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Johnson, J.:
Farm Bureau Mutual Insurance Co., Inc. (Farm Bureau) appeals the district court’s determination of the amount of underinsured motorist (UIM) benefits payable to its insured, Chong Ae O’Donoghue, deceased. Plaintiffs in this action are the estate administrator and the heir of Chong Ae O’Donoghue (collectively referred to as O’Donoghue). We affirm.
The facts are undisputed. In July 1999, O’Donoghue, a passenger in a vehicle driven by Sarah Brown, was killed in a single-car accident. There were two other passengers in the vehicle; one was also killed in the accident and the other was severely injured. Thus, there were three claimants against the driver’s insurer, American Family Insurance Company (American Family).
Brown’s American Family automobile insurance policy provided bodily injury liability limits of $50,000 per person and $100,000 per occurrence (50/100), i.e., American Family would not pay any one person more than $50,000 and would not pay more than a total of $100,000 to compensate all of the persons injured in the same accident. Brown’s coverage limits were insufficient to fully compensate all three claimants. The parties agreed to divide the total per occurrence monies available under the American Family policy as follows: the injured passenger would receive $50,000 and each of the decedents’ estates would receive $25,000. Farm Bureau, as O’Donoghue’s insurer, approved of the settlement with American Family as being a fair and reasonable distribution of Brown’s liability limits.
O’Donoghue’s Farm Bureau policy provided UIM coverage with limits of $100,000 per person and $300,000 per occurrence (100/ 300). The parties have agreed that O’Donoghue’s damages exceeded $100,000. O’Donoghue made a claim under Farm Bureau’s UIM coverage for $75,000, representing the $100,000 per person limit less the $25,000 recovery from American Family. Farm Bureau countered that its maximum liability to O’Donoghue was $50,000, computed by subtracting Brown’s per person limit of $50,000 from O’Donoghue’s per person limit of $100,000.
The estate filed a petition and a motion for partial summary judgment, asking the district court to declare $75,000 in UIM coverage available to O’Donoghue. The district court granted O’Donoghue’s partial summary judgment, finding that $75,000 in UIM coverage was available, but the court denied O’Donoghue’s motion for attorney fees under K.S.A. 40-256. The parties later agreed to a journal entry of judgment. Farm Bureau paid the uncontested amount of $50,000 to O’Donoghue, but appealed the $75,000 judgment. O’Donoghue cross-appealed the denial of attorney fees.
CALCULATION OF UIM BENEFITS
As presented by the parties, the primaiy issue before the court is whether the amount of O’Donoghue’s UIM coverage with Farm Bureau should be calculated by reducing her UIM per person limit by: (1) the per person limit of Brown’s American Family liability coverage ($100,000 — $50,000 = $50,000); or (2) the amount of American Family’s actual payment to O’Donoghue ($100,000 — $25,000 = $75,000). Because summary judgment was based on stipulated facts, the appellate court’s standard of review is de novo. Veatch v. Beck, 252 Kan. 1081, 1082, 850 P.2d 923 (1993). The parties apparently agree that the policy language mirrors the applicable statute, and, therefore, the interpretation and application of the underinsured motorist statute, K.S.A. 40-284(b), is dispositive in this case. Interpretation of a statute is a question of law, and the appellate court’s review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
K.S.A. 40-284(b) sets forth the basic requirements for UIM coverage:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.”
Farm Bureau cites to State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 778 P.2d 370, rev. denied 245 Kan. 786 (1989), as authority for its proposed “hmits-to-limits” rule, i.e., deriving a maximum UIM obligation by deducting the tortfeasor’s per person limit from the UIM per person limit. In Cummings, the tortfeasor’s liability insurance had 50/100 limits. The injured occupants of the other vehicle were covered by the driver’s State Farm policy, which likewise had UIM limits of 50/100. The four injured parties settled with the tortfeasor’s insurer for less than their actual damages and then demanded UIM benefits from State Farm to make up the difference.
Based on these stipulated facts, the district court found there was no UIM coverage available to the injured parties. The Court of Appeals agreed, holding:
“Since underinsured motorist coverage is only available to the extent that it exceeds the limits of the bodily injury coverage carried by the driver of the other vehicle, under the facts of this case, underinsured motorist coverage is not available because it is identical to the bodily injury coverage on the offending vehicle and does not exceed that coverage.” 13 Kan. App. 2d at 638-39.
Thus, even though the injured parties had been unable to collect the full amount of their damages due to the tortfeasor’s inadequate liability limits, no benefits were available because the UIM limits and the tortfeasor’s liability limits were identical. In other words, the claimant had purchased inadequate UIM limits. The court concluded its opinion with a test to be applied in such cases. “In determining whether underinsured motorist coverage is available, two steps must be satisfied: (1) The opposing party’s liability coverage must be below the claimant’s liability coverage, and (2) the claimant must have damages in excess of the opposing party’s liability coverage.” 13 Kan. App. 2d at 639.
O’Donoghue contends that the law stated in Cummings has been superceded by two recent cases involving multiple injury group settlements: Jones v. Automobile Club Inter-Insurance Exchange, 26 Kan. App. 2d 206, 981 P.2d 767, rev. denied 268 Kan. 847 (1999), and Cashman v. Cherry, 270 Kan. 295, 13 P.3d 1265 (2000). According to O’Donoghue, these cases clearly establish that O’Donoghue’s UIM payment from Farm Bureau should be calculated by simply deducting the actual American Family payment without the necessity of comparing the per person limits of the two companies’ policies.
The plaintiff in Jones was one of four persons injured in a vehicle that was struck by the tortfeasor’s vehicle. The tortfeasor’s bodily injury liability coverage had limits of $25,000 per person and $50,000 per occurrence (25/50). The tortfeasor’s passenger collected $7,000, leaving $43,000 of the per occurrence limit remaining for Jones and the other three passengers in the struck vehicle. The related parties agreed Jones’ damages were $20,682.15 and that Jones’ pro rata share of tire $43,000 was $7,826.
Jones then turned to her UIM insurer, AAA, for payment. Jones’ UIM coverage had 50/100 limits. The district court ruled that under the second prong of the Cummings test, Jones did not have a UIM claim because her damages ($20,682.15) were less than the tortfeasor’s per person liability limit ($25,000).
The Court of Appeals reversed the district court, finding that the Cummings test did not specify whether the per person or per occurrence limit should be applied in determining whether the claimant’s damages exceeded the tortfeasor’s liability coverage. Thus, the court summarily opined, Cummings was not dispositive of the issue. 26 Kan. App. 2d at 208. Looking at the remedial nature of K.S.A. 40-284, the court determined that whether the per person or per occurrence limit applies will depend upon which limit impairs the insured’s ability to receive full compensation from the tortfeasor. Because several people had been injured in the same accident, Jones’ recovery from the tortfeasor was incomplete due to the tortfeasor’s $50,000 per occurrence limit, rather than the $25,000 per person limit. 26 Kan. App. 2d at 209. Apparently, Jones was saying that if the total of the damages of all claimants against the tortfeasor was in excess of the tortfeasor’s per occurrence limit, then regardless of the amount of the UIM claimant’s individual damages, the second prong of Cummings had been met.
However, concerned about the possibility of a collusive settlement of the available liability coverage among the related occupants of the struck vehicle, the Court of Appeals remanded the case to the district court for further findings regarding each party’s actual damages. The court instructed: “Once those damages are determined, the district court is directed to determine each person’s pro rata share of the $43,000 settlement. Jones’ claim against AAA should be calculated as the difference between her pro rata share of the settlement and the total value of her damages.” (Emphasis added.) 26 Kan. App. 2d at 209. O’Donoghue points to this language as estabhshing the rule for calculating the amount of UIM benefits payable: The amount of actual recovery from the tortfeasor is deducted from the claimant’s total damages.
Shortly after Jones, the Kansas Supreme Court considered a factually similar scenario in Cashman, 270 Kan. 295. The plaintiff Cashman was one of three people injured by the tortfeasor, who carried liability coverage with 50/100 limits. Cashman s damages were found to be $40,539.91, an amount within the per person limit. However, the total of all claimants’ damages exceeded the $100,000 per occurrence limit. Cashman setded with the tortfeasor’s insurer for $25,000, as her pro rata share of the per occurrence limit. Cashman filed a claim against the UIM insurer, which provided 100/300 limits. The district court denied Cashman’s claim for UIM benefits under the second prong of the Cummings test because her damages ($40,539.91) were not in excess of the $50,000 per person liability limit of the tortfeasor’s policy. 270 Kan. at 296-97.
Finding the logic of Jones persuasive, the Kansas Supreme Court commented that Cashman could not receive the full amount of the per person liability coverage ($50,000) because the per occurrence limit ($100,000) was exhausted due to the multiple injured parties involved. 270 Kan. at 300-01. Like Jones, the Kansas Supreme Court remanded the case to the district court to determine the amounts of all the injured parties’ respective damages and Cash-man’s pro rata share of the $100,000 available from the tortfeasor’s liability insurer. It then advised: “Mandi [Cashmanj’s UIM claim against American Family should be the difference between her pro rata share of the $100,000 settlement and her damages of $40,539.91.” 270 Kan. at 302. The second paragraph of the syllabus contains even broader language: “The underinsured motorist provider is responsible for paying the difference between the insured’s pro rata share of the settlement and the total amount of damages up to the insured’s underinsured liability limits . . . .” 270 Kan. at 295, Syl. ¶ 2. In setting forth the UIM provider’s responsibilities, the Supreme Court made no mention of a “hmits-to-limits” rule that would reduce the UIM per person liability limits.
As Farm Bureau correctly notes, the focal issue of both Jones and Cashman was whether there was any UIM coverage available to the insured, not whether a “hmits-to-hmits” rule applied to reduce the amount of benefits available to pay a proper UIM claim. In Jones and Cashman, the UIM claimants’ total damages were less than the UIM per person limit reduced by the tortfeasor’s per person limit, i.e. their recovery would have been the same under either Farm Bureau’s or O’Donoghue’s theory. For instance, in Jones, the application of Farm Bureau’s “limits-to-limits” rule would have yielded a maximum available benefit of $25,000 ($50,000 minus $25,000), but Jones’ total damages were only $20,682.15. In Cashman, the maximum UIM exposure under Farm Bureau’s theory would have been $50,000 ($100,000 minus $50,000); Cashman’s damages ($40,539.91) were within that limit. Therefore, it does not appear that Farm Bureau’s proffered interpretation of K.S.A. 40-284(b), creating a “per person limit-to-per person limit” rule, was squarely before the Jones or Cashman courts.
In Jones and Cashman, the multiple claimants dividing the tortfeasor’s insurance proceeds were family members. However, once the actual damages are determined and the UIM insured’s pro rata share of the tortfeasor’s limits is calculated, the relationship of the injured parties should have no impact on the calculation of UIM benefits. Cashman s directive to pay the difference between the UIM insured’s pro rata share of the tortfeasor’s insurance proceeds and the total amount of the insured’s damages up to the insured’s UIM limits should not be restricted to closely linked injured persons.
Farm Bureau focuses on the last, qualifying portion of40-284(b). Neither the parties here nor the previous cases discuss the first, principal portion of the statute. The statute is not as plain as it could be. However, a fair reading of the first portion of the statute directs that insurance companies are to provide a UIM coverage which enables the insured to collect from his or her own insurance company the amount of money that the insured would have recovered from the tortfeasor, if the tortfeasor had been carrying the same liability limits as the insured. Here, if Brown had carried liability insurance with 100/300 limits, O’Donoghue would have recovered $100,000 from Brown. The $300,000 per occurrence limit was sufficient to fully fund the $100,000 per person limit for each of the three claimants, and O’Donoghue had over $100,000 in actual damages. By applying this interpretation of the statute, the problem of prorating UIM coverage among multiple claimants is dealt with in the same manner as the proration of the tortfeasor’s limits. For instance, if there had been four UIM claimants, each with $100,000 in damages, the $300,000 UIM per occurrence limits would have been prorated, based on actual damages, rather than simply paid to the first persons to file a claim. It should be noted, however, that UIM is first party coverage and, ordinarily, not all persons claiming against the tortfeasor will be claiming UIM benefits under the same policy.
However, if K.S.A. 40-284(b) contained no further provision, O’Donoghue could collect $100,000 under the UIM, in addition to the $25,000 already collected from Brown’s insurer. Therefore, the statute qualifies die UIM recovery “to the extent such [UIM] coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” It is noteworthy that the statute speaks to the UIM “coverage” exceeding the tortfeasor’s “coverage.” This connotes that the amount available for recovery under the tortfeasor’s policy, considering both the per person and per occurrence limits and the number and respective damages of all claimants, is deducted from the amount which would have been available to the UIM claimant under the same scenario if the tortfeasor had carried the higher UIM limits to arrive at the amount which the UIM insurer must pay its insured. The qualifying portion of the statute does not create a “per person limits-to-per person limits” limitation rule, but rather it provides for a “coverage-to-coverage” comparison. Because of the tortfeasor’s inadequate per occurrence limit, the tortfeasor’s coverage available to O’Donoghue was $25,000.00. The amount that was payable under tire tortfeasor’s policy limits ($25,000) is deducted from the amount that would have been paid under the UIM policy limits ($100,000).
Cashman noted the purpose in mandating UIM coverage was “to fill the gap inherent in motor vehicle financial responsibility legislation and compulsory insurance legislation” and specifically directed that “K.S.A. 40-284(b) should be liberally construed in light of the legislative intent to compensate innocent persons dam aged by others without sufficient insurance.” 270 Kan. Syl. ¶ 2. It would also seem logical that the purpose of UIM coverage is to allow one to purchase certain limits, e.g. 100/300, to be available to compensate the purchaser s injuries, regardless of the bodily injury limits carried by any potential tortfeasor. Although the limits-to-limits rule is simple to apply, it creates aberrant results. To illustrate, the following chart reflects the application of the limits-to-limits rule in this case if Brown had carried various bodily injury liability limits:
Brown’s B/I Limits Farm Bureau’s UIM payment O’Donghue’s total recovery
Uninsured $100,000 $100,000
25/50 $ 75,000 $ 87,500
50/100 $ 50,000 $ 75,000
100/300 -0-$100,000
Surely, no gaps are filled and innocent persons are not adequately compensated by a rule that provides for full compensation only if the tortfeasor is either completely uninsured or fully insured. Further, it is counterintuitive to provide that the higher the tortfeasor’s liability limits the smaller the injured innocent person’s total recovery.
There was some suggestion that the hmits-to-limits rule is necessary for insurance companies to be able to accurately define their UIM exposure. However, under K.S.A. 40-284(a), Farm Bureau was potentially liable for the entire 100/300, if Brown had been uninsured. There was no evidence that Farm Bureau’s UIM coverage had been priced by an actuarial determination of the probability that O’Donoghue would be injured by a tortfeasor that carried 50/100 limits, rather than 25/50 or any other amount. Our interpretation of Farm Bureau’s UIM responsibility retains the outside limits of $100,000 per person and $300,000 per occurrence. No hardship to the insurance industry is readily apparent.
Here, O’Donoghue’s recovery from Brown would have been $100,000, if Brown had carried 100/300 liability limits. O’Donoghue recovered $25,000 from Brown because of the liability limits Brown actually had (50/100). O’Donoghue incurred more than $100,000 of damages. Therefore, the tortfeasor’s coverage of $25,000 is deducted from the UIM coverage of $100,000 to arrive at the payable UIM benefit of $75,000. The district court’s ruling is affirmed.
ATTOBNEYFEES
In its cross-appeal, O’Donoghue contends the district court erred in denying its motion for attorney fees pursuant to K.S.A. 40-256. During the hearing on the estate’s motion for partial summary judgment, the district court denied the motion for attorney fees as premature. However, the district court permitted the estate to renew its motion at a later time. The record does not indicate the estate ever revived its motion, however. Furthermore, neither the journal entry of judgment nor the nunc pro tunc order addressed the merits of the motion for attorney fees.
K.S.A. 40-256 states:
“[I]n all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 ... if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs . . . .”
O’Donoghue contends that Jones and Cashman clearly indicate Farm Bureau’s obligation to provide $75,000 in UIM coverage, and, therefore, Farm Bureau did not have just cause or excuse to deny the claim.
In Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 815 P.2d 550 (1991), the Kansas Supreme Court summarized the law regarding the award of attorney fees under K.S.A. 40-256:
“The question of whether an insurer has refused to pay without just cause or excuse is one of fact for the trial court. [Citation omitted.] In refusing to pay a claim, an insurance company has a duty to make a good faith investigation of the facts surrounding the claim. [Citation omitted.] If there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay without just cause or excuse. [Citation omitted.] Whether an insurance company’s refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case. [Citation omitted.]
“Whether there was just cause to refuse payment and, therefore, justification for denial of attorney fees is in the trial court’s sound discretion. [Citation omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. [Citation omitted.]” 249 Kan. at 261-62.
It is not clear that the attorney fee issue was properly presented to the district court and thereby preserved for appeal. See Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). Nevertheless, the district court’s denial of attorney fees was a valid exercise of its discretion. When an insurance controversy involves an issue of first impression, the award of attorney fees is inappropriate. Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan. App. 2d 918, 931, 894 P.2d 226, aff'd 258 Kan. 547, 907 P.2d 891 (1995). Furthermore, the presence of an issue raised in good faith bars an award of attorney fees under K.S.A. 40-256. Whitaker v. State Farm Mut. Auto Ins. Co., 13 Kan. App. 2d 279, 284-85, 768 P.2d 320 (1989). As we noted above, Jones and Cashman were not clearly on point and Farm Bureau had a bona fide reason for its interpretation of the maximum UIM benefits payable. An award of attorney fees would have been inappropriate.
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Knudson, J.:
Paul D. Barnett appeals the district court’s modification of child support. On appeal, Barnett contends the court erred in calculating monthly child support and hmiting retroactive application of the modification.
Previously, Barnett had been ordered to pay child support of $441 to Lynelle Cusimano for two children. In anticipation of the parties’ eldest child becoming an adult, Cusimano filed a motion to modify child support. After an evidentiary hearing on April 20, 2000, the hearing officer entered an order of $441 monthly child support for the remaining minor. In the order, the hearing officer found: “Nor has [Barnett] exercised physical visitation with the children in three years which puts an additional financial burden on [Cusimano].” In the hearing officer’s completed child support worksheet, a $200 upward supplemental adjustment was entered as a result of Barnett’s failure to exercise visitation. Barnett’s motion for reconsideration was denied, and he appealed the judgment to Judge Janice D. Russell.
Judge Russell reduced the monthly child support obligation to $288 with the order to be retroactive to March 1, 2001. Judge Russell’s order for support was based upon a worksheet that in- eluded a $75 upward supplemental adjustment as a result of Barnett’s failure to exercise visitation.
Barnett contends the trial court lacked legal authority to increase child support based upon his lack of visitation. This issue requires interpretation of the Kansas Child Support Guidelines (Administrative Order No. 128 [2001 Kan. Ct. R. Annot. 97]) (guidelines). Section V.E.2 of the guidelines permits a reduction of the noncustodial parent’s support obligation based upon the amount of time a child is with tire noncustodial parent. 2001 Kan. Ct. R. Annot. 109-10. There is no authority within the guidelines to increase the noncustodial parent’s child support obligation through an upward adjustment under the supplemental visitation category based solely upon the noncustodial parent’s failure to exercise visitation or spend quality time with a minor child. We conclude the district court erred in providing for a $75 upward visitation adjustment to Barnett’s net parental child support obligation.
Barnett next contends the district court abused its discretion in failing to give retroactive application to its order from April 20, 2000. Judicial discretion is abused only when no reasonable person would take the view adopted by the district court.
K.S.A. 2001 Supp. 60-1610(a)(1) provides, in material part, that “[t]he court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.” This quoted language certainly contemplates the district court’s exercise of discretion.
Judge Russell was faced with an extended timeline in deciding Barnett’s appeal. The hearing officer had heard the case a full year before Judge Russell entered a final order. Most, if not all, of the delay was the fault of Barnett. Under the circumstances shown, we conclude the district court did not abuse its discretion in providing for retroactive application from March 1, 2001.
In summary, Barnett’s monthly child support obligation is reduced to $213 retroactive from March 1, 2001. Upon remand, a supplemental journal entry should be prepared and filed consistent with the decision of this court.
Affirmed in part, reversed in part, and remanded with directions. | [
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Elliott, J.:
In this post-decree divorce action, husband Bradley James Steven appeals the trial court’s order finding him in arrears in child support payments.
We affirm.
Bradley and Andrea Lee Steven bore four children. When the parties divorced, they agreed to a divided custody arrangement. Bradley was awarded primary residential custody of the two older children and Andrea was awarded primary residential custody of the two younger children.
Under the child support guidelines, the trial court found the support owed to Bradley to be $824 and the support owed to An drea to be $1,346. Offsetting the amounts, the trial court ordered Bradley to pay Andrea $532 per month in child support.
The child support due for each child was ordered to continue until the child reached majority age or until June 30 of the year the child graduated from high school. See K.S.A. 2001 Supp. 60-1610(a).
The two older children reached majority and/or graduated from high school; both of those children were in the primary residential custody of Bradley, who continued to pay Andrea $532 per month in child support. This occurred in 1999 and 2000.
In August 2000, Andrea moved to determine arrearage in child support, contending Bradley failed to pay more in child support once the offsets for the two older children expired. There, Bradley argued that ordering him to pay back child support would be an illegal retroactive increase in child support and that he and Andrea had entered into an agreement that Bradley would undertake additional obligations for all four children in exchange for Andrea not seeking modification of child support.
The trial court found no such agreement existed and found Bradley to be in arrears in his child support obligations.
We need not address the merits of Bradley s argument concerning the oral agreement. The law is clear that parties to a divorce cannot agree to alter the amount of child support to be paid to the parent with primary custody of a child. In re Marriage of Schoby, 269 Kan. 114, 117, 4 P.3d 604 (2000). Even if an agreement existed, it was unenforceable.
With respect to Bradley’s argument that the trial court impermissibly imposed a retroactive increase in his child support obligation, our review is unlimited. See In re Marriage of Kasper, 29 Kan. App. 2d 461, 27 P.3d 950 (2001).
Bradley argues he does not owe any arrearage because Andrea did not file a motion to modify his child support obligation pursuant to K.S.A. 60-1610(a). A parent’s child support obligation may be increased or decreased when a material change of circumstances has occurred, but such modification operates only prospectively. See Schoby, 269 Kan. 114, Syl. ¶ 1.
In Kansas, there are three events which automatically terminate child support obligations: the child reaches 18 (or until June 30 of the school year during which the child became 18 years of age and graduated from high school); the death of the child; or the death of the payor parent. K.S.A. 60-1610(a); Schoby, 269 Kan. at 116; Kasper, 29 Kan. App. 2d at 462. If termination of a child support obligation is appropriate for any other reason, the appropriate parent must seek prospective termination pursuant to a motion under K.S.A. 60-1610(a). Schoby, 269 Kan. at 116-17.
Kasper presents a somewhat similar fact pattern, where there were two children involved. There, as here, the trial court offset the child support obligations. The older child, in primary custody of the father reached majority and the father continued to pay the offset amount of support. The mother filed a motion to determine past-due child support, and the trial court denied the mother’s motion. We reversed.
We reversed on the basis that child support automatically stops when the children reaches majority and/or graduates from high school 29 Kan. App. 2d at 465, noting, however, where there are more than two children involved in a divided custody situation:
“[A]llowing automatic termination of child support in some situations might unnecessarily complicate a divided custody situation where one of the parents has custody of two or more children and one of those children is emancipated at age 18 or, if he or she turns 18 while still in high school, on June 30 after he or she graduates. In that situation, the amount of support for the child or children remaining in the house will change based on the required use of different child support schedules where there is more than one child in the home. However, we are not faced with such a situation today.” 29 Kan. App. 2d at 464-65.
The present case presents the issue not reached in Kasper, although we there stated:
“Neither the legislature nor the courts have made a specific exception to the automatic termination rule in K.S.A. 2000 Supp. 60-1610(a)(1) where the parties are involved in a divided custody arrangement. In fact, the legislature has indicated the rule applies in all custody situations. K.S.A. 2000 Supp. 60-1610(a)(1) provides the rule is appropriate ‘[r]egardless of the type of custodial arrangement.’ ” 29 Kan. App. 2d at 465.
Applying the rule to the instant case, we hold Andrea’s obligation to support the two older children automatically terminated when each child reached majority and/or graduated high school. With respect to Bradley s concern, the situation becomes unduly complicated because three of the four children changed child support guideline brackets. The obvious remedy is a motion under K.S.A. 60-1610(a), alleging a material change of circumstances. See Admin. Order No. 128, VI. (B). (2001 Kan. Ct. R. Annot. 113). Because no such motion was filed here, the only fact that changed on the emancipation of the two older children was Andrea’s obligation to support those two older children automatically terminated and there was a lesser amount of child support to offset.
Bradley’s child support obligation to Andrea did not change; it remained the same. The trial court, therefore, did not order a retroactive increase in Bradley’s child support obligation.
We decline Bradley’s invitation to revisit Kasper and to modify it or ignore it. Here, there is no contention the trial court incorrectly computed the amount of arrearage; the only argument is that imposing the arrearage was improper. We reject that argument.
Bradley also argues the equitable doctrine of acquiescence, detrimental rebanee, waiver, estoppel, and laches bar Andrea from seeking the arrearage. Each of these equitable doctrines is an affirmative defense, which must be pled in the answer. See K.S.A. 2001 Supp. 60-208(c); 60-212(b). Bradley neither pled nor litigated these affirmative defenses in the trial court. He is barred from raising them for the first time on appeal. See Reebles, Inc. v. Bank of America, 29 Kan. App. 2d 205, 213, 25 P.3d 871 (2001).
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The opinion of the court was delivered by
Burch, J.:
The plaintiff'was judge of the district court of Wyandotte county for the four-year term ending in January, 1909. When he entered upon the term his salary was fixed by law at $3000 per annum. Afterward the legislature imposed upon the judge of the district court for that county the duty of preparing and revising lists of qualified jurors and of drawing therefrom the names of persons to serve on juries, and authorized him to appoint a jury clerk to assist him in the performance of such duty. (Laws 1907. ch. 232.) The same act increased the salary of the office to $3500 per annum. The plaintiff performed the additional service required of him for the remainder of his term, but the defendant, the state auditor, refused to audit vouchers for the increase in compensation and to issue warrants on the treasurer in payment therefor. The plaintiff asks for a writ of mandamus to compel him to do so.
Section 13 of article 3 of the constitution reads as follows:
“The justices of the supreme court and judges of the district court shall, at stated times, receive for their services such compensation as may be provided by law, which shall not be increased during their respective terms of office; provided, such compensation1 shall not be less than fifteen hundred dollars to each justice or judge, each year, and such justices or judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state, or the United States, during the term of office for which such justices and judges shall be elected, nor practice law in any of the courts in the state during their continuance in office.”
The plaintiff argues that the statute did not create another office — as that of "jury commissioner — and make him the incumbent, but that it merely imposed upon him as j udge. certain additional duties in aid of the discharge of his j udicial duties; and it is said that this could be done because the new duties have an ultimate j udicial purpose, are incidental to the exercise of judicial power, and are closely connected with and are germane to the judicial function. Excellent authorities are cited for these propositions.
In passing upon a statute conferring upon justices of the appellate division of the supreme court the power to appoint special jury commissioners the New York court of appeals said:
“The constitution of 1846 provided that judges of the court of appeals and j ustices of, the supreme court should not ‘exercise any power of appointment to public office,’ but this provision was omitted in the revision of the judiciary article in 1870, and it does not appear in our present revised constitution. (Const. 1846, art. 6, sec. 8; Rev. Const., art. 6.) The omission of the express prohibition excludes one by implication. But, while a justice of the supreme court is no longer prohibited absolutely from appointing to public office, a limitation is placed upon his powers in this regard by the provision that he ‘shall not hold any other office or public trust.’ (Art. 6, sec. 10.) The power to ap point a special jury commissioner is a public trust, because it is intrusted to public officers, to be exercised in behalf of the public, by clothing a private citizen with the powers and duties of public office. Unless, therefore, it has some reasonable connection with a judicial purpose, it is not a part of a judicial office and can not be imposed upon a j ustice of the supreme court. (Matter of Davies, 168 N. Y. 89.) What, however, is more germane to the judicial function than the selection of proper jurors to aid in the administration of justice? The right of the jury to decide all issues of fact presented to the court at which they attend makes their selection a judicial purpose of the highest importance. It is an invaluable aid to the discharge of judicial duties, and hence may be attached by the legislature to the judicial office, as incidental to the exercise of the usual powers of that office. The appointment of a jury commissioner rests on the same principle as that of stenographers, judges’ clerks, and the like. The appointment of such officers is authorized because the discharge of their duties aids the judges in the performance of their judicial functions; and so the appointment of a special jury commissioner to select jurors aids the judges in transacting the usual business of their courts.” (People v. Hall, 169 N. Y. 184, 195.)
In the case of Daily Register Printing Co. v. Mayor,, etc., 59 N. Y. Supr. Ct. 542, the opinion reads:
“There is nothing in the point as to the prohibition of justices of the supreme court from holding other offices or public trusts. The duty imposed upon the presiding justice, of designating' (with others) a law journal in which the calendars of the courts should be published, is nothing more than an additional duty attached to the j udicial office. Having made that designation, certain other incidents follow the act, such as. the requirement with respect to legal notices generally. But the designation of the journal is, primarily, for the-thorough dissemination of the court calendars. This is. important in securing preparation for trial and prompt attendance upon the call of the calendars. It would certainly be a very narrow and strained construction of the constitution to hold that a duty, having such results for its object, was foreign to the judicial office. The illustrations of similar duties imposed upon the presiding justice and his associates by other laws, fur nished by Mr. Justice Patterson in his opinion at special term, suffice to show a general legislative intent not to confine the j udicial duty to the bare hearing and decision of cases, but occasionally to impose upon the judges, in the line of their vocation, duties bearing upon the general administration of justice.” (Page 554.)
If the reasoning of these decisions be unsound, the plaintiff can not recover. If the duties of jury commissioner can not be assigned to the judicial office they belong to another office of trust, which the constitution forbade the plaintiff to hold. For present purposes it will be assumed that the duties specified in the statute fall within the scope of the office of judge of the district court.
Having thus bound up the function of selecting and drawing j urors' for the trial ’ of causes with the function of adjudicating such causes, the plaintiff proceeds to sever the ligature so that he.may receive an increase in pay, in the following manner: The function of jury commissioners is not judicial but is administrative in its nature; it does not pertain to the office of district judge as such; the framers of the constitution had in mind compensation for the services of .a judge, as such, when acting in a judicial capacity only; and the constitutional provision quoted has no reference to extra pay for extra services of an .administrative character like those required by the statute. It is said in the plaintiff’s brief:
“One class of services or duties belongs to the office, and a compensation for such class can not be increased during the term. Another class does not belong, but can be attached by the legislature, to the office, for which services compensation can be given during the term, if the purpose and result is to aid in the discharge of the usual judicial duties.”
If this be true, extra pay to a judge for appointing a special jury commissioner, as in People v. Hall, supra, or for designating a paper for the publication of the court calendar, as in Daily Register Printing Co. v. Mayor, etc., supra, or for numberless other things which he does to speed and prosper his usual and ordinary work of hearing and deciding causes would not be compensation for services as judge in the sense of the constitution. More than this, whenever a judge of the district court acts as jury commissioner pro tempore and superintends the drawing of jurors to fill a depleted panel, or selects jurors for the term and causes a venire to issue because jury-lists have not been returned or the panel has been vitiated (Gen. Stat. 1901, §§3816, 3822), he steps outside the scope of his duties as judge, acts as an administrative officer, and may be given extra pay for the work without receiving an increase in compensation contrary to the constitution. Some authorities are cited to. sustain this novel position, but they seem to the court to fall short of doing so.
In the case of Love v. Baehr, 47 Cal. 364, the legislature imposed upon the attorney-general the duty of acting with a board of examiners to approve or reject claims against the state, examine the books of the controller and treasurer, count the money in the treasury, and invest school funds, giving him a salary of $1500 per annum as a member of the board. It was' held that such services were foreign to and outside the scope of the office of attorney-general, could be declined without a breach of duty as attorney-general, and hence that no constitutional impediment existed precluding a person in office when the act was passed from taking compensation for them. The court said:
“From the earliest period of our history as a nation almost every state in the Union had a secretary of state, controller, treasurer, and attorney-general; and the general nature of the duties pertaining to each were perfectly well known to the framers of our constitution. It is clear beyond controversy that in establishing similar offices here the framers of that instrument had reference to the same general class of duties which it was well known pertained to such offices elsewhere. The constitution provides for the election of a superin tendent of public instruction, whose duties are not defined; and might have provided for the election of a state geologist. Can it be claimed with any show of reason that the legislature could compel either of them to become ex officio warden of the state prison or superintendent of the state lunatic asylum? It is not usual in state constitutions to define the particular duties of subordinate officers; that being the peculiar province of the legislature, which, it is to be presumed, will prescribe only such duties as in their nature have heretofore appertained to similar offices elsewhere. In the performance of this duty the legislature may rightfully exercise a wide discretion. It may assign to each of these officers any duties which, by the most liberal interpretation, can be held to come within the general scope of that class of duties which have usually appertained to such offices, as they were understood by the framers of the constitution. . . . Some of these services have not the slightest relation, even upon the most liberal construction, to the duties of an attorney-general, as such duties were generally understood at the adoption of the state constitution, and as-they were doubtless understood by the framers of that instrument. The business of counting money in the treasury, examining books of account, requiring the skill of an expert accountant rather than the professional learning of a lawyer, and the investment of public money in bonds, is wholly foreign to the duties of an attorney, and is no more cognate to them than the management of a state prison or lunatic asylum.” (Pages 367-370.)
Certainly there is nothing here to comfort the plaintiff. The court distinguished the two offices as separate, independent and unrelated by looking at the duties commonly affixed to them as they exist in the governmental schemes of states having similar institutions; but the main theme was-double salary, and with this in mind the court said the legislature may assign to an office any duty which by the most liberal interpretation falls within its scope. No light whatever is thrown upon the question whether the framers of our constitution understood judicial services to include all the incidental things germane to and in aid of the function of hearing and deciding.
In County of San Luis Obispo v. Felts, 104 Cal. 60, county assessors were entitled to receive fifteen per cent, of all amounts collected by them for poll-taxes. Road-overseers collected road poll-taxes and received fifteen per cent, of the amount for their services. While Felts was in office the law was changed so that the county assessor collected road poll-taxes, and it was held he had the right to retain the prescribed percentage of those also, although the gross receipts of his office were increased. The court said the rule was the same from first to last — a certain sum for a certain service — compensation in proportion to duty, and it made no difference that the field for rendering the service was enlarged. Compensation for services rendered — fifteen per cent, of whatever was collected — remained unchanged.
If in this case the plaintiff’s compensation had been $10 per day for time employed, which usually was twenty days in the month, and an act of the legislature had increased the work until it required twenty-five days of each month, his compensation would have remained unchanged. It still would have been a certain sum for a certain service — $10 for each and every day. But if the legislature had raised the rate to $15 per day an increase in compensation for the same service would appear.
In the case of Roulo v. Board of Auditors of Wayne Co., 74 Mich. 129, an act of the legislature required registers of deeds to report mortgages to assessing officers and to registers of deeds of other counties for purposes of taxation, and gave them compensation for the work. The court said:
“The legislature, by the act of 1887, imposed a new duty upon the register — one that never belonged to his office before, and one which was not contemplated, and could not have been, when his salary was fixed by the auditors under the law of 1879. The act imposing this new duty, which he must perform under a penalty, imposed also a great responsibility upon him. For the performance of this duty, and the responsibility necessarily attending it, the legislature saw fit to give him an additional compensation over and above that heretofore received in the performance1 of the ordinary duties of his office. Our previous decisions are to the effect that he is entitled to it.” (Page 133.)
In effect that act simply created a new office to carry out the provisions of the new tax law, and made the register of deeds the incumbent. The duties were separate from and independent of. those of a register of deeds, but since the two positions were not incomr patible the register could hold both and receive pay for both.
The case of Town of Bruce v. Dickey, 116 Ill. 527, distinguishes itself. The question was whether a judge could engage in the private practice of law for fees. The opinion reads:
“The words that ‘no judge of the supreme or circuit court shall receive any other compensation, perquisite or benefit, in any form whatsoever,’ are not depended upon for the alleged inhibition, as manifestly they should not be; but it is the last clause, ‘nor perform any other than judicial duties to which may belong any emoluments,’ which is relied upon as containing the prohibition. These words naturally refer to official services, or to services required by law to be done, and not to work done by employment under a private contract. It is the performance of duties which is prohibited — a term which is suggestive of office. It is duties to which belong emoluments. The word ‘emoluments’ is peculiarly appropriate to office, denoting, in its most ordinary signification, the profit ‘which is annexed to the possession of office, as salary, fees and perquisites.’ -And it is emoluments which belong to the performance of duties — the word ‘belong’ implying fixed, prescribed by some regulation, as are the emoluments attached to office, and not something contracted to be paid by agreement between private parties. This analysis of the language of this clause shows its fit ness as prohibiting the performance of any official duties, or duties imposed by law, to which any emoluments are attached, and that it is quite inappropriate language in which to couch a prohibition to conduct a lawsuit, or to perform any other, work than judicial duties, under a private contract for a compensation to be paid. Had it been the intention to prohibit judges from doing any other work for pay, it could easily have been so said in plain terms, and we can not conceive that- the cumbersome and inapt phraseology in question would have been used to express that purpose.” (Page 535.)
In the case of United States v. King, 147 U. S. 676, it was said that the ordinary rule, in the absence of legislation, is that if a statute increase the duties of an officer by the addition of other duties germane to his office he must perform them without extra compensation. Seizing upon the words ‘in the absence of' legislation’ the plaintiff argues that if there is legislation giving him extra pay he may recover it. That of course depends upon whether some paramount law stands in the way.
Some cases are cited to the effect that if the compensation of an officer be not fixed at the beginning of' his term it may be fixed during the term, which doubtless is true, but unimportant here.
In Missouri the constitution provides that judges of the supreme, appellate and circuit courts, and all other courts’ of record receiving a salary, shall, at stated times, receive such compensation for their services as is or may be prescribed by law; but it shall not be increased or diminished during the period for which they are elected. A statute of that state enacted in 1895 requires a deposit of $10 to accompany an application for a change of venue, which, if the change be granted, goes to the judge of the circuit to which the case is -’transferred for trial. In the case of Cunningham v. Current River Ry. Co., 165 Mo. 270, an order granting a. change of venue was set aside for non-compliance with this statute, the case was tried in the initial court, and judgment was rendered against the party who sought the change and who refused to appear at the trial. On appeal he contended that the statute is unconstitutional. In reviewing the record the supreme court of Missouri said:
“The ten dollars whose payment is required to be made on the presentation of an application for a change of venue from the circuit where the cause is at the time pending is not intended [as] and is in fact in no sense an increase in the salary of the judge to whom it is to be paid, but compensation for extra labor imposed upon him by the person on whose application, the venue is changed by reason of the cause being sent to him from another circuit.
“The compensation mentioned in the constitution means compensation paid by the state, or some subdivision thereof, in the way of an increase of salary or compensation, which can not be increased by legislation during the period for which the judge is elected, but does not mean that he may not be paid for extra services and expenses incurred in the performance thereof, even out of the state treasury.” (Page 277.)
The plaintiff says that case decides that during his term of office a judge who receives a salary as compensation for the service performed and labor devoted to the trial of cases in his circuit can be granted extra pay for the labor of trying cases coming to his circuit on change of venue, without increasing his compensation in the sense of the constitutional provision recited. If that be the decision, it is anomalous and this court declines to follow it.'
The case of Comm’rs of Miami Co. v. Collins, 47 Kan. 417, is cited, in which this court said:
“If the legislature has the power to add'to the duties of the office, it follows that it has power to provide for compensation for the performance of the additional duties, the constitutional provision only fixing compensation for the class of duties therein enumerated.” (Page 419.)
The court there referred to the duty of issuing liquor permits cast upon the person holding the office of probate judge. The words “add to the duties of the office” were not used as the plaintiff interprets them. No addition had been made to the duties of the office of judge of the probate court. As shown in Intoxicating-liquor Cases, 25 Kan. 751, the person holding that office was virtually invested with the separate and independent office of commissioner of licenses. The constitution does not prohibit the probate j udge from holding other offices of trust and profit, and he could therefore accept the new office and its emoluments.
In the case of Burroughs v. Comm’rs of Norton Co., 29 Kan. 196, the court merely held that the term “such services,” used in a statute fixing the compensation of ■county commissioners, referred to services at meetings particularly specified in the context, and that remuneration for services in attending other meetings held for other and different purposes was not forbidden.
Such are the authorities which the plaintiff has selected from the wilderness of precedent to support his claim, arid they are unpersuasive. A brief independent search has revealed none better adapted to serve the plaintiff’s purpose, and the court is inclined to regard the distinction between duties which “belong” to an office and duties which may be “attached” to it as artificial and unsubstantial.
The duties of an office include all those that fairly lie within its scope; not merely those which are necessarily involved in the accomplishment of the main purpose of the office, but those also which, although incidental and collateral, naturally and properly serve to promote and benefit the performance of the principal duties. Constitutions and statutes seldom define with precision the scope of any office. The place it usually occupies in political systems of like character is some guide. The common law is relied upon to supply many Incidents, and others are left to inclusion by necessary implication. In time the need becomes apparent for further or better definition, and it is said new duties are added, or “attached,” germane to those already in existence. In reality the true scope of the office already included such duties. All that is accomplished is to make active that which before was latent. If the office do not potentially embrace the duty the duty appertains to another office. Before any duty can be classified as falling within the scope of an office it must belong there, and nothing can be added or attached to an office that does not belong there. Whatever the standard of classification- — -in aid of the usual fúnctions, incidental, collateral, appertaining or germane to or connected with the principal duties, in line with the main purpose, or-other test — when tested .the duty belongs to the office, is official, and the incumbent must perform it, or it does not belong to the office, is unofficial, can not lawfully be attached to the office, and need not be performed if' an attempt to attach it to the office be made.
If, however, the distinction which the plaintiff makes were sound generally, it can not be allowed in this case. All the statute did was to authorize the plaintiff to exercise directly a power which already inhered in the court over which he presided, but which ordinarily is. exercised mediately. The constitution of this state guarantees the right of trial by jury, and every court charged with the duty of trying jury causes possesses .by virtue of its very establishment as such court the power to provide itself with a jury in order that it may accomplish the purpose for which it was created. This power is not merely “attached” to the court as something extra to its ordinary functions, but it “belongs”' to the court in the most vital and integral sense. The New York court was correct in saying in People v. Hall, 169 N. Y. 184, that the right of the jury to decide all issues of fact presented to the court makes their selection a judicial purpose of the highest importance. But-its grasp of the fundamental principle somewhat re laxed when it made the selection of jurors merely an aid and incident to the exercise of the usual powers of the judicial office. That function is one of the powers of the judicial office, cognate with that of hearing and deciding — an essential element of the sovereign power reposed in the court, to be exercised precisely as all its authority is manifested.
For many years the congress of the United States made no provision for summoning grand juries or defining their powers, yet they were regularly summoned and regularly acted. In the case of The United States v. Hill et al., 1 Brock. (U. S. C. C.) 156, Mr. Chief Justice Marshall, sitting as circuit justice, justified this display of judicial authority as follows':
“It has been justly observed that no act of congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers ?
“The answer is that the laws of the United States have erected courts which are invested with criminal .jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary and indispensable? The answer is obvious. Its necessity is coextensive with that jurisdiction to which it is essential.” (Page 159.)
Whenever the statutory measures for obtaining petit jurors have failed or have been exhausted the court itself issues an open venire and brings in a jury as a measure indispensable to the exercise of its jurisdiction. (Clawson v. United States, 114 U. S. 477, and cases cited in the opinion; 12 Encyc. Pl. & Pr. 274; 24 Cyc. 280.) And if every law on the statute-books relating to the selecting and summoning of jurors was repealed the courts would go on selecting and summoning them without any interruption of the administration of justice.
The twelve jurors who are finally sworn to try'the cause are in fact selected for the purpose by the court as a court, and the assembling of a larger number from which to choose is merely an earlier stage of the same process. At common law, when the issues were made up, the judicial precept, venire facias, issued to bring in a jury. The selection and the summons were made at the same time. If the sheriff and the coroner were both disqualified the court itself appointed elisors to make the selection (3 Black. Com. 354), and here may be found the common-law prototype of the judicial power to appoint jury commissioners. But the decisions identify this power with that of the court to select the jury.
In the case of State v. Mounts, 36 W. Va. 179, the question was whether the appointment of jury commissioners by judicial officers contravened the constitution, which forbade the legislature to confer upon any court or judge the power of appointment to office. The opinion reads:
“The question here presented is whether the jury commissioners created by the act now under consideration are officers of the state, or whether they are in fact, like jurors themselves, mere officers of the court, such as commissioners in chancery, and, in a general sense, attorneys. We think there can be no doubt that such commissioners belong to the latter class, and go to make up a part of the judicial machinery, such as commissioners in chancery, general and special receivers, and other similar officers. Jurors are themselves, in a certain sense, officers of the court; and this special commission is only a legislative device intended to aid the court in selecting them.” (Page 184.)
In the case of State v. Kendle, 52 Ohio St. 346, it was said:
“So as to these jury commissioners: They are appointed by the common pleas judges to assist in the administration of justice, as are masters, commissioners and court constables. They are but handmaids of the court in the selection of judicious and discreet persons to serve on such juries, as are required in the trial of causes and the presentment of indictments. ... It is not doubted but that the judges might be authorized to select the jurors to be returned in all cases, as they are in some. As then the duty might properly be performed by the court, no good reason is perceived why the court may not be authorized to appoint suitable persons to assist it in performing the duty, as is done in many similar cases.” (Page 356.)
True, the legislature usually intervenes, as it may rightfully do, and provides machinery for supplying the court with jurors. Sometimes the judges themselves are made members of the body designated to select jurors. (See Commonwealth v. Manfredi, Appellant, 162 Pa. St. 144; The State v. Squaires, 2 Nev. 226.) Frequently it is left to the judges to make the selection personally when other measures are inadequate or fail, as indicated in State v. Kendle, supra, and as they do in this state. But whatever regulations the legislature may make, and whatever aids the legislature may furnish, the selecting of persons from the inhabitants of the proper territory to sit as jurors for, the trial of issues of fact in court forms a department of the business of the court coordinate with that of hearing and deciding, and consequently can not be classified as “administrative” in origin, purpose or character, in the true sense in which that term is employed in constitutional law.
