,” Worts v. Dutton, 395 F.2d 341, 344 (5th Cir. 1968), and then claim that he did not waive his right to appeal.’ ”
Cook has failed to show that she was denied effective assistance of counsel in perfecting an appeal.
Cook’s final contention that she was entitled to an evidentiary hearing to determine whether she waived her right to an appeal is also without merit. In State v. Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d at 137), the court stated: ‘“We hold that neither the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.’ ”
The Ortiz court further noted:
“Whether the defendant made a knowing and intelligent decision to forego an appeal is subjective in nature. The courts only can be expected and required to show on the record that a defendant was advised of the right to appeal and that an attorney was or would have been appointed to assist the defendant in such an appeal.” 230 Kan. at 736.
Evitts v. Lucey, 469 U.S. 387, does not change the principles recognized in Norris v. Wainwright and State v. Ortiz. Evitts v. Lucey held that, if a criminal defendant desires to appeal his conviction, he is entitled to the effective assistance of counsel. That case is silent regarding any duty by the trial court to hold an evidentiary hearing to determine if a defendant has waived his or her right to appeal.
Cook was advised of her right to appeal and her right to have counsel appointed. Nothing in the record indicates, nor does Cook contend on appeal, that she failed to understand these rights or was precluded from exercising them.
The district court did not err in denying Cook’s motion to allow the late filing of her notice of appeal and in not holding a hearing to determine whether Cook waived her right to appeal.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Robert Hays against the Cudahy Packing Company to recover damages for personal injuries sustained by Hays by reason of the alleged negligence of the company. Hays was an employee of the company whose principal duties were performed on the second floor of a smokehouse, and who was sometimes employed to remove ham-racks from the third to the second floor of that house. On the occasion of his injury he was directed by the foreman to go to the third floor and bring down some meat-racks. These meat-racks were suspended from an overhead iron-rail system which included switches by which the racks could be moved to the different apartments of the smoke-house. When Hays went to the room on this mission he claims to have inadvertently touched a heavily loaded meat-rack, and that it fell and injured his foot. The reason it fell, as he alleges, was that a bolt supporting the end of a rail was out of place, allowing the rail to sag down at a sharp incline, and the switch being open at the time the meat-rack, when moved, ran down the incline and upon his foot. As the room was somewhat dark at the time Hays did not discover the defect in the rail. The jury found in his favor and awarded him $450 for the injury sustained.
A ruling on the admission of testimony is first complained of by the company. Bailey was the foreman in charge of the department in which Hays was working.' While giving the circumstances of the injury Hays was asked and answered the following question:
“State . . . what, if anything, Mr. Bailey, the foreman, said to you immediately after the accident in regard to his knowing that this switch was out of order. Ans. He says to me, after I and him goes up there, he says, T went myself about two or three days ago and told the millwright to have the fellows come right here and fix this switch.’ He says, T told him two or three days ago to come and fix it,’ and he says, ‘if they had come and fixed this switch,’ he says, ‘this never would have occurred.’ ”
A proper objection was made to the question, but none was made to the answer, nor was there any motion to strike out any portion of it. Having shown the defect which occasioned the injury, it became necessary for Hays to prove either that the company had knowledge of its condition or that it had existed so long that knowledge of its condition would be implied. The inquiry was as to what was said by Bailey immediately after the injury in regard to his knowledge of the defect, and, while the answer was much broader than the question, the inquiry elicited testimony of an admission that Bailey had known for several days that the appliance was out of order, and of a statement to some extent explanatory of the existing condition of the appliance. Bailey was the foreman in charge of the department — the representative of the company— and his knowledge was the knowledge of the company. The corporation could only act through its managing agents, and, as Bailey was the manager of that department, he stood in the shoes of the company, and his knowledge is legally imputable to the company. The knowledge which a corporation has of its operations is that acquired by its representatives and managing agents. When such a representative has knowledge of the condition of an appliance in use the corporation may be said to have that knowledge, and his admission of such knowledge, made in connection with the business he is managing, may be treated as the principal’s admission. It is not an admission that an .employee of the company failed in his duty, nor that the company was negligent. The virtue of the admission is not so much that it was made immediately after the time of the injury as that it was made by a representative of the company whose knowledge was necessarily that of the company itself. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; Baltimore Elevator Company v. Neal, 65 Md. 438, 5 Atl. 338; Abbott v. ’76 Land and Water Co., 87 Cal. 323, 25 Pac. 693; Halsey v. Lehigh Valley R. R. Co., 45 N. J. Law, 26; 2 Whart. Law of Ev. § 1170; 3 Wig. Ev. § 1797.)
The question itself was not improper. It is true the answer of the witness was wider in its scope than the question, and a part of it was neither responsive nor competent. But the attention of the court was not called to the answer by an objection, and, as no motion was made to eliminate the objectionable part, the company is not in a position to complain of that feature. The way to get rid of an improper answer to a proper question is by a motion to strike out that which is objectionable.
The other objections to rulings admitting testimony are not deemed to be material.
No error was committed in overruling the demurrer to the evidence of the plaintiff. It is said that there is no showing that the company knew, or should have known, of the defect in the appliance; but, as already seen, there is the direct testimony of an admission by the foreman that he had knowledge of the defect.
We find no error in the rulings in charging the jury. The instruction asked by the company to the effect that under the pleadings the sole ground of the negligence was the insufficiency of the light was properly refused. The principal ground upon which a recovery was sought was the defective appliance, and the averments regarding the insufficiency of the light were manifestly made to account for the fact that Hays did not observe the defect and to avoid the implication of contributory negligence. The instructions given state the law correctly, and are not open to the charge of broadening the issues.
A new trial was asked on the ground of newly discovered evidence. The new testimony alleged to have been discovered since the trial appears to be largely contradictory of that given by Hays. If it be granted that the testimony proposed is material, and not merely cumulative or contradictory of that given on the trial, the showing of diligence to produce it at the trial is not sufficient. An affidavit is made by one of the counsel for the company to the effect that an effort was made by him to discover this evidence and that it was impossible to do so, but no good reason is shown why the names and locations of the employees working with, and who were near to, Hays when the accident occurred could not have been ascertained by the exercise ' of reasonable diligence." Before a new trial is granted on this ground a strong showing of diligence is necessary, and if the. diligence used since the trial, and which appears to have been no more than reasonable, had been exercised before the trial the testimony might have been procured.
We discover no prejudicial errors in any of the rulings of the trial court, and its judgment is therefore affirmed.
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Per Curiam:
This case is brought here on a transcript of the record, which on its face discloses that all of the pleadings are not included. There is a motion by defendants in error to dismiss and one by plaintiff in error for permission to amend the record by attaching the missing papers. As the record stands it cannot be considered. (Neiswender v. James, 41 Kan. 463, 21 Pac. 573; Barger v. Sample, 63 Kan. 880, 64 Pac. 1026.) There cannot be a correction of the record at this time. It might have been made at any time within a year after the judgment was rendered, but after a year has expired no amendment of substance can be made. (Crawford v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 474, 25 Pac. 865.) The judgment was rendered more than a year ago, viz., January 3, 1905. It is too late to amend, and, the record being incomplete, we are without jurisdiction.
The proceeding is dismissed. | [
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