After his term had commenced the plaintiff was called upon to exercise a power which already inhered in his office. Could he receive extra compensation for the service? When a public official takes office he does so understanding that every dormaht duty lying within the scope of his office may be awakened to full vigor at some time within his term. Should that which is always within the range of possibility occur, he must perform the service ‘required without additional compensation, unless the legislature has the power and sees fit to allow him extra pay. The law is so understood by all the courts and text-writers, and was so established before the convention met which framed the con stitution of Kansas. In the case of The People v. The Supervisors of New York, 1 Hill [N. Y.] 362, decided in 1841, the opinion reads:
' “But should it be conceded that the statute imposed a new and onerous duty upon the district attorney, it does not follow that he is entitled to any additional compensation on that account. By charging the attorney with the duty of suing for fines, without making provision for the payment of costs, the legislature has, in effect, declared that the salary of the officer is to be deemed the compensation for these, as well as for other, services. It is impossible for a salary officer to make title to an increased compensation on the sole ground that a new duty has been cast upon' him by the legislature. There are few state officers, whether executive or judicial, who have not often been charged with new duties, and yet no one has, I presume, ever thought that this gave him a legal title to increased compensation.” (Page 366.)
In the case of Asa Andrews in Error v. United States, 2 Story (U. S. C. C.) 202, decided by Mr. Justice Story in 1842, while on circuit duty, it was said:
“But where duties are required to be performed by a collector or other public officer, strictly official, and falling within the ordinary range thereof, there, although they may be conferred by laws subsequently passed, after he came into office, or may be cumulative upon the original duties of the officer, he must be deemed to take and hold the office cum onore.” (Page 208.)
In the case of Evans v. City of Trenton, 24 N. J. Law, 764, decided in 1853, it was said:
“It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He can not legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties are increased and not his salary. His undertaking is to perform the duties of his office, whatever they may be, from time to time during his continuance in office, for the compensation stipulated — whether these duties are diminished or increased. Whenever he considers the compensation inadequate, he is at liberty to resign. . .- . This rule is of importance to the public. The successful effort to obtain office is not unfrequently speedily followed by efforts to increase its emoluments; while the incessant changes which the progressive spirit of the times is introducing effects, almost every year, changes in the character, and additions to the amount, of duty in almost every official station; and to allow these changes and additions to lay the foundation of claims for extra services would soon introduce intolerable mischief. The rule, too, should be very rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity, the duties annexed to public offices, and it requires but little ingenuity to run nice distinctions between what duties may and what may not be considered strictly ■official; and if-these distinctions are much favored by courts of justice, it may lead to great abuse.” (Pages 766, 767.)
In order to preclude all possibility of mischief of this character the framers of the Kansas constitution provided that the compensation of justices of the supreme court and of judges of the district courts should not be increased during their respective terms of office, prohibited the granting to them of fees and perquisites outside of or additional to salary, and forbade them to hold any other office of profit or trust under the state or under the United States. Beyond this, they were forbidden to practice their profession in any of the. courts of the state during their continuance in office, so that, so far as remuneration for services beyond salary is concerned, there is written above the portal of the judicial office in Kansas the inscription which Dante read at the top of the gate of hell: ■“Leave every hope, ye who enter!”
In the case of Hall v. Hamilton, 74 Ill. 437, the legislature had empowered circuit judges to interchange with each other t and to hold branch courts in other circuits, and had provided a compensation of $10 per day for the service, additional to the salary received — ■-& clear case of extra pay for extra labor performed by judges in disposing of business not belonging to their circuits. The opinion reads:
“The sixteenth section of the judiciary article of our constitution is this: ‘From and after the adoption of this constitution judges of the circuit courts shall receive a salary of $3000 per annum, payable quarterly, until otherwise provided by law. And after their salaries shall be fixed by law they shall not be incréased or diminished during the terms for which said judges shall be respectively elected; and from and after the adoption of this constitution no judge of the supreme or circuit courts shall receive any other compensation, perquisite or benefit, in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments.’ This language is as full, clear and comprehensive as could be well conceived to prevent supreme and circuit judges from receiving any other compensation than their salaries, under any name or pretense whatever, for the discharge of any duty pertaining to their offices. And it is prohibitory on the judges from receiving the compensation for the performance of such duties except their salary. It also prohibits the general assembly from providing any other.” (Page 442.)
(See, also, Bailey v. Kelly, 70 Kan. 869.)
The statute of 1907 is constitutional, and obliged the plaintiff to render the services indicated, but the provision for an increased salary did not apply to him because the statute took effect while he was serving an unexpired term.
The writ is denied. | [
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The opinion of the court was delivered by
PORTER, J.:
The judgment must be affirmed. The law of the case was declared in the former opinion and controls, and the1* facts found by the trial court, compel a judgment in favor of the plaintiff.
The first judgment was reversed for the reason that the uncontradicted evidence, excluding that given orally, established the fact that the right of way was acquired subject to the plaintiff’s right .of passage by-means of the subway left at the time the road was constructed, and it was held that an injunction should, have been granted. The contention therefore that injunction is not the proper remedy is precluded by the former opinion. (Headley v. Challiss, 15 Kan. 602; Rettman v. Richardson, 17 Kan. 413; Crockett v. Gray, 31 Kan. 346; Kansas City v. Brady, 53 Kan. 312; The State v. Morrison, 67 Kan. 144.)
On the second trial plaintiff offered additional testimony, both oral and record, which strengthens his case.. The findings of fact made by the court are very full and complete, and are amply sustained by the evidence.
No new principle of law was brought into the case-by the amended answer. As to the first defense, the-court'found that Weston was the agent of the Interstate Railroad Company for the purpose of acquiring-a right of way and constructing the road, and that as. such agent he agreed orally with the plaintiff that a. wide underground passageway would be constructed on the plaintiff’s' farm and permanently maintained,, and, further, that a double underground passageway was left according to this agreement and continuously used by the plaintiff until obstructed by the defendants, in 1901. Another finding is that the double underground passageway was there when the jury viewed the premises. As to the second defense, the court found that at the time the defendants made the embankment and filled the passageway the plaintiff protested and objected, but his protest was of no avail to-prevent the action of the defendants, and that he has not at any time given his consent that the passage should be filled. We are aware of no principle of' estoppel that applies to these facts. The court properly-refused to find as a fact that the defendants filled up-the passageway for the purpose of strengthening their road and for the public good. It may be conceded that such was the purpose of the defendants, but this would' give them no license to appropriate the property rights. of the plaintiff except by regular condemnation proceedings. The court found as facts the separate items of damage which the plaintiff sustained by reason of the obstruction. The evidence sustains these findings, and entitles the plaintiff to the damages which the court allowed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, who lives at Farlinville, desiring to insure his stock of merchandise against loss by fire, had a conversation on the subject by telephone with the defendant’s agent, who lives at Mound City. As a result, on the next day the agent sent to the plaintiff by messenger a written application for insurance, which was duly filled out, signed and returned, and a policy was issued insuring the property for one year from the 11th day of October, 1905, at noon. On November 17 following the property was destroyed by fire. On November 18 the plaintiff called upon the agent, paid the premium, and took with him the policy,which had remained at the agent’s office. Later the defendant’s adjuster called for the plaintiff’s last inventory and books of account. The books of account could not be produced because they had not been kept in an iron safe or in another building secure from fire, and had been burned. The inventory had been securely preserved in another building, and consequently was duly exhibited. The defendant kept the premium, but denied liability on account of the breach of a condition contained in a rider attached to the policy, the essential portions of which read as follow:
“It is expressly stipulated that the assured shall take an inventory of the stock hereby covered at least once a year during the life of this policy, and shall keep books of accounts correctly detailing purchases and sales of said stock, and shall keep said inventory and books securely locked in an iron safe, or in some place-secure against fire in another building during the hours said store is closed for business, and in case of loss the-assured agrees and covenants to produce such books, and inventory, and in the event of failure to produce; the same on demand this policy shall be null and void,, and no suit or action at law shall be maintained thereon-for such loss. . . . Reference being herein had to; original application on file, sighed by the assured,, which is hereby made a part of this policy and a war ranty on the part of the assured. Attached to and forming part of policy No. 592 of the German American Insurance Company of New York.”
The material parts of the application thus made a part of the policy read ás follow: •
“(1) Inventory of Stock: (a) Do you take an itemized inventory annually? Yes. (b) When was your last inventory taken? September 20, 1904. (e) Amount of last inventory, exclusive of book accounts or personal property not kept in stock for sale (give dollars and cents) ? About $1680.00. (c£) Is your stock uniformly inventoried at cost prices, as shown by your bills of purchase? Yes. (e) Will you agree to carefully preserve the last inventory in an iron safe at night, or in some place secure against fire in another building? Yes.
“(2) Books of Account: (a) Do you keep a systematic set of books? Yes. (b) Do they show your •daily sales for cash and for credit? Yes. (c) What are your average annual sales for cash? $5000; for credit, $1000.
“(3) Historical: (a) Did you start with a new ■stock bought from jobbers direct? No. (b) If not, from whom was your original stock bought, and when ? From D. D. Patterson, September 20, 1904. (c) What was the amount of the consideration? $1468. (d) Was the consideration in cash or trade? ‘(State particulars.) Cash.
“And the said applicant hereby covenants and agrees to and with the said German American Insurance Company that the foregoing is a just, true and full exposition and statement concerning the property to be insured, being the basis on which insurance is to be effected, and a continuing warranty on the part of the applicant.”
The plaintiff did not see the policy until after the fire, and did not know of the condition relating to preservation of books of account until the adjustment. In an action on the policy the “iron-safe clause” of the rider was reformed to correspond with the application and the plaintiff recovered. The defendant prosecutes error.
The iron-safe clause in a fire-insurance policy is usually held to be a promissory warranty which must be strictly performed. (19 Cyc. 761.) This court has decided that it is valid and that compliance with it is a condition precedent to recovery in case of loss. (Insurance Co. v. Knerr, 72 Kan. 385.) The clause, however, relates to a collateral matter wholly outside the contract'of indemnity. It is the product of the insurer’s ingenuity, who formulates its terms and chooses the method of bringing it into the contract. It is imposed upon the insured without consideration moving to him, is inserted for the special benefit of the insurer, and works a forfeiture in case of non-compliance with it. Whenever, therefore, it becomes the subject of judicial consideration it .will be treated according to the well-known disposition of the courts to- make the main contract prevail, and no zeal will be displayed to aid an attempt to inject the clause into a policy or to prefer a stronger over a weaker one.
The application was .the plaintiff’s proposal for insurance, subject to acceptance, or rejection by the defendant, and its function was to state definitely the terms of the contemplated contract so far as they were specified. The application itself expressly provided that it was the basis on which the insurance was to be effected.. In the application the defendant required the plaintiff to commit himself in advance respecting the subject which the iron-safe clause embraces, and presumably covered the whole matter to its entire satisfaction. The object was, of course, to be in a position to decline the risk if the plaintiff did not answer the question propounded to him to the defendant’s liking, and if he did to make his answer the basis of a promissory warranty in the policy. By his answer and the terms of the application the plaintiff did clearly authorize an iron-safe clause extending to the last inventory to be inserted in the policy, but he did not authorize one extending also to books of account. The defendant could not change this basis of contract, substitute another in its stead, and thereby bind the plaintiff, without his knowledge or assent. As to all terms and conditions not made the subject of previous stipulation the plaintiff had the right to assume, and was bound to know, that the policy would be in the usual form issued by the defendant. But when the defendant had insisted upon an understanding with him in advance upon the subject-matter of an iron-safe clause he had the right, to take it for granted that the policy if issued would be written on the stated basis, and it was the plain duty of the defendant so to write it or to reject the application in its offered form.
“The applicant for insurance has a right to rely upon the assumption that his policy will be in accordance with his oral application, and, if the insurer desires to make the policy in anything different, it must, in order to make it binding upon the assured, call his attention to the clauses differing from the application.” (Gristock v. Insurance Co., 87 Mich. 428, syllabus.)
For the same reason it is of no consequence that the plaintiff did not read his' policy when it was delivered to him and promptly object to its terms.
“An insured has the right to rely on the presumption that the policy he receives is in accordance with his application, and his failure to read it will not relieve the insurer or its agent from the duty of so writing it.” (M’Elroy v. British America Assur. Co., 36 C. C. A. 615, syllabus.)
There is no question here of the merger of preliminary negotiations in the final contract or of conflict between the application and the policy. It is a question of making an evidentiary document correspond to the agreed written basis of contract. Neither is there any doubt of the existence of a contract. The application was received and retained, the policy was written and delivered, and the premium was paid and kept. Through inadvertence, mistake or design — no matter which — the iron-safe clause was expanded in the rider to. the policy beyond the limits fixed for it by the application, and the plaintiff, who neither authorized nor assented to the change, was entitled to have it reformed. He complied with the condition which he undertook to perform and could not be defeated on account of non-compliance with another which he did not undertake to perform.
Other questions discussed in the briefs have been examined, and nothing sufficiently serious to warrant a reversal appears. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The defendant contends that there is an entire absence of proof tending to establish negligence upon its part, and that there is a conclusive showing of contributory negligence upon the part of the deceased. It has also been urged that the jury found that the bridge was negligently constructed, as alleged in the petition; but it is not intimated that this condition of the bridge had anything to do with the injury of which complaint is made.
These propositions are strongly presented. It is unnecessary, however, for us to place the decision of the case upon either of these contentions, as it can be disposed of upon the findings of fact. Questions numbered 13 and 14 and the answers thereto were intended to elicit a full statement of the facts constituting the defendant’s negligence, but .no facts are stated which can be construed into negligence. They read:
“ (13) Ques. Was the defendant guilty of negligence toward the deceased? Ans. Yes.
“(14) Q. If you answer the last question in the affirmative, then state in what such negligence [consisted], and the name or names of the officer or agent or employee of the company that was guilty of such negligence. A. By slowing down and then increasing the speed of east-bound freight by engineer Gibbs.”
The mere slowing down and then increasing the speed of a train moving under ordinary conditions on the main track does not constitute negligence. Under some circumstances it might be negligence, but here no such circumstances are stated. The jury do not state how this act of the engineer affected Roth or in any way contributed to his death. The same is true of the construction of the bridge. The fact that it was negligently constructed is immaterial unless it contributed to the accident. In this respect the general verdict is not sustained by the special findings, but is inconsistent therewith.
The judgment of the district court is reversed, with directions to grant a new1 trial and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Burch, J.:
An information was filed in the district court of Wyandotte county charging Amos Martin with a violation in that county of chapter 525 of the Laws of 1905, which reads as follows:
“An Act to prevent fraudulent practices connected with the purchase and sale of grain, seed, hay, or coal, and providing a penalty for the violation of the same.
“Be it enacted, by the Legislature 'of the State of Kansas:
“Section 1. Every sale of grain, seed, hay or coal shall be deemed to be made on the basis of the actual weight thereof, unless a different basis is established by the express agreement of the parties to the transaction. Any purchaser of grain, seed, hay or coal who, without express agreement with the seller thereof, shall knowingly deduct any quantity or amount from the actual weight or measure of the article purchased, and withhold payment therefor under claim of right so to do by reason of any custom, rule of a board of trade or any other pretense whatsoever, shall be deemed guilty of a misdemeanor, and subject to a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense. No agent or broker selling grain, seed, hay or coal for the owner thereof shall be presumed to have authority to sell any grain, seed, hay or coal on a basis other than that of the actual weight or quantity thereof, but express authority to allow any deduction must be proved.
“Sec. 2. In case any purchaser of grain, seed, hay or coial shall deduct any amount from the actual weight or measure thereof, and shall knowingly withhold from the seller the purchase-price of the quantity so deducted, without the express agreement of the seller thereof, such seller may recover from such purchaser three times the amount so withheld, together with reasonable attorney’s fees, to be taxed in each court in which the action may be brought or to which an appeal may be taken.”
The petitioner was arrested, and while in custody made application for his discharge on a writ of habeas corpus. The cause is submitted upon the following agreed facts :
“The petitioner, Amos Martin, on the 9th day of January, 1909, in Kansas City, Mo., being a member of the board of trade of Kansas City, Mo., bought on the floor of the board of trade of Kansas City, Mo., a carload of wheat weighing 60,000 pounds. The bill of lading covering said grain so purchased was later on the same day delivered to him in Kansas City, Mo.
“This car-load of grain had been shipped from Salina, Kan., for sale on the floor of the board of trade of Kansas City, Mo., to a commission man, who was also a member of the said board of trade of Kansas City, Mo., where it was finally purchased by Amos Martin.
“All sales'on the floor of the board of trade of Kansas City, Mo., are made under the rules of said board, one of which permits the purchaser to deduct 100 pounds from the weight of each car-load for the purpose of covering shortage through the presence of dirt and foreign matter in the grain and car. The commission man who sold the grain, and Amos Martin, who purchased the same, both understood the sale was being made subject to this rule, both therefore assented thereto, and the price, terms and every other detail of the sale were agreed upon. When Martin paid for the grain in Kansas City, Mo., it was on the basis of 59,900 pounds.
“Said Amos Martin was, on the 9th day of January, 1909, the owner and operator of an elevator- in Wyandotte county, Kansas, and said car of grain was ordered by him to be stored in his elevator, and after weighing by the state weigher at said elevator the state weighing department delivered to Martin, in Kansas City, Mo., the actual weight of the car-load of grain. Thereafter both said dockage and payment for the grain to the commission man were made in the office of the board of trade of Kansas City, Mo.,‘in Kansas City, Mo.”
The argument has taken a wide range through the fields of constitutional law, interstate commerce and the conflict of laws, but the solution of the question involved is relieved from difficulty by attending carefully to what the law in question undertakes to punish. The act purports to deal with personal practices, and not with the corporal relations of movable things occupying a definite portion of space. No attempt is made to bind commodities themselves by any kind of condition or limitation or to regulate or govern in any way the thing bargained for in the sense of a res having a situs within the local jurisdiction.
The fraudulent weighing of specified commodities is not the burden of the act. Actual weight may be ascertained anywhere, by any means, and at any time, either before or after title has passed. It may have been established in some way to the satisfaction of the parties while the property was beyond the borders of the state and before the seller acquired title. The law does not begin to operate until after the true weight has been finally fixed, and then it affects the subsequent conduct of the purchaser, not in his relation to the commodity itself, but in the discharge of his obligation to the person who sold. The deduction forbidden is not a concrete physical act' done in relation to the property and does not depend upon the locality in which the property is situated. The entire mass of the article is actually sold and actually delivered. The deduction is merely a mental operation resulting in a theoretical diminution for the purpose of arriving at a basis of settlement. The feat is performed nowhere except in the minds of the contracting parties.
There is no reference in the act to sales of grain, seed, hay or coal located in this state. The computation of price on a fictitious basis and the withholding when settlement is made of a portion of the true price because of the false assumption is the practice condemned. This practice may be indulged whether the commodity sold be at the time on one side or the other of the imaginary line separating Kansas City, Kan., from Kansas City, Mo. If the owner of mines in Colorado should sell coal in Colorado at true mine weights to a Topeka dealer, to be paid for at Topeka on presentation of the bills of lading, and the purchaser should make a deduction from the true weight and withhold payment therefor under a local custom or trade rule, he would subject himself to all the penalties of the act.
Delivery in this state is not a material factor. The act applies to every sale, and delivery is not essential to a completed sale unless made so by agreement. It is elementary law that an offer may be accepted and a bargain struck so that the contract of sale becomes absolute and title passes without either delivery or payment of price. If the property then be accidentally destroyed while in the possession of the seller the loss falls upon the buyer, and the price may be recovered the same as if delivery had occurred. In such a case the statute would apply and settlement on the basis of' actual weight without deduction would be necessary. If a Kansas grain dealer should contract for wheat to. be delivered to him in Chicago, and after receiving the grain there he should make settlement for it at his office in Kansas on the basis of' a deduction according to the Chicago board-of-trade rules, he would subject himself' to all the penalties of the act.
The passing of title is not a matter of consequence so that the legislature may be said to have been concerned with property rights in things with a local situs. No doubt executory contracts made in violation of the act would not be enforced, but executed contracts are affected no further than that the seller may recover treble the portion of the price withheld. The title to grain delivered pursuant to the sale is not disturbed.
The statute is leveled at the conduct of a purchaser toward a seller in the matter of figuring and paying the sum due on a personal obligation, and criminality no more depends upon the situs of the property or of the various features of the transaction giving rise to the obligation than if it were a statute to punish shortchanging. This being true, all questions of the conflict of laws go out of the case. We have an ordinary criminal statute without any extraterritorial aspect whatever, and since all the conduct giving rise to the information filed in Wyandotte county was exhibited in the state of Missouri the petitioner is entitled to a discharge from further custody.
For the sake of argument let it be conceded that the legislature intended the statute should apply, and had the power to make it apply, to settlements made outside the state for the price of sales seated in Kansas. Where was this sale made ? The ultimate criterion is the place where the last act was performed necessary to consummate the contract. (2 Whart. Conflict of Laws, 3d ed., § 422a.) The offer and acceptance both occurred in Missouri. The wheat was not physically in the possession of the seller. He had the right to possession, but the grain was actually in the custody of a common carrier, as bailee. The wheat was represented by a bill of lading, which for general commercial purposes was the equivalent of the property itself. When the seller delivered this bill of lading to the purchaser he performed the last act required of him. The purchaser accepted the bill of lading for the grain itself and took the responsibility of acquiring actual possession from the carrier. He could call upon the seller for nothing more. When the purchaser paid for the wheat he performed the last act required of him. Therefore every legal constituent of this sale from first to last was seated in Missouri, and the district court of Wyandotte county has no jurisdiction over any one of them.
Other questions raised and argued need not be considered. The petitioner is discharged. | [
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The opinion of the court was delivered by
Benson, J.:
The action was to foreclose a mortgage made by John Finley and wife and assigned to the plaintiff, C, W. Carson. The defendant, Jay Fulbright, was in possession of the mortgaged premises claiming title in fee, under a tax deed in regular form recorded more than five years before the suit was commenced. Judgment was rendered for the defendant.
Under section 141 of the tax law (Gen. Stat. 1901, § 7680) the tax deed is invulnerable to this attack unless the facts of this case distinguish it from many others decided by this court protecting the party.in possession under tax deeds which had been of record more than. five years when assailed. The plaintiff 'claims that it should be so distinguished.
After the tax deed had been of record for more than ten years, and while the defendant was in possession under it, he took from the mortgagor, a quitclaim deed for the premises and placed it upon.record. The mortgagor had covenanted to pay the taxes, and the mortgage containing this covenant was on record when this conveyance was made. The claim is that by so taking a conveyance from the mortgagor the defendant, while succeeding to the rights, became subject to the disabilities of the mortgagor, and as the mortgagor would have been estopped from claiming title under a tax deed issued because of his own default his grantee is in no better situation. (Shrigley v. Black, 66 Kan. 213; Gibson v. Gilman, 71 Kan. 320.) This contention can not be sustained. When the taxes upon which the deed was issued became delinquent, and at the time the deed was issued, the defendant was under no obligation to pay the taxes, and by accepting a conveyance afterward from the former owner he did not devest himself of-his previously acquired title, although such former owner was bound to pay the taxes. Such an effect can not be claimed under the operation of the rule of merger, for merger is very largely a question of intention, and will not be presumed when it would operate to the disadvantage of the party. (Rand v. Ft. S. W. & W. Rly. Co., 50 Kan. 114.) It would be a strange presumption that the defendant in obtaining this conveyance from the mortgagor intended thereby to subject himself to the payment of the mortgage or to the loss of his land in consequence of non-payment. On the contrary it will be presumed that the conveyance was obtained for 'some benefit and not for a burden. (Loan Association v. Insurance Co., 74 Kan. 272; Gilman v. Bank, 64 Kan. 87.)
One who is not under any obligation to pay taxes upon land, nor in privity with one so liable, may obtain a tax title thereto, and when in possession and claiming title under such a tax deed, apparently valid,, may accept a conveyance from the former owner without incurring thereby the risk of losing his land for failure to pay a mortgage given by such former owner and outstanding when the taxes became delinquent, although the mortgagor had covenanted in the mortgage to pay the taxes.
The conclusions of the district court were in harmony with these views, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Edgar B. Corse sued W. L. Kelly for a real-estate broker’s commission, and having failed to recover prosecutes error. The casé was tried without a jury, and the only question presented is whether there was any evidence to sustain a finding for the defendant, in view of admissions that Kelly listed a farm with Corse, who showed it to one C. Swanson and tried to induce him to buy it, and that, although no sale was made at the time, about a week later Swanson bought the property directly from Kelly. The natural inference from these facts alone would be that the sale was the result of Corse’s efforts, and therefore that he earned his commission.
But there was evidence tending to show these additional facts: After Swanson had been shown the land by Corse he decided not to take it, and bought a stock of hardware of one Grove. But before paying for this he became dissatisfied and concluded to throw it back upon the hands of Grove, as his contract gave him a right to do by forfeiting what he had already paid. Grove, however, persuaded him to try to trade the merchandise to Kelly for the farm, and set on foot negotiations by which that result was accomplished without any aid from Corse.
This evidence warranted a judgment for the defendant, inasmuch as it justified a finding that after the efforts of Corse to induce Swanson to buy the land had definitely failed and had spent their force Kelly, acting in good faith, made a sale to Swanson which was the result of a new and independent cause, not connected with anything that Corse had done. (19 Cyc. 257, 262, 268; 23 A. & E. Encycl. of L. 914, note 2.) If Grove had been acting as a real-estate agent he, and not Corse, 'would under such a finding have been entitled to the commission. The fact that his purpose in promoting the deal was to induce Swanson to complete the pur chase of the stock of merchandise can not require that Kelly should pay Corse for services which did not in fact cause the sale.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The admissions of fact in this case leave nothing but a question of law to be determined. After fhe mutual admission of .the detailed facts recited in -the statement the defendants offered in evidence the second tax deed, a copy of which was attached to the answer, and the execution of which was not denied in fhe reply under oath. The execution of the deed was therefore admitted in the form and with the contents as pleaded. (Civ. Code, § 108.) It was not necessary, therefore, to introduce this deed in evidence. Pending the ruling on the objection to the introduction of the deed in evidence, however, the plaintiff expressly admitted “that the books and records of the office of the county treasurer would show that Hoover purchased at said sale several tracts, including the one in controversy, each for a different consideration, and that he was entitled to a tax deed conveying said lands as separate and distinct tracts and showing a separate and distinct sale of each tract.” This is equivalent to the admission of the facts as true which it is admitted the records show. The records import verity and are not subject to contradiction. There is a marked difference between an admission that a witness would testify to a certain .fact and an admission that a public • record, and the only proper public record, would show the fact. The witness may be contradicted or may not be believed. The public record of the county treasurer is in the very nature of the case the best, if not the only, evidence of the facts it is admitted it would show, and, at least in the absence of any suggestion of error or fraud therein, should be taken as conclusive evidence of such facts.
The court evidently recognized these as established facts and correctly held that all rights acquired under the first tax deed were merged in the second deed. (Gen. Stat. 1901, § 7714; Tweedell v. Warner, 43 Kan. 597.) The court, however, held, following the dictum in Park v. Hetherington, 9 Kan. App. 309, 312, 313, that section 7714, supra, being the first section of an act entitled “An act to avoid floating liens on real estate,” adopted in 1881, limits the time for obtaining a. valid tax deed to four years from the date of the sale, at least in the absence of some allegation or recital in the second deed showing that it was issued to correct or take the place of a first tax deed issued on. the same tax sale. In this the court erred.
Section 7714 of the General Statutes of 1901 has no reference whatever to the time of issuing a tax deed or to the validity of a tax deed. This section was enactéd as section 1 of chapter 114 of the Laws of 1881. The chapter was entitled “An act to avoid floating liens on real estate,” and the whole act is still in force, and has been republished under that title in all subsequent compilations of the statutes. Theretofore a person could acquire a tax certificate on a tract of land and carry it indefinitely, at the enormous rate of interest then allowed by law. Probably trouble from this source led to the enactment of this section. As before said, it has no reference to the time within which a tax deed must be issued after the sale to be valid. The deed is issued in accordance with the contract of pur chase, and sale, the law being a part of the contract, and neither this nor any other statute expressly places any limitation upon the issuance of such deed, except that it can not be issued until three years after the sale. But the general statute of limitations, as will be seen hereinafter, applies to the time within which an action may be brought to compel the issuance of such deed. To preserve the lien for taxes on the land a tax deed must be taken out within four years from the date of the sale. But it is provided in section 4 of the floating-lien statute (Gen. Stat. 1901, §7717), in eifect, that an invalid tax deed shall preserve the lien.
The only justification for the dictum in Park v. Hetherington, 9 Kan. App. 309, 312, 313, (see, also, Tweedell v. Warner, 43 Kan. 597, 604) is that a tax deed could not be issued after the lien for the taxes had expired. Assuming the correctness of this proposition, if the lien has once been perpetuated by taking out an invalid deed, when thereafter does the lien expire? When thereafter, if the purchaser be entitled. thereto, can a valid tax deed be legally issued. No provision of the statute, it is believed, answers either question.
We simply hold in this case that the second tax deed may lawfully be issued by the county clerk during such time at least as the purchaser may maintain an action to compel the issuance of the deed.
An excerpt from the opinion of Mr. Justice Brewer in Douglass v. Nuzum, 16 Kan. 515, seems especially applicable to the facts in this case,'as it is admitted herein that all the steps in the matter of the taxation of the land in question up to and including the sale were legal and had been taken in the manner prescribed by statute. The excerpt reads:
“If all the proceedings up to the execution of a tax. deed are regular and legal, the holder of the certificate is entitled to a deed in legal form, and carrying that prima facie evidence of the regularity of all prior proceedings which belong to a statutory deed; and if through mistake or inadvertence a different deed, and one substantially departing from the statutory form, has been executed, the county clerk can be compelled by mandamus [to], and may without it, execute and deliver a deed in correct and statutory form. In other words, neither the power nor the duty of the county clerk is exhausted by the execution of an irregular and improper deed. The holder of the tax claims is entitled to have the various steps and processes by which these claims are matured into perfect titles properly and legally taken and done by the various officers to whom under the law they are respectively assigned.” (Page 525.)
Suppose that in this case the county clerk had refused, on the application of the purchaser, to execute a deed in conformity to law and to the rights of the purchaser: what would be the limitation of time within which the purchaser could bring an action in mandamus to compel the clerk to perform his duty? There is no special limitation provided in such case; hence, as it is a civil action, the limitation must be found in article 3 of the civil code. Subdivision 6 of section 18 of the code is the only limitation applicable, and it is five years from the issuance of the defective deed. His cause of action for mandamus would arise after the making of the first deed and upon the refusal of the clerk on demand to execute a deed in conformity with law, and he is entitled to five years thereafter in which to bring his action in mandamus. If the county clerk could be compelled to issue a valid tax deed more than four years after the tax sale (and it would be ridiculous to say that he could be compelled to issue an invalid deed), he might do so without any action within that time at least.
While it is proper and desirable to note upon a second tax deed, issued to correct an erroneous deed, the fact that it is so issued, the purpose and function of the second deed must in every case be apparent, from the circumstance that the two deeds are issued upon the same sale; and it is not a prerequisite to the validity of the second deed or to its admissibility in evidence in court that such notation be made thereon.
All the facts requisite to establish the validity of the second tax deed were admitted by the plaintiff, and as it is herein held that such deed is not invalid by reason of the time of its issuance the judgment of the court is reversed, with instructions to render a judgment in favor of the defendants. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff is an Illinois corporation, with its home office and principal place of business at the city of Moline, in that state. It sued defendant on a promissory note given in part payment of the purchase- price of a buggy. The sale was on an order in writing signed by the defendant, at Emporia, Kan., and taken by the traveling salesman of the plaintiff, subject to the plaintiff’s approval. The order was sent to the plaintiff at its home office and there accepted, and the buggy was shipped to the defendant.
The defense was that the plaintiff is a foreign corporation and had failed to comply with the provisions of section 1283 of the General Statutes of 1901, which forbid any foreign corporation doing business in the state from maintaining an action in any of the courts thereof without first having obtained a certificate from the secretary of state showing that certain statements had been filed. In its reply the plaintiff pleads that the statute in question violates the first paragraph of section 10 of article 1 of the constitution of the United States, forbidding a state to pass any law impairing the obligation of contracts; that it is in violation of section 1 of the fourteenth amendment to the constitution of the United States, providing that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”; and that it is in violation of the commerce clause of the federal constitution. (Art. 1, § 8.)
The trial court held that the transactions shown constituted the doing of business within the state within the purview of the statute, and that the plaintiff was not entitled to maintain the action. Judgment was rendered in favor of the defendant for costs. The plaintiff seeks a reversal.
There was proof of but one transaction in the present case, but no question is raised as to whether a single transaction constitutes doing business, because it is admitted that the plaintiff transacts its business generally through traveling salesmen authorized to take orders like the one in this case, subject to the approval of the plaintiff at its home office, and that when such orders are approved the goods are shipped direct to the purchaser in Kansas. It is also admitted that the plaintiff has not attempted to comply with the provisions of the statute in question. The plaintiff contends that it was not doing business in the state within the terms of the statute because all of its business transacted here is interstate business.
It may be conceded at once that the transaction in which the note sued on was given constituted interstate commerce. (Kinsley v. Dyerly, 79 Kan. 1; Rearick v. Pennsylvania, 203 U. S. 507; Caldwell v. North Carolina, 187 U. S. 622; McCall v. California, 136 U. S. 104; Lyng v. Michigan, 135 U. S. 161.) It may also be conceded that interstate commerce is not forbidden by the statute in question. (The State v. Book Co., 69 Kan. 1.) It was not the purpose of the legislature in the enactment of the statute to impose any burden upon, or interfere in any way with, commerce between the states. The precise question was presented in Deere v. Wyland, 69 Kan. 255, and the statute was there construed not to violate the provisions of the commerce clause of the federal constitution, even when applied to corporations engaged solely in interstate commerce. In the opinion in that case Mr. Justice Mason used this language:
“The question here is not the power of the state of Kansas to lay a charge on interstate commerce, or to prevent a foreign corporation from engaging in interstate commerce within its confines, but simply the right of the state to determine, upon what conditions its laws as to the enforcement of rights through its courts may be availed of. The part of the statute under consideration lays no embargo or burden upon interstate commerce ; it does not seek to prevent or hamper the transactions of corporations engaged in that business; it does not declare their contracts void or deny them the enforcement of any rights whatever; it merely provides that if they wish to make use of the machinery of the state courts for their own benefit they must do so upon the same terms as other corporate suitors-. In this we find no interference with the powers reserved to congress by the federal constitution.” (Page 26B.)
The opinion cites The State v. Book Co., 69 Kan. 1, in which the same statute was expressly held not to impair the obligation of contracts or to forbid the doing of interstate business within the state. The denial of relief by the courts in this instance goes not to the merits of this case; it merely amounts to an adjudication that the plaintiff can not maintain the action at this time. It can no more be said to impair the obligation of the contract sued on than would a judgment dismissing the action for failure of the plaintiff to furnish a satisfactory bond for costs. The case of Deere v. Wyland, supra, was followed and affirmed in Osborne v. Shilling, 74 Kan. 675. There is therefore no force in the contention that the statute impairs the obligation of a contract. How can it be said to abridge the privileges or immunities of .any citizen ? It makes no distinction between foreign and domestic corporations. All are treated alike. Before either can use the courts to obtain relief in cases of this kind there must be a compliance with the provisions of the statute. The foreign and the domestic corporations are thus afforded the equal protection of the laws; and, so long as the foreign corporation is given ample apportunity to obtain relief through the courts by complying with the provisions of the statute, it can not be said that it is deprived of property without due process of law.
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The opinion of the court was delivered by
Smith, J.:
It is elemental law that a personal judgment rendered against a defendant who has not been served with summons and has no notice of the pendency of the action is void. As to the fact of service, the general rule is that as between the parties to an action the return of the sheriff is conclusive; but if his return is of a fact not within his personal knowledge but dependent upon information received from others a party is not precluded from an inquiry into the facts on which jurisdiction depends. Such inquiry was made in this case. - Evidence was offered to the jury and they found that the return of service was not true. ■ The •court approved the finding, it was supported by ample evidence, and we are bound thereby. The judgment of ■the justice of the peace was therefore void. (Bond v. Wilson, 8 Kan. 228.)
The execution sale, made under the void judgment, was equally void and conveyed no title to the pur'chaser. (Case v. Hannahs, 2 Kan. 490; Mastin v. Gray, 19 Kan. 458; 12 Encyc. Pl. & Pr. 12, 90.)
The only remaining question is whether the plaintiff 'was estopped, by his failure to attend the sale and to warn intending purchasers of the invalidity of the .judgment and execution, from prosecuting his claim •against Schott for the value of the wool.
“To constitute an estoppel, the following elements •are essential: (1) There must be conduct, acts, language or silence amounting to a representation or a con•cealment of material facts. (2) These facts must be "known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to 'the other party, claiming the benefit of the estoppel, at 'the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must "be done with the intention, or, at least, with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and "probable that it will be so acted upon. (5) The conduct "must be relied upon by the other party, and, thus relying, he must be led to act upon it. (6) He must in fact act upon it in such a manner as to change his position Tor the worse.” (3 Words & Ph. Jud. Def. 2498, and ¡authorities there cited.)
(See, also, Ergenbright v. Henderson, 72 Kan. 29.)
It is true a person in a position and under obligations to speak may be estopped by his silence if he does :not speak. For instance, if one stands by and sees his .property sold as the property of another, the purchaser may rely upon his silence, and he may -be estopped thereafter from asserting his ownership.
The plaintiff could have been present at this sale, but was not. He went instead to the justice of the peace who rendered the judgment and issued the execution, probably in the belief that the justice had authority to and would stop the sale. He had no power himself to stop the sale, and he owed no duty to Schott or to any other purchaser in the premises. It would be carrying-the principle of estoppel entirely too far to say that the, plaintiff was estopped by reason of his failure to attend, the sale, especially when it appears that he was pursuing another course which presumably appeared to. him more proper and more likely to accomplish the result of stopping the sale.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
By a writ of habeas corpus Floyd Manning seeks his discharge from custody upon the ground that it is based upon a statute which is no longer in force. He was convicted under what is known as the “club-room section” of the original prohibitory law (Laws 1881, ch. 128, § 16), which has never been expressly amended or repealed, and which reads as follows :
“Every person who shall, directly or indirectly, keep or maintain, by himself or by associating or combining-with others, or who shall in any manner aid, assist or abet in keeping or maintaining any club-room or other place in which any intoxicating liquor is received or kept for the purpose of use, gift, barter or sale as a beverage, or for distribution or division among the members of any club or association by any means whatever, and every person who shall use, barter, sell or give away, or assist or abet another in bartering, selling or giving away any intoxicating liquors so received or kept, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months.” (Gen. Stat. 1901, § 2466.)
What is called the “nuisance section” of the same act originally read as.follows:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions .of this act, .or where intoxicating liquors are kept for sale, barter or use in violation of this act, are hereby declared to be common nuisances; and upon the judgment of any court having jurisdiction, finding such place to be a nuisance under this section, the sheriff, his deputy, or under-sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place, and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than sixty days nor more than ninety days, or both by such fine and imprisonment.” (Laws 1881, eh. 128, § 13.)
In 1885 this section was amended by substituting the word “delivery” for “use” in the expression “kept for sale, barter or use,” by requiring both fine and im prisonment to be imposed upon conviction, and by authorizing proceedings against the nuisance by'injunction. (Laws 1885, ch. 149, § 13.)
In 1887 it was again amended by providing for an attorney’s fee in the injunction proceedings, and by adding to the attributes that should characterize a place as a nuisance this: “or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage.” (Laws 1887, ch. 165, § 4.)
In 1901 a new act was passed, not in terms amending any other, one section of which reads as follows:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances; and every person who maintains or assists in maintaining such common nuisance shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, for each offense.” (Laws 1901, ch. 232, § 1; Gen. Stat. 1901, § 2493.)
In The State v. Estep, 66 Kan. 416, and The State v. Express Co., 69 Kan. 848, the court held that this new nuisance section was intended as a substitute for the' old one, and therefore superseded it entirely, thereby accomplishing its repeal by implication. In support of this view it was pointed out that the two statutes were leveled against criminal acts “not widely different,” the later law imposing a heavier penalty than the earlier. It is now argued in behalf of the petitioner that by the same reasoning the law of 1901 must be deemed to have superseded and repealed the club-room section, since it prohibits acts “not widely different” from those there denounced, and assesses a heavier punishment against them. It is true that the offense defined by the club-room section is very similar to that against which the present nuisance section is directed— so similar as perhaps to be considered only a special manifestation of the general course of conduct there forbidden. But these two sections bear precisely the same relationship to each other as existed between the club-room section and the original nuisance section, which was a part of the same act. In 1881 the legislature saw enough difference in the quality of the acts involved to treat as separate offenses, though of equal gravity, the maintaining of a place where intoxicating liquors were indiscriminately sold in violation of law and the maintaining of one where they were kept for .sale as a beverage to the members of a club. In 1885 it saw fit by express amendment to increase the penalty attached to the former of these offenses, but this showed no intention to abolish the distinction between them. In 1901 it enacted a new law assessing a yet graver punishment for an offense which was not only substantially similar to that described in the existing nuisance section but which was even defined in álmost the same language. By so doing, as the court held, it .gave evidence of a purpose to cover the entire subject-matter of that section, but we see in this enactment no indication of any change in its policy of treating the maintenance of a drinking-club as a distinct method of violating the spirit of the prohibitory amendment, indictable and punishable as a separate offense. The ■club-room section is therefore still in force.
The petitioner is remanded. | [
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The opinion of the court was delivered by
Johnston,_ C. J.:
In this,action Fred L. Morris al-, leged that he was the owner and entitled to the possession of certain lots in Independence, and that E. J. Gregory unlawfully kept him out of the possession. He then proceeded and alleged in substance that the defendant claimed an interest in the lots under a quitclaim deed from J. F. McCorkle and wife, who acquired their right from E. T. Mears, to whom the land was conveyed by a tax deed for the taxes of 1893. He attacked the tax deed by alleging that it was void- because it was not recorded within the time required by law and that it was void upon its face. It was averred that when Mears purchased the lots at the tax sale he was the agent of the Neosho Valley Investment Company, which then held the title to the lots; that he purchased them for the company and took the certificate as well as the tax deed in his own name, and that he had no interest in the lots except as agent of the company. The plaintiff concluded by an averment that by reason of the facts stated the defendant had no title to the lots,, and asked a judgment for possession and for other’ proper relief. In the defendant’s answer, aside from a, denial, he alleged that the plaintiff’s cause of action was. barred by the two-year and also by the five-year statute of limitations. At the trial the court found generally for the defendant, and it is insisted here that on the-pleadings and evidence the judgment should have'been, for the plaintiff.
The tax deed introduced in evidence was fair on its-, face, but the plaintiff undertook to show that the action of Mears in purchasing the lots and taking the title-in himself when he was in fact commissioned to obtain- it for the company operated to avoid the tax deed. Proof was offered to the effect that for a number of years Mears had been acting as an agent for the investment company, and among other things had charge of the payment of the* taxes on lands in which the company had an interest, and further that he attended tax sales and purchased lands for the company. There was testimony that on August 29, 1894, the’ company directed him to attend the tax sale to be held in September, 1894, there to purchase lands for the company, a list of which was furnished him, which included the lots in controversy; that in obedience to that direction he attended the sale and purchased the lots in question in his own name for $18.08, and that within a few days afterward the company sent him a draft which corresponded exactly with the amount necessary to purchase the lands included in the list sent to him and this draft he indorsed and transferred to the county treasurer. In the certificate then issued Mears was named as purchaser, and this certificate was never assigned or delivered to the company. On the other hand Mears testified that although he was,the agent of the company he in fact purchased the land for himself and not for the company; that the money paid by him for the lots at the tax sale was his own and not that of the compand, and further that the company never made any demand on him for the assignment of the certificate, or any claim that it was the owner of the land, until about eleven, years afterward, when this action was brought. In that connection he stated that he purchased the land at the tax sale thinking that the company might want to take it off his hands, but as it was in bad straits financially the company never did, and at the time of the purchase he doubted whether it would be able to do so and therefore concluded to buy it himself and take the chances. For defendant it was further shown that the tax deed, good on its face, was made on August 29, 1898, and duly recorded on the following day; that the lots were conveyed by Mears to the McCorkles for $500 on April 25, 1900, and by them to the defendant on September 18, 1902. Mears and his grantees have been in possession of the lots since they were conveyed for taxes, and it was shown that the defendant purchased without having any knowledge of the relations existing between Mears and the company or that the company claimed any interest in the property.
The court rightly decided the case in favor of the defendant. Although denied by Mears, it may be said that the evidence strongly tended to prove that he was acting as the agent of the company in making the purchase at the tax sale and that the funds of the company were used in paying for the land. If it be assumed that he acted in that capacity, and committed a fraud upon the company in failing to assign the tax certificate and in subsequently taking a deed to the land in himself, it does not follow that the plaintiff, the grantee of the company, can maintain this action against the defendant, who purchased the land without knowledge of the fiduciary relationship or of the fraud. If the plaintiff’s petition is to be interpreted as an attack upon the tax deed and as showing a purpose on the part of the plaintiff to have it set aside for the faithlessness and fraud of Mears, the action was barred by the statute which provides that an action for relief on the ground of fraud must be brought within two years after the cause of action shall have accrued. (Civ. Code, § 18.) If the plaintiff’s averment and testimony that Mears purchased the land with the money of the company and took title in his own name when he was instructed to purchase for the company are accepted as true, his conduct operated as a fraud, and to defeat the accomplishment of the fraud the plaintiff was required to act promptly and at least within two years after the discovery of the fraud. Of the early discovery of the fraud by the company there can be no, doubt. According to the plaintiff’s testimony a letter was written to Mears directing him to attend the tax sale and purchase the lots for the company with money furnished him for that purpose, and to take the certificate in his own name, assign it in blank, and transmit it with his report of the sale to the company. Mears, it appears, accounted for the other purchases of property included in the same list ancl transmitted the certificates to the company, but did not assign or transmit the certificate for the land in controversy, as he had been directed to do. The failure to send an assigned certificate or to account for the money furnished him with which to purchase these lots when the September, 1894, sales were reported apprised the company that Mears, in whose name the certificate was taken, was holding out his interest in direct violation of his duty and of the order of the company. Following up this knowledge, they could have learned that he was paying the subsequent taxes on the land and claiming it as his own. There is no claim that the company ever attempted to pay the subsequent taxes on the lots or included them in any list of property on which they proposed to pa.y taxes. Four years passed before the deed was executed, but it does not appear that the company asked for an assignment of the certificate or complained of the fraud of Mears. The tax deed was recorded and the property was subsequently conveyed to good-faith purchasers, who took and held possession continuously until 1905, when the company waked up and charged that Mears about eleven years before had committed a fraud, of which it must be held to have had early and abundant notice. The plaintiff, who purchased the lots from the company a few months before this action was brought, is in no better position than the company occupied.
It is argued, however, that the action brought is fdr the recovery of real property, and hence the two-year statute of limitation provided for in section 18 of the code does not apply. The petition contains appropriate averments for an action of ejectment, and it contains besides averments ordinarily used in an action to an nul and- set aside a fraudulent conveyance. Interpreting the petition, however, as one stating a cause of action for the recovery of real property, ■ the action is nevertheless barred by the statute of limitation found in section 141 of the tax law, which reads:
“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.” (Gen. Stat. 1901, § 7680.)
The tax deed in question was recorded on August 30, 1898, and this action was not commenced until April 16, 1906. The conveyance having been of record more than five years before the litigation was begun, the case falls within the limitation of the quoted statute. As against this view it is urged that the case is taken out by the provision excluding “cases where the taxes have been paid or the land redeemed as provided by law.” The contention is that the purchase of the lots at the tax sale by Mears, the agent of the company, amounted to no more than a payment of the taxes by the company, and that therefore the limitation can not apply. It is an equitable rule of frequent application that an owner of an interest in land can not purchase it at tax sale and acquire a tax title which he can assert as against his cotenant or mortgagee. To prevent an injustice the purchase is deemed to be a payment of the taxes. A cotenant, mortgagee or other person interested in the land against whom the company might be setting- up the tax title so acquired would have "a right to insist that the purchase at the tax sale wqs the equivalent of a payment of the taxes, but the company is not in a position to insist that the purchase made in this instance was a payment, as against an innocent purchaser of the land. The plaintiff, its grantee, is in no better position. It would be harshly inequitable if, after author izing its agent to purchase lánd and take the certificate in his own name, and after allowing him to take the title in himself and transfer the same to an innocent stranger, the company could be permitted, after waiting so long a time as has elapsed here, to say that the purchase by Mears should be treated as a payment of taxes. Such inattention and negligence can not be made the basis for equitable relief as against one in the attitude of the defendant.
The contention that the defendant can not be regarded as a bona fide purchaser because he is holding under a quitclaim deed is fully answered in Eger v. Brown, 77 Kan. 510, and Ennis v. Tucker, 78 Kan. 55.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Bénson, J.:
The question to be decided relates to the effect- of a tax deed; under which the defendants are in possession and claim title in fee. The plaintiffs seek to recover the lands in question, 'to which they are entitled unless devested by the tax deed, which was recorded more than five years before the actions were commenced.
The plaintiffs contend that the deed is void (1) because it contained a recital that the land could be sold for the amount of the taxes and charges thereon, but was bid off by the county treasurer; (2) because in the granting clause it is recited that the conveyance is in consideration of the taxes, costs and interest due on the land for certain years, including 1891, but the deed does not show that the taxes for that year were included in the certificate or -paid by the purchaser.
The deed was proved by the record in the register’s office. A photograph of this record shows a printed form headed, “Several tracts. To assignee of county,” under which the record of the deed appears. It is fair to presume that the original deed was made upon a like form or blank and that the printed and written parts respectively are the same as shown in the record. It appears, then, that the deed was made by using a printed form designed for use in cases where several tracts separately assessed and sold are conveyed by one deed. Parts of the printed matter were stricken out and interlineations were made in an attempt to adapt the form to this transaction, wherein the lots had been ■assessed and sold as a single tract. These changes resulted in a recital that this property “could be sold for the amount of tax and charges thereon, and was therefore bid off . . . for said county,” etc., which, it is insisted, makes the deed void.
The following is a copy of' that part of the deed considered important úpon this inquiry. The words in brackets were stricken out by a line drawn through them. The words italicized were interlined above those stricken out:
“Whereas, each of the following-described [parcels, tracts and lots of land,] real property, viz.
“[Number 1.] lots ten (10), eleven (11), and twelve (12), block twenty-one ‘(21), J. A. Stevens addition to Garden City, Kan., situated in the county of Finney and state of Kansas, was, severally, subject to taxation for the year A. D. 1890; and, whereas, the taxes assessed upon each of said [several parcels, tracts and lots of] real property, respectively, for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and, whereas, the treasurer of said county did, on the first day of September, A. D. 1891, by virtue of the authority in him vested by law, at Garden City, Kan., the sale begún and publicly held on the first Tuesday of September, A. D. 1891, 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, [offering sepa rately each of the s'aid several parcels, tracts and lots as in the regular course of said sale it was reached in its turn,] the real property above described, for the payment of, the taxes, interest and costs then due and remaining unpaid upon [each of said parcels, tracts and lots of real] said property, [respectively]; and, whereas, at the place aforesaid, [neither of the said parcels, tracts and lots of] said property could be sold for the amount of tax and charges thereon, [and each of them was, therefore, as they were severally and in due course, as aforesaid,’ offered for sale] was therefore bid off by the county treasurer for said county, for the whole amount of taxes and charges then due thereon [and remaining unpaid on each of the said parcels, tracts and lots of said property.] ”
Similar changes in the printed matter appear in other parts of the instrument to adapt the form to the conveyance of a single tract.
It will be observed that the words “neither of - the said parcels* tracts and lots of” were stricken out and “said” was inserted before the word “property,” thus adapting the recital1 to the case of a single tract; but this change struck out the negative “neither”; and the omission of the word “not” after “could” changed the negative form into an affirmative one, which is manifestly contrary to the intention.
The interlineation of the words “was therefore” before the word “bid” fairly indicates the intention. The recital that the property “could be” sold is in conflict with the statement that it “was therefore” bid off by the treasurer, and raises a strong implication that it could not be sold to other bidders, since the treasurer had no authority to bid if it could be so sold for the taxes> and charges thereon. Indeed, the fact that it could be sold is, by the language used, made the reason why it was bid off by the treasurer, which is a manifest absurdity. The officer certainly did not intend to declare: “because I could sell it to others I did, in violation of the statute, bid it off myself.”
This deed is distinguishable from that under con sideration in Price v. Barnhill, 79 Kan. 93, where it was argued, without success, that the figures “1891” were an obvious mistake and should .be treated as 1892. Here this very recital is used as a reason for the affirmative action of the officer — an action which, if the recital were true, would have been in violation of law. In the opinion in that case instances were supposed of recitals in such direct and irreconcilable conflict that one or the other would be regarded as a m'anifest mistake, and where the truth might be determined by inference from other .parts of tlie instrument. ■ The truth of the recital here that the land was in fact bid off by the treasurer must be conceded. The case is further distinguished by the peculiar construction of the deed in changing and adapting an inappropriate form, revealing the fact that an omission was unintentionally made.
This deed had been of record five years — ^-in fact, ten years, before it was challenged. It must be read in the light of every reasonable presumption in its favor. (Penrose v. Cooper, 71 Kan. 725; Gibson v. Trisler, 73 Kan. 397; Gibson v. Freeland, 77 Kan. 450; Dye v. Railroad Co., 77 Kan. 488.)
The general rule is that a written contract should be construed according to the obvious intention of the parties, notwithstanding clerical errors or omissions therein which can be corrected by perusing the whole instrument. This principle was declared in Monmouth Park Asso. v. Wallis Iron Works, 55 N. J. Law, 132, where it was insisted that a clause in a contract under consideration was nugatory because in its operating line it read: “in case the said party of the first part shall to fully and entirely” (p. 134), omitting any effective verb: The court held that the other parts of the instrument plainly indicated that the verb “fail” should be supplied, and enforced the agreement so interpreted and construed.
An ordinary deed of conveyance will be read by the court in the sense of the meaning of the parties to be determined from the whole instrument. Where the words “party of the second part” were used instead of the particular words “party of the third part” to designate a grantee, it was held that the mistake was a mere “slip,” and that the intention of the parties was clear on the face of the instrument. The court said:
■ “The mistake which exists in this deed is clearly apparent upon its face. No person can read it and fail to perceive what it is. It arises from the use of the description, ‘the party of the second part,’ instead of the ■description, ‘the party of the third p'art,’ as the grantee. . . . The rule of construction, which is universal and is applicable to conveyances as well as to all other kind of deeds, is, in the language of Sheppard’s Touchstone, that it ‘be favorable and as near the minds and apparent intents of the parties as it possibly may be, and the law will permit.’ Shep. Touch., ch. 5, p. 86. This has ever since, and in a great multitude of cases, been recognized as the leading canon in giving effect to every variety of written instruments.” (Sisson v. Donnelly, 36 N. J. Law, 432, 439.)
Referring to the rule that the meaning of an instrument is to be determined from the language used, it was-said by the same court:
“This is the general rule, beyond a doubt, but such required literalism is not to be pushed to the preposterous length of requiring that by its operation the general intention of the parties, as evidenced by their contract itself, shall be frustrated or perverted, either in whole or in pai“t. The terms employed are servants and not masters of a perspicuous intent; they are to be interpreted so as to subserve and not to subvert such intent.” (Chism v. Schipper, 51 N. J. Law, 1, 13.)
Concerning the power of a court to correct obvious mistakes by construing a written instrument, the supreme court of errors of Connecticut, in Marion v. Faxon, 20 Conn. 486, said:
“But we are of opinion that the just construction of the contract is not such as the defendant claims. It is ■obvious on its face that the Word ‘me,’ contained in it, is a mere misprision, and inserted by mistake, instead ■of ‘him,’ which would refer to the plaintiff. It explains itself readily, by supposing what is most probable, that the plaintiff wrote the body of the contract, without adverting to the circumstance that it was to be signed, not by himself, but another person. We ought, in the construction of the instrument, to correct this palpable mistake, and give it the meaning plainly intended by the parties.” (Page 493.)
(See, also, 9 Cyc. 585; 2 Par. Cont., 6th ed., *650, et seq.)
The deed recites that the land was bid off for the taxes of 1890, and that the taxes of 1892 were paid by the assignee of the certificate. The granting clause recites a consideration of $22.43, “taxes, costs and interest due on said land for the year A. D. 1890, 1891, ■ and 1892.” The amount named is the aggregate of the ■cost of redemption paid by the purchaser of the certificate and the subsequent taxes paid by him, without interest. This shows that the consideration does not include the taxes of 1891 — and hence the reference to that year in the granting clause may be considered as a mistake, and a harmless one. If, however, the holder of the certificate paid the taxes of 1891 the omission of the amount in that clause gives the original owner no cause of complaint. That the consideration was too small will not avoid the deed. (Bowman et al. v. Cockrill, 6 Kan. 311; Davis v. Harrington, 35 Kan. 196; Kennedy v. Scott, 72 Kan. 359; Gibson v. Freeland, 77 Kan. 450.)
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. | [
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Per Curiam:
This action was brought to recover judgment upon a promissory note and to foreclose a mortgage given to secure its payment. The note was due February 1, 1891. This action was commenced October 16, 1906, more than fifteen years afterward. The petition, to avpid the statute of limitations, alleged that the maker of the note and mortgage had been absent from the state of Kansas ever since 1892.
Defendant James E. McNair had succeeded to the .rights of the former owner and mortgagor, and was contesting the foreclosure of the mortgage. In his answer he filed a general denial, and also affirmatively pleaded the five-year statute of limitation.
The burden of proof was upon the plaintiff to establish the averments of his petition concerning the absence of the mortgagor from the state, for without such allegation it did not state a cause of action. When the case was called for trial the plaintiff produced the note and mortgage, and rested. McNair then demurred to the evidence. The court overruled the demurrer for the reason that McNair had himself pleaded the statute of limitation, upon which the plaintiff had formed an issue by a general denial. To establish his answer McNair then produced the depositions of the mortgagor and his mother, and these constitute the only testimony in the case. The plaintiff appropriated this testimony, and insists that it establishes the absence of the mortgagor from the state for the time necessary to remove the apparent bar of the statute. The district court found in favor of the defendants, whether on the ground that the evidence established the presence of the mortgagor within the state or because it failed to establish his absence does not appear.
We have carefully examined both depositions and are unable to say that they establish anything concerning the whereabouts of the mortgagor during the time since February 1,1891. They do not, as we think, establish the absence of the mortgagor from the state for a time sufficient to satisfy the statute, and therefore the judgment of the district court is affirmed. | [
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Per Curiam:
This action was commenced-before a. justice of the peace in Dickinson county by-the defendants in error against plaintiff in error J. H. Young. In the action Leckron was garnisheed, and answered that he was indebted to the defendant, Young, in the sum of' $225, which amount was paid into court. The plaintiffs in error other than Young filed interpleas claiming to have á lien upon this fund which was prior in right to that of the plaintiffs.
Upon a trial the court found against the defendant, Young, and all the interpleaders, and awarded the entire fund to the plaintiffs. To this ruling of the court. Young and all the interpleaders excepted. The case-was taken to the district court of that county by petition in error, where the decision of the justice of the-peace was affirmed. Young and the interpleaders excepted, and bring the case here for review.
After the case was filed in this court Young settled, the controversy so far as he was concerned, and filed a motion to dismiss the proceeding in error so far as he-is concerned, which motion is allowed, and as to him the case is dismissed. The Muenzenmayers have also-filed a motion to dismiss so far as they are concerned, which is likewise allowed, and as to them the case is. dismissed.
This leaves for consideration the complaint of the-other plaintiffs in error. J. H. Young bought a thrashing outfit from Muenzenmayer on time. In the contract, of purchase he agreed to apply four cents a bushel for all wheat thrashed by his outfit upon the purchase-price thereof until it was paid. He did thrashing for Leckron, the garnishee herein, and the money obtained by the court was due from the garnishee on account of' such thrashing.
R. C. Dederick and his twelve co-interpleaders worked ■as day-laborers in doing the thrashing for which the garnishee acknowledged himself to be indebted to Young for the amount paid into court.- No complaint was made because these thirteen parties united their ■several claims in the same cause of action. These inter-pleaders claim a lien upon this fund for the reason that they, by their work and labor, helped to earn it. The allegations of their interplea upon this point read:
“And the said interpleaders, interpleading herein, ¡state that the above sums are due them by J.' H. Young, for work and labor in thrashing the wheat of the said Leckrons; that, therefore, they have a lien upon the $225 deposited in this court by the said Leckrons, and that said lien is a first and prior lien to all other liens, ■and is for work and labor; that the said W. J. and L. S. Leckron are themselves indebted to the said interpleaders therefor, as well as J. H. Young.
“And the said interpleaders pray this court that their said claims be allowed, that they be given judgment ■against J. H. Young and W. J. and L. S. Leckron in the ■amounts above named, respectively, with interest from July 30, 1907, and that the same judgments be made first and prior liens upon this $225, and for costs of this action.”
Who employed these parties to do this work does not appear; why Young and Leckron both owe them for it is not stated; why they ask judgment against Leckron, when he is not a party, we do not know; what facts -exist which justify the application of Young’s money to the payment of Leckron’s debt are not stated. We have not been cited to any authority which supports the ■contention that the facts here stated constitute a lien in favor of a day-laborer which is superior to that obtained by another creditor by garnishee process, and we know ■of none.
The judgment is affirmed. | [
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Per Curiam:
The contract upon which this action was brought provided for a penalty in case of breach and not for stipulated damages. The principles of law governing the case are fully stated and well illustrated in the following decisions of this court: St. L. & S. F. Rly. Co. v. Shoemaker, 27 Kan. 677; Heatwole v. Gorrell, 35 Kan. 692; Condon v. Kemper, 47 Kan. 126; Land Co. v. Barton, 51 Kan. 554; Davidson v. Hughes, 76 Kan. 247; Railroad Co. v. Gaba, 78 Kan. 432; Bank v. Burlington, 79 Kan. 797.)
The judgment of the district court is affirmed. | [
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Per Curiam:
The motion to dismiss must be denied. The cause was submitted below on an agreed statement of facts, and a motion for a new trial was unnecessary. (Atkins v. Nordyke, 60 Kan. 354.) The only question presented to, or passed upon by, the trial court was a question of law.
The court held the tax deed void on its face because of its failure to state the address or residence of the grantee. The deed is a compromise tax deed, and had been of récord five years when this action was commenced. Since the case was decided by the trial court we have held, in Havel v. Abstract Co., 76 Kan. 336, and Trust Co. v. Davis, 76 Kan. 639, that such omission in a tax deed which has been of record for five years will not render the deed void on its face. On the authority of these cases the judgment-is reversed and the cause remanded, with directions to enter judgment for the defendant. | [
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Per Curiam:
It is conceded that the material facts of this case are the same as in Doyle v. Hays, ante, p. 209, with the exception now to be noted: In the Doyle case the record stated the nature of the pleadings, affidavit for service by publication, the publication notice and the printer’s affidavit of publication in the action wherein the judgment' in Puckett against Forsythe, pleaded and offered in defense, was rendered. Here the defendant, O’Bryen, offered the same judgment and the same papers in evidence, but the case-made does not show the nature of the papers offered further than appears from the description just given. When 'the Puckett judgment was offered in evidence the plaintiff made the following objection, which was sustained at the conclusion of the case:
“To the introduction of which the plaintiff objects ■on the ground that the same is immaterial, because it fails to bind the parties through whom the plaintiff -acquired title to the note and mortgage sued on in this action, none of them being made parties defendant in said action.”
This being the only objection offered and the one sustained, it must be presumed that the court rejected the evidence for the reasons stated therein, and not, as the plaintiff suggests, because the notice or publication thereof may have been insufficient. While it is true that a reversal can not be directed unless error affirmatively appears in the record, the presumption of regularity will not be carried to the' extent of holding that a judgment to which only one objection was made, and which is not shown to be subject to any other, was in fact rejected because of some other reason not in any manner disclosed or suggested by the record.
It is also urged that the record does not show that, other evidence was not offered which may have shown that the judgment was void. This claim can not be sustained, in view of the fact that the judgment was. rejected upon a specific objection clearly stated. Although perhaps unnecessary, we are constrained to-hold that the record fairly shows that it contains all the-evidence, although it is not so stated in precise terms. The evidence contained in the case-made in the Doyle case and in this consists wholly of admissions made and documents read, and appears to fall fairly within, the rule stated in Dewey v. Linscott, 20 Kan. 684, which was not departed from in McCormick v. Fromme, 69 Kan. 857, and other cases cited by the plaintiff. (See, also, Lewis v. Linscott, 87 Kan. 379.)
As the defendant held possession and claims title-under the same judicial records as the defendant in the-Doyle case, the judgment is reversed, and the cause remanded for a new trial. | [
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Per Curiam:
The action was in ejectment, and service was made by publication. The defendant, Rhea, moved to set aside the service. The journal entry denying this motion recites:
“Said motion coming on to be heard, and the court being duly advised in the premises, overruled the same by agreement of counsel and defendant given leave to answer, to which ruling the defendant then and there excepted.”
Thus it appears that the defendant is seeking the review of an order made by his consent. But it is said that the words “by agreement of counsel and defendant given leave to answer” were interlined and inserted only for the purpose of giving defendant leave to answer out of time, and that the word “and” was inadvertently used, thus changing in a material matter the import of the entry. If this is a correct explanation and the entry is deemed important an application should have been made to the district court to correct the record. We must consider it as it is certified to this court. In view of the possible mistake, however, we have carefully examined the affidavit for publication and the notice claimed to be defective, and find that they are sufficient and that the motion was properly denied.
The answer contained the language of a general demurrer — that the petition did not state facts sufficient to constitute a cause of action. It is contended that the court erred in treating the petition as sufficient. The only defect claimed is that it states that the defendant wrongfully keeps the plaintiff out of possession instead of using the language of section 595 of the civil code “that the defendant unlawfully keeps him out. of the possession.” Comment is scarcely necessary. The code does not prescribe an exact form. It only declares that “it shall be sufficient” to state certain facts. If the required facts constituting the cause of action are stated in appropriate terms, the pleading is not demurrable.
The specifications of alleged errors referred to are the only ones stated in the brief. The judgment is affirmed. | [
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Per Curiam:
The court erred in holding the tax deed void on its face. The principal objection to the deed is that the amount paid for the assignment is greater than the sale price, with interest, and it fails to show in express terms the several amounts entering into the consideration. This objection has been held insufficient to overturn a deed five years old. (Robbins v. Brower, 74 Kan. 113; Gibson v. Freeland, 77 Kan. 450; Dye v. Railroad Co., 77 Kan. 488; Hahn v. Hill, 79 Kan. 693; Hershberger v. Gibson, 79 Kan. 862.)
It appears that by assuming the taxes for 1898 to have been paid December 23 of that year; and figuring the interest to the date of the deed, the consideration stated is exactly accounted for. This rule of construction is proper. (Kennedy v. Scott, 72 Kan. 359; John v. Young, 74 Kan. 865.)
The judgment is reversed and the cause remanded, with directions to proceed in accordance herewith. | [
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The opinion of the court was delivered by
Benson, J.:
The only claim of error is that the judgment is not supported by the facts. It is insisted that the beneficiary certificate was suspended by the failure to pay the assessment when it became due, and that there was no waiver of the conditions of the forfeiture consequent upon such suspension. The money-order was received by the financier and was reported by him to the lodge three days afterward — at its next stated meeting. -Before that meeting or any meeting was held the certificate-holder had died. The lodge then ordered the money returned. If the previous default worked an immediate suspension, without' notice and without any action of the lodge or its officers, the conclusion must follow that there was no waiver, or acceptance of the money that should be held equivalent to a reinstatement. The member is chargeable with knowledge of the by-laws, and, it must be presumed, intended that the financier should hold the money until that time, for the by-laws required him to report it to the lodge at the next stated meeting, and provided that the receipt by that or any other officer should not operate as a reinstatement until the lodge had voted affirmatively thereon.
It is contended, however, that the certificate was not suspended, because there had been in fact no default. The claim is that the advance assessment paid at initiation should have been credited on the first regular assessment made on the first day of the next calendar month, and payable on the 28th day of that month. This contention is sustained by the opinion in United Workmen v. Smith, 76 Kan. 509, interpreting the same by-laws. As assessments were regularly made and paid each month until the suspension in June, 1898, it follows that the payment so made on the 28th day of each month after receiving the Workman degree should have been applied on the next month’s assessment, and the member was not therefore legally suspended until the assessment for July, 1898, became due. The plaintiffs make the further claim that, having thus paid one assessment, more than had been properly credited, it remained in the treasury and should have been applied on the assessment called for on January 28,1906. The advance payment, however, having operated to keep the certificate in force for a month longer, was not available for further credit.
On reinstatement in September, 1899, another advance assessment of $1.45 was paid as upon initiation, and, the assessments for each calendar month thereafter down to January 28, 1906, having been paid, the sum of $1.45 then remained in the treasury available to apply on the assessment then called for, but was insufficient to pay such assessment. On the first day of that month the member had been advanced, as it appears, to class No. 5, under the by-laws, which were made a part of the contract, and the assessment was $2, so that if the $1.45 were credited, .fifty-five cents still remained due on this assessment of January 28, 1906.
A by-law provides that the certificate shall stand suspended upon failure to pay assessments on or before the 28th day of each month, without any action of the lodge. Reinstatements within three months are provided for upon condition that all assessments are paid up and á majority of the lodge shall vote therefor. The by-laws also declare that the receipt of the money by any officer of the lodge shall not operate as a reinstatement. The further provision that a member whose beneficiary certificate has been suspended for a .period of six months shall stand suspended from all benefits and privileges of the order does not obviate the effect of the suspension of benefits during the period of such suspension, clearly declared by the other provisions. Before the expiration of the six months’ period of suspension a beneficiary certificate may be renewed •upon reinstatement of the member; after that time it is canceled. If he be reinstated after that period, it is upon a new application and compliance with all the conditions of an original admission to membership, except as to residence and the payment of degree fees, and a new certificate is issued. Reading these provi sions together, it must be held that upon failure to pay assessments the beneficiary loses his right to participate in the beneficiary fund until reinstatement; after six months all rights under the suspended certificate end.
The provision with reference to suspension for nonpayment of dues is somewhat different. A vote of the lodge is not expressly required, although the member must comply with all the requirements for reinstatement for failure to pay assessments. It will be observed that these requirements, in terms at least, relate to conditions to be performed by the member, and not by the lodge. The same provision is made concerning the effect of the expiration of the six months’ period, as in case of suspension for failure to pay assessments.
In United Workmen v. Smith, 76 Kan. 509, the doubtful nature of these, by-laws relating to dues was referred to, and it was observed that they were open to the interpretation that the beneficiary should not be deprived of benefits until after six months’ suspension, “especially . .• '. where the insured paid the delinquent dues upon request and did everything which devolved upon him to do.” (Page 513.) The decision was placed on the ground of waiver, and it was declared :
“The receipt and retention of money paid to the benefit society by one of its members on an overdue assessment is ordinarily sufficient to waive a forfeiture arising from the failure to pay the assessment when due.” (Syllabus.)
There was no waiver in this case. The financier did not call for this money after it became overdue. The order did not accept the payment or retain the money.. Before the first stated meeting after the money-order had been sent to the financier the member died, afid an order was made at that meeting to return the money, and all reasonable efforts were made to do so. The fact that no person then had a legal right to receive it can not operate to the prejudice of the defendant.
The plaintiffs further insist that there could be no suspension for failure to pay dues on January 28, for the reason that credit should have been given at that date for the original advance assessment of $1 and the advance assessment made at reinstatement 'in September, 1899, of $1.45, amounting to $2.45, which would have paid the assessment of $2 then called for, leaving a balance of forty-five cents to be applied on the dues then demanded; that this would have paid the dues for that part of the quarter between January 28 and his death, which occurred in February; and that no more could be equitably claimed. Having found that the credit claimed for the first advanced assessment had been absorbed by keeping the certificate in force for another month after the date of the first suspension as declared by the lodge, nothing remained to apply on the dues, and the merits of this claim need not be further examined.
The rule of liberal interpretation in favor of the beneficiary, announced in the Smith case, will not be departed from. But this does not require or permit á strained construction or interpretation of language contrary to its obvious meaning. The maintenance of the beneficiary fund depends upon the faithful observance by the members of their obligations, and just rules to enforce such obligations, which are made part of the contract, if not waived, must be enforced.
We are constrained to hold that upon the agreed» statement of facts the certificate was suspended when the member died; that there was no waiver of the conditions; and that the defendant is not liable. The judgment is reversed and the cause remanded, with directions to enter judgment for the defendant upon the agreed statement of facts. | [
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The opinion of the court was delivered by
Burch, J.r
The plaintiff sued for the price of 241.71 gallons of whisky sold and delivered on account to the defendant in the state of Missouri. The defendant answered that the whisky was not sold for medicinal, mechanical or scientific purposes. There was no reply. Judgment was rendered on the pleadings for the plaintiff, and the defendant prosecutes error.
On the face of the petition the sale was presumptively for a lawful purpose, and it devolved upon the defendant to show illegality. To do this he pleaded certain facts. The legal force and effect of those facts as a defense were to be determined by the law applicable to them. Under the law of this state the answer was conclusive against recovery. The courts of this state do not judicially know the law of Missouri. If any law exists in that state which would purge the sale of the illegality disclosed by the answer it should have been pleaded in a reply. No reply of this kind having been filed, the court had no law by which to estimate the facts of the answer except the law of Kansas. True, the contract was a Missouri contract, but since it did not appear that the Missouri .law is different from our own the court was bound to presume it to be the same as'our own. (Bank v. Nordstrom, 70 Kan. 485; Poll v. Hicks, 67 Kan. 191; Woolacott v. Case, 63 Kan. 35; Railroad Co. v. Johnson, 61 Kan. 417; Rogers v. Coates, 38 Kan. 232; K. P. Rly. Co. v. Cutter, 16 Kan. 568; Furrow v. Chapin, 13 Kan. 107.)
The defendant further pleaded that the plaintiff is a corporation of the state of Missouri, is a non-resident of this state, that its cause of action accrued if at all under the laws of Missouri, and hence that it has no authority to sue in this state because no resident of this state would be entitled to any part of the judgment. This defense is based on the provisions of chapter 325 of the Laws of 1905, which reads as follows:
“Whenever a cause of. action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state, by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the samé arose, provided one or more of the parties entitled to the proceeds of said action are at the time of beginning said action residents, of the state of Kansas.” (§1.)
The defendant misconstrues the purpose of this act.. It was intended to enlarge, and not to restrict, the right to bring actions in this state. For example, causes of action created by several of the states and territories; of the United States ’for damages consequent upon death occasioned by wrongful act were not enforceable at all in this state. (Matheson v. Railroad Co., 61 Kan. 667.) Now, by virtue of the statute, any such causes of action may be sued upon here, provided a resident of this state is entitled to participate in the distribution of the proceeds of the litigation. The right to prosecute claims properly suable here before the statute - was enacted is not affected.
A technical defect in the verification of the plaintiff’s account appears.
The judgment of the district court is reversed, and the cause is remanded. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Maggie Reed to recover from the estate of Patrick Devenney, deceased, for services performed by her for Patrick Devenney in his lifetime under an agreement that she should live with and work for the Devenneys and have all Devenney’s property at his death. Patrick Devenney and his wife, being childless, took Maggie into the family when she was about six years old, and she lived at Devenney’s and served them faithfully as companion, chore-girl, nurse, seamstress, farm-hand and housekeeper until she was twenty-nine years of age. Mrs. Devenney was sick for a considerable time before her death, and Maggie nursed and cared for her in addition to doing the ordinary household work. After the death of Mrs. Devenney, which occurred in 1894, Maggie had. entire charge of the house, and both before and afterward did a great deal of laborious service in feeding-hogs and cattle, milking cows, cutting wood and planting and harvesting crops. Mr. Devenney appears to-have been well satisfied with her conduct and work until he learned that she had married Bob Reed, when he-ordered her to leave the place. About' that time Devenney paid her $200, and she signed a receipt for the amount, which, among other things, stated it was “in full of all dues and demands and debts whatsoever.”" When Mr. Devenney died a will was found making disposition of all of his property, but no part of the property was given to Maggie, nor was any provision made to pay for her services.
In 1907 she presented a claim against the estate, and a trial before a jury in the probate court resulted in an award of $5800. An appeal was taken to the district court, and upon a retrial the jury fund that she was entitled to recover $4924.43. In answer to special questions the jury found that she had resided in the Patrick Devenney home twenty-two and one-half years, that there was a special contract entered into between the plaintiff and Devenney in regard to -compensation for services, and that it was agreed that if she would thereafter remain in his home she should upon his death receive his property. It was also found that in August, 1900, Patrick Devenney had given her $200, but that the.receipt signed by her acknowledging payment in full was fraudulently obtained, and that she was induced by Patrick Devenney to sign the receipt without knowing its contents.
The first contention is that some of the testimony given by Maggie trenched upon the rule of section 322 of the civil code, which prohibits a party in an action against an executor from testifying in his own behalf in respect to any transaction had personally with the deceased. Much of the testimony objected to, which related to work done by Maggie at Devenney’s, was. properly received. It did not relate to personal transactions with Devenney or to actions in which Devenney participated. However, she did testify that she had nursed and cared for Patrick Devenney during a protracted illness, and there was also some other statements which might be regarded as such personal transactions as are forbidden by the code. In Clifton v. Meuser, 79 Kan. 655, the court had under consideration, the meaning of a personal transaction as used in section 322 of the code, and held that it meant an action participated in by the witness and the decedent. In. that case it was said:
“In an action against an administrator for services in nursing, caring for and .boarding the decedent the-plaintiff is an incompetent witness to prove the fact of' their performance, unless the circumstances are shown to have been such that acquiescence by the decedent is. not inferable therefrom.” (Syllabus.)
Although some of the testimony of Maggie was not competent, its admission can not be regarded as material error. There was competent testimony given by-others as to the work done by her for Devenney which covered practically every phase of the objectionable’ testimony. There was in fact no contradictory or conflicting evidence on these features, and indeed it may be-said that there was no real controversy in the case in respect to the work done by Maggie for Devenney. No prejudice therefore could have resulted from the admission of the erroneous testimony, and a judgment can never be reversed for an error which does not affect the’ substantial rights of the adverse party. (Civ. Code, § 140; C. B. U. P. Rld. Co. v. Butman, 22 Kan. 639 ; Osborne, Ex’r, v. Young, 28 Kan. 769; Bryant v. Stainbrook, 40 Kan. 356; City of Kinsley v. Morse, 40 Kan. 577; Whitney v. Brown, 75 Kan. 678; Casualty Co. v. Colvin, 77 Kan. 561.)
It is next contended that there was no enforceable contract between Maggie and Devenney, and-that the-; evidence in the case-does not support the findings and verdict of the jury. It is argued that as Maggie became a member of'decedent’s family she stood toward him in.the relation of parent and child, and that therefore no promise to pay for services should be implied, but it should be assumed that her services were rendered from considerations of duty rather than for payment. Maggie’s right to compensation, however, does not rest upon mere implications or presumptions. There was testimony of an express agreement to pay for the services to be rendered. In Griffith v. Robertson, 73 Kan. 666, Mr. Justice Graves remarked:
“In accordance with a wise and beneficent public policy, designed to protect and preserve the relations which belong to the home and the family fireside, the law presumes all such services to have been rendered solely from considerations of filial affection and duty. This, however, like any other presumption of fact, may be overcome, and a contract, if any existed, may be established by any competent evidence.” (Page 671.) '
The trial court advised the jury that Maggie could not recover unless they found that there was a contract or mutual understanding that she should be compensated for her services out of the estate of Patrick Devenney after the decease of himself and wife, and upon testimony which is deemed sufficient the jury found that such an agreement had in fact been made.
It is said that the contract, not being in writing, was within the statute of frauds, and therefore not enforceable. But it was a contract which admitted of full performance within a year. It was one, too, in which, according to the findings of the jury, there was performance on the part of Maggie and acceptance on the part, of Devenney. (A. T. & S. F. Rld. Co. v. English, 38 Kan. 110.) Contracts of a similar kind have been upheld as against such attacks as are made against the one in question, and the decisions in those cases specifically answer most of the contentions presented here. (Grisham v. Lee, 61 Kan. 533; Bonebrake v. Tauer, 67 Kan. 827; Griffith v. Robertson, 73 Kan. 666; Anderson v. Anderson, 75 Kan. 117; Bichel v. Oliver, 77 Kan. 696.)
There is a further contention that Maggie’s cause of action was barred by the statute of limitations. It. is doubtful if this was presented to or decided.by the district court. Counsel for the executors made a statement’to the jury of the defenses on which they would rely and did not enumerate the statute of limitations. In any event the statute does not bar a recovery. The claim is made that Maggie’s cause of action accrued when she was discharged, and that three years after that time it became barred. According to the contract found by the jury Maggie’s term of service was to continue until Patrick Devenney and his wife should die, and compensation for her services was to be made at their death. Ordinarily the statute of limitations does not begin to run on a contract for a continuing service until the contract has been fully performed. It is argued that when Patrick Devenney dismissed Maggie he in effect repudiated the contract and that set the statute in motion. The discharge operated, it is true, as a breach of the contract, and when it occurred Maggie had the option to treat the contract as broken and sue for damages. On the other hand, Devenney could not force his renunciation of the contract upon Maggie. She was at liberty to treat the renunciation as inoperative and to hold herself in readiness to do that which the contract required of her and await the death of the Devenneys for complete performance and full payment. In volume 25 of the Cyclopedia of Law and’Procedure, at page 1070, it is said:
“According to the rule that where one party to an executory contract renounces it before full performance has been made by the other the latter is not bound to continue to perform but may sue at once for the breach, it is held that, the statute begins to run from the time of the renunciation. But in order for this rule to apply the party to whom the renunciation is made must accept it as a breach and treat the contract as at an end.”
(See, also, Howard v. Daly; 61 N. Y. 362; Shields v. Carson, 102 Ill. App. 38; Kadish et al. v. Young et al., 108 Ill. 170; Inman v. Cotton Mills, 116 Tenn. 141; Smith v. Georgia Loan Co., 113 Ga. 975; Foss-Schneider Brewing Co. v. Bullock, 59 Fed. 83; In re Funk’s Estate, 98 N. Y. Supp. 934; Schoonover, Executor, v. Vachon et al., 121 Ind. 3; New Brunswick & Canada R. Co. v. Wheeler, 12 Fed. 377; 9 Cyc. 637.)
Under the verdict it must be assumed that Maggie did not acquiesce in the renunciation but that she determined to treat the contract as alive and subsisting until Devenney’s death. The fact that Maggie accepted a partial payment does not prevent the recovery of just compensation. She appears not to have known that the receipt included a clause acknowledging full payment of all demands, and there is testimony tending to show that the signing of the receipt in that form was accomplished through the deceit and fraud of Devenney. According to her testimony the 200-dollar payment was made and accepted on the theory that it was to apply on account. Such a payment did not affect the starting of the statute of limitations nor prevent the recovery of the balance due for her services.
There is some complaint of the instructions, but the objections so far as they are not covered by the comments already made are not deemed to be material.
Finding no prejudicial error in the record the judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to foreclose a lien under the following statutory provisions:
“All fines and costs assessed against any person or persons for any violations of this act shall be a lien upon the real estate of such person or persons until paid; and in case any person or persons shall let or lease any building or premises, and shall knowingly suffer the same to be used and occupied for the sale of intoxicating liquor contrary to the provisions of this act, the premises so leased and occupied shall be subject to a lien for, and may be sold to pay all fines and costs assessed against any such occupant for any violation of this act,; and such liens may be enforced by civil action in any court having jurisdiction; provided, that the person against whom such fines and costs are assessed shall be committed to the jail of the county until such fines and costs are paid.” (Gen. Stat. 1901, § 2468.)
On June 22, 1905, an information was filed against Martin Peters, E. M. Demoss and N. C. Binford, charging them with maintaining a common nuisance under another section of the same act. (Gen. Stat. 1901, § 2463.) Demoss alone was arrested and tried for this offense, and he was convicted September 14, 1905. He appealed to this court, where the judgment was affirmed in June, 1906. (The State v. Demoss, 74 Kan. 173.) In July, 1906, he was committed to the county jail under the judgment, which provided for an imprisonment of six months; that he pay a fine of $500, and costs taxed at $376.16; and that he be committed to the jail until the fine and costs were paid. At this time another criminal prosecution was pending, charging Demoss in sixty-seven counts with making unlawful sales of intoxicating liquor. A civil action for an injunction was also pending. While so in jail under this commitment, on September 19, 1906, a settlement was proposed to the assistant attorney-general who had charge of these cases, wherein, according to the testimony of that officer and of the attorney for Demoss, it was agreed that the défendant should pay $750, which should be applied, first, to the costs of the pending criminal prosecution and the injunction suit, and any balance remaining should be applied on the costs included in the judgment upon which he was imprisoned. A petition for a pardon was then pending before the governor, against which the assistant attorney-general had remonstrated, and it was agreed that upon these payments being made the pending criminal prosecution, which had been tried three times, should be dismissed and the remonstrance withdrawn. The money was paid over to the clerk, who applied it according to the agreement, paying the costs in the pending actions in full and $40 on the costs included in the judgment of conviction. This left the fine of $500 and over $300 costs upon the judgment unpaid. It was believed that the pardon would be granted upon the withdrawal of the remonstrance, and that the county commissioners, to whom an application had been made, would discharge the defendant from further imprisonment for failure to pay the fine and costs. The prisoner, who was then in the clerk’s office, objected to being taken back to jail, referred to the fact that the pardon would soon be issued, and upon the consent of the assistant attorney-general the sheriff allowed the prisoner to go free.
This action was brought against Peters, Binford and Karcher and wife to foreclose the lien for fine and costs upon the premises upon which the nuisance for which Demoss was convicted was maintained^ It was admitted upon the trial that the premises were owned by Peters and Binford from Jafiuary 1,1905, until the conveyance to Karcher, which was made October 17, 1905. The evidence in this action showed that Peters, Binford and Demoss jointly maintained a common nuisance on these premisies while Peters' and Binford were th'e owners and during the time specified in the information, and that $876.16 remained due at the time of the judgment upon the fine and costs adjudged against Demoss. The court found for the state, foreclosed the lien, and ordered the sale of the property to satisfy it, as provided by .law.
The plaintiffs in error, Karcher and wife, allege that the petition does.not state facts sufficient to support the judgment because it does not allege that the owners “let or leased the premises and knowingly suffered them to be used and occupied” for the unlawful purpose. The petition charges that the defendants “each and all knowingly let and suffered the said building and premises to be used and occupied for the maintenance of the nuisance for which said defendant E. M. 'Demoss was convicted and for which said fines and costs were assessed, and at the time said nuisance was so conducted therein each and all well knew of its existence and maintenance.” It is therefore sufficient.
It is further argued by the plaintiffs in error that there was no lease by owners BinforcL and Peters to Demoss, who was convicted of the crime, and that such a lease is necessary to the lien under the statute, as it provides that the lien shall attach “in case any person or persons shall- let or lease any building or premises, and shall knowingly suffer the same to be used and occupied” (Gen. Stat. 1901, § 2468) for the unlawful purpose. In this case three men were jointly engaged in violating the law. Two of them owned the premises. The other was their partner or business associate. His occupancy was by the consent and cooperation of the owners. If they had not been his partners or associates, but had merely consented without a formal lease to his occupancy and use of the premises alone, he. would have been a tenanL (1 Wood’s Land. & Ten., 2d ed., § 14 et seq.) The evidence tends to prove'that he was in partnership with the owners, and as the- firm entered into, occupied and used the premises with their consent in carrying on its business the implication arises that the individual owners had let or leased the premises to the partnership. (Taylor’s Land. & Ten., 9th ed., §19 et seq.; Lindley, Part., 7th ed., p. 366; Pio Pico v. Cuyas, 47 Cal. 174.)
In his answer Karcher pleaded an agreement by the assistant attorney-general with the defendant" Demoss for the release of the latter from jail for the sum of $1000; that this payment was made to the clerk- according to the agreement; that he was then actually discharged from the jail upon the order of the assistant attorney-general; and that the fine and costs were therefore paid and satisfied in full. Defendant Demoss testified to an.agreement of this nature, except that the amount was $750 instead of $1000, but, the general findings being for the plaintiff, it will be presumed that the court found that the agreement was as testified to by the other witnesses above referred to. According to their testimony there was no settlement nor attempt to settle the fine and costs in that case.' The consent of the prosecuting officer that Demoss should not be returned to jail, based upon the anticipated pardon of the .governor and the favorable action of the county commissioners, was not a legal discharge from imprisonment. While the governor did issue the pardon, as anticipated, it seems that the commissioners took no action in the matter.
The plaintiffs in error further contend that the proviso in the statute quoted above that the person shall be committed to jail until the fine and costs are paid should be construed to mean that the lien does_not attach unless the person is so committed. The correct interpretation appears to be that the person shall be committed until the fine and costs are paid, notwithstanding the lien; in other words, that the existence of the lien does not relieve from imprisonment. (The State v. Pfefferle, 33 Kan. 718, 720.) We conclude that a lien attached to the premises in question, and that it has not been discharged.
The conveyance to Karcher having been made after the date of the judgment of conviction, the property was subje'ct to the lien. (Snyder v. The State, 40 Kan. 543.)
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Benson, J.:
The evidence disclosed the fact that a warrant for the arrest of the plaintiff upon a criminal «harge was used to collect a debt, and, it seems, to ex tort an additional amount. The justification suggested is that the prosécution was begun by advice of the county-attorney, and that the warrant was good upon its face. Whatever the original motive may have been, the subsequent conduct of the defendants reveals an abuse of the process. The prompt suggestion of the constable, after first impressing the plaintiff with the gravity of the supposed offense, that “there is a way out,” was such a publication of the motive to extort money as to. warrant the inference that this was the real purpose of the proceeding — a purpose condemned alike by the law and good morals. A display of force was used to intiihidate, not to enforce obedience to the arrest, for no. opposition had appeared. The participation of the complaining witness in this wrongful conduct might have been inferred by the jury from the circumstances, proved. The justice’s authority appears to have been used only so far as was necessary to accomplish this, end. After the money had been received that authority was ignored, and the writ was not returned nor the. costs taxed. The rights of the alleged criminal, as well as of the public, were disregarded. Supposed mileage to the amount of $70, and some other costs, so-called, were paid to the constable by Inverarity, and thus the $250, less the $5 paid to the justice, was divided between the defendants.
The fact that the plaintiff consulted a lawyer while-the constable was waiting for a train after receiving-the check, and did not take steps to stop its payment, can not bar his right to recover. It does not follow that: the plaintiff should not recover had payment been suspended. The $250 may be an item of damages, but not: necessarily the only one. The man was publicly held in custody, threats made, a display of force indulged in, and intimidating methods used. There is no arbitrary-rule of law restricting the recovery to the sum wrongfully obtained. Again, the plaintiff had no power to-stop the payment of the check. It was drawn by a. third person on his own account. It is true the drawer might have observed the plaintiff’s request, if it had been made, to stop payment, but it is probable that the same fear that prompted the plaintiff to cause its delivery was sufficient to prevent him from asking that payment be stopped. He may have been well or ill -advised; but the defendants can have no advantage because he did not do all that he might have done to prevent the full consummation of their ulterior designs.
It is argued that the defendants are protected because the process was valid upon its face. An officer is protected by valid process only when he uses it for a legitimate purpose in executing its mandate, but it is not a protection for extortion or other abuses. (1 Cooley, Torts, 3d ed., 354.)
“Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, ■though with a bad intention, is not a malicious abuse of process.” (1 Cooley, Torts, 3d ed., 355.)
(See, also, Bonney v. King, 201 Ill. 47; Addison, Torts, 8th ed., 31; Slomer v. The People, 25 Ill. 70; Wood v. Graves, 144 Mass. 365; Mayer v. Walter, 64 Ra. St. 283.)
“Where an officer acting under process is guilty of such an improper and illegal exercise of authority under it as will warrant the conclusion that he intended from the first to use his legal authority as a cover for his illegal conduct, he becomes a trespasser ab initio, and is liable the same as if he had acted without proc■ess.” (Wurmser v. Stone, 1 Kan. App. 131, 135.)
The principle is stated thus in The State v. Hinehman, 74 Kan. 419:
“If the process were technically legal but the constables were not acting in good faith under it — were actually abusing it — they were trespassers. . . . If he did not go there in good faith, but went there to assist.in the abuse of legal process, he was a trespasser. If he acted in-good faith he was accorded the same rights as any person rightfully stationed and wrongfully assailed.” (Page 422.)
The evidence shows that the warrant was used to extort money and not to bring the alleged offender before the magistrate — to break the law and not to enforce it, and the evidence tended to show that this was the purpose for which the warrant was obtained. That it was regular upon its face is no protection against the consequences of such wrongful conduct.
The demurrer to the evidence should have been overruled. The judgment is therefore reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
The findings are sufficient to sustain the conclusions of law and the judgment. The defendants contend, however, that several of these findings are not supported by the evidence. Other questions will be first considered.
There was no error in denying the motion to strike the second amended petition from the files because the title of administrator had been substituted for that of guardian. (Reed v. Cooper, adm’r., 30 Kan. 574; Service v. Bank, 62 Kan. 857.) The omission of a formal order of substitution was immaterial; the denial of the motion was an approval of the substitution.
Judgment having been taken against the receiver, only one cause of action remained; therefore the motion to strike the last amended petition from the files for failure to docket separate actions was also properly denied.
Error is also predicated upon the order overruling the demurrer to the last amended petition for misjoinder, upon the theory that the action against Cooley was for conversion and against the Bankers’ Union for an equitable accounting, citing Benson v. Battey, 70 Kan. 288. It was held in that case that Battey, trustee of an express trust, and Hood, the recipient of the trust fund, might be sued together in one cause of action, although another defendant who secured none of the fund was not properly joined. The claim of mis .joinder can not be sustained. (Holderman v. Hood, 70 Kan. 267.)
The finding that proof of death was duly made is •criticized because such proof was furnished by the .guardian instead of the administrator. If the capacity in which the same individual made the proof is important the association did not so treat it, for it accepted the proof and made partial payment upon it.
A notice was served on the defendants, the Bankers’ Union and Cooley, to produce the consolidation agree'.ments hereinafter referred to. Failing to do so, the •court ordered them to be so produced. This order was not obeyed. On the trial evidence was offered tending to show that they were in the hands of Spinney, president of the union, who was a non-resident. Thereupon the court admitted copies. This is alleged as «error. In McCormick v. Roberts, 32 Kan. 68, it was ’held that oral evidence of the contents of a written •document is not permissible unless it be lost, “or the plaintiff refuse to give to the defendant an inspection •or copy thereof, upon demand, as provided for in section 368 of the code.” (Page 73.) The ruling was not -erroneous. (Deitz v. Regnier, 27 Kan. 94; Insurance Co. v. State Bank, 50 Kan. 427; 2 Wig. Ev. § 1213.)
The finding that the beneficiary certificate was issued by the National Aid Association is challenged because it appears that this association was not incorporated "until some time after the certificate was issued. The allegation of the petition was that the association had "’issued the certificate, and a copy was attached. From this copy it appears that it was issued by the National Alliance Aid. The answers were unverified general •denials. The issuance of the certificate was thus admitted; but it is said that the plaintiff, in presenting the certificate of incorporation in evidence together with the beneficiary certificate, proved that the National Aid Association never issued it. The explanation of this is that the National Aid Association was the successor of the National Alliance Aid, and the officers of the latter continued as the officers of the new association. The Gilliams were treated as members of the new association,1 this outstanding certificate of the old association was treated as an obligation of the National Aid Association in every respect the same as though it had issued it, and the association should beheld liable to the same extent.
The court found that the plaintiff had been appointed administrator of the estate of William A. Gilliam and Maggie A. Gilliam. The defendants insist that there was no allegation or proof that he was appointed ad-, ministrator of the estate of William A. Gilliam. The fact is immaterial. The amount due upon the certificate was payable to the survivor. William A. Gilliam died. Before making the collection' Mrs. Gilliam, died. The claim then belonged to her estate.
Defendant Cooley claims the benefit of the two years’’ clause of the statute of limitation. The answer was, a general denial and did not raise the question of the statute of limitations. (Chellis v. Coble, 37 Kan. 558.) The question was not raised in the district court except by demurrer to the petition and objection to the-testimony under it. It is argued that when the amendment was made to the petition substituting the administrator for the guardian the effect was the same as if' a new action had been commenced at that date — r-February, 1904; and as more than two years had then, elapsed since the transfer of the fund to the Bankers’ Union, which was October 27, 1901, the claim of the-plaintiff was barred. The petition stated a good cause of action. It charged that both Cooley and the Bankers’ Union were trustees of this fund, and prayed for-judgment against them for the amount due on the-certificate because of their refusal to pay it over. The-abstract does’ not show when they refused to make-such payment or when a demand was made therefor.. If we treat the beginning of the action as a demand, two years had not elapsed at the time of the amendment. The- only evidence of a demand noticed in the record is the testimony of a witness who called on Cooley for payment in November, 1902, and this was within the two years next preceding the amendment. Ordinarily the period of time limited for the commencement of an action against a trustee does not begin until he repudiates the trust or denies his liability, and it should appear that the beneficiary had, or ought to have had, knowledge of such repudiation or denial before the statutory period begins to run. (Wood, Lim., 3d ed., § 212.) If this defense had been raised by answer it is quite probable that the plaintiff could have shown the absence of Mr. Cooley from the state so as to toll the statute, as the evidence shows that he was a non-resident all the time.
•It is contended that the finding that the aid association “was consolidated with and absorbed by the Bankers’ Union” is not sustained by the evidence. The evidence shows that the officers of the association and the union entered into several agreements providing in substance that a combination of the two associations should be formed; that the officers and directors of the -aid association should resign, and that their places should be filled by persons selected by the Bankers’ Union; that the union should pay all claims for death losses against the association of which notice had been given prior to October 12, 1901, not exceeding $34,334; that the association should turn over to the combined management all furniture and supplies, and $1300 on deposit with the National Surety Company, but no other money; that the officers of the association should labor to secure the transfer of the management and the selection in their places of reliable persons selected by the union; and that such further consolidation should take place as in the opinion of the management of the union would most thoroughly protect'the interests of the members of the association, the union to assume and pay all lawful claims against the association. Other details were set out in the agreements the object of which appears to have been to surrender and transfer the business of the association to the union and provide for the payment of claims against the association. Mr. Cooley testified as a reason for this action that it was believed that the combined management would be able to effect a complete consolidation and insure the full payment of all death claims.. The argument is made that this was not a consolidation, of the two orders. Whether it should be called a consolidation or absorption or merger or combination is not very material. The fact is that the Bankers’' Union, through its officers, chosen as officers of the aid. association in the manner stated, took complete possession of the assets and control of the business of the association. Several officers of the association agreed to work for the union to carry the combination into.' effect. One of them testified:
“We were to work for the Bankers’ Union and transfer the membership of the National Aid Association to the Bankers’ Union. In other words, we were to destroy the National Aid for the benefit of the Bankers’ Union, just as quick as we could get the members, to go into the Bankers’ Union, and that was what I was. doing. I went to Emporia and called my lodge there,, and then I made a statement of the facts; told them of the financial condition of the National Aid, and that the Bankers’ Union had agreed to take our members and protect them; and then went to Osage City and did the same thing. I went around to various places for the purpose of taking the members out of the National Aid and putting them into the Bankers’ Union.
“The other deputies and Mr. Lewis [the president] were doing the same thing. The understanding was that so fast as we could write the outlying agencies to instruct them to take no more applications for the National Aid but take them for the Bankers’ Union, and; if they were taken for the National Aid to send them in and I was to transfer them.”
The testimony shows that these seryices were paid for by the union out of the funds reserved to pay this claim, and in this manner the absorption was accomplished. The receivership followed in less than three months, and nothing was found to pay this claim.
The court foúnd that the money paid on the assessment for this claim had been intermingled with other funds before the transfer to the Bankers’ Union, but that a part of it was included in the $3500 remaining on hand at that time. The defendants insist that the accounts show that it had all been used for other purposes. Whatever the fact may be about this, there was evidence to show, and the court found, that this $3500 was on hand in the bank and in the safe, reserved for this purpose, at the time of the transfer, and that it was passed over to the Bankers’ Union with the distinct agreement that it should be so applied. It must be remembered that this was not done under the so-called consolidation agreements, for they provided that only the $1300 on deposit with the surety company should be so transferred; but it was done without authority, upon the promise to apply it to the purpose for which it had been reserved.
The claim that the books of the association show that it did not have this money on hand when the transfer was made only presents a conflict in the evidence, which was settled by the finding.
The vital question is whether this fund was impressed with a trust for the payment of the plaintiff’s claim. When the change of management was effected the president of the union asked for this money. The medical director of the association, who was active in bringing about the combination and who signed the agreement, testified that Cooley brought Mr. Spinney, president of the union, to him and told him that Spinney wanted this money (the $1500 in the safe and the $2000 on deposit.) The witness testified further:
“I had a conversation with E. C. Spinney about the Gilliam claim. Mr. Cooley came to me and said that Spinney wanted the money that we had reserved to pay • this Gilliam claim, and I said, ‘Don’t let him have it.’
“Mr. Cooley said, ‘Mr. Spinney wants this money’; we had received the September assessment to meet these five claims, aggregating $5000. I said I did not want him to have it. Cooley brought Mr. Spinney out and said he had agreed to pay these claims. I said, ‘This is a trust fund and we are holding it for the purpose of paying these claims specifically, and I want to know before night that these claims are paid.’ Spinney said he would certainly see that they were paid; that he would regard them as a trust fund. ... I said finally, ‘Now I will consent to that with the understanding right here that this money is to be used for no other purpose on earth but to pay these three claims.’
“And Spinney and Cooley all agreed to that, and Cooley told him he would go up the next day and turn the money over in the bank and Would give him what money they had in the safe. . . . Cooley told me there was at least $3500 in cash in his possession in the bank. ... In the bank and office they had around in the safe. ... He said, ‘We have got the money to pay these claims.’ That is the exact expression.”
Mr. Cooley testified that the by-laws provided that the president should approve the death proofs and order the payment of .claims, and the president of the association, after stating that this was the custom, testified as follows:
“Some time in August I learned that the claim was not paid. R. C. Gilliam, the guardian of the children, came to the National Aid Association. I called Mr. Cooley into my office, and he said it had not been paid because he did not have the funds on hand, and he said we were about to levy the September assessment and would have the fund; and I instructed him to pay the whole claim out of the first moneys received. He said he would pay it.”
Mr. Cooley further testified:
“The Bankers’ Union of the World and E. C. Spinney agreed to assume and pay all obligations of the National Aid. . All money on hand in the bank and office,'together with office fixtures and all of the assets of the association, were then passed to the new management of the association.”
The defendants contend that the payment of the assessments made for this purpose did not create a trust in favor of this beneficiary, but were merely made to replenish the beneficiary fund out of which all similar claims should be paid (Gen. Stat. 1901, §§ 3568, 3569), and that this view, is sustained by the opinion of this court in Reeves v. Supreme Lodge, 65 Kan. 860, wherein it was held that the representatives of a member are sharers in the fund levied and not the owners of any specific portion of it for their particular and exclusive use. In that case the claimant asked for an order against the receiver of the insolvent lodge for the payment to him of the full amount received from assessments on his claim. Several other claims of the same nature were outstanding, and the fund applicable, to their payment was insufficient. The district court held that the claimant should only be allowed his pro rata share of this fund, and the judgment was affirmed in the opinion cited. The right of the plaintiff in that action was determined from an inspection of the bylaws. In this case the by-laws are not in evidence. Applying, however, the rule there stated — that the plaintiff is only entitled to share in the fund — the fact remains that the fund here is sufficient to pay the claim in full. There is no finding'that other claims payable out of it were outstanding or that the amount was insufficient for that purpose, and the evidence already referred to shows that the officers of the association had set apart and reserved this money for the payment of this claim — a disposition fully understood and agreed to when the transfer was made. The order having been made by the president to pay the claim in full, and the money being on hand for that purpose, and passing into the hands of the Bankers’ Union upon the condition that it should be so applied, it is not perceived how the rule announced in Reeves v. Supreme Lodge, supra, should defeat the plaintiff. If the $3500 was not impressed with a trust at the time it was paid in, it was by the officers of the association made a trust fund to pay this claim.
“But a formal or even a written agreement is not necessary to create a trust in money or personal estate. Any declaration, however informal, evincing the intention with sufficient clearness will have that effect. Such declarations stand on somewhat peculiar grounds. They are not to be regarded as admissions merely of some antecedent fact in relation to the subject, but are to be looked upon and received as constituting the very trust which they acknowledge. The doctrine of equity is that by their own force they impress the fund with a peculiar character, and hence they are receivable on the same grounds as a precise and formal agreement. A person in the legal possession of money or property, acknowledging a trust, becomes from that time a trustee, if the acknowledgment is founded on a valuable or meritorious consideration.” (Day v. Roth, 18 N. Y. 448, 453.)
“No particular form of words is required to create a trust in another, or to make the party himself a trustee for the benefit of another. It is enough for the latter purpose if it be unequivocally declared in writing, or orally if the property be personal, that it is held in trust for the person named.” (Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 161.)
(See, also, Janes v. Falk, 50 N. J. Eq. 468; 1 Perry, Trusts, 5th ed., § 86.)
A person may thus make himself a trustee. (Williamson v. Yager, &c., 91 Ky. 282, and note following report in 34 Am. St. Rep. 189 et seq. reviewing cases.)
In Harvey v. Wasson, 74 Kan. 489, it was held that where the directors transferred the entire assets of the association to another similar association without first paying a fixed liability, although there were sufficient funds on hand for that purpose, they were guilty- of a breach of duty making them personally liable. The court said:
“Moulton’s claim had become a fixed liability against the society when the directors parted with the assets, and there were funds on hand to pay it which should have been applied thereto. The fact that the directors acted in good faith and in the manner which in their judgment was for the best interests of all the members will not relieve them from liability to Moulton, whose loss appears to have resulted from their unauthorized conduct.” (Page 492.)
It is argued that this authority does not apply because the plaintiff’s claim had not been established by judgment, and that therefore there was no fixed liability to pay it. We do not understand that a liability must necessarily be fixed by judgment. Here the •claim had been made, approved, an order given for its payment, a fund reserved expressly for such payment, and part of it paid. The liability was fixed, at least so far as these defendants were concerned, by their own acts and admissions.
Again, it is said that in the absence of the by-laws we can not say, as in Harvey v. Wasson, supra, that there was a particular fund applicable to the payment, of this claim. We ought to presume that the by-laws-authorized what the officers did, and that when they set. apart this fund to pay the claim they were acting in accordance with such by-laws.
The material findings appear to have been supported by competent evidence and warrant the conclusions, drawn. The defendants must be held liable within the' principles decided in Harvey v. Wasson, supra, for wrongfully disposing of the trust fund to the plaintiff’s, loss.
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The opinion of the court was delivered by
Graves, J.:
This was an action of ejectment, commenced in the district court of Kearny county, February 15, 1907, by William A. Salter, to recover the real estate in controversy. The plaintiff claimed title under a tax deed, which had been.of record almost fifteen years. The defendants were in possession, claiming title from the government. It is conceded that the defendants should recover unless the tax deed prevails.
The original tax deed was lost, and the public record thereof had been destroyed by fire. The plaintiff, therefore, undertook to establish the deed under the provisions of chapter 11 of the Laws of 1898, which, so far as applicable, read:
“It is by this act provided that the final receipt record, the reception record, and the general index to deeds in the register of deeds’ office, in Kearny county, Kansas, which records were saved from fire which destroyed the court-house in Kearny county, Kansas, January 18, 1894, together with the transfer records in the county clerk’s office of said county, that was saved from the fire of January 18, 1894, shall be prima facie evidence of the records of deeds and land titles in Kearny county, Kansas, which were destroyed by said court-house fire, to which the index to deeds gives volume and page of record on which the deeds were recorded,'in the records destroyed by said fire.” (§1.)
He offered in evidence the transfer record, general index to deeds, the reception record, and then rested. The court held that such proof placed the plaintiff in the same position as if thé original deed, good upon its face, had been produced. The defendants, to invalidate the tax deed, produced testimony tending to establish error in the tax' proceedings. Upon this evidence the court found the deed invalid and entered judgment in favor of the defendants. The plaintiff prosecutes error.
It does not appear who had been in the actual possession of the land, except that the defendants were in possession at the time the action was commenced. The answer of the defendants contained an admission of possession and a general denial.
It is claimed that the tax deed in question did not have the seal of the county attached, as required by section 7676 of the General Statutes of 1901. In the absence of the deed oral evidence of witnesses was produced which tended to show that such seal was not used. This question of fact was tried to the court, and under its general finding for the defendants every material fact was found against the plaintiff, including the claim that the proper seal was not used.
It is further contended by the defendants that the notice of the tax sale, because it did not state that the sale would be made by the county treasurer, was invalid, and made the deed based thereon voidable. This contention is sustained by the case of Casner v. Gahlman, 6 Kan. App. 295, which was affirmed by this court. (60 Kan. 857.) It is contended that the notice involved in those decisions was not signed by the county treasurer, and that this difference between it and the one here involved might have been the occasion of the decision. Nothing, however, was said in the opinion con cerning the absence of this signature, and the grounds upon which the decision was placed indicate that this fact was not considered. The defect of the notice was found in its substance rather than its execution or form. In the opinion of the coúrt of appeals it was said:
“It is within the power of the legislature to determine what the notice shall contain, and, when determined, such determination is conclusive.” (Page 297.)
The case was affirmed by this court for the reasons assigned by the court of appeals. It is not a question of being misled by the notice, but a matter of complying with the requirements of the statute. No statement whatever is made in the notice as to who will make the sale, and therefore it can not be said that the notice substantially complies with the law. It is not sufficient that the notice state definitely where the sale will take place; it must also state that it will be made by the treasurer.
The final redemption notice gave the amount necessary to redeem at thirty-five cents on each lot more than the true amount, or seventy cents for the two lots. Such a discrepancy has been held to be fatal. (Shinkle v. Meek, 69 Kan. 368.)
It is further claimed that the time fixed for final redemption is indefinite and uncertain. The notice recited that the tax sale commenced September 3, 1889, and continued from day to day until the 9th day of September, 1889, and that unless such lands were redeemed on or before September 10, 1892, they would be conveyed to the purchaser. It is said that this notice gives to some owners six days longer than to others, and six days more than three years.
These constitute the objections made by the defendants to plaintiff’s tax deed. The court found for the defendants generally, and, of course, if any one of the objections is good the judgment must be sustained. Under the decision in the case of Casner v. Gahlman, 6 Kan. App. 295, above cited, both the tax-sale notice and the notice of final redemption are defective and sufficient to avoid the tax deed.
The five-year statute of limitations which protects tax deeds was unavailing to the plaintiff, for the reason that it is exclusively a defense and can not be.used as a cause of action. The prima facie effect of the deed was therefore the most that the plaintiff could establish. (Burditt v. Burditt, 62 Kan. 576; Johnson v. Wynne, 64 Kan. 138; Gibson v. Johnson, 73 Kan. 261; Stump v. Burnett, 67 Kan. 589.)
■ It has been suggested in argument that, in a case like the present, the tax proceedings should be construed with the same liberality now given to tax deeds which have been of record more than five years. The proposition, as stated by counsel for the plaintiff in error, reads:
“One of the principal questions in this case is whether or not the liberal rule of construction and presumptions which has so often been enunciated by this court with reference to tax deeds more than five years old should apply to the proceedings upon which .such a deed is based when the deed is made the basis of an affirmative action and therefore not protected by the statute of limitations, and in this connection we desire to call attention to the fact that this doctrine is not based arbitrarily on the statute of limitations, but upon the. general doctrine of presumptions in favor of the validity of ancient proceedings.”
We are unable to see how the rule suggested could be made to apply here. The law concerning ancient records related to their admission as evidence rather than to their construction after being admitted. (3 Wig. Ev. § 2137 et seq.; 17 Cyc. 443.) In this case the tax proceedings were placed in evidence under a special statute enacted for that purpose and for that county. After the records were in evidence we are unable to see any reason why they should not be construed as any other evidence, in the absence of a statute providing otherwise. Tax deeds are creatures of the statute. The rules and regulations concerning tax proceedings are largely statutory, and the rules of construction applicable to them are the same as those which apply to other instruments and statutory provisions, unless changed by some rule of law. The liberal rule applied to tax deeds which have been recorded more than five years is founded upon section 7680 of the General Statutes of 1901, which was intended to close all controversy concerning the validity of such deeds, and to sustain this policy such a rule is a necessity. No such reason exists in relation to tax proceedings.
This disposes of all the questions discussed. We are unable to find error, and the judgment is affirmed. | [
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The opinion of the court was delivéred by
Burch, J.:
On Sunday, December 27,1906, -appellant: waylaid his wife as she was returning from church, shot her twice through the body and killed her on a public street in the city of Arkansas City. He was convicted of murder in the first degree, but the judgment, was reversed because of the admission of irrelevant and prejudicial evidence. (The State v. Moore, 77 Kan. 736.) He was tried'a second time, was again convicted of murder in t? e first degree, and again appeals..
It is argued that error was committed in permitting the county attorney to present in his opening statement, and afterward to prove, the relations existing between appellant and his wife, and his conduct toward her, for a considerable period of time before the homicide. Perhaps some unnecessary trouble was taken to exploit the subject; but the plea was “not guilty,” motive, malice, deliberation and premeditation were all in issue, and upon- consideration of the whole case nothing prejudicial toappellant’s substantial rights appears.
Error is assigned because the 'jacket which the deceased wore when she was shot was introduced in evidence. It was fully identified, was pierced in the back by two bullet- holes, and its lining was stained with blood. When the jacket was offered counsel for appellant sought to forestall its exhibition to the jury by the statement to the court that no evidence would be introduced on the part of the defense concerning the shooting. In the case of State v. Jones, 89 Iowa, 182, the syllabus reads:
“The fact that the-defendant, in. a prosecution for homicide, admits the killing, is not a ground for the exclusion of the weapon, with which the crime was committed, from evidence.”
This is true for two reasons. The bare admission of the killing subtracts little from the issues, and it may be very important for the state, with the burden resting upon it to establish all the charges of the indictment or information beyond a reasonable doubt, to make its own case in its own way; and the evidence may be very valuable in illustrating or establishing other material facts. Beyond this, the statement under consideration was too carefully guarded. It did hot admit the shooting or any other fact connected with the homicide, not even that appellant’s wife was dead.% Its import was merely that whatever the state proved relating to the shooting would not be contradicted, and the burden still rested on the state to prove every fact alleged in the information beyond a reasonable doubt.
Several witnesses who were present described all that occurred at the shooting, and a physician who examined the body of the deceased after death described the location, extent and effect of the wounds inflicted. Therefore it is argued that the evidence afforded by' the jacket was wholly immaterial and unnecessary. The .jacket supplied competent proof of relevant and material facts, and it is not for appellant to say how much proper evidence shall be produced against him. Especially is this true when he is standing upon all his rights under a general plea of not guilty. Perhaps all the eyewitnesses need not have been examined, but appellant had no right to insist that the state be limited to one or two or three of them. Perhaps the physician’s testimony might have been confined to matters’ not proved by the jacket, but it could not be rejected because of the duplication. The inanimate garment told clearly and truthfully the story of a woman shot twice in the back, and hence, by legitimate inference, maliciously, willfully, deliberately,' premeditatedly, and without justification or excuse. It had a rightful place among the accusing witnesses, none of whom could be set aside at appellant’s option because they were numerous.
It is argued that the introduction in evidence of the dead woman’s bloody jacket destroyed the-mental poise of the jury by riveting their minds upon a scene of carnage to the exclusion of any calm consideration of appellant’s sanity, the only matter finally disputed by way •of defense. The state rested under the necessity of establishing a tragedy involving the violent death of a human being from mortal wounds deliberately inflicted with malice aforethought — a thing most likely to include some blood along with the wickedness; perhaps, too, the terrifying report of pistol-shots in a peaceful street on a Sunday morning just after church, the piteous appeals for life and the agonized death screams of a defenseless woman as she is being shot down, and other shocking things. Such a subject is never a nice one to investigate. Any of the details have a decided tendency to horrify and to appall; but a court can not arrange for lively music to keep the jury cheerful while the state’s case in a murder trial is being presented, 'and grewsome evidence can not be suppressed merely because it may strongly tend to agitate the jury’s feelings.
In the case of Turner v. State, 89 Tenn. 547, a section of the murdered man’s ribs and vertebra was introduced in evidence. Objection was made because the object was calculated to inspire the jury with such horror as to influence their verdict. The purpose of the evidence was to show the direction and lodgement of the bullet, and it was held to be clearly admissible. In the case of The State v. Wieners, 66 Mo. 13, the bones of the vertebral column of the deceased were exhibited to the jury. The killing was admitted, and the coroner had described the precise location of the wound and the direction of the bullet. The court said:
“It served to show to the jury the attitudes and relative positions of the parties' when the shot was fired. It was not an unnecessary parade of the bones of the dead man to excite prejudice against his slayer, but' was legitimate and proper evidence, and a party can not, upon the ground that it may harrow up feelings of indignation .against him in the breasts of the jury, have competent evidence excluded from their consideration.” (Page 29.)
Innumerable cases might be quoted to the same effect. Generally physical objects which constitute a portion of a transaction or which serve to unfold or. explain it -may be exhibited in evidence, if properly identified, whenever the transaction is under judicial investigation.
Appellant has cited some cases in which it seems to be indicated that the exhibition of bloody garments serves no purpose when the condition and location of wounds made through them have been described by witnesses. This court prefers to abide by the .well-established rule that ordinarily whatever the jury may learn through the ear from descriptions given by witnesses they may learn directly through the eye from the objects described. (The State v. Stair, 87 Mo. 268, 273.) Of course, spectacular exhibitions may be framed fon the purpose of arousing prejudicial emotions, and all such improprieties should be thwarted or promptly suppressed. The production of real evidence should not be permitted to exaggerate, and should not be allowed, through cunning presentation, to stir up passion or unduly excite sympathy or pity, and so lead the jury to act upon sentiment instead of proof. But the proceeding is always under the control of the trial judge, who has authority to confine the use of such evidence to proper purposes and to regulate the time, manner and extent of its presentation; and his discretion will not be interfered with unless abused with prejudicial consequences.
The chief objection to the exhibition of weapons, wounds, bloody clothing and the like is that the jury may be led to associate the accused with the atrocity under investigation without sufficient proof. Professor Wigmore disposes of this objection in the following way:
“No doubt such an effect may occasionally and in an extreme case be produced; and no doubt the trial court has a discretion to prevent the abuse of the process. But, in the vast majority of instances where such objection is made, it is frivolous, and there is no ground for apprehension. Accordingly, such objections have almost invariably been repudiated by the courts. [Citing many cases in note.]” (2 Wig. Ev. § 1157.)
After the jacket was introduced in evidence it was allowed to remain in the presence of the jury to the end of the trial, which continued for some five or six days, and appellant complains of, this f.act. Whether the exhibition of the article was prolonged through forgetfulness or design does not appear, but .appellant did not deem it of sufficient consequence to ask for its removal, and hence must be deemed to have consented to its remaining on view. If this were not true the matter is disposed of in the following quotation from the opinion in the case of Painter v. The People, 147 Ill. 444, in which the bed, mattress, sheets, pillows and other clothing of the bed in the room where the deceased was murdered, and other physical, objects, were displayed before the jury during the trial:
“But the principal ground of. complaint does not seem to be the admission in evidence of the physical objects in question, but the action of the court in permitting the state’s attorney to place those objects in the presence and view of the jury at the beginning of the trial, and in keeping them there while the trial lasted. It is not claimed that they were not sufficiently identified, and there was evidence showing; at least prima facie, that when placed in the court-room they were in the same condition in which they were on the night of the murder. We are of the opinion that the time and manner in which objects‘of this character shall be displayed in the presence of the jury is a matter wholly within the sound discretion of the court, and we are unable to see anything in the record sufficient to warrant us in holding that such discretion was abused in the present case.” (Page 467.) ■
The defense was what counsel calls partial insanity; that is, it was claimed the appellant was generally of sound mind but was insane upon the subject of his marital relations. It may be assumed that there was evidence supporting the defense. The following iiistruction was requested and refused:
“The jury are instructed that the law recognizes partial as well as general insanity, that a person may be insane on one or more subjects and sane as to all others, or he may- be laboring under a mental delusion upon some particular matter and generally sane on all other subjects. If a person is laboring under a partial or temporary insanity and does not understand at the time of the commission of a homicide the nature, char acter and consequence of his acts, and has not the mental capacity to know that they are wrong, he would not be responsible for his-act or acts.”
The court gave the instruction upon insanity approved in The State v. Arnold, 79 Kan. 533. Appellant assigns error upon the refusal to give the instruction requested. As indicated in the Arnold case, the court may properly recognize monomania when instructing the jury in a case presenting that form of mental derangement, but it is not obliged to do so. To destroy criminality, monomania or so-called partial as distinguished from general insanity must dethrone the reason and judgment to the extent the law requires with reference to the act which is the subject of prosecution. The verdict must always be determined by the quality of that act. That act is the product of insanity, as the law defines that term, or it is not. The person committing it is either sane or insane for all purposes of the verdict and judgment. It is true, as the Arnold case affirms, that the law recognizes every form of insanity or delusion which renders an accused mentally incapable of knowing the nature and quality of the act done, and that it was wrong; but it is also true, as the same case affirms, that the law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by law to be criminal, so long as the person committing the act .had the capacity to know what he was doing and the power to know that his act was wrong. Therefore the form or species of insanity with which it is claimed a defendant was affected is not, in the last analysis, material, and need not be discriminated in the instructions; and if the proper test of criminal responsibility for the act in question be given the substantial rights of the defendant have been protected. In some cases it might be helpful and in others it might be confusing to the jury for the court to open up the subject of the various forms' in which mental derangement may be manifested. The refusal to do so ■can scarcely ever be erroneous if otherwise full and proper instructions be given.
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The opinion of the court was delivered by
Porter, J.:
This is a suit to compel the specific performance of a contract to purchase lands. The court made separate findings of fact and conclusions of law. The findings are that on the 12th day of February, 1906, the plaintiff, Margaret Neef, a widow, was the owner of a half-section of land situated in Rawlins county; that she was in the peaceable possession of the same, and entered into a written contract with the defendant by the terms of which she agreed to sell him the land for the sum of $3600. Of this sum $1200 was to be deposited at once in the bank, to be paid to the plaintiff when she furnished an abstract showing clear title in herself and a sufficient warranty deed conveying the land to defendant. The balance was to be paid by a note due from and after date, with interest at the rate of seven per cent, per annum, payable annually, and secured by a first mortgage on the land. Possession was to be given on March 1, 1906.
The court found that in compliance with the contract the defendant deposited the $1200 in the bank, and on the first day of March took possession of the land and has ever since continued in possession, enjoying the rents and profits; that in due time, and before the commencement of this action, the plaintiff tendered defendant a good and sufficient warranty deed, in compliance with the terms of the contract, and at the same time tendered an abstract showing clear title in the plaintiff and requested his acceptance of the same and a compliance on his part with the contract; that the defendant refused either to pay the $1200 or to execute and deliver to the plaintiff the note and mortgage, as provided in the contract, or to accept the deed and abstract, and has ever since refused to perform his part of the contract. There is a further finding that upon defendant’s refusal to perform, and before the commencement of the action, the plaintiff demanded possession of the land, which defendant refused; that plaintiff has performed all the terms and conditions of the same, and is entitled to a decree for specific performance. The court thereupon decreed specific performance. The defendant brings the case here for review.
One of the errors complained of is that the findings of fact are not supported by the evidence. The evidence is sufficient to support all the findings which we regard as material.
The principal claim made is that the court erred in admitting in evidence certain written evidence over the objections of the defendant. The plaintiff’s title to the half-section of land was based upon a sheriff’s deed in a proceeding to foreclose certain mortgages executed by Elizabeth D. Borthwick, the widow of Lorenzo D. Borthwick, the patentee of the land. At the time of the death of her husband Mrs. Borthwick became the owner of an undivided one-half of the land. The title to the other half rested in three children — Edward E. Borthwick, Frank H. Borthwick, and Elizabeth Slaven. Under an order of the probate court of Rawlins county Elizabeth' D. Borthwick executed mortgages upon the entire half-section. These were foreclosed, resulting-in the sheriff’s deed to the plaintiff. It may be conceded that the proceedings in the probate court were irregular, and that the sheriff’s deed only conveyed such interest in the land as Elizabeth D. Borthwick had. There were quitclaim deeds, however, from the other heirs to the defendant, which, with the deed from the plaintiff, conveyed full title, unless the foreclosure proceedings were defective for the reason that the pub lication notice described Elizabeth D. Borthwick by the name of “Bothwick” instead of “Borthwick.” In our opinion the names are idem sonans, and the service was sufficient. (Sparks v. Sparks, 51 Kan. 195; The State v. Haist, 52 Kan. 35; Armstead v. Jones, 71 Kan. 142.)
In contending that the evidence does not support the finding that the plaintiff was the owner of the land it is argued that the court erred in admitting in evidence certain ex parte affidavits for the purpose of proving who were the heirs of Lorenzo D. Borthwick. The issue, however, was not whether the plaintiff owned the land as though she had brought an action in ejectment or to quiet title. The suit was to compel specific performance of a contract to purchase, by the terms of which plaintiff agreed to furnish defendant an abstract showing title in herself; the issue was whether she performed her part of the contract. To prove this the abstract tendered was competent, and the affidavits of heirship were as much parts of the abstract as the certificates or other statements contained in it. Of course, if she had been required to prove title in a case where that was the issue, neither this nor any other abstract of title nor any affidavit of heirship would have been competent for such purpose. The affidavits were not introduced to prove title in the plaintiff, but were parts of the abstract which the plaintiff tendered, and were as competent as any other portions of the abstract for the purpose for which they were offered.
The sheriff’s deed was issued December 26, 1893, and the plaintiff remained in possession of the land under this deed from that date until she delivered possession to the defendant. This was almost fifteen years. Elizabeth D. Borthwick, after the foreclosure proceedings, married one James B. Avery, and died leaving-him as one of her heirs. The defendant sought to introduce testimony for the purpose of showing that Avery contemplated bringing a suit to set up any-rights he might have in the land, based presumably on the alleged defect in the publication notice. There was no error in refusing to admit this testimony. As a matter of fact, he had no interest in the land, because the interest of Mrs. Borthwick had been foreclosed years before he became her husband.
It is argued that no sufficient tender of the abstract was proved, for the reason that the evidence shows that at the time the plaintiff claims to have made the tender the defendant was fifteen miles from town on the farm in question, and that he requested that he be given sufficient time to have the abstract examined by his attorney, which was refused. There is nothing in the contract which provides that the defendant shall have an opportunity to have the abstract examined by an attorney, and, according to its literal terms, if a good and sufficient abstract was in fact tendered him he was bound to accept it. The contract which the parties make governs. It might have provided that the abstract should be approved by the purchaser’s attorney or that it be satisfactory to the purchaser himself. (Hollingsworth v. Colthurst, 78 Kan. 455, and cases cited in note to same case in 18 L. R. A., n. s., 741.) In terms it merely provides that the abstract shall be furnished at a certain time and shall show title in the vendor. But, conceding that the contract should be interpreted to allow the vendee reasonable time in which to examine the abstract, the defendant is not in a position to take advantage of the failure to afford him such opportunity. Plaintiff’s right to specific performance can not be made to turn upon a technical question of this nature, in view of the issues which were raised by the pleadings and upon which the case was tried. The defendant does not rest his refusal to perform on the failure of the vendor to allow him time to examine the abstract, but contends that the abstract itself, upon a thorough examination, shows that the vendor’s title is defective and that the court erred in holding the con trary. We find nothing in this case to take it out of the well-settled rule that the purchaser of lands under an executory contract can not take and hold possession of the land under the contract and refuse to pay the purchase-price on the ground that the title is defective, in the absence of fraud, insolvency of the vendor or other special circumstances. (Dunn v. Mills, 70 Kan. 656.).
There was no objection made to the' deed, abstract or title at the time of the offer, except that defendant requested time in which to have the abstract examined; nor did the defendant offer to rescind the contract or to surrender possession.- It was proper for the court to decree that the mortgage to be executed by the defendant should provide for the payment of taxes by the mortgagor and should contain the usual terms and conditions of a real-estate mortgage, the contract itself being silent with respect thereto.
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The opinion of the court was delivered by
Graves, J.:
The chief controversy presented here is the contention on the part of the city that the claim of the plaintiff is for extra work, the recovery of which is barred by a clause in the specifications requiring all such work to be authorized by the city in writing, which clause by adoption became a part of the contract. .The contractor insists that the work was not extra work in that sense, but was work made necessary by an error in the specifications, and work which was impossible of performance under the contract.
It is clear that the city engineer miscalculated the space necessary to receive the dirt taken from the canal. This, however, was a mere error in mathematics. The data from which the computation was. made clearly appeared in the plans and specifications, from which the contractor made the calculations upon which his bid necessarily depended. This was a matter as open to the contractor as to the city engineer-The bidders were especially warned to inform themselves fully of the work to be done and thereby avoid mistakes and disputes afterward. The dimensions of the canal and the size of the dumping-ground were each clearly and definitely stated. It was expressly mentioned in the specifications that the amount stipulated in the contract must cover all expenses unless otherwise agreed in writing. These statements and conditions were sufficient to notify the bidders and contractors that they must ascertain in advance what was contemplated by the city in its plans and specifications, as they would be held strictly to a performance of all the work necessary to complete the canal. A careful contractor would have ascertained whether the fifty-foot strip reserved for the dirt excavated was sufficient or not. When the contractor discovered that it was insufficient the question should have been settled by the parties in ■ the manner provided in the contract. The canal, as finally constructed, was just as the contractor and the city cpntemplated when the contract was entered into. Each party knew the dimensions of the canal, and by a proper use of ordinary mathematics could have ascertained how much dirt would have to be excavated and how much space it would occupy when removed. Whatever misleading or erroneous conclusions might be reached by either party in the manipulation of figures concerning these problems, the practical fact stood clearly before them that the contractor had agreed to excavate and remove all the .dirt from the canal and deposit it upon the adjacent land. This was the work he undertook to do. Each of the parties understood this alike. Nothing could mislead them into a misconception or misunderstanding as to this proposition, and no mathematical measurement or estimate could affect the work to be done.
The contractor, by relying upon the accuracy of the city engineer’s estimate of the space necessary to hold the excavated dirt, expended more time and labor than would have been necessary if this mistake had been known earlier. For this additional time and labor he claims coinpensation. It is insisted that where, as in this case, a party wishes to have work done according to - plans and specifications which he prepares and makes a part of the contract he must be held to have warranted such plans and specifications to be correct, and the contractor may rely upon them and will not be liable for any damages which occur on account of errors therein. In support of this proposition the ■case of Bentley and others v. The State, 73 Wis. 416, is cited. That case does not apply to the facts here involved.' There the contractor agreed to furnish the material and construct a building according to certain plans and specifications and under the direction of a superintendent. The kind of material was specified in the contract. The building was so constructed, accepted, and paid for. Soon afterward it fell, not on account of the failure of the contractor in any réspect, but because the material and manner of construction, as prescribed in the plans and specifications, were defective. The contractor, at the request of the state, restored the building according to amended speci fications» and upon the refusal of the state to pay him therefor he commenced an action in which he recovered, the court holding that the state, and not the contractor, was responsible for the collapse of the structure.
A man has the right to build a house or construct a ■drain on any plan that suits him, and if he furnishes the plan and prescribes the material, and employs a mechanic to do the work as directed, it is the duty of the man so employed to obey orders, even though he thinks the house will soon fall or that the drain will cause the water to flow the wrong way. In such a case the owner assumes the control and responsibility, and this is the rule that controlled the Wisconsin case. Here the situation is materially different. While the city furnished plans and specifications, they merely contained an outline of the work to be done. They 'contained nothing limiting the contractor in the manner of doing the work which could in any way affect the quality of the canal. The canal was completed in all respects as originally contemplated by the parties. No complaint is made by the city. The contractor, by reason of his reliance upon the mathematical calculations of the city engineer as to the space required for the dirt to be excavated, expended more time and labor than would have been necessary if the engineer’s statement had, been correct. The only question, therefore, which arises is, Shall the city pay for this extra work? Whatever may be said as to what the liability of the city would be under ordinary circumstances, the city expressly stipulated that no allowance would be made for extra work unless the council agreed to do so in writing; that in the absence of such writing the sum stipulated in the contract must be accepted as the limit of the city’s liability. We think these provisions furnish a bar to the contractor’s claim.
This applies to the claim for additional compensation for disposing of dirt outside of the fifty-foot strip only. We are unable to ascertain from the abstracts just what was claimed in the petition. ■ They indicate, however, that other issues were presented by the pleadings, but this question alone seems to have been, presented to the jury and is the only matter presented here. The decision is therefore limited to this single-question.
The judgment of the district court is reversed, with direction to proceed in accordance with the views, herein expressed. | [
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Per Curiam:
This suit was commenced by F. E. Stone, who was the only heir at law of Lurinda Hamner, deceased. Mrs. Hamner, during her lifetime, conveyed the real estate in controversy to George W. Townsend, and this suit was commenced for the purpose of canceling such conveyance, on the ground that it was obtained by the undue influence of the grantee, used when Mrs. Hamner was mentally incompetent to transact business. •
A large number of witnesses were examined on the trial, which was to the court, without a jury. The evidence presents a sharp conflict upon all the material questions involved. There was an abundance of testimony to justify a decree for either party, nearly two days being consumed in examining witnesses. The court, after a full consideration of the testimony, found in favor of the defendants. This finding was adhered to after a reconsideration upon motion for a new trial. It has been a fixed and uniform rule of this court to accept the decision of a trial court or jury as final upon a question of fact, where the evidence is oral and con flicting. (White v. Bird, 45 Kan. 759; Cheney v. Hovey, 56 Kan. 637, 641.) There seems to be no reason to make an exception in this case.
The judgment of the district court is affirmed. | [
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Per Curiam:
This action was commenced in the court of common pleas of Wyandotte county to set aside a will, on the ground that it had been procured by undue influence. At the close of the testimony on the' part of the plaintiffs a demurrer to the evidence was. sustained and judgment entered for the defendants. The plaintiffs prosecute error. The action was brought under sections 7957 and 7958 of the General Statutes of 1901, which read-:
“The mode of contesting a will shall be by civil action in the district court of the county in which the will was admitted to probate, which action may be brought at any time within two years after the probate of the will, and not afterward, by any person interested in the will or estate of the deceased.
“The order of the probate court shall be prima, facie evidence on the trial of such action of the due attestation, execution and validity of the will.”
This case was tried to the court without a jury, but the same rule relating to demurrers to the evidence obtains as is applicable in jury trials. This point was directly decided in the case of Wehe v. Mood, 68 Kan. 373, where it was said:
“In considering and deciding a demurrer to plaintiff’s evidence in a case tried to the court, the same rule obtains as in cases tried to a jury. The court can not weigh conflicting evidence, nor regard the case as though submitted by the defendant upon plaintiff’s showing, but must consider as true all portions of the evidence which tend to prove the allegations of the petition.” (Syllabus.)
(See, also, Farnsworth v. Clarke, 62 Kan. 264; Wolf v. Washer, 32 Kan. 533.)
It follows that if there was any evidence tending to establish that the will was obtained by undue influence the demurrer should have been overruled.
The testatrix was about eighty-three years of age when thé will in controversy purports to have been executed. She was ignorant and illiterate, being unable to write or read writing. The will is dated November .3, 1902. A codicil was added July 8, 1903. She died November 23, 1905. Her husband is still living. They lived together more than fifty years, and were the owners of much valuable property — largely real estate— in and adjoining Kansas City, in Wyandotte county. They owned over 200 acres of land, a part of which is covered by such city. All the property owned by them was held in the name of the testatrix. The husband of the testatrix had for many years, by reason of mental infirmity, been unable to transact business, -and their business interests were kept and managed in her name.
They had six children, three sons and three daughters. One daughter and two sons still survive. The deceased children left children surviving them. The living children and grandchildren are named as parties to this action.
The plaintiffs accuse the two sons, Corydon W. Kerr and Hanford L. Kerr, of having used the undue influence upon the testatrix which caused her to make the will in question. For more than twenty years prior to the execution of the will the testatrix and her husband made their home with their son Hanford L. Kerr, who, in conjunction with his brother, had the complete control and charge of the property and business of their parents. The inability of the parents to manage their own business affairs, on account of their age, want of education, and ignorance of the new business conditions which suddenly grew up around them, was so pronounced that they recognized it themselves, and turned everything over to their sons and relied entirely upon them for everything. The testatrix and her husband had been hard-working, ignorant people in their younger days, unaccustomed to anything but a farm life, and were wholly unfitted for the conditions which the expanding city thrust upon them. - Naturally, the sons came to have complete control over the parents in all matters relating to business affairs. As the decrepitudes of age increased they became as children and deferred to the wishes of their sons, to whom they looked for maintenance and support as though penniless, instead of wealthy.
' The son Corydon and his attorney had an office together, where all business was transacted. The will in question was prepared by the son and his attorney, and was executed at their office, no one else being present except the testatrix and witnesses who were selected by the son. The testatrix subscribed it by making her mark. She could not read it. It was not read to her at the time it was subscribed by the witnesses, and it is not shown that it was ever read to' her or that she was even told of its contents.
About the time the testatrix and her husband went to live with their son they owned property worth over $160,000. More than $50,000 of this was subsequently conveyed to the sons without consideration. The will devises the remainder largely to the children of these sons. It bequeaths to the testatrix’s husband the sum of one dollar, and he consented in writing to the will. His subsequent conduct indicates that he was ignorant of the contents of the will, as he attempted to have some of the property therein devised conveyed to some of his grandchildren, and was very much disappointed and grieved when informed that it was already disposed of by the will. After the death of the testatrix the attorney employed by the sons was appointed executor, in accordance with the direction of the testatrix in the will. These sons, according to the conveyances of real estate shown to have been made by them, received over $100,000 for the sale of real estate, no part of which appears now in the hands of the executor or to have been reinvested or in any way expended for the benefit of the estate of the testatrix. The executor received only $1,218.47 personal assets.
Considering the age of the testatrix, her want of business ability and experience, her confidence and trust in her sons as her business managers and advisers, the fact that a large part of the testatrix’s property (far beyond their fair or legal proportions as heirs of the estate) was received by them through conveyances made by her, that a large part of the remainder was devised to their children, that the will in question was drawn by the attorney of these sons in their office and executed there in the presence of the son with whom she resided, his attorney and the witnesses selected by him alone, that the written consent of the husband to the will was executed under the same or similar circumstances, and that apparently both the testatrix and the husband were ignorant of the contents of the will, there was some evidence tending to establish undue influence. We are not called upon to consider the weight or value of this evidence, and we only say that it tends to establish the cause of action alleged in the petition and it was error to sustain a demurrer thereto.
For a discussion of the burden of proof and the nature and quantity of testimony requisite in such cases, see Scott v. Thrall, 77 Kan. 688, and Ginter v. Ginter, 79 Kan. 721.
The judgment is reversed, with directions to "proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Porter, J.:
Christiann Walbridge sued J. M. Walbridge to recover .damages for assault and battery. The petition alleged that he struck her a blow with his fist, which destroyed the sight of one of her eyes. The defendant’s answer admitted that he struck the plaintiff, but claimed that she first assaulted him, and that he acted in self-defense and had no deliberate intention of doing her physical injury. The reply was a general denial.
The plaintiff’s evidence tended to prove that the assault was made by the defendant, and was wanton and unprovoked, while his evidence tended to prove that the plaintiff was the aggressor. He testified that he had no intention of inflicting any permanent injury on the plaintiff, and that he struck her solely to prevent her from assaulting him. The undisputed evidence is that the plaintiff suffered a permanent injury in the loss of an eye. The jury found in her favor, and gave her damages in the sum of $1000. A new trial was refused, and the defendant brings the case here for review.
The only error claimed is that the court refused to give certain instructions. In two-of them the court was asked to instruct that i'f the blow complained of was given in self-defense the defendant was not answerable for any unforeseen or unexpected damages resulting therefrom; in the other, that if the plaintiff' by her misconduct contributed to bring about the assault, and the defendant used unnecessary force to defend himself but did not intend or foresee any possible injury to her eye, she would not be entitled to recover. The instructions given told the jury if they found from the evidence that the defendant acted in self-defense, believing from all the surrounding circumstances that the plaintiff was about to assault him, the verdict should be for the defendant.
It thus appears that the instructions given in regard to self-defense were more favorable to the defendant than those requested. He asked instructions based upon the theory that although he acted in self-defense he would still be liable for all damages except those which were unforeseen and unexpected. The court instructed the jury that if he acted in self-defense he was not liable for any damages. The court properly stated the law as it applies to a plea of self-defense in an action of this character, and the defendant has no cause to complain. The question is not what the defendant intended but what were the natural, proximate or probable consequences of his wrongful act. In civil actions for damages the intent of the defendant becomes material only where the act which occasions the injury is not unlawful or where it affects the amount of recovery. (Morris v. Platt, 32 Conn. 75; Brown v. Kendall, 60 Mass. 292; Paxton v. Boyer, 67 Ill. 132.) The act of the defendant in assaulting the plaintiff was unlawful, and he'is answerable for all injuries which are the natural or probable consequences of his act without regard to his intent. (Sloan v. Edwards, 61 Md. 89; Vosburg v. Putney, 80 Wis. 523; Morgan et al. v. Kendall, 124 Ind. 454; Hodges v. Nance, 1 Swan [Tenn.] 57; Yeager v. Berry, 82 Mo. App. 534.)
In Sloan v. Edwards, supra, which was an action for damages for assault and battery, it was said:
“It is a well-settled principle that the damages recoverable in actions for personal injuries must be the natural and proximate consequence of the act complained of. Therefore, whatever injurious consequences result naturally from the wrongful act done, become elements of damage, and if is not necessary that the particular form or nature of the results should have been contemplated or foreseen by the wrongdoer.” (Page 99.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This was an action of ejectment; commenced by Bertha J. Bain, in the district court of Lyon county, to recover the possession of about an acre and a half of land from the defendant, Arthur Peyton. These parties owned and occupied adjoining tracts of land, and disagreed as to the location of the boundary-line between them. On account of this disagreement each claimed to be the owner of the strip of land in controversy. The land in dispute is about six rods and four feet wide at one end, and eight rods and nine feet wide at the other, extending the entire length of the tract divided by the disputed line. The plaintiff filed an ordinary petition in ejectment, and the defendant answered with a general denial.
Previous to 1905 no survey had been made to locate this disputed line. In December, 1905, the county surveyor, upon the request of Alexander Peyton, the tenant of Arthur Peyton, made a survey of the land. This survey was made in all respects in accordance with the recognized rules of surveying, and accurately located and marked the true boundary-line. It was not initiated and conducted, however, in accordance with article 12 of chapter 25 of the General Statutes of 1901, by giving notice to the interested parties. The survey, when made, was preserved and recorded by the county surveyor in the records of his office. For the reason that this survey was not made in compliance with this statute it was rejected and not considered by the court as evidence. The trial was to the court, without a jury. Findings of fact were made, which read:
“ (1) That the survey of December 5, 1905, petitioned for in the name of Arthur Peyton, the owner of the south half of lot 2 of the northwest quarter of section 18, township 17, range 10, in Lyon county, Kansas, to •establish the corners and boundaries thereof, the same was not authorized or directed by the defendant, .Arthur Peyton, and was done without notice to him, ■and without his consent, and the same was not and is not binding upon him; and, as to him, the said survey does not locate or establish the boundary-line between the south half of lot 2 and the south half of lot 1, adjoining on the east; and because said Arthur Peyton is not so bound plaintiffs right to recover of him any of the land sought to be recovered, all of which, according to said survey, is in the south half of lot 1, can not be •aided, diminished or otherwise affected by said survey.
“(2) The court finds that the defendant, Arthur Peyton, is in the possession of the land in controversy, but that the evidence is insufficient to establish that he and his grantors have had open, notorious, continuous and exclusive possession of all the land sought by plaintiff to be recovered for any period of fifteen years; that as to the possession had by them, the same has, from time to time, varied in location and extent, and has been either permissible or disputed, and has not been hostile and adverse so as to entitle said Arthur Peyton to a decree in his favor adjudging the title of the land to him by virtue of adverse possession.
“(3) The court further finds that no survey, other than that of December 5, 1905, has ever been made to locate or establish the boundary-line between said lots 1 and 2; that prior thereto said line existed only theoretically and on paper, as shown by the plats and field-notes of the United States government survey now of record.”
Judgment was entered against the plaintiff for costs, and she prosecutes error. The court evidently was of the opinion that any survey not made in compliance with the statute is a nullity and of no legal force or ■ effect whatever. In this conclusion we can not concur. We do not think that a survey in accordance with this ■ statute constitutes the only evidence whereby an owner of land can establish the boundaries thereof. Manifestly such evidence would be the most satisfactory, but in the absence of such testimony resort may be had to the best that is available. The object of this statute is to furnish a means whereby landowners can permanently and conclusively settle the boundaries of their real estate, if they so desire. No person is compelled, -however, to have his lines established in this manner, unless some other person interested in the same line ■ initiates the proceedings prescribed by the statute. Prior to 1879 (Laws 1879, ch. 177) no such means for the permanent establishment of boundary-lines existed, and landowners are not prohibited from still holding their real estate under the same rules as to boundaries that existed before. As indicating that the ■ legislature did not intend to make this law exclusive, section 166 of chapter 25 of the General Statutes of 1868, which reads, “Any survey made by any county ■ surveyor or his deputy shall be evidence in any court in "this state, but shall not be conclusive,” has been the law ever since it was enacted as part of the law of 1868, and still stands as section 1809 of the General Statutes of 1901. It would seem that other surveys than those made under the statute of 1879 have been ever since recognized by the legislature as probable • and proper, or this section would have been repealed at some time during the forty years since its enactment. It was expressly decided in the case of Schwab v. Stoneback, 49 Kan. 607, and in Holliday v. Maddox, ■'39 Kan. 359, that such surveys are admissible as evidence where boundary-lines are in dispute. It seems just and reasonable that where one person wrongfully takes possession of the land of another such other : should have the right to recover his property in an action for that purpose, and to establish his right, as. in other cases, by the best evidence which he is able to produce. This right should not be denied or abridged until the legislature has clearly and unequivocally expressed an intent to do so.
We think the court erred in refusing to consider this, survey as evideneé. It was admissible, although not, conclusive. The defendant might overthrow it, if he could, by countervailing proof. The point involved was. the true location of the disputed boundary-line. It was. a question of fact to be determined upon the evidence. As no survey has ever been made under the law of' 1879, that law has no application to the case.
For the error in refusing to consider the survey offered as evidence the judgment of the district court is. reversed, with direction to grant a new trial and proceed in accordance with the views herein expressed. | [
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Per Curiam:
In February, 1909; an action was brought in the name of the state, on the relation of the county attorney, to enjoin the county treasurer of a county of less than 25,000 inhabitants from making a general deposit of public moneys in a bank which had not been designated as a depositary by the county commissioners. The material facts were agreed to, and relief was refused on the grounds-that'injunction wasi; not a proper remedy and that the treasurer had a right to make such deposit. The plaintiff prosecutes error.
The state may maintain injunction against a public officer to restrain him from a violation of his official duty, although other remedies may be open, and he may have given a sufficient bond. It has an interest in seeing that the will of the legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (The State v. Kansas City, 60 Kan. 518.) See, also, State, ex rel., v. Metschan, 32 Ore. 372, where it was said:
“This is a suit by the state in its sovereign capacity, as the guardian of the rights of the people, instituted by its executive law officer, and can, in our opinion, be maintained without showing any special injury to the state. . . . It is enough that the threatened disposition is in violation of the will of the people, as expressed in the supreme law of the land. ... A sufficient injury, therefore, to enable the state in its sovereign capacity to call upon a court of equity for relief is shown whenever it is made to appear that public funds are about to be applied to a use, for a purpose, or at a place prohibited by the constitution.” (Pages 384-386.)
In 1874 the legislature enacted a law (Gen. Stat. 1901, § 1702), which is still in force, making it a public offense for a county treasurer to “Iban to any corporation, company or individual, or . . . permit any corporation, company or individual to use any public money coming into his possession or under his control ... by virtue of his official position.” In Lowry v. Polk County, 51 Iowa, 50, it was held that a general deposit of funds in a bank amounted to a loan, inasmuch as the title to the money passed and the relation of debtor and creditor was created. This decision was overruled in Hunt v. Hopley, 120 Iowa, 695. (See, also, 5 Words & Ph. Jud. Def. p. 4198; Allibone v. Ames, et al., 9 S. Dak. 74; State v. Midland State Bank, 52 Neb. 1.) The Kansas statute, however, while prohibiting a loan of public funds, goes further and forbids, the treasurer to permit any corporation to use any public money coming under his control. For a county treashrer to place public money in a bank on general deposit is to permit the bank to use it, and is within the prohibition of the statute. The rigor of this provision was soon modified by requiring the treasurers of the larger counties to deposit all public money in a bank to be designated by the board of county commissioners. (Laws 1876, ch. 78, now replaced by section 1703 of the General Statutes of 1901.) Later a similar act was passed (Laws of 1887, ch. 131) for the smaller counties, the depositary being required to be at the county-seat. In 1897 (Laws 1897, ch. 94) this requirement was changed so that the bank might be anywhere in the state, and at the same time (by the substitution of the word “may” for “shall”) the use of the depositary was made optional with the treasurer, apparently. in order that if it was in another county he might "retain so much cash in his own hands as convenience should suggest. No further change was made until after the judgment was rendered m this action, although since then the mandatory expression has been restored and the requirement has been made that the bank designated shall be located within the county. (Laws 1909, ch. 101.)
It appears that the county commissioners had named two other banks as depositaries, but the defendant maintains that the bonds they had given were not sufficient in amount to justify him in placing the public funds with them. Any controversy in that regard has no place in this pi-oceedihgi' Under the statute as it then existed the treasurer was not required to deposit the public money in the banks selected by the county board, but he had no authority to make a general deposit in another bank of his own selection. The law has at all times entrusted to the commissioners and not to the treasurer the matter of placing public funds where they will draw interest and of fixing the rate to be paid.
The judgment is reversed and the cause remanded, with directions that the defendant be enjoined from placing any public funds on genéral deposit in a bank not designated by the county commissioners. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In a proceeding by the state against Charles Fritz and another to abate a nuisance maintained in violation of the intoxicating liquor law Fritz was found guilty of maintaining a nuisance, and the court in awarding judgment against him allowed to plaintiff’s attorneys and taxed as costs an attorney’s fee of $50. Of the ruling allowing an attorney’s fee complaint is made. The allowance is specifically authorized by the statute. (Laws 1903, ch. 338. See, also, The State, ex rel., v. Durein, 46 Kan. 695; The State v. Plamondon, 75 Kan. 269; In re Ellis, 76 Kan. 368.)
The contention that the provision violates the fourteenth amendment of the federal constitution, in that it denies to defendant the equal protection of the law, is not sound. The statute authorizing the allowance of an attorney’s fee is quite unlike a provision for an allowance of such a fee in private litigation, as,- for instance, the collection of a debt. It is an exercise of the police power of the state, designed to promote the peace, morals and good order of society, and, although somewhat special in character, it can not be regarded as an infringement of the rule guaranteeing the equal protection of the law. (Railroad Co. v. Matthews, 58 Kan. 447; Assurance Co. v. Bradford, 60 Kan. 82; Railway Co. v. Simonson, 64 Kan. 802; Atchison, Topeka &c. Railroad v. Matthews, 174 U. S. 96; Fid. Mut. Life Assn. v. Mettler, 185 U. S. 308; Iowa Life Insurance Co. v. Lewis, 187 U. S. 335; Farmers’ &c. Ins. Co. v. Dobney, 189 U. S. 301.) Every defendant violating this provision of the prohibitory liquor law is subject to the same liability. The regulation imposes no unequal or unnecessary restrictions, as it applies to all persons under the same circumstances and conditions, and falls alike upon all brought within the scope of its operations.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
O. L. Thisler recovered a judgment against the Union Pacific Railroad Company on account, of four colts having been (killed at night by one of its. passenger-trains, and the company prosecutes error. The animals were found to have gone upon the track under such circumstances that the defendant was relieved of liability unless its employees saw them in a place of danger soon enough to have prevented the accident by the exercise of ordinary diligence. The jury, however, in answer to a special interrogatory, said that the engineer saw them in time so that by the exercise of reasonable care he could have stopped the train before striking them, and the only question that need be considered is whether there was any evidence to support this finding.
The engineer testified that when the collision occurred he was looking straight ahead up the track, and had been doing so for some time, but that he did not see the animals at all because of a dense fog, and only knew that he had struck them by feeling a hard jar? that on a clear night the headlight would light the track for a distance of “from four to six telegraph poles,” or 660 to 990 feet, and that the train was running forty-five miles an hour. On the other hand the plaintiff introduced evidence that there was no fog, that the track was straight for three-quarters of a mile each way from the place of the accident, that no signal was given as this point was approached, that the speed of the train was not slackened, and that the headlight enabled one to see in advance of the engine with plainness for a distance of 1200 to 1500 feet — that it lit up the'track for fully half a mile. Under these circumstances the jury might have been led to believe from the evidence that when the engine reached a point 1200 to 1500 feet from the spot where the colts were killed the engineer was looking ahead, that the track was visible for that distance, and that therefore he necessarily - saw the animals at that time, if they to ere then on the track, and that notwithstanding this he neither blew the-whistle, rang the bell, slackened speed, nor attempted to stop the train. The point at issue, therefore, narrows down to this: Was there any evidence from which it could be inferred that the colts were on the track at. that time ? If so it is to be found in the testimony of a witness who said that he saw the tracks of the colts where they had come to the track at the point where-they were struck, and where they had stood upon it and. deposited their manure there. On cross-examination-he was asked whether the appearances indicated that-they had been there for some time. He answered in the-affirmative. Manifestly the quantity of manure and. the number of footprints might enable an observer to form some reasonable estimate of the time the animals had stood in one spot — to the extent at least of judging-whether or not their stay was merely momentary. If, as may have been the case, four sets of horse tracks were to be seen leading to a place between the rails, and none, leading from it, and at that point the footprints were too numerous to have been made within a short, time, the inference was not only natural but inevitable that the animals had been standing there for a considerable period just before they were struck. The witness was not asked to state what the appearances at the scene of the accident were, but whether they indicated that the colts had been on the track for some time. His affirmative answer was none the less evidence of' the fact testified to because all the details on which he-based his opinion were not drawn out. While his statement could not be regarded as an attempt to estimate definitely how long the colts had stood between the rails,, it obviously was meant to convey the idea that they had been there for some considerable time — that is seemingly the only meaning that can be attributed to it — and under the circumstances the jury may reasonably have- interpreted the expression “some time” as meaning longer at least than the brief interval (about twenty-seconds) that elapsed while the train was running the last 1200 to 1500 feet before striking the animals. So interpreted the testimony bridged the gap in the evidence and gave a basis for the jury to find that as the colts were on the track when the engine was substantially a quarter of a mile away, and the headlight made them plainly visible, and the engineer was looking straight ahead, he must have seen them at that distance, and, therefore, in time to have prevented the collision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Elias Duncan executed two promissory notes, one payable June 1, 1905, the other June 1, 1906, secured by a real-estate mortgage which contained a clause providing that a failure to pay the first note promptly should render the other at once due. The first note was not paid at maturity. The First National Bank of Lincoln, Nebraska, purchased the second note between June 1, 1905, and June 1, 1906, and after the latter date brought action upon it, and, having failed to recover, now prosecutes error. Duncan pleaded matters constituting a sufficient defense against the original payee, and maintained that the . bank stood on no better footing, because it had acquired the second note after it had matured, by virtue of the accelerating clause, through the non-payment of the first note. For present purposes this may be treated as the only issue that was tried, and the only question here presented is whether the pleadings filed or tendered by the bank alleged facts sufficient to preclude Duncan from denying its right to claim as an innocent purchaser.
The court refused to allow the bank to amend its reply during the trial by adding allegations the substance of which may be thus stated: On October 25, 1905, the original payee sued Duncan on the first note, asking also a foreclosure of the mortgage. The bank intervened in the action and filed a cross-petition asking a‘recovery on the note held by it. Duncan demurred to the cross-petition on two grounds, namely, that the bank had no capacity to sue, and that sufficient facts were not stated to constitute a cause of actiop. At the hearing on the demurrer Duncan’s counsel argued that the note sued on by the bank was not due because the bank could not take advantage of the accelerating clause of the mortgage. The court sustained the demurrer without indicating upon what ground the ruling was based. The bank then asked an order, which was granted, dismissing the cross-petition without prejudice to a future action.
Apart from any question of discretion, no error was committed in refusing do allow the amendment, for the reason that its allegations were immaterial. They were offered on the theory that they showed that Duncan in previous litigation with the bank had derived an advantage from taking the position' that the second note had not'been matured in June, 1905, by the non-payment of the first note, the argument being that he could not thereafter assert that the second note did become due at that time. The argument fails at several points. The allegations of the proffered amendment merely amount to this: that in the course of an argument in the earlier case an attorney for Duncan expressed the opinion that the bank could not avail itself of the accelerating clause of the mortgage — a pure question of law. This is not enough in itself to estop Duncan from maintaining that the bank, having received the second note after a default in the payment of the first, was not a purchaser before maturity. (Light Co. v. Waller, 65 Kan. 514.) And it receives no aid from the other averments. No advantage is shown to have resulted to his client from the suggestion of the attorney. Nothing in the proposed amendment indicated that the demurrer was sustained,on the theory so presented, or why it was sustained. Moreover, the ruling culminated in nothing. No judgment was rendered upon it. The case having been dismissed without prejudice, the bank could at any time have begun a new action, in which it could have required the court to consider again every question presented — there was no adjudication against it at any point. Under the circumstances, the dismissal having been permitted, the ruling on the demurrer was of no more effect than an expression by the court of an opinion upon an abstract question — an intimation of the kind of judgment it would be'likely to render on the matter argued should occasion therefor arise. The sustaining of the demurrer having been announced the court might have refused to allow a dismissal and have entered a final judgment against the-bank. (Pugsley v. Railway Co., 69 Kan. 599.) In exercising its discretion in favor of permitting the case to be disposed of without a final judgment it in effect vacated the ruling on the demurrer, and left the parties exactly where they were before the action was begun.
The court also sustained a demurrer to a portion of the bank’s reply of which the following is the substance: In the action already referred to, brought by the original payee on the first note, the petition alleged that the second note had been transferred to the bank before maturity. Duncan in his answer alleged that he had been damaged by breach of warranty and by fraud and deceit in connection with the transaction in which the notes were given. During the trial his attorneys, to enhance his damages, stated that the bank had bought the note before maturity, and argued to the jury that for that reason he would have to pay it. The court instructed the jury that the bank was an innocent holder of the note.
These facts are relied upon as precluding Duncan from disputing the bank’s claim to be an innocent holder of the note, both because the matter had been already adjudicated and on the ground of* equitable estoppel. Neither phase of the contention is sound. The doctrine of res judicata can not apply, for the parties were not the same in the two actions. Although the bank intervened in the first action, it afterward voluntarily withdrew from it. No principle of equity forbade Duncan to deny in the action brought by the- bank what he had asserted in that brought by the original payee, to which it was not a party. No estoppel against Duncan can arise in favor of the bank on account of his conduct toward the payee by which it was not affected.
“If a record or judicial proceeding contains material declarations or admissions of a party to the same, it may be offered in evidence in behalf of one who was not a party, but it will not be conclusive against the party who made the declarations or admissions.” (Murphy v. Hindman, 58 Kan. 184, syllabus.)
(A number of cases to the same effect are collected in notes in 16 Cyc. 1050, to which may be added Limerick v. Lee, 17 Okla. 165; Commonwealth, Appellant, v. Monongahela Co., 216 Pa. St. 108.)
In volume 2 of Wigmore on Evidence, section 1065, it is said:
“The moment we leave the sphere of the same cause, we leave behind all questions of judicial admissions. A judicial admission is a waiver of proof (ante, sec. 1057) ; and a pleading is, for the purpose of the very cause_ itself, a defining of the lines of controversy and a waiver of proof on all matters outside these lines of dispute. But this effect ceases with that litigation itself; and when we arrive at other litigation and seek to resort to the parties’ statements as embodied in the pleadings of prior litigations we resort to them merely as q-msi-admissions, i. e., ordinary statements, which now appear to tell against the party who then made them.”
The principle involved was thus stated in Carradine et al. v. Carradine, 33 Miss. 698:
“Admissions made in the progress of a suit, as a substitute for proof of any material fact, or by pleading, and setting forth particular facts as grounds of complaint or of defense, amount in law to estoppels; but they are only so as to the parties to the suit; and in the same suit in which they are made. It would be contrary to all principle to hold a party absolutely concluded by allegations which he had seen fit to make, or by grounds of defense which he thought fit to set up, in one suit, when he was afterward sued by another party in an action involving the same matter. Such allegations or admissions are made with reference to. the particular suit, and can not operate as estoppels, beyond it, because as to strangers • to it there is no privity or mutuality, and as their rights are wholly unaffected by such allegations, admissions, or defenses, so must his rights, as against them, not be concluded thereby. It is a common thing for parties sued for the recovery of property to plead property in a stranger,, and rely upon that as a defense, and successfully; but it was never heard of that the stranger brought his action against the defendant founded on that evidence alone, and the defendant was held to be estopped by it.” (Page 733.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Upon these facts the court based two conclusions of law, the second of which we will first consider. It is that' on the facts found the plaintiff “is estopped from complaining of irregularities in the forfeiture proceedings against a purchaser in good faith on the strength of such proceedings, and especially against a person who, like the defendant, has paid a large sum for the assignment of the certificate.” In all this there is no element of estoppel, as has in effect been held in every case of defective service of the notice of forfeiture in the numerous cases in this court, from Knott v. Tade, 58 Kan. 94, to Hickert v. Van Doren, 76 Kan. 674, and Spencer v. Smith, 74 Kan. 142. In those cases the authorities are reviewed.
Even applying the new rule of evidence to the forfeiture proceedings, there is no evidence that Reitler had any actual knowledge. He was absent from the state and personal service of the notice upon him was not possible, hence there could have been only constructive service by posting the notice. There can be no estoppel except actual knowledge of the facts from which it arises be shown.
On the other hand, the records of the county clerk’s office, through which they were attempting to acquire rights to the land, were open to the defendant and his grantor. It would seem that ordinary care and prudence would have led to an examination thereof, and that in the absence of such care they might be held to have knowledge of whatever the records would have disclosed to them. They are presumed to have known the law, and under the law at that time the sheriff’s return upon the notice conclusively showed that Reitler’s rights to the land had not been legally forfeited.
The case of Burgess v. Hixon, 75 Kan. 201, is the leading one relating to school-land wherein the doc trine of estoppel is applied against the first purchaser or his grantor. In that case Burgess had the land in question included within the fence of his ranch for six years, then leased it and occupied it as a tenant of the state for four and one-half years, thus treating Walton’s right to the land as forfeited by the state for many years after the proceedings to enforce the forfeiture. He then suffered Hixon to buy the land, make a payment on it, take possession and spend money in its improvement, and thereafter procured a quitclaim deed from the original purchaser, Walton, and attempted to set up his claim as the assignee of Walton against Hixon. Burgess, at first by his action in holding the land as public land and afterward by leasing it of the state, and later by remaining silent while Hixon bought the land, took possession of it, and spent his money in improving it, led Hixon to the belief that Walton’s right to the land was canceled, and thereafter sought to take advantage of Hixon’s ignorance of the situation. In short, that case contained every element of estoppel in pais as usually defined, and bears no analogy to the present case.
The court found that Reitler had an agent in the county and knew, or could have known in the exercise of diligence, what Harris and his grantor were doing in the way of improving the land from 1902 to 1906. The court, however, did not find that the agency had anything whatever to do with the land in question; and while a principal may be presumed to know what his agent knows in regard thereto when the agent is conducting the business of the principal, there is no presumption that the principal knows what the agent knows about other matters. The court expressly, found in substance that Reitler had no personal knowledge of these matters in finding that he had been a non-resident of, and absent from, the state for more than ten years.
The first conclusion of law, however, is unassailable. It is practically conceded that, if section 1 of chapter 373 of the Laws of 1907 is constitutional and valid, it determines the controversy in this case. The court found that the county clerk of the county, after the expiration of sixty days from the attempted service of the notice, did enter upon his school-land record this notation: “Land forfeited.” Section 1 of the act in question provides in substance that such an entry “shall be prima facie evidence, in any action or proceeding in any court in this state, that proper notice of the purchaser’s default had been issued and legal service thereof made, and that all things necessary to be done as conditions precedent to the forfeiture of the right and interest of the- purchaser, and all persons claiming under him, in and to such land, had been duly and properly done and performed, and that such forfeiture had been duly declared,” It has just been decided in Jones v. Hickey, ante, p. 109, that “it was competent for the legislature to provide what. shall be prima facie evidence of legal service, and that this provision of the act is not objectionable on the ground that it disturbs vested rights.” (Syllabus.)
The plaintiff contends that, as he had fully paid for the land and obtained his patent from the state, his rights thereto were determined before the commencement of this action, and before the passage of chapter 373 of the Laws of 1907. In the absence of fraud this may be true, as between Reitler and the state, but as between the parties' the issuance of the patent to Reitler is no higher and greater evidence of his right to the land than is the ownership of the school-land sale certificate by Harris of his right thereto. The question that determines their rights is, Was the service of the notice of forfeiture legally made upon Reitler? Before the enactment of this statute the return of the sheriff upon the notice was held to be the exclusive evidence as to whether the service was legally made, and the return in this case was insufficient to prove that fact. The statute provides that the notation made by the county clerk is prima facie evidence of legal service. The trial court found that there was not sufficient evidence to rebut this prima facie evidence, and the plaintiff does not even contend that there is such evidence. ■ It was competent for the legislature to provide the rule of evidence, and where there is conflicting evidence upon a fact at issue the finding of the trial court thereon can not be disturbed here. (Petersilie v. McLachlin, post.)
If the equities of the plaintiff in this case be superior to tho§e of the defendant; if he has, in addition to large amounts of interest and taxes, paid to the state as the price of the land more than twice the amount the defendant is to pay, and at a time when by the law of the state and rule of evidence he had only to pay for the improvements made by the occupying claimant to entitle him to the full possession and title to the land; if instead he stands to lose nearly $1900 and gets nothing in return; even if the defendant, when he acquired his certificate and went into possession, had presumptive notice that the plaintiff’s rights had not been legally forfeited and could still be asserted; even if the situation be such that many similar cases are likely to arise: none of these, considerations is to govern this or any other court of the state. The legislature in enacting the law is presumed to have anticipated such contingencies, and still, for some greater good to the state at large, it has provided the new rule of evidence —that if the county clerk make certain notations (which no statute had made it his duty to make) upon the school-land records of his county, such notations shall be prima facie evidence, in any proceeding in any court of the state', of a number of facts which may or may not have been within the knowledge of the clerk at the time he made the notation. It is not our duty to re form or to criticize the statute, but it is our duty to follow it unless repugnant to a higher law, in which •case it is not law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
Shortly after a marriage had taken place in the city of Cherryvale a number of men gathered at the house where the bride and groom were staying, placed them in a wagon, and drew them by hand up and down the streets, making proclamation of their nuptials and introducing them to passers-by in burlesque speeches, attracting a large crowd and occasioning some disorder and tumult. Frank Hawman, nine .years of age, was run over by the wagon, his leg being thereby broken. He and his mother each sued the city under the statute making municipalities liable for all damages accruing in consequence of the action of mobs within their corporate limits. (Gen. Stat. 1901, •§ 2501.) The cases were tried together, the plaintiff recovering in each. The defendant prosecutes error.
The most serious question presented is whether the •evidence justified a finding that the gathering constituted a mob within the meaning of the statute. The •court instructed the jury that “a mob is an unorganized assemblage of many persons intent on unlawful violence, either to persons or property.” This definition, which appears to have originated in Abbott’s Law Dictionary, is substantially that usually given by the •courts and text-writers. (27 Cyc. 812; 20 A. & E. Encycl. of L. 835; 5 Words & Ph. Jud. Def. 4548.) Its substance was incorporated without objection in the charge in City of Atchison v. Twine, 9 Kan. 350. It differs but little from the one asked by the defendant, which reads: “A mob consists of an assemblage of many people acting in a violent manner, defying the law, and committing or threatening to commit depredations upon property or violence to persons.” Perhaps, however, this requested instruction suggests an element held in New York to be essential, namely, a determination on the part of the persons composing the assemblage to carry out their purpose notwithstanding any resistance encountered. The statute of that state makes municipalities liable for injuries done by “a mob or riot,” and the court of last resort, holding that the "two words indicate the same kind of disturbance, excepting as to the numbers taking part, has definitely •adopted this definition of the latter:
“A tumultuous disturbance of the peace by three persons or more assembling of their' own authority with an intent mutually to assist one another against, any one who shall oppose them in the execution of some-enterprise of a private nature and afterward actually-executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.” (Adamson v. City of New York, 188 N. Y. 255, 258.)
The word “riot” has often been defined, however, without referring either to a purpose to resist opposition or to the inspiring of terror. (24 A. & E. Encycl. of L. 971; 7 Words & Ph. Jud. Def. 6240.) And the statutory definition in New York omits both these elements, reading thus:
“Whenever three or more persons, having assembled for any purpose, disturb the public peace by using force- or violence to any other person, or to property, or threaten or attempt to commit such disturbance, or to-do an unlawful act by the use of force or violence, accompanied with the power of immediate execution of' such threat or attempt, they are guilty of riot.” (N. Y. Penal Code, § 449.)
In Marshall v. City of Buffalo, 50 N. Y. Supr. Ct., App. Div., 149, it was said:
“This statute [making the city liable for injuries, done by a mob or riot] is now substantially the same . . . as the original enactment of 1855. . . . At that time riot was not a statutory crime, and it may, therefore, be presumed that the legislature had the common-law definition in mind.” (Page 152.)
In Kansas there is, and was when the law here invoked against the city was enacted, a statute in effect, defining a riot, for it provides that “if three or more persons shall assemble together with intent to do any unlawful act with force and violence against the person or property of another, or to do any unlawful act. against the peace, . . . the person so offending on conviction thereof shall be fined in the sum not exceeding two hundred dollars.” (Gen. Stat. 1901, § 2269.) The next section makes it the duty of any peace officer,. when such an unlawful assembly takes, place, “to make proclamation in the hearing of such offenders, commanding them in the name of the state of Kansas to disperse and to depart to their several homes or lawful employments,” and if such command is not obeyed to summon aid and enforce it. The Kansas legislature, in passing an act the obvious purpose of which is to make municipal officers more vigilant in suppressing unlawful assemblies, must be deemed to have had in mind the language of its own statute "in that regard, rather than any one of the several definitions recognized by the common law. We think the instruction given by the court was sufficient for the purposes of the case.
The question therefore narrows down to this: Was there any evidence of a purpose on the part of those engaged in the demonstration which occasioned the injury to employ force in an unlawful undertaking? There was testimony that several of the ringleaders entered the room where the bride was, and taking hold of her made her go with them; that she, seeing that they were going to use force, said that rather than submit to this she would accompany them, and did so. This was some evidence of the use of unlawful violence. If the purpose of the visitors had been to inflict punishment in revenge for some real or fancied wrong no one would doubt the illegal character of their act. The fact that nothing worse was intended than to subject the victim to embarrassment, annoyance and humiliation in order to provide amusement for the spectators does not change its aspect in the eye of the law. True, the testimony of the bride showed that she cherished no resentment against the perpetrators of the prank, but whether she consented to it-at the time was a fair matter under all the evidence for the determination of the jury, and they must be deemed to have found that she did not. They also made a special finding, which was not wholly without support in the evidence, an swering in the affirmative the question whether those who caused the injury disturbed the peace of any one on the streets or along the streets over which the wagon was drawn.
There was clearly some evidence that the persons responsible for the inj ury to the boy constituted a mob, unless they can escape that designation by the plea that they were acting with perfect good nature and intended no real harm to any one. It is hardly necessary to combat that plea with authorities, and yet cases in point are not wanting. In Bankus v. The State, 4 Ind. 114, it proved unavailing in a prosecution for a riot, the court saying:
“It is said the rioters were in good humor. Very likely, as they were permitted to carry on their operations without interruption. But with what motive were they performing these good-humored acts? Not, certainly, for the gratification of Wise and his family. They were giving them what is called a charivari, which Webster defines and explains as follows: ‘A mock serenade of discordant music, kettles, tin pans, etc., designed to annoy and insult.’ ” (Page 116.)
In Gilmore v. Fuller, 198 Ill. 130, one member of a charivari party was accidentally shot by another. He sought to recover damages, but was denied relief on grounds thus stated:
“The enterprise in which they were both engaged at the time of the injury was an unlawful one. The fact that it is called á ‘charivari’ does not make it any the less unlawful. The assemblage around the house of Daniel Hirsch in the night-time, there engaged in disturbing a family in which a wedding had occurred, was an unlawful and illegal assemblage, and not only so, but a gathering of illegal trespassers. They were all, including both plaintiff in error and defendant in error, engaged in the same unlawful enterprise.” (Page 136.)
In Higgins v. Minaghan, 78 Wis. 602, damages were sought against the subject of the charivari for having shot one of its perpetrators. The plaintiff’s counsel was permitted in the examination of jurymen as to their qualifications to ask whether they had any prejudice against that form of amusement. In expressing its view that such question should not have been al-, lowed the court said:
“Every good, law-abiding citizen must and does condemn such unlawful and riotous assemblies. They are wholly indefensible in law and morals, and are reprobated by every well-disposed person. With the same propriety a juror called upon to try a man charged with a criminal act might be asked if he had or entertained any bias or prejudice for or against' crime or criminals.” (Page 603.)
In The State v. Adams, 78 Iowa, 292, in reversing a conviction of manslaughter, the court used this language :
“The party assembled in' the night when the tragic affair took place is called a ‘charivari.’ Its object is about as barbarous as the pronunciation of its name. Whatever toleration it once had has long since passed away. Even when in vogue it was often attended with violence and bloodshed. If it ever was allowable to direct a jury that such an assemblage, with all its tumult and confusion, was not a great provocation to those annoyed and insulted by it, that time has passed away.” (Page 297.)
Complaint is made of the denial of a motion directed against a defective summons, but as a sufficient summons was afterward issued and served the ruling became immaterial. Testimony that the mother of the injured boy was a widow was competent in her own case, and therefore the objection made to it is unfounded. The court struck out a portion of each of several interrogatories to the jury prepared by the defendant, but no material error was .thereby committed, for the reason, among others, that the questions as they stood were compound. An instruction refused with regard to the extent of the injury was sufficiently covered in the general charge.
No error is discovered in the rulings complained of, and the j udgment is affirmed. | [
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Per Curiam:
The commissioner having declined to find that, the defendants failed to notify the county attorney as the statute: requires, judgment is rendered for the defendants, with costs. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in quo warranto, and the question involved arises upon a motion to dismiss.
At the general election in November, 1908, the plaintiff and the defendant were candidates against each other for the office of coroner of Wyandotte county. The official returns showed that the defendant had received twenty-five more votes than the plaintiff, and the canvassing board declared him duly elected. He received the certificate of election, and thereafter qual ified and entered upon the duties of the office. Within the time allowed by the statute the plaintiff instituted a contest under the provisions of section 2655 of the General Statutes of 1901. When the contest came on to be heard the plaintiff dismissed the same, and the ■contest court rendered a. judgment against him for costs. The circumstances under which the contest was dismissed are stated in the plaintiff’s petition as follow:
“And that when said court convened said plaintiff asked and demanded that the ballots counted for said ■election in the precincts in which he alleged in his statement of contest mistakes and errors had occurred be produced and used in evidence; and that said board, notwithstanding the statute in such cases made and provided, refused, upon a vote of two to one, the two democrats composing the said board voting against ordering said ballots to be produced or the reception of the same in evidence to support the claim of the said plaintiff herein, until said plaintiff should show ■aliunde said ballots that a recount of the same would •show him to have been elected at said election. And the plaintiff, being unable to make such proof aliunde said ballots, dismissed his said cause.”
On May 1, 1909, the plaintiff brought this action in ■quo warranto, asking that a recount of the ballots be had, that he be declared duly elected to the office, and that the defendant be ousted therefrom. The grounds relied upon here are the same as those upon which the contest was based, and, in substance, amount to the claim that at each of the voting precincts in the county there were several ballots counted for the defendant which were not cast for him and a number that were cast for the plaintiff which were not counted for1 him.
The defendant moves to dismiss on the theory that by commencing the contest and afterward dismissing the same the plaintiff lost his right to maintain this action. The sole question to be determined is whether the action should be dismissed.
The defendant contends that the doctrine of election . of remedies applies; that the plaintiff by commencing his contest elected his remedy and forever deprived himself of the right to maintain an action in quo warranto. On the other hand, it is urged that election of remedies has no application because the remedies themselves are not inconsistent.
In this connection the plaintiff makes the further contention that election of remedies does not apply. because at the time he instituted his contest his remedy by quo warranto had not accrued; that he had his remedy by contest when the canvassing board declared the defendant elected, but in. order to avail himself of that remedy the statute required contest proceedings to be commenced within twenty days from the time the votes were canvassed, whereas an action in quo warranto would not lie until the defendant took the office, which was in January, 1909. To the last contention it is a sufficient answer to say that a party may be bound by his election of one remedy although the second remedy may not have accrued at the time he makes his election. For instance, he may have two inconsistent remedies, one sounding in tort and one on contract. His remedy by an action in tort may have accrued before he could maintain an action on the contract, for the reason that the contract had not matured. Yet, if by commencing his action in tort he assume a position inconsistent with the claims he afterward seeks to assert, he will be held bound by his election.
It is apparent, however, that the doctrine of election of remedies can not be applied in all its rigor in the present case because there is not that inconsistency between the two remedies which lies at the basis of the doctrine. (Tarbox v. Sughrue, 36 Kan. 225.) The case presents a situation in some respects like that which arose in the recent case of Yeager v. Aikman, ante, p. 656, an original proceeding in quo toarranto to oust the defendant from the office of judge of the ■district court. In that case the plaintiff first insti tuted a contest before the state senate, the tribunal created by statute for the purpose of determining contested elections to the office of district judge, and because he failed to comply with an order of the contest court requiring him to state definitely the grounds of his contest the senate dismissed his case. JHe then brought an action in quo warranto. A motion to dismiss the action was sustained. The decision turned upon the proposition that the plaintiff had first invoked the jurisdiction created by statute for trying contested elections of district judges, and that the order dismissing his contest was analogous to sustaining a general demurrer and was a final determination of the contest on its merits. In this case the dismissal was made by the plaintiff as contestor, and not by the contest court. It is true that the dismissal was an involuntary one; it was made because the ruling of the contest court refusing to order the ballots produced rendered it impossible for the plaintiff to prove his case. But obviously the action terminated without a consideration of the merits, and although the dismissal did not in terms purport to be “without prejudice” it can not be held res judicata. (Smith v. Auld, 31 Kan. 262; Mills v. Pettigrew, 45 Kan. 573.)
We are satisfied, however, that this action should not be entertained, and that it must be dismissed. While the decision can not be rested upon the ground either of election of remedies or that the matters and things sought to be litigated are res judicata, some of the principles of both doctrines apply more or less forcibly to the situation in which the plaintiff finds himself. He had two remedies. It may be conceded that they are not inconsistent so as to make the commencement of one an irrevocable election. His first remedy was the ordinary, usual one where a rival candidate seeks to contest the validity of an election for a township or county office. It is reasonably adequate for the purpose for which it was intended; it deter mines the title to the office. It is true that where it is prolonged until after the term of office begins and his rival enters upon the office and refuses to vacate the contestor, even though successful in the contest, is obliged to prosecute quo warranto to oust the incumbent. (Tarbox v. Sughrue, 36 Kan. 225.) But in ordinary cases the remedy is reasonably adequate, and at all events the contestor is fully advised of the extent of the remedy at the time he invokes it. The other remedy, by quo warranto, has always been recognized as an extraordinary one. Under some statutes courts have held that an election contest is the exclusive remedy so far as the rights of the rival candidates are concerned, and others hold that it is the exclusive remedy for the purpose of questioning the legality of the votes cast at the election. (23 A. & E. Encycl. of L. 608, 609, and cases cited.) The contention of the defendant that under our statute the remedy by contest is exclusive, and that this court has no jurisdiction to entertain an action in quo warranto at the suit of a private party, can not be sustained. Original jurisdiction in quo warranto is conferred upon this court by the constitution' (art. 3, § 3), and that jurisdiction is not limited to actions in which the state is a party. (The State, ex rel., v. Buckland, 23 Kan. 259; Tarbox v. Sughrue, supra.) But the action of quo warranto is controlled to a great extent by the discretion of the court. (The State, ex rel., v. Wilson, 30 Kan. 661; Tarbox v. Sughrue, supra.) In the Wilson case the court refused to grant the relief because the plaintiff had another plain and adequate remedy. In the Tarbox case it granted the relief because the plaintiff had no other adequate remedy.
It is obvious, however, that the court’s discretion is not exhausted when it determines whether there is another adequate remedy. On the contrary, the question whether under all the facts and circumstances relief shall be granted rests in the judicial discretion. Be fore the adoption of the code it was discretionary with the courts whether the writ of quo warranto should issue at the suit of a private party. This was the law from the time of the'statute of Anne. (17 Enc. Pl. & Pr. 429, and cases cited.) Jurisdiction of the action which the code has substituted for the writ is to be determined by reference to the common-law rules. (The State, ex rel., v. Wilson, 30 Kan. 661.) In at least two cases this court has recognized the principle that the judicial discretion which controls the action is broad enough to determine whether under all the circumstances the relief shall be granted. In Weston v. Lane, 40 Kan. 479, the court refused to grant the relief because a judgment would have the effect in that case of clothing the plaintiff with an office from which he would be at once subject to removal for the reason that he was interested in a contract made with the school district; Again, in Horton v. Wilder, 48 Kan. 222, the remedy was denied for the reason that under all the circumstances it appeared that the plaintiffs were not entitled to the relief.
In the present case the plaintiff adopted the ordinary, usual remedy, and contested the election before the tribunal created by statute for contesting elections of township and county officers.- He prosecuted that action until confronted by a ruling of the court which prevented him from procuring a judgment in his favor, and then dismissed his action. He now asks the court in its discretion to inquire into the right of the defendant to hold the office, setting up the same grounds- for relief which he relied upon in the former action. It would be difficult to lay down a hard-and-fast rule which would control in all cases, because judicial discretion is not to be governed by inflexible rules of law.
“Discretion may be and is to a very great extent regulated by usage or by principles which courts have learned by experience will, when applied to the great majority of cases, best promote the ends of justice.” (Platt v. Munroe, 34 Barb. [N. Y.] 291, 294.)
Where the plaintiff has pursued the usual remedy by contest, and dismisses the same because of an adverse ruling of the contest court, that circumstance should weigh heavily against him in an appeal to the discretion of the courts to entertain an action in quo warranto, and we have reached the conclusion, in this case, that the relief should not be granted. The action is, therefore dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This action is brought on the relation of the attorney-general to require the mayor and acting city clerk of the city of Hutchinson to perform the duties assigned by law to each, respectively, incident to the holding of an election in that city on the second Tuesday of March, 1909, for the election of a mayor and two commissioners.
On the first day of March, 1909, chapter 82 of the Laws of 1909 took effect by publication in the official state paper.
On the second day of March, 1909, an election was held in the city "upon the question of the adoption or rejection of the provisions of chapter 123 of the Laws of 1907. The vote was duly canvassed, and, it appear ing that a majority of the votes cast at the election were in the affirmative, it was duly declared that the proposition had carried. In the defendants’ answer there is some criticism of the manner in which the election was conducted, but no facts are alleged which would in any way invalidate it. We conclude, therefore, that the provisions of chapter 123 of the Laws of 1907 were legally adopted at such election.
The city of Hutchinson having a population of 10,-000 and being a city of the second class, the time for holding the regular city election is fixed by the general statute on the first Tuesday of April (Gen. Stat. 1901, § 949), which as to this case was April 6, 1909, and neither chapter 123 of the Laws of 1907 nor chapter 82 of the Laws of 1909 provides for any change of date in such election.
Chapter 54 of the Laws of 1908, so far as applicable to primary elections in cities, provides as'follows:
“Sec. 2. Hereafter all candidates for elective offices shall be nominated by: (1) a primary held in accordance with this act; (2) independent nomination papers, signed and filed as provided by existing statutes.
“Sec. 3. The primary shall be held ... on the first Tuesday in March, 1909, and annually thereafter, in all cities having 5000 or more population, for all candidates to be voted for at the next ensuing city election.”
Chapter 82 of the Laws of 1909, while expressly amending and supplementing chapter 123 of the Laws of 1907 only, by necessary implication amends section 2 of chapter 54 of the Laws of 1908, in that it requires certain steps to be taken ten days before the primary election which were not required by the act of 1908, and also by necessary implication repeals the provision of the act of 1908 permitting nominations to be made by petition. Section 8 of chapter 82 of the Laws of 1909 reads:
“All city officers to be elected by the people under the provisions of this act, except in cities of less than ten thousand population, shall be nominated at a primary election to be held on the second Tuesday of March in each year. The election board of the municipal election shall be the election board of the city primary election. Any person desiring to become a candidate for mayor or commissioner shall, at least ten days prior to •said primary election, file with the city clerk a statement of such candidacy, in substantially the following form:”
The mayor and city clerk contend that chapter 82 of the Laws of 1909 absolutely repeals all provisions of chapter 54 of the Laws of 1908; and,that, as chapter 82 •of the Laws of 1909 provides that all city officers except in cities of less than 10,000 population shall be nominated at a primary election to be held on the second Tuesday of March of each year, and any person desiring to become a candidate for mayor or for commissioner shall at least ten days prior to such primary election file with the city clerk a statement of such ■candidacy (the form of which is prescribed), and shall at the same time file therewith a petition signed by at least twenty-five qualified voters requesting such candidacy, and, further, as only eight days intervened between the taking effect of chapter 82 of the Laws, of 1909 and the time for holding the primary election, it was impossible to file the statement and petition in •accordance with the requirements of the act, and hence no election could be held under the act.
This contention can not be sustained. The orderly •and efficient discharge of municipal functions in a city is not promoted by vacancies in the principal offices of the city or by the holding over of officers for a term beyond that to which they were elected, and especially must this be true where a city at a legal election has adopted a form of city government differing so greatly •as the commission form of government does from the form of government theretofore in vogue. Various provisions in chapter 128 of the Laws of 1907 and in •chapter 82 of the Laws of 1909 show that it was not intended by either act to interfere with the orderly con duct of the city government under the one form or the other; and if there were no such provision in either act the rule of construction adopted by this court many years ago in The State, ex rel., v. Comm’rs of Hamilton Co., 35 Kan. 640, would afford a solution of the difficulty. It was said in the opinion therein:
“Where a statute relating to registration, or indeed to anything else, can not in the nature of things be made to apply, it must be held that it does not apply, and that the legislature did not intend- that it should apply.” (Page 646.)
It is unnecessary to say that a statute providing for a primary election, which statute is enacted only eight days before the time set for the election and by which the candidates at the election are required to do certain things ten days before the election, can not be made to apply.
Sections 34 and 35 of chapter 82 of the Laws of 1909 •at least suggest the solution of the difficulty. They read:
“Sec. 34. The passage of this act shall in no way affect any action or proceedings of any kind now pending and not completed, or any action or right which has accrued to or against such city at the time of the adoption of this act.
“Sec. 35. Chapter 123 of the Laws of Kansas of 1907, and all other acts and parts of acts inconsistent herewith, are hereby repealed in so far as they relate to cities of the second class which adopt the provisions of this act, but nothing in this act shall be construed to invalidate the action of any city already acting under the authority of chapter 123 of the Laws of 1907, and in adopting the provisions of the said’ chapter such cities shall be deemed to have adopted the provisions of this act; provided, that in any city wherein an election is now pending upon the question of adopting the provisions of said chapter 123 of the Session Laws of 1907, said election shall be deemed to be a vote upon the adoption of said chapter as amended and supplemented by this act.”
We hold, therefore, that the election should be held as provided by law, and that the candidates at such election may be nominated as provided in subdivision 2 of section 2 of chapter 54 of the Laws of 1908., and in accordance with preexisting statutes; that such election should be conducted, so far as the provisions of' chapter 82 of the Laws of 1909 can be made applicable, in accordance with the provisions thereof, and if any provision or provisions thereof are inapplicable preexisting statutes should be applied.
A peremptory writ of mandamus is allowed as. prayed for. | [
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Per Curiam:
This is a suit for divorce and alimony. A divorce was refused for the reason that both parties were at fault. The court, however, made a division of property, whereby the, parties might live apart. The defendant, Louis Rullman, prosecutes error, complains that the allowance made to the plaintiff was unreasonably large, and asks that the order be set aside, or at least modified.
It appears from the evidence that the parties were married about twenty-three years before the action was commenced. The plaintiff was about twenty-four years of age and the defendant fifty-nine. At the time of the trial the plaintiff was about forty-seven, and the defendant eighty-two. At the time of the marriage the plaintiff had one child, about three years of age,, by a former marriage; and the defendant had five children, ranging from two to twenty years of age, all boys. They had one child after their marriage. The defendant was a well-to-do farmer and owned some, valuable real estate, both city and farm property. The court found a reconciliation impossible. The property owned by the defendant was acquired principally during his first marriage; the plaintiff had nothing in her own right. At the time the decree was entered the defend ant owned a homestead near Wathena, worth $10,000, city property worth $5000, and had about $4000 cash in hand.
The court awarded to each of the parties the possession and use of one-half of the property, dividing it in kind so far as practicable. Such division and use was to continue so long as both parties might live; and the order provided that upon the death of either it should terminate the same as if it had never been made, and the property should then be disposed of under the law. In making this c^der the court acted under the provision of section 5186 of the General Statutes of 1901, which reads:
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, .and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.”
The provision made for the wife seems very generous, but in justification therefor the court considered the fact that she had reared and cared for the defendant’s minor children by a former marriage and performed the other duties devolving upon a farmer’s wife for more than twenty-three years, being the best and most vigorous years of her life, which entitled her to a comfortable maintenance during the few remaining years of the defendant’s life, who, being, then eighty-two years of age, could not in the ordinary course of nature !be expected -to survive for many years. The statute confides a large measure of discretion to the court ip making orders of this nature, and we can not say that this discretion has been abused in this case so as to require a reversal of the decree. It is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted of the crime of murder in the first degree in the district court of Shawnee county.
While under arrest he voluntarily made and signed a statement of the facts leading up to the tragedy and its consummation. This statement was offered and received in evidence over the objection of the appellant, and its admission is one of the errors assigned. There are some statements in the so-called confession relating to occurrences before and after the immediate trouble which led to the killing that should, and probably would, have been excluded if a request for their exclusion had been made. The only objection to the admission of the statement, however, ran to the document as a whole, and this objection was properly overruled.
Another assignment of error relates to the admission of the declarations of the deceased, which clearly appear to have been made in extremis and with, consciousness of approaching death. These declarations are in accord with the evidence of several eye-witnesses to the tragedy and substantially in accord with the confession made by the appellant, except that they attribute the fatal knife-wound to the act of “Orville” Smith, whereas the so-called confession and the testimony of all the eye-witnesses give the name of the person who inflicted the blow as Oliver Smith. A dying declaration is but evidence, and may be impeached or overcome by other evidence as may any testimony in any case. (2 Wig. Ev. §§ 1033, 1446.)
Particular reliance for a reversal, however,, seems to be placed upon the giving of an instruction which reads:
“Evidence has been admitted in this case for the purpose of showing that the deceased, Thomas Bair, had been criminally intimate with the daughter of the defendant and that he was responsible for her being pregnant with an unborn child. This evidence has been allowed to be introduced only for the purpose of throwing light upon the defendant’s mental condition at the time of the alleged stabbing, and should be considered by you for no other purpose, and the court instructs you that the fact that the deceased, Thomas Bair, may have been criminally intimate with a daughter of the defendant would not justify the defendant in taking the life of Thomas Bair on account of such intimacy.”
There was evidence, which was not contradicted, that about three months before the tragedy the appellant’s wife had told him that their daughter was pregnant in thé Crittenton Home, and that the deceased, Bair, was the author of her ruin, which he had accomplished under a promise to marry her. Excepting this report of the wife there was no evidence tending to prove that Bair was criminally intimate with the appellant’s daughter, or even knew her, and there was no evidence that the appellant ever investigated the correctness of the report or even spoke to Bair about it. In. his so-called confession Smith himself said: “I have known Thomas Bair by sight for about two years. I did not know his name until last night. He knew me for some time, and when we would meet he would call me ‘01’ or ‘Smith.’ ” He testified that the trouble arose over a game 'of cards, and that Bair grabbed up a dollar which belonged to him (Smith) and left the place where they were playing and went to another barroom; that he followed him, but went first to the meat-shop where he had been employed and got a package of meat and the knife with which the fatal wound was inflicted; that soon after entering the latter barroom he asked Bair if he was going to give him the dollar; that Bair replied in the.negative and drew back his arm as if he would strike Smith, and said he would knock his head, off; that thereupon he (Smith) struck Bair with a knife. In short, by his own account Smith made no reference to his daughter’s trouble, nor did he give any indication that he even had that matter in his mind. This is also the effect of the testimony of all the other witnesses who were present. Under these circumstances it seems clear that the crime could not be reduced to manslaughter by reason of heat of passion excited by the report given to the appellant by his wife, or that the report should be considered as evidence for that purpose.
The court fully and properly instructed the jury as to the circumstances which would render the act excusable, and as to the degree of sanity which would render the defendant accountable or unaccountable for the act, and also, under proper instructions and definitions,, submitted the question of the defendant’s guilt or innocence of each of the two degres of murder and of all the degrees of manslaughter. The appellant seems to have had a fair trial, and to have been found guilty upon evidence which leads, beyond a reasonable doubt, to the conclusion at which the jury arrived.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from a judgment in the district court finding the defendant guilty of the violation of a city ordinance.
It appears from the abstract that the appeal was not properly perfected. Service of the notice of appeal was made and acknowledged February 3, 1908, and a transcript, with important requirements omitted, was filed in this court February 3, 1909. Section 284 of the criminal code requires that the transcript shall be filed within thirty days after the appeal is taken. (The State v. McEwen, 12 Kan. 37, 38; The State v. Furney, 40 Kan. 17.)
However, we have examined into the merits of the case and find, contrary to the contention of the appellant, that the complaint sufficiently charged the violation of the ordinance of the city; that the ordinance was within the power granted by the statute to the mayor and council of the city; and that there is sufficient evidence to sustain the finding and judgment of the court.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant in error-recovered a judgment for damages for personal injuries against the plaintiff in error, who brings the case here for review. There are substantially two grounds of error assigned: First, that the court erred in overruling the demurrer to the plaintiff’s evidence; second, that the court erred in ■denying the defendant’s motion for a new trial.
It appears by the evidence that Miss Yoder and two ■other girls were riding on horseback in the little town •of Earleton, going in a westerly direction along the main street, or road, when McDonald and his son, coming from the south, turned a corner 250 or 300 feet west from where the girls were at the time, and proceeded •about the middle of the road toward the girls at a speed ■of from ten to thirteen miles an hour. The horses, especially the horse of Miss Yoder, manifested fright as soon as the automobile came in sight, but the automobile was driven toward them with unslackened speed ■and without turning to the right or left. It was broad daylight, and there was nothing to obstruct the view. Miss Yoder’s horse, soon after seeing the automobile, turned and ran in a northeasterly direction, and was about to pass under a tree with a low-hanging branch when; to avoid being knocked off by the limb, she jumped to the ground and received the injury complained of. The automobile passed her about the time ;she jumped to the ground.
There was substantial evidence to support each of the foregoing facts before the demurrer to the plaintiff’s evidence was filed. Considering these facts as admitted on the hearing of the demurrer to the evidence, we can not say that a prima facie right of recovery was not established. An automobile is recognized in law -as a proper vehicle of transportation upon fche public highways of the state. The operation of the machine, however, is subject to the “law of the road,” as established by custom and by statutory enactment. Section 6 of chapter 67 of the Laws of 1903 reads as follows:
“Every person having control or charge of a motor vehicle or automobile shall, whenever upon any public street or highway and approaching any vehicle drawn by a horse or horses, or any horse upon which any person is riding or driving domestic animals, operate, manage and control such motor vehicle or automobile in such manner as to exercise every reasonable precaution to prevent the frightening of any such horse or horses or domestic animals and to insure the safety and protection of any person riding or driving the same; and, if such horse or horses or domestic animals appear restive and frightened, the person in control of such motor vehicle shall reduce the speed thereof, and if practicable turn to the right and give the road, and, if requested by signal or otherwise by the driver of such horse or horses or domestic animals, shall proceed no farther toward such animal or animals, but remain stationary so long as may be necessary to allow such horses or domestic animals to pass. This provision shall apply to automobiles or motor vehicles going •either in the same or in the opposite direction.”
This section to a large extent incorporates into the statute the common law as it existed before the enactment, and is to be interpreted in accordance with,the .general principles of the common law. It is obviously incumbent upon the person having the control of an automobile, in the exercise of reasonable precaution, to prevent the frightening of horses or the injury of persons riding or driving the same, and to recognize the probability, especially in localities where automobiles •are not much used, that horses will frighten at the ma chine even when it is carefully managed; and it is his duty to keep a lookout for all such animals, whether going in the same direction as his machine or in the opposite direction. This the defendant failed to do. After the horse of the plaintiff manifested fright he continued to approach it with unabated speed and in the middle of the road. We think the court properly overruled the demurrer and left it to the determination of the jury whether this was negligence.
It is urged that the horse became frightened when the automobile was 250 or 300 feet distant from it; that the defendant had done nothing which he had not a right to do in using the public highway, and had omitted to do nothing which he ought to have done at that time, and therefore that he is not responsible for the result. This the jury found not to be true. The horse was in plain view, and it was defendant’s duty to see, and in legal contemplation he will be held to have seen, that the horse was frightened, yet he continued to approach it rapidly. It can not be said that the horse did not become more frightened by the approach of the machine, or that it would have run under the tree if defendant had stopped after he saw or could have seen that it was frightened or if he had materially reduced his speed or turned his machine to the opposite side of the road. If the horse became frightened and the injury occurred through no fault of the defendant, he, of course, should not be held liable in damages. If, on the other hand, the defendant continue^ to approach .the horse in a manner that naturally would and did increase its fright, after he could and should have seen that in so doing he was endangering the plaintiff’s safety, he was negligent. If, by failing to exercise such reasonable care to avoid an accident as the apparent conditions required, he caused the injury, he should pay the reasonable damages; otherwise he should not. This question is in no sense a question of law, but is one of fact for the jury to answer as to the proximate cause of the injury.
After the demurrer was overruled the defendant offered evidence which elicited practically no new facts, except that he himself swore that he did not at any time see the girls or the horses and did not see that plaintiff’s horse appeared frightened. Several other witnesses having testified to what they saw and to the defendant’s opportunity to see, the jury had a right to believe that the existence of these facts would have been obvious to him if he had exercised any care whatever. His evidence, instead of excusing his action, may have tended rather to make his lack of care appear wanton or reckless.
The only ground urged for allowing the motion for a new trial is that the evidence was not sufficient to sustain the verdict. In this view we can not concur. We think there was substantial evidence to sustain the verdict. It was approved by the court, and we can not interfere.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment in favor of the defendant on an, objection to the introduction of evidence under the plaintiff’s petition.
The validity of the defendant’s objection hinges on the jurisdiction of a justice of the peace of Quindaro township, in Wyandotte county, in a case taken to him on change of venue from one of the city courts of Kansas City township. The jurisdiction of the justice of the peace depends on the construction of section 10 of chapter 107 of the Laws of 1897 (Gen. Stat. 1915, § 3221), and of section 1 of chapter 93 of the Laws of 1899) Jus. Civ. Code, § 1, Gen. Stat. 1915, § 7696). Chapter 107 of the Laws of 1897 is a special act creating two city courts in Kansas City township, Wyandotte county. The material parts of section 10 of the act .read:
“In any civil case brought in either of said courts, a change of venue may be taken to the court of the other district upon the application of either party. . . A change of venue may, in like manner, be taken from such other district to some justice of the peace of another township, upon payment of all costs as above provided; and a change of venue may be taken in the first instance to some justice of the peace of another township. . . . No other change of venue shall be taken by either party to the action.”
Chapter 93 of the Laws of 1899 is a general act and fixes the territorial jurisdiction of justices of the peace. Section 1 of that act is an amendment of section 4847 of the General Statutes of 1889. That part of section'1 of the act material to the present controversy reads:
“The jurisdiction of justices of the peace in civil actions shall be coextensive with the county wherein they may have been elected and wherein they shall reside; provided, that, in any county in which a city court has been or shall he created, justices of the peace outside of the city wherein such court is located shall not ha/oe jurisdiction of cases in which any defendcmt resides in such city.”
The amendment is in italics. Did that act, by implication, repeal that part of section 10 of chapter 107 of the Laws of 1897 which provides for a change of venue from the city courts of Kansas City township to justices of the peace of another township in Wyandotte county? Three principles of statutory construction must be examined in order to answer this question correctly. In Stephens v. Ballou, 27 Kan. 594, this court said:
“If the provisions of the old aet and of the new can be reconciled by any possible mode of interpretation or construction, if the old aet and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (p. 601.)
.(See, also, The State v. Young, 17 Kan. 414; Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 579, 2 Pac. 864; Kansas Breeze Co. v. Edwards, 55 Kan. 630, 633, 40 Pac. 1004; Hornaday v. The State, 63 Kan. 499, 503, 65 Pac. 656; Randall v. Butler County, 65 Kan. 20,22, 68 Fac. 1083; Gilbert v. Craddock, 67 Kan. 346, 352, 72 Pac. 869; and Newman v. Lake, 70 Kan. 848, 856, 79 Pac. 675.)
In 36 Cyc. 1090, the author says:
“When the provisions of a general law, applicable to the entire state, are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either in whole or in part, unless such modification or repeal is provided for by express words, or arises by necessary implication.”
(See, also, The State v. Thomas, 74 Kan. 360, 361, 369, 86 Pac. 499; Wilson v. Edwards County, 85 Kan. 422, 424, 116 Pac. 614; and Bank v. Reilly, 97 Kan. 817, 822, 156 Pac. 747.)
The legislature of 1899 established one city court in Atchison, one in Coffeyville, one in Fort Scott, one in Leavenworth, one in Topeka, and one in Wichita. The act creating the city court in Fort Scott provided that:
“In any civil case brought in said court a change of venue may be taken upon the application of either party, in the same manner as is provided by law for taking changes of venue for justices of the peace and courts of this state.” (Laws 1899, ch. 127, § 10, repealed by Laws 1901, ch. 166.)
The act creating the city court of Topeka provides that:
“In any civil case brought in such court, a change of venue may be taken to a justice of the peace of another township for the same reason and in the same manner as now provided by law in cases before justices ■of the peace and upon payment of all costs which have accrued in the case prior to the filing of the affidavit for such change.” (Laws 1899, eh. 129, § 12, Gen. Stat. 1915, § 8280.)
In the.case of In re Hall, Petitioner, 38 Kan. 670, 17 Pac. 649, this court said:
“Laws enacted by the same legislature about the same time and concerning the same subject-matter, being in pari materia, are to be taken and considered together in order to determine the legislative purpose and ■ arrive at the true result.” (Syl. ¶1.)
(See, also, The State v. Young, 17 Kan. 414; Telegraph Co. v. Austin, 67 Kan. 208, 212, 72 Pac. 850; The State v. Pauley, 83 Kan. 456, 461, 112 Pac. 141; Hibbard v. Barker, 84 Kan.( 848, 851, 115 Pac. 561; Railway Co. v. Raihoay Commissioners, 85 Kan. 229, 233, 116 Pac. 896; and 36 Cyc. 1086, 1151.)
Under these well-established rules of construction the acts of 1899, providing for change of venue from the city courts of Fort Scott and of Topeka, to justices of the peace outside those cities, and the act fixing the jurisdiction of. justices of the peace in counties where city courts exist, must be construed together so as to give effect to each. When so construed, the act fixing the jurisdiction of justices of the peace has no application to jurisdiction acquired by a change of venue from the city court of Fort Scott or of Topeka. If this construction is applied to those parts of the acts of 1899 providing for a change of venue from the city court of Fort Scott •or of Topeka, it necessarily follows that the same construction must be applied to that part of the act of 1897 providing for a change of venue from the city courts of Kansas City township ■to justices of the peace outside that township. It then follows that the justice of the peace of Quindaro township had jurisdiction of the cause by change of venue from Kansas 'City township, and that the defendant’s objection to the introduction of evidence under the plaintiff’s petition was rightly •sustained.
The judgment is affirmed.
West, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Action of replevin to recover possession of a stock of merchandise in a furniture store together with books of account and contracts.
It seems that the plaintiff, John Moffatt, who owned a furniture store in, the city of Parsons, traded it to defendant Fouts for 160 acres of land in Scott county. After the exchange the plaintiff discovered that there was a mortgage for $625 on the land in process of foreclosure which he found it necessary to discharge. Fouts then gave to plaintiff a chattel mortgage on the furniture stock to secure the latter for the $625 paid on the mortgage, and also for any additional expenses that might be incurred.
For some time prior to the exchange mentioned Fouts had been indebted to the First National Bank of Scott City, one of the defendants, and as security for the payment of the debt had executed a deed to his land which was not recorded, and after Fouts exchanged the land for the furniture store he delivered to A. B. Daugherty, a director of the bank and one of the defendants, a bill of sale of the furniture stock with the understanding that it was to stand as security for Fouts’ indebtedness to the bank, and thereafter Daugherty for the bank took possession of the goods and Fouts continued in the management of the store and assisted in selling goods. The mortgage given by Fouts to the plaintiff recognized the existence of the bill of sale, reciting that it was “subject, however, to Bill of Sale to A. B. Daugherty and amount due First National Bank of Scott City, Ks., and accounts covering same,” and when plaintiff accepted the mortgage he was informed by Fouts that Daugherty had an interest in the goods. About two months after the exchange, and in a few days after the mortgage to the plaintiff was executed, he brought this action to recover possession of the mortgaged property.
It was alleged that Fouts had failed to pay the amount due under the mortgage, and further that the bill of sale to Daugherty was a mere pretense, that the latter had no interest in the property and that he and Fouts, through a secret arrangement, were absorbing the property, and thereby attempting to defraud the plaintiff out of the property to the possession of which he was entitled under his mortgage. At the trial the court on the motion of the plaintiff had those portions of the answers of the defendants following the general denials stricken out as being irrelevant and redundant-matter. In the opening statement counsel for plaintiff recited the facts given, and also stated that the defendants continued to conduct the store without accounting to any one for Fouts’ debt to the bank, selling off the goods from day to day which had originally invoiced $4000 until at the time of the beginning of this suit the stock only invoiced $700, and were fraudulently trying to absorb property which should be ap plied on the plaintiff’s lien. The defendants then moved for judgment upon the opening statement of counsel and on the pleadings, upon the ground that they did not set forth facts sufficient to constitute a cause of action in favor of the plaintiff against the defendants; and the court sustained the motion.
The ruling appears to have been based on the ground that the plaintiff in taking his mortgage subject to the- bill of sale and lien of the bank, for which Daugherty was acting, is es-topped to question the validity of the bank’s claim and lien, although they might have been previously open to attack. The summary action, however, in taking the case from the jury .'and rendering judgment for the defendant upon the pleadings and opening statement of plaintiff, can not be sustained.
The bill of salé-To the bank is in effect a mortgage, and when the plaintiff took his mortgage expressly subject to the lien of the bank,' he estopped himself to deny the validity of the lien. A mortgagee may assert the invalidity of a prior mortgage in order to subject the mortgaged property to a payment of his claim if he has done nothing which operates as an estoppel against him, but if the mortgage which he takes expressly recites that it is accepted subject to a prior mortgage, he can not thereafter attack the validity of the prior mortgage, although it may have been open to attack by the mortgagor. (Burnham v. Citizens Bank, 55 Kan. 545, 40 Pac. 912; Taylor v. Riggs, 8 Kan. App. 323, 57 Pac. 44. See, also, Simpson v. Greeley, 8 Kan. 586; Green v. Houston, 22 Kan. 35; Haxtun v. Sizer, 23 Kan. 310; Case, Bishop & Co., v. D. M. Steele & Co., 34 Kan. 90, 8 Pac. 242; 27 Cyc. 1226.)
While this rule eliminates from the case the averments and statements as to the fraud in the transaction leading up to the execution of the bank’s bill of sale and the possession taken under it, plaintiff is still entitled' to insist that good faith shall be exercised in the handling and sale of the goods, and that after the bank’s debt has been satisfied and the necessary expenses of the sale, the balance shall be applied on the plaintiff’s mortgage.' An allegation in the petition and the statement made by counsel in opening the case are to the effect that Daugherty, who was in possession of the stock for the bank, and Fouts were conducting the business in such a way as to appropriate the entire stock of goods; that the goods taken possession of by the parties amounted in value to $4000, and that the sale had been made until only $700 in value remained; and still no credits had been given on the bank’s claim and no account of the business had been kept. Upon a motion for judgment on averments in the petition and opening statements of counsel, the averments and statements should be liberally interpreted. (Weber v. A. T. & S. F. Rid. Co., 54 Kan. 389, 38 Pac. 569; Rezac v. Zima, 96 Kan. 752, 153 Pac. 500.) Upon those made herein the plaintiff, if he can procure the evidence, is entitled to show that the proceeds of the sale already received by the bank are sufficient to discharge the amount of the bank’s claim against Fouts, that the remaining property is subject to the junior mortgage of plaintiff, but that it is being misappropriated and converted by the defendants and, therefore, the plaintiff is entitled to its possession. Many questions affecting and incident to ownership and the right of possession of property may be considered and decided in actions of replevin. The rights of mortgagees and other claimants in personal property may be determined in replevin and especially where, as here, it is alleged that the prior mortgagees who have gained possession of the property are fraudulently endeavoring to absorb property which should be applied upon the second mortgáge. (McDonald v. Swisher, 57 Kan. 205, 45 Pac. 593.)
(See, also, Gardner v. Risher, 35 Kan. 93, 10 Pac. 584; Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641; Grain Co. v. Harbour, 89 Kan. 824, 133 Pac. 565; Ely v. Holloway, 95 Kan. 8, 147 Pac. 1128 ; Miller v. Thayer, 96 Kan. 278, 150 Pac. 537.)
The averments and statements are not as full and clear as • they might have been made, but they are deemed to be sufficient as against the motion upon which the judgment was given.
The judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
The present legislature passed House bill No. 4, entitled “An act making an appropriation to aid in the improvement of country roads,” appropriating $5000 for the purpose of aiding in the improvement of country roads hereafter improved under the Hodges road law (Laws 1909, ch. 201, Gen. Stat. 1915, § 8815 et seq., as amended by Laws 1911, ch. 249, Gen. Stat. 1915, §§ 8820, 8822-8824), at the rate of $100 for each mile or major fraction thereof of such roads, payable after the allowance of a petition for such improvement by the board of county commissioners. The clerk of Shawnee county presented to the state auditor a voucher for $200 for aiding in the construction and improvement of two miles of the West Tenth avenue road. The auditor refused to honor the claim on the ground that the act is void because violative of section 8 of article 11 of the constitution. The state, on the relation of the attorney-general-, brings this action to compel the auditor to issue a warrant as demanded by the county clerk. The sole question is the constitutionality of the act under which the claim is made.
In the ordinance of acceptance preceding the preamble to the constitution provisions are made for the erection and maintenance of a state university .(§2), for the erection of public buildings (§3), for the erection and maintenance of charitable and benevolent institutions (§4), and for “works of public improvements” (§ 5).
Section 20 of the bill of rights is in these words:
“This enumeration of right's shall not be construed to impair or deny others retained by the people, and all powers not herein , delegated remain with the people.”
Section 1 of article 7 of the constitution requires the state to foster and support institutions for the benefit of the insane, blind, deaf and dumb, “and such other benevolent institutions as the public good may require.” Section 2 enjoins the establishment of a penitentiary. Section 5 of article 11 authorizes the state to contract public debts for “making( public improvements.” '
After all these provisions comes section 8 of article 11, expressly forbidding the state to be a party in carrying on any works of internal improvement. It needs no argument to show that public buildings are not internal improvements, for the former are repeatedly and clearly permitted, while the latter are as plainly prohibited. In the act of admission, approved January 29, 1861 (Gen. Stat. 1915, §§288-292), it was provided that ten sections of land to be selected by the governor be granted to the state for the purpose of “completing the public buildings or for the erection of others at the seat of government” (§ 8, subdiv. 3) ; that five per centum of all sales of all public land lying within the state, which should be sold by congress after the admission of the state into the Union, “shall be paid to said state for the purpose of making public roads and internal improvements, or for other purposes, as the legislature shall direct” (subdiv. 5).
In Leavenworth County v. Miller, 7 Kan. 479, it was held that while the state could not in its sovereign capacity aid in the construction of roads it could authorize its subordinate political subdivisions so to do. The first sentence of the second paragraph of the syllabus may with propriety be quoted here: “The legislature have no inherent power, but all their power is derived from the people through the constitution of the state.” Paragraph 3: “The legislature can not exercise any power retained by the people, or not delegated by the people to the legislature.” It was pointed out in paragraph 13 of the syllabus that—
“The ultimate object of the government in granting municipal aid to railroads is to increase the facilities for travel and transportation ■from one part of the country to the other, which object is, in its nature, a public purpose.”
In the opinion, in discussing section 8 of article 11, it was said:
“The people as individuals are the original elements out of which the state is composed, and each individual is as much a part of the state as any corporation, public or private. And we suppose it will hardly be contended that the people of the state, as individuals, could not engage in any work of internal improvement. But a distinction may be made between the people as individuals, and as organized into corporations. The people as individuals do not obtain their power from' the state; their power is original and inherent, while the power of corporations is obtained entirely from the state, and is purely derivative and delegated. . . . The state, as a state, is absolutely prohibited ■ from engaging in any works of internal improvement. We will con cede that this prohibition does not extend to the building of a statehouse, penitentiary, state university, and such other public improvements as are used exclusively by and for the state, as a sovereign corporation; but it does extend to every other species of public improvement. It certainly extends to the construction of every species of public improvement which is used, or may be used, by the public generally— by any and every private individual who may choose to use it — such as public roads, bridges, etc.” (pp. 492, 493.)
While it may be asserted that these expressions were not essential to the determination of the question before the court, it must be conceded that they voiced the understanding at that time (1871), of the meaning to be ascribed to the words used by the framers of the constitution, when after much discussion, amendment and debate the language of section 8 of article 11 was finally adopted. Mr. Justice Brewer, dissenting from a similar opinion in The State, ex rel., v. Nemaha County, 7 Kan. 542, among other things, said:
“The Constitution creates legislatures, courts and executive. It defines their limits, grants their powers. It should always be construed as a grant. . . . But it is said that it is the duty of the government.to furnish means of communication from one part of the state to another; that in discharging this duty it is not limited to the old-fashioned dirt road, but may make use of the modern appliances for faeiliating such communication, and that if individuals take this duty off its hands, it may properly, out of the public funds, assist these individuals in discharging that duty. It is singular evidence of the existence of this duty, that the people of Kansas, in framing their constitution, forbade the state to discharge it. Article 11, § 8: ‘The state shall never be a party in carrying on any works of internal improvement.’ ” (pp. 554, 570.)
In The State v. Kelly, 71 Kan. 811, 81 Pac. 450, holding the oil refinery act to be in violation of the provision in question, it was said:
“This or similar provisions are found in the constitutions of nearly all the states. The history of those states that have engaged in works of internal improvement under constitutions which contain no such inhibition, as well as those whose constitutions contain provisions authorizing the state to engage in such works, is not only interesting but instructive.” (p. 830.)
After quoting (p. 831) from Attorney General v. Pingree, 120 Mich. 550, the court said:
“As expressed by the attorney-general in his brief, referring to this history of such legislation, ‘this- evolution of the constitution had already taken place and was written history at the time our own fundamental law was framed’; and to this wé may add that the members of our constitutional convention were perfectly familiar with the history of the section now under consideration when they wrote our constitution.” (p. 833.)
In The State v. Lawrence, 79 Kan. 234, 100 Pac. 485, in the concurring opinion by Mr. Justice Benson, it was said concerning the provision prohibiting the conferring of corporate power:
“Another constitutional inhibition is: ‘The state shall never be a party in carrying on any works of internal improvement.’ (Art. 11, § 8.) Concerning this restriction it was said, in The State v. Kelly, 71 Kan. 811, 81 Pac. 450, 70 L. R. A. 450, that no circumstances can arise which will justify its violation by any governmental department. The language of the section under consideration here is as clear, strong, and explicit as that quoted above. Both are wise restrictions upon legislative power, to which all in authority should yield prompt obedience.” (p. 281.)
We are aware that Maryland has taken a different view. (Bonsal v. Yellott, 100 Md. 481.) Turning; however,' to volume 4 of Words & Phrases, p. 3718 et seq., we -find that the term “internal improvement” has been held to include a wagon bridge across the Pla'tte river, public bridges, a water grist mill, an irrigation system, a petroleum pipe line, water power, roads and highways. In Cooke v. Iverson, 108 Minn. 388, certain acts of the Minnesota legislature purporting to appropriate money for the building and repairing of roads and bridges were held unconstitutional for the reason that they violated sections of the Minnesota constitution forbidding the state to be a party to the carrying on of internal improvements, and another section touching the matter of state aid in the construction of public highways and bridges. In regard to the former it was said:
“It is a significant fact that from the adoption of our constitution to the year 1907, with only sporadic exceptions (see Sp. Laws 1868, ch. 140, p. 446), no appropriations were made from the general revenue fund of the state for the construction or repair of roads and bridges, but that all appropriations for such purposes were made from funds accruing from grants of land and other property donated to the state in aid of works of internal improvement within the state; or, in other words, for nearly half a century after the adoption of the constitution the work of constructing and repairing of roads and bridges was left to the counties, towns, and other municipalities of the state, as was the case when the constitution was framed and adopted. This practical construction of § 5, art. 9, of the constitution, and the subsequent amendments we have referred to, are entitled to great weight in considering the validity of the statutes here in question. It is obvious from a mere reading of § 5 that if the term ‘works of internal improvement,’ used therein, includes public roads and bridges, the statutes are void, for they make the state a party in carrying on a work of internal improvement which is forbidden by the constitution. If one furnishes the money and directs the execution of an enterprise, he is a party in carrying it on. Now, when our constitution was framed and adopted, the term ‘works of internal improvement’ was well understood by the people, statesmen, and jurists to include, whatever else was embraced therein, the construction of public highways. . . . When the language of the constitution is positive and free from all ambiguity, courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We just accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.” (pp. 396, 397.)
This decision was rendered in 1909 and its reasoning and language are most applicable here.
We know that rivers like the Kansas and the Marais des Cygnes in times of high water change their channels and cause great destruction along their valleys by reason of their crooked courses. It would seem the most patent and plausible scheme of public welfare for the state to appropriate money to straighten these channels where their bends and sinuosities are so marked. After the flood of 1903, which brought such devastation along the Kansas river, it would have seemed the most natural thing imaginable for- the state to enter upon the work of protecting this great valley from similar disasters in the future. But as the last situation was left to bé' controlled by the formation of a local drainage board, so the two other suggested situations must be left out of the category of things which the state can do, for the all-sufficient reason that in entering upon such task, beneficial as it might be, the state would become a party in carrying on a work of internal improvement.
■ Whether this provision was placed in the constitution because the framers had some regard for the consideration that it would hardly be fair to tax the people of southern Kansas for a road across the northern half, of the state, or whether they were actuated more by the general knowledge of the disasters which had come upon various states of the Union by reason of attempts to carry on works of internal improvement like canals and systems of highways, we know that such an element of unfairness inheres in the matter, that such historical disaster had become known and read of all men, that after great consideration and deliberation the plain words of section 8 were chosen. We also know that for more than fifty years by continued construction and by common consent the power sought to be exercised by the legislature in the enactment of house bill No. 4 has been denied that body. These are the compelling exigencies which confront us and which are so imperative that it would be of no avail to answer in detail the various points and authorities suggested and cited by counsel in their able and admirable presentation of the other view.
It was said by Mr. Justice Allen in In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135, in discussing the separation of the three departments of government under our constitution, that “the advancement in the science of government made in modern times is due to the separation of the three great coordinate • departments.” (p. 6.) Every member of each of these three coequal and coordinate departments of government must, as a prerequisite qualification for the discharge of his duties, take an oath that he will support the constitution of the state of Kansas. (Gen. Stat. 1915, § 6749.) In The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, Mr. Justice William R. Smith, speaking for the court, quoting from Mr. Justice Allen in the Davis case (In re Davis, 58 Kan. 368, 372, 49 Pac. 160), said:
“ ‘The fundamental law embodied in the constitution binds all departments of the government and fixes the limits of their powers. To its mandates all must yield obedience; for it is superior to any and all agencies created under it.’ ” (p. 814.)
Section 8 of article 11 is the mandate of the people in their ' sovereign capacity and must be obeyed.
The writ is therefore denied. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of robbery and appeals.
The assignments of error follow:
“1. The court erred in overruling defendant’s motion to quash the information, on ground of departure from the complaint.
“2. The court erred in overruling the motion to strike out a certain part of the state’s answer to the plea in abatement.
“3. The court erred in overruling the motion of defendant in arrest of judgment.
“4. The court erred in overruling the plea in abatement.
“5. The court erred in overruling defendant’s motion for a new trial.
“6. That the verdict of the jury is not sustained by the evidence.”
The complaint served merely as the basis for a, warrant, and its function was completely exhausted when the warrant on which the defendant was arrested was issued. An information is framed according to the facts developed at the preliminary examination, and no rule of law requires it to correspond to the complaint.
The plea in abatement asserted that the defendant had not had a preliminary examination on the charge contained in the information. The trial occurred and the verdict was returned on Novembér 30. The plea in abatement was filed on December 2. The plea came too late. It should have been tendered when the defendant was arraigned- Some statements of fact were inserted in the plea by way of excuse for not filing it earlier. The facts were within the knowledge of the court itself, and presumably the statements did not correspond to the facts. Apparently the court considered the plea far enough to ascertain that the defendant had not been prejudiced, but the journal does not disclose the ground for overruling the plea,- and the fact that the plea was filed too late is sufficient ground. The plea having been filed too late, it is not material what the state’s answer to the plea contained.
The evidence, although not very strong, was sufficient to establish each ingredient of the crime charged in the information and the motion for a new trial was properly overruled. The motion in arrest of judgment was not based on either of the grounds specified in the statute (Crim. Code, § 277), and was properly overruled.
The judgment of the district court is affirmed. | [
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The opinion of the.court was .delivered by
Marshall, J.:
The plaintiffs appeal from a judgment sustaining a demurrer to their amended petition.
The amended petition sets out a valid written contract between plaintiff George B. Parks and defendant H. W. Monroe,, for the exchange of lands. The contract, dated April 8, 1915, provided that defendant H. W. Monroe should deed to plaintiff George B. Parks, certain lands in Mitchell county, Kansas; that Parks should deed to Monroe certain lands in Howell county, Missouri; that Parks should assume a $7500 mortgage on the Kansas land and pay to Monroe the sum of $2400; that the deeds should be delivered and the $2400 be paid on November 20, 1915; that Monroe should occupy the Kansas land until that time, and should pay, as rent to Parks, certain named shares of the crops to be grown thereon; that each party should furnish an abstract “down to date,” and should “make a perfect title to the land he conveys”; that Monroe should have until April 15, 1915, to inspect the Missouri land, and, if it should be found as described in the contract, all papers necessary to comply therewith should at once be executed..
The amended petition alleges that Monroe inspected the Missouri land and found- it as described, and alleges that the Missouri land is, in fact, as described in the contract. The amended petition further alleges :
“And said defendants have orally informed and notified, plaintiffs that they will not execute said deed or furnish said abstract and they do not intend to and will not pay plaintiffs any rents whatsoever for said premises and have stated that so far as they, the said defendants, are concerned said contract is at an end. . . . The plaintiffs have duly performed all of the conditions of said contract on their part to be performed up to this time and are now standing willing, ready and able to complete the performance of said contract on their part, and now offer to bring said deed and abstract to said Missouri land and said $2400.00 into court to be delivered to the defendants, upon their executing and delivering to the plaintiffs a sufficient deed and abstract for said Mitchell county lands and upon their paying said rents to said plaintiffs as provided in said contract. . . . That if an exchange of said properties as contemplated by said written agreement is not effected the said plaintiffs will be damaged in the sum of $2000.00.”
The amended petition also alleges that the plaintiffs, George B. Parks and Sena M. Parks, are husband and wife, and that the defendants, H. W. Monroe and Effie Monroe, are husband and wife.
The plaintiffs ask for specific performance of the contract, or, if that can not be given, for damages in the sum of $2000. The original petition was filed July 1, 1915.
1. Does the amended petition state a cause of action? The defendants urge that the action was prematurely brought for the reason that it was commenced before the time fixed for the delivery of the deeds and the payment of the $2400. In 36 Cyc. 771, the rule governing this proposition is stated as follows:
“An action by the vendor before the time fixed for payment is premature; and where conveyance is not to be made until payment, the vendee usually can not maintain his bill until payment is due; but where the vendor has repudiated the contract, the purchaser is entitled to sue at once, although the time fixed for complete performance has not arrived.”
In Miller v. Jones, 68 W. Va. 526, the court said:
'“A party to a contract, enforceable in equity, may sue to establish his fights thereunder as soon as the other contracting party has repudiated it, notwithstanding the time for full performance may not have arrived.” (p. 527.)
This principle is supported by Bear v. Fletcher, 252 Ill. 206; Belanewsky v. Gallaher, 105 N. Y. Supp. 77; and 3 Elliott on Contracts, § 2341.
When a contract is repudiated by one of the parties thereto the other party has a right to take such steps as he may deem necessary to protect himself against loss or damage because of such repudiation. The law imposes-on him the duty of acting promptly, and if he does not so act he can neither have specific performance nor collect damages, but will be held to have acquiesced in the repudiation of the contract. (Fowler v. Marshall, 29 Kan. 665; 36 Cyc. 728.) When defendant Monroe repudiated his contract with plaintiff Parks the latter had a right immediately to commence an action to compel specific performance of the contract, or, in the event that specific performance could not be had, to recover the damages sustained by reason of such repudiation.
The action was not prematurely brought, and the amended petition, therefore, states a cause of action. The demurrer to the amended petition should have been overruled.
2. A demurrer was sustained to the original petition. The plaintiffs were then granted leave to file an amended petition. A demurrer was lodged against the amended petition. That demurrer is the one that is'now before this court. The defendants contend that because the judgment on the demurrer to the original petition was not appealed from that judgment is binding and conclusive and prevents a review of the judgment sustaining the demurrer to the amended petition. This contention is without merit. " The judgment on the demurrer to the original petition is not before this court and is not subject to review. The judgment appealed from is the one sustaining the demurrer to the amended petition. The judgment on the original petition did not bind the trial court on the hearing of the demurrer to the amended petition, and does not bind this court.
The judgment is reversed. The cause is remanded with directions to the trial court to overrule the demurrer to the amended petition. | [
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The opinion of the court was delivered by
Mason, J.:
The Wichita Natural Gas Company is a corporation owning a pipe line extending from Cushing, Okla., on the south, to Hutchinson on the west and Iola on the east, through which it supplies a number of cities and towns and factories with natural gas. On May 24, 1913, it entered into a written contract with Bell Brothers & McDonald and Williams & O’Dell, by which on certain conditions it agreed to pay at the rate of three and one-half cents per thousand, feet for dry and merchantable gas to be furnished to it by them, the minimum amount to be 5,000,000 cubic feet daily. The company paid for all the gas it used, but beginning with the month of November, 1914, it did not use the full amount of the prescribed minimum. On April 7, 1914, two actions were brought against the company upon the contract, one by Seth Ely, who, by assignment, had succeeded to the rights of Williams & O’Dell, and the other by Bell Brothers & McDonald, the purpose of which was to charge it with liability at the rate of $175 a day (that being the daily charge for 5,000,-000 feet, at three and one-half cents a thousand) less what it had paid, for the months of November and December, 1913, and January and February, 1914, the division between the plaintiffs not being in dispute. By supplemental petitions similar claims were made for each month up to and including January, 1915. The company defended upon the ground that its refusal to accept and pay for as much gas as the contract called for was justifiable because it was due to the fact that the gas furnished was of low grade, unmerchantable, and unsuited to its purpose. The plaintiffs recovered judgments aggregating $54,600.74, and the defendant appeals.
1. The actions were brought on the theory, which the trial court sustained, that the contract referred to was an executed contract, that the title to the gas had passed to the defendant, and that the plaintiffs were therefore entitled to recover the agreed purchase price. The defendant maintains that the contract was executory, that the title to the gas passed only as it was delivered and accepted, and that even if its defense based on the quality of the gas is not established, its liability is limited to such damages as the plaintiffs have suffered by reason of its failure to perform its agreement to take and pay for a fixed amount of gas. This phase of the controversy must be determined largely from the language of the contract, which read as follows:
“This contract and memorandum of agreement made and entered into this 24th day of May, 1913, by and between Bell Brothers and McDonald, a copartnership, of Robinson, Illinois, party of the first part, and Williams & O’Dell, a copartnership, of Evanston, Illinois, party of the second part, and the Wichita Natural Gas Company, a corporation, hereinafter called the vendee, party of the third part, witnesseth:
“That whereas, party of the first part owns and controls certain leases and gas production in Township Thirty-three (33) North, Range Ten (10) East, Chautauqua County, Kansas, (known as Summit Township) [which adjoins that in which Sedan is situated] and propose to acquire other leases and develop gas production in said Township, and desire a market for gas so owned and produced, and,
“Whereas, party of the second part now owns and controls certain gas leases and gas production in the same said Township Thirty-three (33) North, Range Ten (10) East, Chautauqua County, Kansas, (known as Summit township) and proposes to acquire further leases and develop additional production of gas in the same territory, and desires a market for its present production and the production it may acquire as aforesaid, and,
“Whereas, said Wichita Natural Gas Company, party of the third part, owns and controls certain pipe-lines' for the transmission of natural gas and desires to purchase gas for distribution;
“Now therefore, this agreement witnesseth: That the parties hereto for and in consideration of the covenants and agreements hereinafter set forth and contained, as well as of the mutuality hereof, have covenanted, promised and agreed to and with each other as follows:
“first.
“Parties of the first and second part agree to secure all necessary rights-of-way for a pipe-line to be built by the vendee, as hereinafter set out, connecting the said vendee’s present pipe-line to the territory where the leases and production of the parties of the first and second part are located, as above set out, and to secure for the said vendee sufficient land for the location of a pump-station at such places as the vendee shall designate, the actual cost of the said rights-of-way and land so secured is to be borne by the vendee. Said parties of the first and second part shall at all times acquaint the vendee of the cost and expense necessary and occasioned in the securing of said rights-of-way and land.
“second.
“The vendee agrees to begin the laying and construction of a six-inch, pipe-line and gas pumping station upon the right-of-way and land indicated in the foregoing paragraph, together with necessary field lines, or the equivalent of a six-inch diameter as a main truck or gathering line, with branches of smaller size, to the wells of the parties of the first and second parts, within the territory above described. It is understood that the plant is to be so constructed as to have a capacity to handle a minimum of Five Million (5,000,000) cubic feet daily of two (2) pound gas, based on an intake pressure at the compressor station of one hundred (100) pounds. The station and plant to be of ample proportions to deliver the said minimum quantity of gas against such pressure as may be existing in the main pipe-line of the said Wichita Natural Gas Company.
“third.
“Party of the first part agrees to sell unto the vendee, and to deliver into its pipé-line system, through orifice meters, as hereinafter set out, all the gas produced or acquired within the above mentioned territory, subject to the limitations as to quantity as hereinafter set out; and party vendee agrees to pay for such dry and merchantable gas so furnished, three and one-half (3%) cents per thousand cubic feet of two-pound gas.
■ “FOURTH.
“Party of the second part agrees to sell unto the vendee, and to deliver into its pipe-line system, through orifice meters, as hereinafter set out, all the gas produced or acquired within the above mentioned territory, subject to the limitations as to quantity as hereinafter set out; and party vendee agrees to pay for such dry and merchantable gas so furnished, three and one-half (3%) cents per thousand cubic feet of two-pound gas.
“fifth. .
“The vendee agrees that the total amount of gas purchased from both first and second parties shall be a minimum amount of Five Million (5,000,000) cubic feet daily, providing, the said parties of the first and second part kept their open flow capacity six (6) times or more in volume the quantity which the said vendee is drawing from the parties of the first and second parts; that is to say, for example, that the parties of the first and second parts are to have a combined open flow of Thirty Million (30,000,000) cubic feet before the vendee is obligated to take Five Million (5,000,000) cubic feet daily. It is distinctly understood and agreed that the vendee shall take gas from the party of the first part and the party of the second part in such proportion as the open flow capacity of each party is to the total required open capacity; that is to say, for example, if each of the parties first and second part, has Fifteen Million (15,000,000) cubic feet open flow capacity of the wells, then the vendee is to take one-half (Vz) of the Five Million (5,000,000) cubic feet minimum from each party, and thus, as the open flow capacity of the party of the first part and party of the second part varies, so will vary the difference of the amount of gas taken by the vendee from the parties of the first and second parts.
“Provided, the gas production of the parties of the first and second parts hereto is capable of delivering its said proportion into the pipe line of the vendee against the intake pressure whatever it may be.
“It is further agreed that in the event either the party of the first part or the party of the second part can not furnish its proportion of open flow capacity, then the vendee shall have the right to take the balance from the other party, and in case'both parties of the first and second parts cannot furnish the minimum of Thirty Million (30,000,000) cubic feet open flow and Five Million (5,000,000) cubic feet of gas per day, then the vendee shall have the right to purchase gas within the said territory from an outside party, or parties.
“sixth.
“The vendee shall maintain and keep in proper repair such orifice meters, of a suitable size and of such a type as vendee shall select and approve, which said meters shall be placed at such places and in such manner as vendee shall deem proper and necessary.
“seventh.
“That as often as once a day, after said vendee begins taking gas under this contract, it shall cause all meters to be carefully and accurately read by some competent and duly accredited agent or employe, and during the term of this contract, shall keep, at its office, an accurate, correct and permanent record of said readings, and shall forward, by United States mail to party of the first part and party of the second part, on or before the second day of each week, a correct statement of the amount of gas taken by or delivered to it during the preceding week from the party so informed, and the said parties of the first part and second part shall have access to said records at all times, during business hours, for the purpose of ascertaining the amount of gas which has been or is being taken and delivered under this contract.
“Each and every successive reading of any meter shall be final and conclusive upon both parties, unless objections, in writing are made by one of the parties hereto and served upon the vendee, at its office in Bartlesville, Oklahoma, within ten days after the reading complained of was taken, stating specifically the particulars of such objections and identifying the meter against which complaint is lodged, in which case the reading of the meter so objected to shall not be conclusive, but shall remain open for readjustment from the testing of such meter.
“It is further agreed that the meters so furnished and used shall be kept in such good working order and efficiency that they will register within three (3) per cent of the actual amount of gas passed through them. In case a meter shall be found defective, or ceases to register until the same can be repaired or replaced, the quantity of gas delivered shall be ascertained by the average of another meter, or by the amount delivered for the same service during a succeeding corresponding period. In the event of the party of the first or second parts dissatisfaction with the accuracy of the meter, the vendee will, upon written application at its office, have, within fifteen days, the same tested in place, or if necessary, removed to the shop and tested. In the event party of the first or second parts complain of the meter, and cause a test to be made as above mentioned, and same shall be found to be within three per cent correct, then the party complaining shall pay the cost and expense of having the test made.
“eighth.
“All bills for gas delivered hereunder shall be due on the Twentieth (20th) day of the month following that in which the gas was furnished, and all payments of such bills shall be made, either by check of the vendee, or by draft, on or before the Twenty-fifth (25th) day of the month following that in which the gas is delivered.
“ninth.
“The vendee shall not be liable to the party of the first part, or the party of the second part, or to any person whomsoever, for any damage, injury or loss arising, or resulting from said gas, or the use thereof, before it passes through the meters herein provided for.
“tenth.
“In consideration of the purchase of the gas as herein provided for, party of the first part agrees for itself, and party of the second part agrees for itself, not to sell any gas produced within this said mentioned territory to any other person or party than the vendee named herein; and the said vendee agrees not to purchase gas from any other person or party than the party of the first part, and the party of the second part, unless they fail to deliver the said minimum of Five Million (5,000,-000) cubic feet daily capacity. . ...
“Eleventh.
“It is understood and agreed that this contract shall be binding upon the parties hereto, their heirs, successors and assigns for as long as the field covered as above set out will produce gas in quantities and under conditions that render it profitable to both parties to produce and transport it.
“twelfth.
“Parties of the first and second part acknowledge that the transportation of gas over long distance, and the operation of compressor plants, are subject, to accident, interruption, labor troubles, and other difficulties, and the said vendee, by this contract, only obligates itself to carry out the terms thereof in so far as it can reasonably do, subject always to strikes, accidents and casualties beyond its control.
“thirteenth.
“Parties of the first part and second part in further consideration of the covenants and stipulations herein contained, agree to proceed without delay to further drilling operations, in a bona fide effort to increase, at as early a date as possible, the open flow production of gas to Thirty Million (30,000,000) cubic feet per day.
“fourteenth.
“Vendee agrees that upon the signing and delivery of this agreement by all the parties thereto, that it will proceed to the construction of its pipe-lines and the laying of the gas line as proposed herein, by placing orders for material and using all due diligence necessary to a speedy installation of the plant as hereinbefore set out.
“fifteenth.
“It is agreed that time is and shall be of the essence of this contract.”
The trial court, in its findings of fact, describes the contract as one “selling” certain gas. The document itself speaks of the parties of the first and second part as agreeing “to sell” and deliver the gas. (Third and fourth paragraphs.) But language used by the parties to designate the transaction is not conclusive. (35 Cyc. 276.) It seems quite clear, however, that the contract did not contemplate an immediate passing of the title to any of the gas. The agreement of the company that the amount purchased should be a minimum of 5,000,000 cubic feet was conditioned upon an extent of production that might never have been reached. When the contract was signed the plaintiffs had four producing wells. When gas was turned into the defendant’s line, in October, 1913, they had seventeen or eighteen, producing 65,000,000 feet, open flow. The plaintiffs contend that by providing a number of wells sufficient to produce the flow (30,000,000 cubic feet) necessary under the contract to entitle them to require the company to take the 5,000,000 feet daily minimum, they had in effect reduced the gas to possession — converted it into personal, property ready for delivery, and that the situation was brought within the rule by which, under a contract for the sale of goods not in existence but to be produced by the seller, the title is ordinarily deemed to pass as soon as the contract comes to relate to specific ascertained goods. (Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181.) The rule referred to is not absolute, being merely a. guide to assist in ascertaining the real intention pf the parties, which is the controlling element. (Note to case last cited, 50 L. R. A., n. s., 111.) We do not think the bringing in of any number of wells, whatever their production, can be regarded as reducing to possession all the gas within a designated area, or as converting it into personalty, or into specific ascertained property. The quantity can not be definitely determined, and there is always the possibility of its escaping or being diverted through wells drilled on other land. (See citations collected in Kansas Natural Gas Co. v. Haskell, 172 Fed. 545, 563; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; Thornton, The Law Relating to Oil and Gas, 2d ed., §§ 21, 22.) Decisions are cited in behalf of the plaintiffs to support the proposition that oil and gas become personal property “when discovered and reduced to possession either in the wells or in pipes or tanks.” None of them, however, extends the principle to gas in place, although an outlet through wells has been provided. In typical instances the language of the court was:
“Petroleum oil is a mineral, and while in the earth it is part of the realty, and should it move from place to place by percolation or otherwise, it forms part of that tract of land in which it tarries for the time being, and if it moves to the next adjoining tract, it becomes part' and parcel of that tract; and it forms part of some tract, until it reaches a well and is raised to the surface, and then for the first time it becomes the subject of distinct ownership separate from the realty,, and’ becomes personal property, the property of the person into whose well it came. And this is so whether the oil moves, percolates, or exists in pools or deposits. In either event, it is property of, and belongs to, the person who reaches it by means of a well, and severs it from the realty and converts it into personalty.” (Kelley v. The Ohio Oil Co., 57 Ohio St. 317, 328.)
“The peculiar, wandering character of gas and oil precludes ownership in their natural state, and hence they are not the subjects of sale and conveyances until they have been reduced to possession and placed under control by being diverted from their natural paths into artificial receptacles.” (New American Oil, etc., Co. v. Troyer, 166 Ind. 402, 411.)
Other features of the contract tend to sustain the view that it was executory — that the plaintiffs undertook, to sell gas to the defendant as it was furnished, rather than to transfer title in the mass. The preamble recited that they proposed to acquire other leases than those they then held, and to develop additional production^ and that they desired a market for their present and future production. They were not limited in their opera tion to what they already possessed. If they at any time had found themselves unable to furnish 5,000,000 cubic feet of gas from their then holdings the contract clearly authorized them to deliver to the defendant gas obtained under new leases.
The provision of the contract (tenth paragraph) that the plaintiffs should not sell gas from the territory described to any one but the defendant, whether valid or otherwise, carries no implication that the title had already passed from them. They could contract not to sell property which they owned, just as they could contract to sell it. Indeed, if they no longer had title their agreement that they would not make a sale elsewhere was entirely superfluous.
It would serve little' purpose to undertake a review of cases arising under contracts relating to the sale of different kinds of products or merchandise. Their analogy to the present case in most instances is incomplete. As there was no way of ascertaining the quantity of gas underlying the tracts covered by the plaintiffs’ leases, or tapped by their wells, or of segregating or measuring any part of it except as it should be stored in pipes or tanks, we think the title passed only as delivery was made and measurement had, and the contract remained executory except as to the gas actually delivered. This conclusion of course interposes no obstacle to a Recovery by the plaintiffs of any damages they may have suffered by the defendant’s breach of the contract, a remedy just as adequate as that sought in these actions, although involving a more complicated inquiry for its enforcement.
2. The trial court made a number of findings of fact, among which were the following, which bear upon the issue whether the quality of the gas was such that the defendant was justified in refusing to accept and pay for it, in other words whether the gas was “merchantable” within the meaning of that word as used in the contract:
“The gas produced by plaintiffs in the Sedan field and which was sold to defendant was dry -gas and contained from 500 to 550 B. T. U’s. [British Thermal Units] per cubic foot.
“The balance of the gas purchased by defendant to supply its customers or produced by itself for like purposes contained! about 1000 B. T. U’s. per cubic foot.
“The gas produced by plaintiffs burned satisfactorily and made good heat and light when not mixed with other gas.
“The gas produced by plaintiffs, when run into pipe-lines along with gas containing 1000 B. T. U’s. resulted in a variable igas that did not burn satisfactorily or give good light or heat, but Would frequently go entirely out after being lighted.
“The two grades of gas did not mix thoroughly when run into the pipeline together, owing to the variation in pressure maintained in the line, so that part of the time the high grade gas was going through the mixers of consumers and part of the time the low grade was going through, and the change from one kind to the other, each requiring a different air adjustment of the mixers, caused the fires to go out.
“Natural gas possessing 500 B. T. U’s. per cubic foot has a commercial value in Sedan, Kansas, and vicinity, and is reasonably fit for use as fuel and light.
“At the time of entering into the contract referred to in finding No. 1, none of the parties knew anything about the variation of igas in southern Kansas and Oklahoma in heat units, nor was anything known about it by any of the parties at the time of the assignment of Williams and O’Dell to Seth Ely.
“It was known to Bell Bros. & McDonald, and Williams and O’Dell at the time of making the contract referred to in'finding No. 1, and to the assignee of Williams and O’Dell, Seth Ely, ever since acquiring an interest in the contract, that defendant was purchasing the gas from them for sale and distribution to gas consumers in Kansas, through a system of pipelines.
“There was no express or implied warranty in the contract in question that the gas sold to defendant would mix with a gas of a different number of heat units so as to give a satisfactory result to consumers of The Wichita Natural Gas Co., although, as a matter of fact, such gas would mix under a constant pressure in the pipeline so as to give a satisfctory' result to consumers.
“The Public Utilities Commission made an order that no gas of less than 800 B. T. U’s. should be sold to consumers in Kansas [except by permission of the commission].”
While no finding was made to that effect, it is agreed that the enforcement of the order of the utilities commission referred to was enjoined by the district court of Shawnee county, in an action brought by Seth Ely, and that no appeal was taken from the judgment in that case. The trial court in the present cases stated as conclusions of law that the order of the utilities commission, forbidding the sale without its consent of gas containing less than 800 British thermal units, was void, being in excess of its authority, and that the gas produced by the plaintiff was merchantable within the meaning of the contract. The authority of the utilities commission to regulate the sale of natural gas of a low heat-producing quality need not be considered. The order that was made must be disregarded at least i as to plaintiff Ely, since its enforcement against him has been enj oined. The question to be determined is whether under the findings the gas furnished by the plaintiffs met the requirement as to merchantability.' The contract is to be interpreted in the light of the fact that all parties knew the use that was to be made of the gas — that it was to be distributed through a system" of pipe lines for sale at distant places — and must be deemed to have entered into the agreement in contemplation of that use. Evidence was given in behalf of the defendant that it received many well-founded complaints, which it attributed to conditions resulting from the quality of the gas furnished by the plaintiffs. The substantial acceptance by the trial court of this portion of the testimony is shown by the finding that this gas, when run into pipe lines with that of a higher heat-producing quality, resulted in a variable gas, which did, not burn satisfactorily, but would frequently go entirely out after being lighted. The findings that this happened because the two grades of gas were not thoroughly mixed, that this was due to the variation in pressure maintained in the line, and that the maintenance of a constant pressure would result in a mixture that would avoid the difficulty, imply that the court held it to be incumbent upon the defendant, in a reasonable effort to market the gas obtained from the plaintiff with that procured from other sources, to bring about a complete mixture of the two grades of gas by subjecting them to a constant pressure. No finding was madé as to the amount of trouble or expense this would occasion, and in support of the judgment the plaintiffs are entitled to the most favorable construction the evidence will bear on this point. But apart from any question of the obligation of the defendant to make any special provision to enable it to handle this particular gas, the matter is affected by another consideration. We do not think gas can be said to be “merchantable” within the meaning of this contract, merely because it will burn, and is capable of producing light and heat, and can be sold and used for that purpose. The term quoted usually carries an implication of quality — that the article to which it is applied conforms to ordinary and reasonable standards— that it .is substantially of the áverage grade or value of simi lar goods sold in the same market. “Where it is provided that the articles sold shall be ‘merchantable,’ the articles must be of a quality such as is generally sold in the market and suitable for the purpose for which they are intended, although not of the best quality.” (85 Cyc. 219.) Webster’s definition is “fit for market; such as is usually sold in market, or such as will bring the ordinary price.” Black’s Law Dictionary gives: “Fit for sale; vendible in market; of a quality such as will bring the ordinary market price.” “In mercantile contracts, the term denotes the stableness of the goods, and signifies ordinary quality or medium quality of goodness, salability, etc.” (27 Cyc. 481, Note 41.) It has been held to mean “such as could be sold in the market at the usual and ordinary price.” . (Walton & James v. Black, [5 Houston] 9 Del. 149. To the same effect see Liston v. Chapman & Dewey Land Co., 77 Ark. 116; The Atkins Bros. Co. v. Grain Co., 119 Mo. App. 119.) We think the word must in the present case be construed as relating to the grade of the gas, and as requiring such a quality as could be sold at the ordinary price, without abatement for its failure to measure up to the general standard. The gas procured by the defendant from other sources contained about 1000 British thermal units; that furnished by the plaintiffs but 500 or 550. The latter, therefore, had but little over half the heat-producing value of the gas ordinarily used for the same purposes. Regardless of any order of the utilities commission, the defendant could not fairly and rightfully sell such gas to its customers for the same price charged for the ordinary gas, which was of nearly twice its Value to the user. The defendant was contracting for gas that reasonably and substantially corresponded in grade with that generally handled in the territory in which it operated. The parties can not be regarded as having contemplated that the defendant was to be put to the necessity of either selling this product to its customers at a less price than it charged for ordinary gas, or of mixing it in with all its other supply, thereby producing a homogeneous mixture of intermediate value to be sold at a reduction corresponding to the infusion of inferior gas, or at the original flat rate, which would be unfair to the consumer. We can not regard the defendant as having assumed an obligation that bound him to either of these lines of conduct. Nor are the rights of the parties affected by the fact that the general knowledge of the tests by which the heat-producing quality of a gas is determined in ^British thermal units has been developed. since the contract was entered into. The defendant agreed to take and pay for merchantable gas — gas of approximately average quality. If that offered was actually of inferior grade the circumstance that the means for discovering the fact were not presently at hand could not prevent its taking advantage of later information on the subject. The findings that the gas produced by the plaintiffs contained not more than 550 British thermal units per cubic foot, while that from other sources contained about 1000, compels the conclusion as a matter of law that it was not merchantable within the meaning of the contract, and the defendant can not be held liable for refusing to take and pay for it.
The judgment is therefore reversed, and the cause remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff was injured while in the employ of the defendant, who was engaged in business as The Kansas City Second Hand Barrel Company. At that time the defendant had in his employ from ten to twenty men who were en gaged in the work of making and repairing barrels. No mechanical power was used in the plant. Each workman used his own tools, consisting of an adz and driver, or hammer, and nails. Plaintiff’s injury was caused by a barrel falling upon him. The barrels were in piles of four, one on top of the other, and the top one fell over in some manner and struck the plaintiff. The action was brought to recover compensation under the workmen’s compensation law. There was a judgment in favor of the plaintiff in the sum of $2088.
The sole contention of the defendant at the trial was that his business was not subject to the provisions of the compensation law, and the only question raised by the appeal is whether an enterprise such as defendant carried on in making and repairing barrels by hand, where no power or machinery is used, comes within the provisions of the compensation law.
The title of the act known as the compensation law is, “An Act to provide compensation for workmen injured in certain hazardous industries.” Section 1, so far as applicable here, reads :■
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act.” (Laws 1911, ch. 218.)
The title of the act shows that it is not a general law, but was to apply to certain hazardous industries; section 1 of the act likewise indicates that the act was intended to apply only to certain employment deemed to be especially dangerous.
Section 6 (as amended by Laws 1913, ch. 216, § 2), reads:
“Application of the act. This act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain; each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. This act shall not apply in any case where the ac cident occurred before this act takes ■ effect, and all rights which have accrued, by reason of any such accident, at the time of the publication of this act shall be saved the remedies now existing therefor, and the court shall have the same power as to them as if this act had not been enacted. Agricultural pursuits and employments incident thereto are hereby declared to be non-hazardous and exempt from the provisions of this act.”
The act was passed, as every one knows, because there was a demand for it based upon the conviction that in certain inherently dangerous employments the common-law remedies afforded an employee for injuries were inadequate.
“In the enactment of the compensation law the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust and therefore a substitute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversies and litigation and place the burden of accidental injuries incident to such employments upon the industries themselves, or rather upon the consumers of the products of such industries.” (McRoberts v. Zinc Co., 93 Kan. 364, 366, 144 Pac. 247.)
It is quite obvious that at the place where the plaintiff was employed when he received his injury there was no extra hazardous or dangerous situation which of itself would call for an application of the compensation law. The injuries to which he was subject by his employment were those likely to be encountered by a workman employed in any place where boxes are piled one above another, as in a shoe store, grocery or dry goods store, storage house or in a transfer business. If there were room for doubt about the question, it is settled by section 9 of the act, in which the legislature defines a factory in these words:
“(b) ‘Factory’ means any premises wherein power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or renovating any article or articles for the purpose of trade or gain or of the business carried on therein, including expressly any brick yard, meat-packing house, foundry, smelter, oil refinery, lime burning plant, steam heating plant, electric lighting plant, electric power plant, and water power plant, powder plant, blast furnace, paper mill, printing plant, flour mill, glass factory, cement plant, artificial gas plant, machine or repair shop, salt plant, and chemical manufacturing plant.”
We think it is clear that by the word “power” the legislature did not intend to include hand power, but had reference to mechanical power. The plaintiff makes the contention that before the court can so determine it must indulge in legislation. We do not think so. It is only necessary to use ordinary common sense in order to arrive at the intent of the'legislature. The context of the act shows that the word “power” must necessarily have reference to energy developed by machinery. If hand power were intended to be included the legislature would have omitted the use of the word “power” entirely, and would have merely declared that “factory” means any premises used in “manufacturing, making, altering,” etc. Besides, in this section the legislature specifically includes the following industries:
“Any brick yard, meat-packing house, foundry, smelter, oil refinery, lime burning plant, steam heating plant, electric lighting plant, electric power plant, and water power plant, powder plant, blast furnace, paper mill, printing plant, flour mill, glass factory, cement plant, artificial gas plant, machine or repair shop, salt plant, and chemical manufacturing plant.”
We all know that every one of these industries uses in some manner mechanical power, or there are in operation dangerous machines such as saws, moving belts and revolving cylinders; or there are present other conditions inherently dangerous to the life and limb of the workman.
The case of De la Gardelle v. Hampton Co., 153 N. Y. Supp. 162, cited in the defendant’s brief, is somewhat analogous to the present case. There, a person, who was employed as a butcher at a hotel, was fatally injured by the slipping of a knife with which he was boning a leg of mutton. A claim for compensation was made by the widow under groups 30 and 33 of section 2 of the New York compensation act, which read:
“Group 30. Packing houses, abattoirs, manufacture or preparation of meats, or meat products, or glue.
“Group 33. Canning or preparation of fruit, vegetables, fish, or foodstuffs; pickle factories and sugar refineries.”
It was held that the sections of the act enumerating and defining hazardous employments could not be regarded as covering the employment in which the deceased was injured. In the opinion it was said:
“Within the employments determined by the legislature to be ‘hazardous,’ and consequently designated by it as embraced within the purview of the statute, the latter should be beneficially construed to effectuate the legislative purpose; but it is no function of this court to extend by judicial determination the category of occupations entitled to the protection of the statute.” (p. 163.)
This court has always recognized the obligation resting upon it to give to the compensation law a liberal construction in order to carry into effect the provisions of the legislature, but w'e have no right to extend its construction to cover enterprises and industries not within the scope and intent of the law. We think it very clear that the enterprise carried on by the defendant was not a factory within the meaning of the compensation law. The plaintiff cites the case of Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, where the court held that a junk yard, wherein railroad iron, old stoves, etc., were cut up into lengths, came within the definition of a manufacturing establishment as defined by the factory act imposing a duty to safeguard machinery. In that case the junk yard was equipped with machinery for operating “alligator” shears, which were used to cut scrap iron. Power was transmitted by a belt from a pulley on a line shaft to another pulley on the machine. It was held that the conversion of the raw material was accomplished by means of machinery especially designed for that purpose, and that the place came within the definition of a “manufacturing establishment” in the factory act. In the compensation, act the legislature has defined what it means by a “factory” as “premises wherein power is used in manufacturing, making, altering, adapting,” etc. The two cases are not in any respect the same.
The judgment will be reversed, with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one of habeas corpus. At the trial, the petitioner discovered that a matter required to be of record in another proceeding, but which did not appear of record, was essential to his case. He moved that the record be supplied mine pro tune. The court declined to receive evi- ' dence in support of the motion, and the petitioner appeals.
The petitioner was convicted of violating the prohibitory law, and was paroled. The term of the judge who presided over the court when the parole was granted expired, and his successor revoked the parole. The petitioner sought release from custody on the ground he had been absolutely discharged by the former judge. The statute requires that absolute discharge shall be by order of record, the terms of which are specified. (Gen. Stat. 1915, § 3012.) No such record could be produced, and the petitioner then sought to inject into the habeas corpus proceeding a proceeding to supply the record in respect to a transaction in another cause concluded before the trial judge took office. Manifestly it was within the discretion of the court to refuse to permit this to be done.
The petitioner says it was an important thing whether or not the court had ordered his absolute discharge. It was important, and so important, that proof of the fact should have been looked up and made ready for presentation before the habeas corpus proceeding was brought on for trial. Furthermore, the matter was so important that the court had the right to decline to consider it until the application was made in the cause to which it pertained and was set down for hearing independently on its merits in the regular way.
The judgment of the district court is affirmed.
The same question is presented in the case No. 20,610, In re McCollough, and the judgment of the district court in-that case is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Rose Malaney brought an action to recover an interest in land which the record showed to have been conveyed by Noah Cameron to his two sons, Allen and Huber, on the ground that the deeds were not delivered until after the ■death (intestate, and without other heirs than those named) of the grantor, and that she was entitled to a part of the property as his adopted daughter. Judgment was rendered against her, and on an appeal it was decided that the evidence sustained the finding of the trial court, that the deeds'had been delivered in the lifetime of Noah Cameron, and were therefore effective. (Malaney v. Cameron, 98 Kan. 620, 159 Pac. 19.) It was also determined that there had been no legal adoption of the plaintiff, and inasmuch as these conclusions were regarded as settling the controversy, no decision was made of the question whether a contract to adopt had been entered into and so far acted upon as to give her a valid claim against the estate. In a petition for a rehearing it was urged that even conceding the title to the land to have passed by the deeds, the plaintiff was entitled to an interest in the portion conveyed to Huber Cameron, because he had since died intestate, survived by neither parent nor child, nor by any brother or sister other than Allen Cameron. For a consideration of this contention a rehearing was granted.
In behalf of the plaintiff it- is argued that she was entitled to the rights of an adopted child of Noah Cameron; that the statute (Gen. Stat. 1909, § 2954) declares that on the death of Huber - Cameron his property should be disposed of as though, his father had outlived him, and died in its possession and ownership; that if Noah Cameron had owned this property at the time of his death the plaintiff -could have enforced her claim against it; therefore she can do so now. In support' of this view it is urged that, although under our law a brother is conceived as inheriting directly and not mediately from a brother (The State v. Ellis, 72 Kan. 285, 83 Pac. 1045), he takes his distributive share of the estate subject to any existing equity in favor of the estate against the parent through whom he inherits (Head v. Spier, 66 Kan. 386, 71 Pac. 833).
1. If the plaintiff were the legally adopted child of Noah Cameron she would probably, under our statute, inherit from his son (Riley v. Day, 88 Kan. 503, 505, 129 Pac. 524), although the contrary rule is usual elsewhere (1 C. J. 1401; 2 Enc. L. & P. 240; 1 R. C. L. 622). But as no legal adoption had taken place she had acquired no right of inheritance. The agreement between her father and Noah Cameron, supplemented by her later relations with him, gave her, at the most, a right to assert a claim under the contract against his' estate. “The courts merely enforce the contract which has been fully performed on one side; they do not undertake to change the status of either party, or to decree that the child is entitled to the right of inheritance as an heir.” (1 R. C. L. 617.) “The mere contract to- adopt is not sufficient of itself to make the child a legal heir of the promisor, because the right to take as heir exists only by operation of law. The child takes in these cases by virtue of the contract and by way of damages or specific performance.” (1 C. J. 1378. See, also, 2 Enc. L. & P. 246, 247.) The statutory provision that the property of an intestate who leaves neither issue nor parent shall be disposed of as though his parent had survived him and died owning it, relates to the descent of the property — its disposal by the law of inheritance — and has no relation to rights that may be asserted under a contract. The title to the real estate Owned by Huber Cameron at the time of his death, in its theoretical course to his brother, Allen Cameron, through their father, Noah Cameron, encountered no obligation owed by Noah Cameron to Huber.
2. Assuming that Noah Cameron had made an enforceable promise to adopt the plaintiff — to make her his heir — this did not bind him to leave anything for her to inherit, or prevent his disposing of his property in any way he saw fit, provided he acted in good faith. (1 C. J. 1378; 2 Ene. L. & P. 241; 1 R. C. L. 619. See, also, Note, 44 L. R. A., n. s., 756; Note, L. R. A. 1916 D, 424.) Therefore the deed from him to Huber Cameron passed a clear title, and the plaintiff has no greater claim with respect to the land so conveyed than with respect to any other property owned by Huber Caméron at the time of his death.
■ 3. It may be argued that if the promise to adopt the plaintiff had been performed she would have inherited a part of the property left by Huber Cameron, and that Noah Cameron’s breach of. contract by failing to adopt her injured her by preventing such inheritance, thereby giving her an action for damages against his estate. If so, she can not enforce it in this proceeding, which is one for ejectment and partiton and for rents and profits, and is founded upon the proposition that she owns an interest in the specific real estate involved.
The judgment of affirmance heretofore rendered, denying relief to the plaintiff, is adhered to. | [
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The opinion -of the court was delivered by
Dawson, J.;
On February 27, 1911, the city of Wichita awarded a contract to the plaintiffs for the paving of a street with vitrified brick. The contract provided that the plaintiffs should furnish the materials and do certain grading and excavation work. The improvement was to be under the supervision of the city engineer, and payments for eighty-five per cent of the work done were to be made every thirty days upon the engineer’s estimates. Work was to begin within thirty days and completed by July 1 of that year. Another contract between the same parties, let at the same time for some paving on another part of the same street, was to the same general effect, but was to be completed by June 1. Neither contract contained any stipulation as to penalties or liquidated damages for delay in the completion of the work, but in the first-mentioned contract it was provided :
“That if said second parties are delayed upon said improvement upon ' the request of said first party, by injunction suits or any unforseen contingencies, beyond the control of said second parties, then and in that case the time for the completion of said improvement shall be extended the same length of time as such delay.”
The same day that these contracts were awarded to the plaintiffs the city commissioners were served with a summons in a suib filed two days earlier, in which certain taxpayers affected by the proposed paving improvement prayed for an injunction restraining the city and its officials from levying and collecting special taxes on the abutting property to pay for the paving in question, on the ground that the petition under which the city had assumed to act and to let the contracts was not signed by the resident owners of one-half the fronting and abutting property. No temporary restraining order was issued, and that lawsuit proceeded leisurely to final judgment and the permanent injunction prayed for was granted on June 21, 1911. The plaintiffs were not parties to the taxpayers’ suit, but sometime between March 13 and April 1 they learned that it was pending.
! On March 13 the plaintiffs furnished a surety bond as required by the contracts awarded them and on the same date the city commissioners executed the contracts. The surety bond cost the plaintiffs $146.76.
Notwithstanding the pendency of the taxpayers’ suit for an injunction, challenging the regularity and sufficiency of the proceedings leading up to the letting of the paving contracts, the city commissioner in charge of the department of public improvements, after consulting with the city attorney, directed the plaintiffs to proceed with the paving. To that end they made contracts for cement, sand, brick, etc., and had them brought to Wichita from distant points, and hauled to the place where the work was to be done. They did much excavation down to the grade established by the city engineer. They put in a considerable part of the concrete base. One of the monthly estimates was made by the city engineer as to the work done — $1600; and eighty-five per cent 'of that amount, $1360, was ordered paid by the city commissioners. It was not paid, however. When the judgment in the taxpayers’ suit was rendered on June 21 the city commissioner in charge of the paving construction ordered the plaintiffs to stop all work. They obeyed. Afterwards, on new proceedings, another contract for another kind of paving, called Westrumite, was let to another contractor, on different specifications, which required the filling in of part of plaintiff’s excavations, and some of the concrete laid by plaintiffs was laid partly below and partly above the grade specified for the Westrumite paving, and had to be torn out. Under the second letting the street has been paved.
The plaintiffs filed this action to recover on their contracts, for loss of profits, on quantum meruit, and for damages. The city answered denying its liability, alleging that the proceedings leading up to the letting of the contracts were void, that the contracts were void, and reciting the history of the" taxpayers’ suit. The plaintiffs replied, pleading estoppel by the action of the city commissioners in determining that the original petition to pave the street was sufficiently signed by resi dent taxpayers affected thereby, by their resolution to pave,, their advertising for bids, etc., and—
“That the said city of Wichita, by and through its commissioner of' streets and public improvements and by and through its city attorney-advised the said plaintiffs herein after the action No. 28745, Sarah E. Smith et al. v. The City of Wichita et al., was commenced, that said:' action would not amount to anything, that no injunction was prayed' for, and that the beginning of the said action did not, in any wise, prevent the city or the plaintiffs from going ahead and completing the work according to contract and said commissioner of streets and said' city attorney directed the said plaintiffs to go ahead with the contract. That thereafter the city engineer and other officers of the city set the stakes for the grading and supervised and oversaw the work- of the-plaintiffs. That by reason of such facts the said city should be estopped' from setting up the said action of Sarah E. Smith et al. v. The City of Wichita et al., No. 28745, as a ground for defeating the plaintiff’s claim sued on in this action.”
Reserving proper objections as to competency, etc., the-litigants stipulated as to all the facts, and the trial court gave-judgment for plaintiffs for the sum paid by them for the-surety-bond, $146.76, but nothing more.
Plaintiffs’ appeal, contending that when the city commissioners make a finding that a petition is legally sufficient upon which to base their official action in proceeding to call forbids for paving, the contractor was entitled to rely on that finding and make a contract with the city and proceed with his', undertaking. It was decided in Sleeper v. Bullen & Dustin, et al., 6 Kan. 300, 307, that where the city had made such a finding as to the sufficiency of a petition of taxpayers to grade-a street, and had let a contract thereunder, and the work had' been completed, the city was estopped to deny the validity of the contract or its liability to the contractors for the paving. In H. & S. Rid. Co. v. Comm’rs of Kingman Co., 48 Kan. 70,. 28 Pac. 1078, the same principle was upheld in mandamus to require the issuing of railroad aid bonds after the railroad was constructed. There the defendants were estopped to deny the-sufficiency of the taxpayers’ petition after having made an administrative finding that it was sufficient and calling the-bond election pursuant thereto. This principle is well established in bond litigation when the rights of innocent holders have attached. (Finnup v. School District, 94 Kan. 695, 699, 146 Pac. 349, 148 Pac. 245, and citations.)
But some legitimate field must be left for the operation of section 265 of the civil code and other statutes to the same effect:
“An injunction may be granted to enjoin the illegal levy of any tax, charge, or. assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same, or to- enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge, or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens- as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction.”
In Pollock v. Kansas City, 87 Kan. 205, 207, 123 Pac. 985, it was held that not only the abutting property owners but any taxpayer could maintain a suit under the code section just quoted. But how fatuous and abortive that preventive of illegal assessments and burdensome taxes is if, notwithstanding an injunction be granted restraining public officers from “doing any act not authorized by law that may result in the creation of any public burden,” the same result may be effected by subjecting the city to a judgment on breach of contract, loss of profits, or damages.
Many cases are cited by counsel for appellee which hold that persons contracting with officérs óf a city do so upon the implied understanding that if the officers have transcended their powers or have exercised their powers without compliance with the preliminary requirements of statute which must precede their official action, that all such contracting parties do so at their peril, and that the doctrines of estoppel and kindred equitable considerations are not pertinent. In City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105, it was said:
“While a municipality may be estopped from showing wrongful acts done under a valid law, there is no such thing as a void enactment being made valid by estoppel.” (p. 198. Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815.)
The case of Comm’rs of Wyandotte Co. v. Barker, 45 Kan. 699, 26 Pac. 591, makes a distinction between the situation of a city and its taxpayers, touching irregularities in proceedings leading up to tax levies, and that of a city and those who have contracted with it. Touching the latter, it recognizes the principle laid down in Sleeper v. Bullen & Dustin, et al., 6 Kan. 300, while holding that a finding as to the sufficiency of a petition by an official board was of no force in a case between the municipality and its taxpayers.
Still another phase of the question is presented in those cases, which involve the registration of municipal bonds, in which, while equitable considerations are not denounced, the extraordinary writ of mandamus will not issue to require their registration if the preliminary proceedings were irregular, since that, in effect, would be to direct the registrar to certify as true and regular what he positively' knows to be false and irregular. (Greely County v. Davis, ante, p. 1, 160 Pac. 581.)
In Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465, it was held:
“Where a contract is entered into in good faith between a corporation, public or private, and an individual person, and the contract is void in whole or in part, because of a want of power on the part of the corporation to make it or to enter into it in the manner in which the corporation enters into it, but the contract is not immoral, inequitable, or unjust, and the contract is performed in whole or in part by and on the part of one of the parties, and the other party receives benefits by reason of such performance over and above any equivalent rendered in return, and these benefits are such as one party may lawfully render and the other party lawfully receive, the party receiving such benefits will be required to do equity toward the other party, by either rescinding the contract and' placing the other party in statu quo, or by accounting to the other party for all benefits received for which no equivalent has been rendered in return; and all this should be done as nearly in accordance with the terms of the contract as the law and equity will permit.” (Syl. ¶ 3.)
In City of Ellsworth v. Rossiter, 46 Kan. 237, 26 Pac. 674, this court quoted approvingly the New York doctrine, in Fister v. LaRue, 15 Barb. (N. Y. Supr. Ct.) 323, 324:
“‘It is well settled, at least in this country, that where-a person is employed for a corporation, by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services, according to the agreement. Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract.’ ” (p. 241. Water-Works Co. v. City of Columbus, 46 Kan. 666, 676, 677, 26 Pac. 1046, 48 Kan. 99, 28 Pac. 1097, and citations on ratification of irregular and void contracts therein; Bill v. City of Denver, 29 Fed. 344.) ‘
In Levy v. Kansas City, Kan., 168 Fed. 524, 527, 528, eases including Brown v. City of Atchison, supra, are cited on estoppel of municipalities to. deny that their officers had authority to do lawful acts within the scope, but beyond the limits, oí the power of the officers.
In Hovey v. Commissioners of Wyandotte Co., 56 Kan. 577, 580, 44 Pac. 17, there is an extended discussion on the liability of municipalities and other public agencies on qontracts, quantum meruit, etc., where the question only relates to irregularities and not to a total want of power or positive inhibitions of statute. (See, also, Note 27 L. R. A., n. s., 1117.)
The parties stipulated that neither the plaintiffs nor the defendant knew that the petition was insufficiently signed until the judgment was entered in the taxpayers’ suit, after much of the plaintiffs’ work had been completed.
A majority of the court are of opinion .that the case at bar falls within the general principle that where a municipal corporation receives a service, or property, or an improvement, which it retains and uses, common honesty requires that it make payment therefor, where the matter is not tinctured with moral turpitude nor altogether beyond the statutory power of the corporation to* acquire or procure. Here there was no moral turpitude. Here there was no want of power, if regularly exercised, to award a paving contract to plajntiffs. The plaintiffs were not parties to the taxpayers’ injunction suit. No temporary restraining order was issued thereon. The plaintiffs in the taxpayers’^ suit did not exercise a high degree of diligence, since they let the work proceed when a temporary restraining order to bé had for the asking would have brought it summarily to a stop. (Meistrell v. Ellis County, 76 Kan. 319, 91 Pac. 65.) The plaintiffs were ordered to proceed with the paving notwithstanding the pendency of the taxpayers’ suit. If they failed to proceed they were or might be liable to the city for delay. Shall it be said that the pendency of the taxpayers’ suit left the plaintiffs dangling in the air — at peril if they proceeded, at peril if they failed to proceed? There is no reason why the city should not pay for the work actually performed by plaintiffs and used by the city. This principle is well supported by the authorities-. In Long v. Lemoyne Boro., Appellant, 222 Pa. St. 311, it was said:
“Municipal repudiation of honest indebtedness which the municipality intended to contract and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.” (p. 318.)
There is, however, an additional complication in this case. When the city let the new contract to another contractor the new specifications called for another kind of paving, which necessitated changes in the grade, filling in of certain excavations made by plaintiffs, and requiring the removal of the concrete base laid by plaintiffs. The result was the practical destruction of most of the work done by plaintiffs. That work was done according to the city’s specifications. There was no legal infirmity in them. The defect lay in the original petition for the paving. Even that was cured by the later petition under which the paving was actually laid. It was wrong to destroy the work done by the plaintiffs. It is not intimated that the plaintiffs’ work was defective, and if the defendant would be liable for so much of plaintiffs’ work as it used it would hardly do to say that it may change its mind as to the specifications and destroy the work done and thus escape liability. If the major proposition is sound, and a majority of the court decides that it is, it follows that the city is not only liable for the work done which the city actually adopted and used, but that it is also liable for the work done which was up to the standard of specifications and which was destroyed for no other reason than that the city changed its specifications and determined to lay another kind of paving.
But we can give no countenance to plaintiffs’ claims under their contracts, nor for loss of profits, nor for expenses in bringing the materials to the place of work, nor for damages. It is only by a somewhat vigorous interposition of equitable principles that any relief whatever can be accorded in a situation like the case at bar. Plaintiffs are entitled to recover for the work which they actually did according to the specifications, no more. We do not understand the theory upon which the plaintiffs recovered the price of their surety bond, but since no cross-appeal is filed we will not rule on it.
We hold that the statute requiring certain claims to be filed against the city within four months (Gen. Stat. 1915, § 1460) has no application to cases like the one before us.
The judgment is reversed and the cause remanded with instructions to ascertain the value of the excavations, grading, concrete laying, etc., actually done by the plaintiffs on the street in accordance with the specifications furnished to the plaintiffs,- without deducting therefroin what was destroyed or rendered useless when the city afterwards determined to change the specifications to use Westramite instead of vitrified brick, and to render judgment for the plaintiffs in accordance therewith.
Johnston, C. J., dissents. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant, under a contract with Wyandotte county, is building a concrete bridge across the Kansas river in that county.
This is an original proceeding in quo warranto. The defendant. is charged with violating' chapter 220 of the Laws of 1913 (Gen. Stat. 1915, § 5870). The action is brought to oust the defendant from exercising the corporate privileges: or franchises of requiring laborers employed by it to work for more than eight hours per day, and from paying laborers less than the current rate of wages in the locality in which the work is being performed. The order now asked by the state is that the court appoint a receiver for the defendant, or, if a receiver is not appointed, that a temporary injunction be granted restraining the defendant from requiring its workmen to work more than eight hours per day, and from paying^ such workmen less than the current rate of wages.
The evidence submitted is contained in affidavits. The principal questions to be determined are those of fact. When the facts are ascertained the law can be easily applied.
1. The plaintiff’s evidence tends to show that the current rate of wages is sixty-five cents an hour for “carpenters who are employed as form-builders for concrete construction,” for one employed “as a carpenter or form-builder,” for “carpenters and form-builders,” for labor which “required the building of forms,” for “a carpenter or form-builder,” for “form-building for reinforced concrete construction of all kinds”; and “that the rate of wages paid to and received by members of said union [the carpenters’ union] for form-building for reinforced concrete construction is sixty-five cents per hour.” The plaintiff’s evidence also tends to show that—
“The work of building forms for said work [the work being done by the defendant] requires as much if not greater skill and ability as a carpenter than the building of forms for ordinary reinforced concrete construction of buildings. . . . And that the work of form building upon said Kansas river Central avenue bridge and its approaches required the same skill and ability, and was of-the same class of work as the work done upon said buildings [buildings erected for the Southwest Milling Company, the .Stevens Engineering Company, the Peet Brothers Soap Plant, and the Proctor & Gamble Soap Company].”
The defendant’s evidence tends to show that the current rate of wages for form-builders for reinforced concrete work on bridges and viaducts constructed in Wyandotte county, Kansas, and in Kansas City, Mo., and on other reinforced concrete work similar to that done by the defendant, is from thirty-five to forty cents an hour, and is not in excess of forty cents per hour, and has not been in excess of that amount for four or five years.
The defendant’s evidence also tends to show that the class of work done by the form-builders employed by it does not require an experienced carpenter; that it requires only men who are known as “hatchet and saw men.”
The evidence of the plaintiff and that of the defendant do not directly contradict each other. In most instances, the evidence of the plaintiff concerns one kind of work and that of the defendant a different kind of work. In other words, the parties to this action did not submit evidence on exactly the same propositions. It appears clearly from the evidence of the plaintiff that on certain buildings the current rate of wages for form-builders is sixty-five cents an hour. It appears from the evidence of the defendant that in bridge and viaduct work, the character of work being performed by the defendant, the current rate of wages is thirty-five to forty cents an hour. So far as the question of wages is concerned, this controversy must be determined upon the current rate of wages for the kind of work being done by the defendant. The burden of proof is on the state. It has not established by a preponderance of the evidence that the current rate of wages for the work being done by the defendant is sixty-five cents an hour. The preponderance of the evidence is that the current rate of wages for that work does not exceed forty cents an hour.
2. Another question must determined. Have laborers been required to work more than eight hours per day in violation of law? Three witnesses testified for .the plaintiff that they were required by the defendant to work nine and ten hours a day, and “that said work was not done during any extraordinary emergency, which arose in time of war, or when it was necessary to work more than eight hours per calendar day for the protection of property or human life.” On this point the defendant’s evidence tends to show that the defendant has established an eight-hour per day service and has not worked or employed its workmen to exceed eight hours per day, except on the dates referred to by the three witnesses for the plaintiff; and that, on those dates, an emergency and necessity arose, compelling the defendant, for the purpose of protecting property or human life, to work from fifteen to twenty of its employees in excess of eight hours, some working nine and some working ten hours. The defendant’s evidence is:
“That the occasions for such emergency and for the protection of property and human life were as follows: That the work being performed under said contract consisted of. concrete approaches, necessitating the bpilding of forms for such purpose; that on said day and dates where said emergency arose, the defendant was making concrete potírs, which necessitated going to a certain point for the safety of the structure, and for the purpose of preventing the collapse of the same, thereby endangering the complete construction of the work, as well as endangering.human life passing upon and along said public highway where said approaches were being constructed, that on such occasions said emergency also arose and was due to the fact that portions of said buildings had been torn down at the place where the viaduct was being constructed, and people were in the habit of going in and out of said buildings and along the public highway, thereby necessitating working over eight hours on said occasions for the protection of said property and the lives of people upon the thoroughfare, as well as the people who still continued to live in the portions of said buildings being torn down.”
This reason given by the defendant for working some of its employees more than eight hours per day is not disputed by the plaintiff, and comes within the exceptions named in chapter 220 of the Laws of 1913 (Gen. Stat. 1915, §5870).
It follows from the facts established by the evidence that the relief asked by thé plaintiff can not now be granted. The application for a receiver and for a temporary injunction or restraining order is denied. | [
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The opinion of the court was delivered by
Mason, J.:
A judgment for the plaintiff under the workmen’s compensation act was reversed.and a judgment for the defendant was ordered on the ground that a release executed by the plaintiff was a bar to his recovery unless set aside, and that no sufficient reason for setting it aside had been shown. (Odrowski v. Swift & Co., ante, p. 163.) The plaintiff now asks that the order of this court be modified so as to direct a new trial instead of a final judgment. The questions of law presented have been reexamined and the court adheres to the view expressed in the original opinion that the evidence did not justify setting aside the release. Inasmuch as the plaintiff had full opportunity at the trial of the case to show any sufficient reason why that action should be taken, and failed to do so, we do not think the ends of justice require that he should now be given a second hearing on the chance that he might be able to better his showing.
In the original opinion it was mentioned that in Girten v. Zinc Co., 98 Kan. 405, 158 Pac. 33, a judgment under the workmen’s compensation act was reduced by this court without observing that the reduction brought it below the statutory minimum. In the application for a modification of the judgment in the present case counsel say:
“In the Girten case, on' motion for rehearing, the attention of the court was specifically called to the error of the court in reducing the amount of the judgment, but the court overruled the motion for rehearing and yet in this Odrowski case admitted the erroneous ruling of the Gourt in the Girten case.”
In .this counsel are mistaken. In the Girten case the attention of the court was not called to the error referred to. The only petition for a rehearing was filed by the. defendant, and it made no reference to the amount of the judgment. The plaintiff made no application to have the judgment changed, but in a written argument against a motion to tax the costs of the appeal against him, because it had resulted in reducing the amount of his recovery said: “The judgment [of the district court] was modified slightly to comply with previous decisions of the supreme court.”
The motion to modify the judgment is denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The situs of notes, bonds and mortgages for purposes of taxation is the question involved in this case.
The Republic County Mutual Fire Insurance Company has its principal office and place of business in Belleville, Republic county, and it does business in Republic and adjacent counties. The secretary of the company is in charge of its office, has the custody of its notes, bonds and mortgages, and a part of his duties is to collect all moneys due the company, including the principal and interest accruing on the notes, bonds and mortgages and to pay the same over to the treasurer of the company. The investments of the surplus funds of the com pany are made by the executive board, and its orders are drawn upon the treasurer, who keeps an account of the moneys received and disbursed by him; and the book in which his accounts are kept is placed in the custody of the secretary in Belleville for safe-keeping. The secretary resides in the city of Belleville, while the treasurer resides in Freedom township, which is a part of Republic county.
On March 1, 1916, the treasurer had $9470 of the money of the company which he had placed on deposit in a bank of Belle-ville. At the same time the company had $36,100 in value in notes and mortgages, which were in the hands .of the secretary in Belleville, and he also had possession of $400 worth of office furniture and fixtures. The assessor of Belleville listed the notes and mortgages and also the furniture and fixtures mentioned for taxation in the city. The assessor of Freedom township listed in his township not only the cash which was in the hands of the treasurer but also' the notes and mortgages of the company held by the secretary. Later the county clerk concluded that all the property of the company, including the cash, was taxable at Belleville and so entered them on the tax roll. ’
Is the situs of the company’s property for the purposes of taxation in Belleville, where its principal office is maintained, or is the property, or some part of it, to be assessed in Freedom township? It is entirely competent for the legislature, except as limited by the constitution, to fix the situs of property, tangible and intangible, for the purposes of taxation. (37 Cyc. 947.) In the absence of specific legislation, debts evidenced by notes and mortgages are ordinarily taxed at the domicile of the owner. There are general provisions of the statute on the subject of taxation to the effect that incorporated companies, except such as are specifically provided for by statute, are required to list, by their agents, their stock at the places where their principal offices are kept. (Gen. Stat. 1909, § 9229.) A provision of the tax law which was enacted in 1876 and amended in 1891, relating mainly to the taxation of the stocks of banks and investment companies, provides that that act shall apply to mutual fire and life insurance companies. (Gen. Stat. 1909, § 9298.) But for the enactment of a later statute, which specifically provides for the listing and assessment of property of mutual'fire insurance companies, the earlier provisions would apply to the property in question. In 1905 the legislature amended chapter 132 of the Laws of 1885, and the statute as amended provides for the organization of mutual fire insurance companies, the kinds of property they may insure, the investment of their surplus funds, the duties of the officers and the control of their property, and among other things it provides:
“The treasurer and secretary shall each give bonds to the company for the faithful performance of their duties in such amount as shall be prescribed by the 'board of directors, and all moneys, notes or other property belonging to such company and in the hands of the treasurer shall be listed by him for taxation in the county, township and school district in which he resides, and all other property belonging to the company shall be listed by the secretary in the county, township and school district in which he resides.” (Laws 1905, ch. 276, § 1, Gen. Stat. 1909, § 4220.)
The obvious meaning of the section quoted is that property, including the moneys and notes of the company in the hands of the treasurer, is to be listed by him in the,district where he resides, and that all property of the company not in his hands is to be listed by the secretary in the district where he resides. Here the treasurer had the custody of money to the' amount of $9470, and had no other property in his hands; hence, this was properly listed in Freedom township, where he resided, and all other property of the company is to be listed in the city where the secretary resides. It is competent for the legislature to fix the situs of property for taxation where it is either actually or constructively located, and for reasons of its own the legislature chose to fix the situs of the property of the company at the residences of the officers who had actual custody of the same. In other instances the legislature has exercised this power and provided that part of the personal property of an owner shall be listed where he resides, while other personal property of his shall be listed where it is actually kept. (Gen. Stat. 1909, § 9223.) Property may have a situs as determined by common-law principles, or it may have one fixed by the legislature, and, within constitutiofial limits, the legislature has a free hand and may fix the ffitus of any property whenever it sees fit.
The provision in question, which is chapter 276 of the Laws of 1905, does not contravene the constitutional limitation which requires a uniform and equal rate of assessment and taxation. It is true the property of the company located in the city may be taxed higher than that which is listed in the township, but that is true in many cases where the property of an owner is located in more than one taxing district. Each taxing district imposes taxes for municipal purposes at a rate to meet its necessities, and a tax imposed to pay for a bridge or a public building in one may not be needed in the other, with the result that more tax will be paid on the same valuation of like property in one district than in the other. The constitutional provision invoked relates to the rate of taxation, and only requires that the rate shall be uniform and equal throughout the district in which the tax is levied. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 284.) Nothing in the act in question infringes upon that limitation.
There is no ground either for the claim that it is special legislation and therefore violative of section 17 of article 2 of the constitution.
It is finally contended that the title of chapter 276 of the Laws of 1905 is not broad enough to cover its provisions; that is, the subject is not clearly expressed in the title, as required by section 16 of article 2 of the constitution. The title is:
“An Act to amend section 13 of chapter 132 of the Session Laws of 1885, relating to mutual fire insurance companies, and to repeal said section.”
The act of which it is amendatory had a very general and comprehensive title; namely—
“An Act to provide for the organization and control of mutual fire in“surance companies, and to repeal chapter' one hundred and eleven, Laws of eighteen hundred and seventy-five.”
It provides for the organization and control of mutual fire insurance companies, the duties of their officers, the control and management of their property, their relations with the policy holders and with the public, and the title of the act was broad enough to have included any of the duties of the officers, including the listing of its property for taxation. The title of the amendatory act of itself is notice that the act relates to mutual fire insurance companies, and also that it is amenda tory of the act of 1885, which has the comprehensive title. Titles of this kind, purporting to amend other acts, have been examined and upheld against the objection of narrowness. (Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kan. 181; La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448.)
It follows that the moneys in the hands .of the treasurer must be listed in and entered- upon the tax roll in Freedom township, while all other property of the company will be listed and entered for taxation in the city of Belleville. Judgment will accordingly be given. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal by Frank M. Barton from a decision made January 14, 1916, adjudging him guilty of contempt in willfully failing to make payments for expenses and the support of a minor child, decreed in a divorce action against him on April 27, f 914. The decree provided that the defendant should pay $75 by October 1, 1914, $100 by April 1, 1915, and $75 on the first days of October and April of each year thereafter. No part of these payments was ever made, and at the instance of the plaintiff the defendant was attached for contempt.
On this appeal he insists that the contempt feature of the proceeding is criminal in its nature and should have been prosecuted in the name of the state by the county attorney .or attorney-general. The primary object of the proceeding was to protect private rights; that is, to compel compliance with the decree of the court rendered in a civil action, and only incidentally to vindicate the authority of the law. While the punishment of such contempt takes on a criminal phase, it is really remedial in character and is sometimes designated as a civil contempt. (O’Brien v. The People, 216 Ill. 354; The People ex rel. Negus v. Dwyer, 90 N. Y. 402; King et al. v. Barnes, 113 N. Y. 476; People ex rel. Stearns v. Marr, 181 N. Y. 463.) Sometimes the proceeding is treated as a part of the case out of which the contempt arises, and in others it is treated as an independent proceeding; but, however it may be entitled, the proceeding may be instituted by the aggrieved party in the original cause where its purpose is to protect and enforce the private rights of parties litigant. (Cunningham v. Mortgage Co., 57 Kan. 678, 47 Pac. 830; 9 Cyc. 35.) The form of tlie proceeding is not of great consequence where the defendant, as here, had reasonable notice of the proceeding and was given a fair opportunity to explain and defend against the charge of contempt.
The principal contention is that the evidence in the case does not sustain the ruling of the court that the defendant was guilty of willful contempt nor the order committing him until he should comply with the judgment of the court or until he is discharged by the court. The defendant can not, of course, be committed for the failure to do something which is beyond his power. The general rule is that a party may be imprisoned for disobedience of a mandate, order or judgment of the court if it is reasonably within the power of thecontemner to perform it. (In re Burrows, Petitioner, 33 Kan. 675, 7 Pac. 148; 9 Cyc. 53.) Evidence was offered tending to show that the defendant could have met the requirements of the judgment of the court ordering payment of alimony and a contribution towards the support of his infant child. There was testimony to the effect that the defendant is a man about thirty-four years of age, is a jeweler or watchmaker by trade, that he has no property and no means other than the wages earned at his trade. According to the testimony he was capable when at work of earning from $15 to $30 a week, but he did not remain employed very long in any one place. After the divorce he held various positions for short periods in different parts of the country, the longest period being six months at Parsons, Kan. The testimony of the defendant and of his father was to the effect that since the divorce he has been employed less than half of the time, being sick part of the time; that his own earnings had been insufficient to support him, and he had been aided by his parents; and further, that he had no natural ability to make money. The plaintiff further testified that defendant had never supplied her with any money since the divorce; that he had been earning and could earn from $25 to $30 a week, and particularly, that he was earning $25 a week while at Le Mars, Iowa. She further testified that in some correspondence with her from Le Mars he asked her to visit him, offering to pay her railroad fare and to pay her $50 when she went back,- but that she did not make the trip. While the defendant was at. Le Mars the plaintiff also had correspondence with his employer, and the defendant testified that as a result of it he had been discharged. There was also some correspondence between plaintiff and defendant while the latter was at Parsons, in which he asked his wife to come and live with him and, defendant testified, he intended to support her out of his wages. There was testimony that the defend ant had been addicted to drink and had taken the Keeley cure, but had afterward gone to work, and becoming sick, had returned to the home of his parents at Jamestown to recover, and was about to take a position at Arkansas City when he was attached for contempt. On the whole testimony it is reasonably clear that defendant had the ability to earn sufficient to maintain himself and to pay the allowances made by the court for the expenses of the litigation and the support of the child. His offer to pay money to the plaintiff as well as her railroad fare to and from the place where he was living, upon certain conditions, and the statement that he intended to support her by his earnings, tended to show that he had the ability to make the required payments. When he was earning from $15 to $25 per week he might have very well contributed one-half of his wages to the payment of alimony. He stated that his own maintenance required all of his earnings, but it would seem that the natural parental impulse would have prompted him to divide his earnings with his own child. It is argued, and cases are cited to the effect that the court can not compel the defendant to find employment or to pay alimony when he has no money with which- to make payment. That is hardly the question for determination. The one we have here is: Was there evidence which fairly tended to support the finding of the court that the defendant had the ability to make the payments required by the judgment and had willfully refused to comply with it. The evidence appears to be sufficient to sustain the finding and judgment of the court, and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The reformation of a deed was the principal relief sought in this action.
Plaintiff. alleged that on February 14, 1910, he bought a forty-five-acre tract of land from the defendant for the sum of $2100 and in the negotiations had and in the deed executed the defendant reserved to himself the oil and gas in the land and any damages that might be paid resulting from smoke and noxious gases thrown upon the land from a smelter located on an adjoining tract. It is alleged that at the time of the purchase defendant falsely represented that a certain company had been given an oil and gas lease and therefore he must reserve the right to prospect and take oil and gas from the land, and the further right to recover for injuries resulting from the smoke and-gases thrown upon the land from the smelter. It was further alleged that the representations as to the existence of an oil and gas lease were untrue; that no lease had then been made; and that relying upon the representations, plaintiff was induced to accept the land with the reservations made. It is alleged that the defendant subsequently*executed a lease to a party other than the one mentioned in the negotiations for the sale and that this was placed on record in August, 1910. In the lease it was stipulated that' an annual rental of $250 should be paid to the defendant. He further alleged that this lease had since been assigned to another party; that he did not learn of the falsity of the defendant’s representations until August, 1914; and that oil and gas wells had been drilled upon the land to the injury and loss of plaintiff. He asked that the deed be reformed by the elimination of the reservations; that the oil and gas operations upon the land by the lessees be enjoined; and that plaintiff -recover for the rent already paid, and also for loss and damage sustained because of the reservations in the deed. Upon a demurrer to the petition the court ruled that the facts set forth by the plaintiff did not state a cause of action; and, the plaintiff choosing to stand upon the averments of his petition, the case was dismissed and judgment for costs was awarded against him.
According to the averments in the petition the plaintiff was not in fact defrauded. In order to recover it must appear that the fraudulent representations occasioned him some loss or injury. He received just-what he purchased and*at the price agreed upon. The misrepresentations as to the existence of an outstanding lease did not impair the title to the estate conveyed to him, nor give him any right to an estate explicitly reserved. 'The plaintiff has no more right to complain than if the defendant had owned fifty acres of land which plaintiff offered to purchase and the defendant had falsely represented to him that he had already sold five acres of the tract, but would sell the remaining portion of the land to him for $2100, and the plaintiff, believing that five acres of the tract had been sold, purchased the remaining forty-five acres for an agreed price. He might have preferred to purchase the whole tract, but he received exactly what he did buy, and can not base a cause of action upon a misrepresentation as to property which he did not buy. The representations did not affect the property actually transferred and he parted with nothing on the faith of the misrepresentations. False representations as to an estate distinctly reserved in a transfer of property can not be regarded as a fraud upon the purchaser.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by.
Burch, J.:
The action was one for damages for personal injuries sustained by the driver of an automobile which collided with a street car. A demurrer was sustained to the plaintiff’s evidence, and he appeals.
. The-defendant operates an electric railway extending north and south on Tenth street in the city of Independence. Tenth street, is crossed from east to west by Chestnut street. The collision occurred about eight o’clock in the morning. The plaintiff was driving his automobile, weighing, with the occupant, about 3600 pounds, at the rate of about ten miles per •hour, eastward on the- south side .of Chestnut street. He observed two men walking north toward Chestnut street on the sidewalk .on .the. west side of Tenth street. Apparently the two men did not see the plaintiff, and he sounded his horn two or three times before they gave indication of seeing him. When they did see, they were just stepping off the curb into Chestnut street. The plaintiff was then about twenty feet west of the sidewalk , on which the two men approached Chestnut street. Up to that time the plaintiff had been driving at intermediate speed. He then threw the lever into high gear, waved his hand at one of the men whom he knew, and then looked at the street-car track. The street car, whose speed was not disclosed, was approaching from the south. The plaintiff immediately turned his car as much as he could toward the north and applied the emergency brake, but it was too late to avoid a collision. The automobile was pushed toward the north and to the east side of the street car track. The street car stopped with the front end about fifteen feet north of the automobile. As the plaintiff approached the two men on the sidewalk the motorman of the street car had a clear view of the situation and could have seen the plaintiff when 200 feet from him. The plaintiff had the same opportunity, and could have seen the street car, had he looked. Had he looked he could have stopped his automobile before it went on the street car track. He did not look because his attention was fixed on the two men on the sidewalk. 'When he did look for the street car he was about even with the curb on the west side of Tenth street.
The foregoing facts appear from the plaintiff’s own narrative of what occurred and present as bald an exhibition of contributory negligence on the part of an automobile driver as the court has been called on to consider. By a simple act, which the law required of him, looking for a street car while still in a place of safety, the plaintiff could have prevented the collision. He was not excused from heeding the warning of danger to himself afforded by the street-car track because he was engaged in observing two pedestrians approaching the course he desired to hold and in warning them to keep out of his way.
Before entering Tenth street the automobile was approaching at intermediate speed and was under control. The street car came from the south, in the middle of Tenth street, and the plaintiff’s gaze was fixed in that general direction on two men south of him on the side of Tenth street. The motorman had no reason to suppose that his car, which was in plain sight of the plaintiff, was not observed, or to anticipate that as the automobile entered Tenth street it would be thrown into high gear and projected in front of him. Conceding that he was negligent in not sounding his gong (there was negative evidence that his gong was not heard), there was no evidence of wantonness, and no room for the application of the doctrine of last clear chance.
The plaintiff utterly failed to establish a right to recover, the demurrer to his evidence was properly sustained, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding involves an application by the state for an order requiring the Kansas City Pipe Line Company, a New Jersey corporation licensed to do business in Kansas, to pay its corporation fees imposed by the state for the years 1918 and 1914, in amount $2000 for each year. The trial'court gave judgment in favor of the state for the 1913 fee but. held that the corporation was not liable for that of 1914. The state appeals.
The tax is imposed under chapter 135 of the Laws of 1913 (Gen. Stat. 1915, §§ 2167-2180). According to section 2 of the act it is laid on foreign corporations “for the privilege of exercising its franchise in Kansas.” (The State, ex rel., v. Sessions, 95 Kan. 272, 147 Pac. 789.) To determine whether or not the pipe line company was exercising its corporate privileges during the year 1914 so as to maké it liable for the corporation tax the leading facts in its history must be considered. The pipe line company is the owner of pipe lines, pumpihg stations and other appurtenances and facilities for the production, sale and distribution of natural gas in Kansas. In February, 1906, it executed a lease of all .its property to the Kaw Gas Company, a subsidiary company of the Kansas Natural- Gas Company, excepting only its corporate franchise, its office fixtures, its corporate seal, its minute, transfer and stock books, its dividend books and its deeds and documents showing its right and title to the leased property;, and since that time the Kansas Natural Gas Company has had charge of the leased property. According to the report filed in the secretary of state’s office for the year 1914 the pipe line company had a paid-up capital of four and a half millions and the value of its property as fixed by the tax commission was $3,094,243. The ruling herein was made in a suit brought by-the state against the Independence Gas Company and others for certain violations- of the anti-trust laws. The pipe line company and others were afterwards made parties defendant upon the order of the court. On February 15, 1913, an injunction was issued against the last named defendants enjoining them from appearing in any other court in connection with the matters involved in that proceeding. On June 21, 1913, plaintiff filed a supplemental petition asking for the appointment of a receiver for the pipe line company until certain perversions and abuses by the corporation were corrected, and charging also that the corporation had violated the injunction of February 15, 1913. A receiver was appointed upon the application of the plaintiff and in its order the court recited that the pipe line company had taken action in the federal court which was in effect an attempt by the company to interfere with the jurisdiction of the state court and a violation of the injunction previously issued. Afterwards the receiver reported that although he had made demand for the property of the pipe line company none of the property or assets in the hands of the lessee had been delivered to him. On December 17, 1914, the pipe line company, as well as the other defendants, entered into a stipulation with the creditors of the Kansas Natural Gas Company which, among other things, provided for paying certain indebtedness of the pipe line company and for the final merger of the pipe line company with the Kansas Natural Gas Company; and this agreement was incorporated into an order of the court made December 29, 1914.
It is contended that the pipe line company is not carrying on business in Kansas and is no more than an instrumentality of the Kansas Natural Gas Company, which owns one-half of its capital stock. While the company leased nearly all of its property to another company there was an explicit withholding of certain property and of its franchise and privileges. The lease contemplates the continued existence of the pipe line company and the exercise of its franchise, in several particulars. Aside from excepting its franchise to-be a corporation, from the lease, it reserves the corporate seal, books and furniture ; and there is a stipulation that during the continuance of the lease the lessor will maintain its corporate organization, elect officers, hold meetings, make all necessary records and returns and, at the request of the lessee, do any necessary corporate acts for the furtherance of the business, and that if the lessor fails to do so the lessee may use the name of the lessor in the exercise of the corporate powers and privileges, and also in prosecuting or defending actions to protect its interests. There is a stipulation that if the lessee desires to resist a tax or assessment on the ground of illegality, the lessor shall not pay the tax or assessment until thirty days after final adjudication of the question. It is further provided that the lessee will pay taxes, assessments, licenses or charges imposed upon the lessor with reference to its capital stock, franchise, privileges or property. The lessee agrees to pay mortgage bonds of the lessor as they fall due; also a sum sufficient to enable the lessor to pay six per cent dividends on its capital stock and the actual expense of maintaining its corporate existence, not exceeding $500 per year. Another stipulation is that the lessee will operate the plant and property in such a manner as will meet the demands of the public service and promote the interests and preserve the franchise vested in the lessor. It contains a provision as to making extensions and betterments of the plant and that if made from the proceeds of the bonds of the lessor the extensions and betterments so made and all rights or privileges obtained in connection with the premises' shall become the property of the lessor. The lessee was required to insure the leased premises against damage by fire in good companies in a particular way, but it is stipulated that the lessee may adopt another plan of protection provided it is approved by the directors of the lessor. There is the further stipulation that upon the expiration or ■earlier termination of the lease the property including all the additions and improvements and all the accompanying rights, privileges and franchises shall be returned and surrendered to the lessor, and that if at any time the lessee defaults or fails to perform the covenants and conditions of the lease and if the default continues for thirty days after notice and 'demand by the lessor that the lessee pay or perform, the lessor may terminate the lease and reenter upon the premises, taking possession of all the property as well as the rights, privileges and franchises which had been acquired by the lessee in connection with the property. To protect its rights the lessor is authorized at all reasonable times to enter upon and inspect the property so as to ascertain whether the conditions of the lease are being faithfully carried out.
It is manifest that the parties intended and provided that the pipe line company should continue its corporate existence, elect officers and maintain its corporate organization and should exercise corporate privileges within the state during the continuance of the lease. It is equally clear that it contemplated that corporate business of an important character should be done by the pipe line company. While it turned over the principal part of its property to the lessee, it retained a part, as we have seen, and according to the lease it was provided that upon certain contingencies the leased property should be returned to it as well as the additions and betterments made while the plant was in the possession of the lessee. While the business done was small compared with what would have been done had the lease not been effected, the company was still doing corporate business in the state and business which, under the terms of the lease, was essential to the operation of the plant and the carrying out of the agreement between the lessor and lessee. The fact that the state in the action brought had charged the pipe line company with violations of the law and abuses of corporate privileges did not exempt the company from liability for the corporation tax. Perversions may be, enjoined and abuses corrected without dissolving the corporation or ousting it from the state. Neither did the fact that a receiver was appointed relieve the company from the payment of the tax. While the receiver is ah officer of the court he is also acting as and- for the company. The franchise is exercised and the business conducted just as the board of directors or other managers would have done if no receiver had been appointed. It has already been held that whén a receiver is carrying on the business of a corporation as a going concern he is in effect exercising the corporate franchise and is subject to the payment of the corporation tax. (The State, ex rel., v. Sessions, 95 Kan. 272, 147 Pac: 789; see, also, Central Trust Co. v. N. Y. C. & N. R. R. Co., 110 N. Y. 250; N. Y. Terminal Co. v. Gaus, 204 N. Y. 512.) The company as a going concern exercised the same corporate privileges as it had exercised during the year 1913, and for the tax of that year the trial, court held it to be liable. It appears that the receiver is still exercising the functions of his office and doing the business which the company had been doing prior to his appointment. There has been no ouster by the state and the pleadings filed by it did not ask for a dissolution of the corporation; It is contended that the creditors’ j agreement signed by the parties, including the plaintiff, should, be treated as a consent by the state to a dissolutibn of the corporation. That agreement among many other things provided that upon the making of certain payments and assignments and the performance of other conditions the property of the pipe line company should be merged in and become a part of the properties of the Kansas Natural Gas Company. Even if the agreement were given the interpretation claimed for it by the defendant it would not relieve the company from the payment of the tax. The agreement was not made until after the liability for the tax of 1914 had attached. It appears to have been executed on December 17, 1914, and was approved by the court on December 29, 1914. At that time the court expressly ordered that the receivership of the pipe line company should be continued after January 1, 1915, and until such future time as to the court should appear to be advisable, and also that the property and business of the pipe line company should remain in the control of the receiver. The order contemplated that corporate privileges were to be exercised and business was to be done by the receiver throughout and after the year 1914 and no reason is seen for excusing the company from the payment of the tax imposed for that year.
The judgment is reversed with directions to enter judgment in favor of .the plaintiff for $2000.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
Charles I. Rush and Louisa Rush exchanged some lots in Wichita for a tract of land in Arkansas. The deed to the Arkansas property came from C. V. Cox and his wife, Bettie Cox, and the deed to the Wichita property was made to Bettie Cox, but the trade was negotiated by R. A. Leavitt. Later the Rushes brought an action for damages against Leavitt and the Coxes on the ground that they had been defrauded by false representations made to them by Leavitt as to the character and value of the Arkansas land. The plaintiffs recovered a.judgment and the defendants appealed. Leavitt, however, has abandoned the proceeding, and the appeal is prosecuted only by the Coxes.
1. That the trade was induced by actionable false statements by Leavitt regarding the Arkansas land may be treated as an established fact, for it is not here contested. But the Coxes contend that the evidence did not warrant a judgment against them, since there was no claim that either of them personally made any representations, and no direct evidence that they specifically authorized any, or knew of any being made. Whether or not the evidence justified an inference that they actually participated in the fraud, we think the judgment can be sustained on the theory that Leavitt was their agent for the sale of the Arkansas land, that the deceit practiced by him constituted a tort committed in the course of his employment, for which his principals were liable, even if they had no knowledge of the fraud. (31 Cyc. 1583; 2 Enc. L. & P. 1200, 1203; Notes, 33 Am. St. Rep. 720; 36 Am. St. Rep. 704; 85 Am. St. Rep. 372.)
2. Leavitt and C. V. Cox both testified that Leavitt was the real owner of the Arkansas land, the title having been placed in Cox as security for a debt, and that the Wichita lots were deeded to him for the same purpose — as a substitute for the Arkansas property. But the jury found specifically that this was not the case. The finding was supported not only by the presumption of the real ownership being in the holder of the legal title, but by evidence that Leavitt had referred to the Coxes as “the parties that own this land,” and by the circumstance that the Coxes shortly conveyed away the Wichita lots, and that C. V. Cox in the course of several conversations with Charles I. Rush appears not to have suggested his relation to the property being that of a lienholder. Leavitt’s testimony was contradicted by other witnesses in a number of material matters, so that the jury had abundant basis for discrediting it. Assuming that the land belonged to the Coxes, the evidence justified a finding that Leavitt was their agent for its sale. Cox testified that prior to the trade he talked with nobody but Leavitt about it; that Leavitt came to him and said he could make the exchange, and that they went together to see the Wichita lots, or rather drove by them, as Leavitt outlined the kind of a deal that was pending. Leavitt testified that he went to see Cox about the trade and he said it would be all right — that he took him up and showed him the Wichita property.
3. The appellants complain of an instruction to the effect that if C. V. Cox was the owner of the Arkansas land, and through Leavitt it was traded to the plaintiffs by means of false representations, the plaintiff’s property being deeded to one of the Coxes, and by them sold and conveyed to other persons, Cox would be the principal in the transaction, and liable for the-fraudulent acts of Leavitt as his agent, for any damage sustained. A verbal criticism is made on the ground that the expression “through Leavitt” is too indefinite to be made the basis of a finding of agency, because the sale might have been made through Leavitt acting for himself or for someone else. But if the land was owned by Cox its sale was necessarily made by him, and if made “through Leavitt” as that phrase must be understood in view of the uncontroverted facts of the case, it was the result of Cox adopting Leavitt’s acts, and making him his agent, even if no agency existed at the time the fraudulent statements were made. Counsel contend, however, that if Leavitt had no antecedent authority to represent Cox, and made the false statements as a volunteeer before any agency existed, and Cox afterwards accepted the fruits of the negotiation and made the sale, Cox might be required to account for any benefit he received, but could not be liable, unless he were a party to the fraud, in such an action as the present, where the jury were instructed that the measure of damages was the difference between the actual value of the Arkansas land and what its value would have been if it had been as described, that being the rule in this jurisdiction. (Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; McDanel v. Whalen, 91 Kan. 488, 138 Pac. 590.) We think Cox’s liability must be held to be the same whether he had authorized Leavitt to find a buyer for the Arkansas land, before the false representations were made, or whether he approved and acted upon the deal that had been negotiated by Leavitt,' without having had any understanding or relations with him in advance. In the latter case, by ratifying the deal that had been made in his behalf he took the bargain in its entirety, with its burdens as well as its benefits, and became liable for the fraud perpetrated for his benefit by the man whom hé made his agent by ratification.
“As against the principal the maxim omnis ratihabitio, etc., is operative in all cases; and upon ratification with full knowledge of the facts, or upon an intentional ratification regardless of knowledge, of an act done or contract made by an agent without authority, the principal is bound as fully as if the agent had acted under original authority. . . . By a valid ratification the principal waives the agent’s want of authority, and assumes the act or transaction of the agent, not as it was authorized, but as it was done by the agent, with the burdens as well as the benefits resulting; and hence thereby becomes bound by all the instrumentalities used by the agent within the scope of the assumed authority, including his frauds, misrepresentations, and other torts.” (31 Cyc. 1288, 1289.)
“One who accepts the benefits of a contract made without authority in his behalf, after being fully informed of all its terms, must also accept the burdens imposed on him by the contract. So when a contract has been ratified with a full knowledge of the facts, by accepting the benefits thereunder, the principal can not deny the unauthorized representations of the agent by means of which the contract was brought about, even though such representations are fraudulent.” (2 Ene. L. & P. 863.) '
If a principal has actual knowledge that a sale of land which he is making was brought about by the false statements of the person whose acts in his behalf in that connection he is adopting, there could be no doubt of his equal liability for the previous fraudulent conduct of him whose agency he accepts. To hold him so liable, notwithstanding he may have had no knowledge of the fraudulent representations, imposes no greater hardship than does charging him with responsibility for statements made without his knowledge by the agent after the property had been listed with him. The principal has as good an opportunity in the one case as in the other to protect himself by ascertaining upon what information the buyer is acting. ■
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it for $2715.33. A former opinion in this case is found in Royer v. Silo Co., 92 Kan. 333, 140 Pac. 872, where this court said:
“No provision is made in the contract for any commission for the sale of only forty-two silos thereunder, but-it can not reasonably be presumed that the agent was to receive nothing for such sales. The contract is evidently incomplete and oral evidence is admissible to show the agreement between the parties.” (Syl.)
It was also there held that the contract was ambiguous as to freight charges; that the ambiguity should have been removed by parol evidence, and that the provisions of the contract should-then have been considered together as in other cases.
1. The defendant contends that—
“There is a fatal variance between the plaintiff’s petition and his proof. He plead an oral .contract and by his own testimony denied any oral Contract. He can not recover on any contract except the ones alleged and proved.”
The present appeal is from a judgment rendered on an amended petition. This amended petition sets out a written contract, which was referred to in the former opinion, and also sets up an oral contract between the plaintiff and W. L. Hestwood, the defendant’s agent, by which oral contract it' was understood and agreed that the plaintiff should receive a commission of twenty-five and five per cent on- the list price of the first fifty silos sold. There was evidence tending to prove the allegations of the amended petition concerning the understanding and agreement between the plaintiff and the defendant’s agent, W. L. Hestwood, although there was other evidence contradictory thereto. The evidence was sufficient to justify the jury in finding that the plaintiff and Hestwood had such an agreement and understanding. By the general verdict the j ury did so find, and that finding is conclusive in this court. (Backus v. Clark, 1 Kan. 303; Horine v. Hammond, 94 Kan. 579, 583, 146 Pac. 1144, and numerous other cases decided by this court.) There was no fatal variance between the plaintiff’s petition and his proof.
2. The defendant contends that it was the duty of the court to construe the contract so far as freight charges were concerned, and contends that it was error to instruct the jury to consider the testimony of the parties as to their understanding of that part of the contract relating to freight charges.
“Where a written contract unambiguous in its terms, its interpretation or construction is a matter of law for the court.” (Warner v. Thompson, 35 Kan. 27, syl. ¶ 1, 10 Pac. 110. See, also, Getto v. Binkert, 55 Kan. 617, 40 Pac. 925; Rettiger v. Dannelly, 91 Kan. 61, 136 Pac. 942.)
In Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866, this court said:
“It is claimed that the court erred in submitting to the jury the question of what the parties understood and meant by the expression. In gen eral, it is the province of the court to construe written contracts, but where peculiar' expressions are used, it may be left to the jury to determine by the aid of extrinsic circumstances and facts what sense was intended by the parties. Where the language of a contract contains an expression which is ambiguous, or one used in a peculiar sense, evidence may be properly received to show what the parties understood and intended by it. The practical interpretation of such an expression of the parties is entitled to great, if not controlling, influence.” (p. 460. See, also, Seympur v. Armstrong, 62 Kan. 720, 724, 64 Pac. 612; Behen v. Street Railway Co., 85 Kan. 491, 118 Pac. 73; Frazier v. Railway Co., 97 Kan, 285, 288, 154 Pac. 1022; 9 Cyc. 591.)
Evidence to explain the ambiguity in the contract was admissible. There was no error in submitting to the jury, with proper instructions, the interpretation of the contract under that evidence.
3. The defendant contends that there was no evidence to show that the agent, Hestwood, had authority to. bind the defendant to pay twenty-five and five per cent in case less than fifty silos were sold, and contends that there was no evidence to show that Hestwood had authority to bind the defendant by an oral contract. The evidence tended to show that Hestwood was a salesman for the defendant and was working for it at the time the contract was made; that Hestwood signed the written contract; that he had been in the employ of the defendant eight years, and that at the time the contract was written part of Hestwood’s work was to write contracts with agents. This evidence tended to show that Hestwood had authority, to make contracts; that these contracts should fix the compensation to be paid to agents, and include all other terms that were necessary to express the agreement between the defendant and its agents. Hestwood undertook to do this. He made no provision in the written contract for the commission which should be paid if less than fifty silos were sold, and wrote the contract so that it was ambiguous concerning who should pay the freight. Hestwood had authority to make this contract. The dispute has been over the meaning of its terms and, where the terms were not expressed, over what those terms should have been.
4. The defendant insists that its motion to direct a verdict in its favor should have been sustained, for the reason that the evidence was not sufficient to warrant submitting the case to the jury, and insists that the verdict is not supported by-the evidence. These contentions are not good. There was evidence tending to support all the allegations of the amended petition, and on that evidence the case was rightly submitted to the jury. The evidence was sufficient to ‘sustain the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Security State Bank brought an action seeking a personal judgment against W. D. Clarke upon a note executed by him and his wife, and the foreclosure of a real-estate mortgage securing it. G. W. Hampton, one of the defendants, through whom, by intervening assignments, the plaintiff derived title, claimed to be the real owner of the note and mortgage, and entitled to their proceeds, on the ground that he had been induced by fraud to transfer, them, and that the plaintiff had not acquired them under such circumstances as to give it the rights of an innocent purchaser. The court held that the admitted facts relieved Clarke from personal liability, and submitted Hampton’s claim of ownership to a jury, which found in his favor, judgment being rendered on the finding. The plaintiff appeals from the decision releasing Clarke, and from that declaring Hampton to be entitled to the proceeds of the mortgage.
1. The note was executed July 8, 1910, to the Citizens State Bank of Paola, and was made payable in two years. On October 24, 1910, the payee executed an assignment purporting to transfer the note and mortgage to Clarke. On February 15, 1911, Clarke delivered the papers to G. E. Hampton, with this endorsement on the note:
“The within note is hereby transferred and assigned without recourse on either of the makers of the said note individually as shown by the assignment of the mortgage securing this note. W. D. Clarke.”
The assignment written on the mortgage was in these words:
“For value received I, the undersigned W. D. Clarke, transfer' without recourse on me or upon my wife, the other maker, hereby assign and transfer to G.. E. Hampton all my right, title and interest in and to a certain mortgage note described in a mortgage executed by myself and wife on the following real estate [describing it]- . . . . As a part consideration of this assignment the said G. E. Hampton assumes and agrees to pay the said note as between the makers thereof. The said note having become due prior hereto by reason of the default in the payment of the interest thereon under the terms of said mortgage and this assignment is made with the agreement on the part of the present holder of the title to said real estate, subject to this mortgage.”
Subsequently assignments of the note and mortgage were made by G. E. Hampton to G. W. Hampton, by G. W. Hampton to W. J. Hartman, by Hartman to P. S. Carpenter, and by Carpenter to the plaintiff.
By statute a note is discharged when the principal debtor becomes its holder at or after maturity. (Gen. Stat. 1909, § 5372.) Some difference of opinion exists as to whether the transfer of a note to its maker before it is due effects a discharge so as to prevent its further negotiation. (4 A. & E. Encycl. of L. 500, 501. See, also, 8 C. J. 342, 584; 3 R. C. L. 1272; Note, 95 Am. Dec. 587.) Such an assignment to one of several makers is held to destroy its character as a negotiable instrument so far as to prevent the transfer by him of a right to look to his co-makers for anything more than contribution. (4 A. & E. Encyl. of L. 501, and Note 4.) But no reason is apparent why a maker to whom a note has been assigned might not in any case reissue it in such manner as to make it binding upon himself. (Curry v. Lafon, 133 Mo. App. 163.) Such an arrangement, where a discharge had been effected, would of course constitute an entirely new contract. The plaintiff contends that here the use of the phrase “without recourse” in the indorsement only relieved Clarke from liability as an indorser, and left him still personally liable as the maker. That the parties actually intended that he should be released in one capacity and not in the other is hardly conceivable. Assuming, however, that the mere use of the term “without recourse” would have that effect on the ground that custom has given it a meaning applicable only to an indorser, the indorse ment on the note adopts by reference the provisions of the assignment written on the mortgage, and the language of the latter makes it clear that the parties had in mind that the assignee was to look only to the land for the payment of the indebtedness, having assumed the payment of the note “as between the makers.” The special contract, by which the transfer of the note and mortgage was effected, being shown by the indorsement, was binding upon subsequent assignees, and should be enforced according to its obvious meaning.
2. G. W. Hampton pleaded, in substance, that he had traded the note and mortgage to W. J. Hartman for land which he fraudulently represented that he owned, but to which in fact he had no title. Evidence was introduced in support of the allegation, which was accepted by the jury and trial court, so that the fact for the purposes of this proceeding must be deemed to be established. The plaintiff contends that Hampton could raise the question of fraud only by a direct attack, while that which he has here undertaken is collateral. If Hampton was defrauded he had a right to reclaim the note and mortgage in an action brought for that purpose. All the persons concerned or affected were parties to the foreclosure, and as the issue of fraud was submitted to a jury, their rights were as fully protected as though a separate action had been brought for its determination, and no error was committed in requiring it to be decided in this one.
3. The transfer from Hartman to Carpenter was dated March 8, 1913, and was shown not to have been made for a valuable consideration, so that Hampton’s right to reclaim the note was not affected by it. The vital question was whether the bank received the note from Carpenter under such circumstances as to give it the rights of an innocent holder as against Hampton. The note being overdue at the time, no question peculiar to the transfer of negotiable paper was involved. The rule with regard to the past-due note was the same as in the case of any ordinary personal property — an owner who had been fraudulently induced to part with its title could reclaim it from one who had received it without notice of the fraud, unless in obtaining it he had parted with something of value; and accepting it as security for an existing debt does not meet that requirement. (Schulein v. Hainer, 48 Kan. 249, 29 Pac. 171; Note, 36 L. R. A. 161.) There was evidence to the effect that the plaintiff acquired the note in controversy as collateral security for a preexisting debt, and the jury, must be deemed to have found this to be the case, for the court instructed them in effect that the plaintiff’s right to be regarded as an innocent purchaser depended upon whether it acquired the note for a new consideration or as security for a debt already incurred. The jury having found,, upon sufficient evidence, that the plaintiff’s -rights to the note were no greater than Hartman’s, it was concluded by the finding against him, and Hampton was properly adjudged to be entitled to the proceeds of the mortgage.
Complaint is made of the sustaining of an objection to a question asked of one of the plaintiff’s witnesses, but the matter to which it related seems to- have been covered by other testimony, and in any event no showing was made at the hearing of the motion for a new trial as to what the answer would have been. (Civ. Code, § 307.)
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a conviction of rape.
1. The charge was that the defendant did forcibly rape and ravish Maude Morrison, she being then a woman between thirty-five and thirty-six years of age. There was evidence that tended to show that a half hour after the offense was com mitted Maude Morrison met her husband. He was a witness for the prosecution, and testified as follows:
“'Q. Did your wife make complaint to you of Dr. McLemore’s actions, in which she told you what his actions were, on October 28, 1915?
“Mr. Keene: To which the defendant objects as incompetent, ir-
relevant and immaterial and prejudicial.
“The court: He may answer. A. Yes, sir.”
After that evidence was introduced the defendant asked that it be stricken out. The court refused to strike it out. The defendant insists that the witness should not have been permitted to give the name of the person committing the offense. In The State v. Daugherty, 63 Kan. 473, 65 Pac. 695, this court said:
“In prosecutions for the crime of rape, neither the name of the assailant nor the details of the transaction, as given by the assailed, may be repeated in evidence by the party to whom she made timely complaint.” (Syl. ¶7.)
In The State v. Hoskinson, 78 Kan. 183, 96 Pac. 138, this court said:
“Some courts have admitted a full relation of the details told by the prosecutrix, but the weight of authority admits only the fact that a complaint was made; it is not permissible to relate the name of the person of whom she complained. ... A probable exception to this rule is where the complaint was made in such immediate relation with and sequence to the act complained of as to be part of the res gestse, but that has no application here.” (p. 188.)
It must be noticed that the authorities are not unanimous in excluding the name of the assailant. The purpose of the rule is to permit the fact to be shown that the injured party did make complaint, but to exclude’all hearsay evidence of every other fact necessary to prove the crime. .Where the identity of the assailant is unquestioned, and where the defense is that there was no rape either because there was no intercourse, or, if there was intercourse, that the woman consented thereto, it is not easy to see what harm is done by giving the name of the assailant in connection with the fact that complaint was made. In the present case there was no question about the identity of the’ assailant if a rape had been committed. The defendant admitted being at the place where the crime was charged to have been committed at the time when Mrs. Morrison testified it was committed, but he denied having intercourse with her. ■ One of the propositions argued by the defendant on this appeal is that if the evidence shows that he did have intercourse with the complainant the evidence shows that she consented to that intercourse. On the trial, Mrs. Morrison testified positively that it was the defendant who assaulted her. The husband’s testimony concerning the name of his wife’s assailant did not add one particle of evidence to show that a rape had been committed, or, if the other evidence established that one had been committed, that the defendant was the guilty party. Section 293 of 'the code of criminal procedure provides that:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
That evidence was incompetent, but, under the circumstances surrounding this case, it can not be said that the introduction of that evidence aifected any substantial right of the defendant. Its admission was not reversible error.
2. The state sought to prove that the defendant was intoxicated at the time he was charged to have committed this oifense. Mrs. .Morrison testified that she could smell intoxicating liquor on his breath. On cross-examination the defendant testified as follows:
“Q. I am asking you if you haven’t been in the habit of frequently getting partially intoxicated? A. No, sir, never in my life was I intoxicated.
“Q. Sir? A. Never in my life have I been intoxicated.
“'Q. You have never been drunk or half drunk? A. I don’t know what you call half drunk.
“Q. I mean under the influence of liquor so people would know it and understand it by seeing you? A. I was never drunk, tipsy or full in my life, never.”
James D. Stroud, a witness for the prosecution, on rebuttal, testified as follows:
“Q. Now on this date (meaning the time that The State claimed that McLemore was in Stroud’s restaurant, after the alleged crime was committed and after this prosecution was begun) the defendant came in there, what was his condition with reference to being intoxicated or otherwise?
“Mr. Keene: Defendant objects as immaterial and not rebuttal.
“The Court: He may answer.
“Mr. Keene: Exception.
“A. Well, I took him to be intoxicated.”
The defendant complains of the introduction of this evidence.
In The State v. Alexander, 89 Kan. 422, 131 Pac. 139, this court said:
“Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter which does not tend to prove or disprove an issue in the case, the contradictory evidence being offered by the party eliciting the statement.” (Syl. ¶ 3; The State v. Sexton, 91 Kan. 171, 136 Pac. 901.)
It is unnecessary to cite other cases. The defendant’s intoxication when he was in Stroud’s restaurant was a matter wholly immaterial; and except as that evidence may have affected the credibility of the defendant as a witness it could not have produced any effect on the jury. While the evidence was immaterial and inadmissible, its introduction was not sufficient to cause a reversal of the judgment.
3. After laying her complaint before the county attorney, and before she succeeded in getting the county attorney’s office to file a complaint and cause a warrant to be issued for the arrest of the defendant, Mrs. Morrison entered into a contract with other attorneys to bring a suit against the defendant for damages for the assault. On the cross-examination of Mrs. Morrison the defendant sought to show that she had made such a contract. The court refused to permit that evidence to be introduced. The defendant contends that this was error. In The State v. Abbott, 65 Kan. 139, 69 Pac. 160, this court said:
“For the purpose of impairing his credibility, a witness who gives material testimony may be cross-examined as to his past conduct and character, and as to specific acts which tend to discredit him.” (Syl. ¶ 1. See, also, The State v. Pugh, 75 Kan. 792, 90 Pac. 242.)
In the last case cited, the court said:
“The extent permissible in such eases must be left to the discretion of the trial court, whose action will not be disturbed by this court, except for such abuse as works an injury to the party complaining.” (p. 796.)
Grant that this evidence was within the rule and should have been admitted, no harm was done by its exclusion. The plaintiff had a right not only to contract with attorneys to bring a suit for damages, but to bring a suit and prosecute it at the same time that the criminal charge was being prose cuted. The exclusion of this evidence was not sufficient to cause a reversal of the judgment.
4. The court did not instruct concerning an assault with intent to commit rape. The defendant contends that this was error. The evidence tended to show that the offense was completed and committed at the barn at the complainant’s home, and that immediately after the commission of the offense Mrs. Morrison ran to the house. There was evidence tending to show that the defendant followed Mrs. Morrison to the house and there did other things which tended to show his intention to commit another assault on Mrs. Morrison, but that he voluntarily desisted and went away. The defendant was tried for the transaction at the barn. In the opening statement to the jury for the state, it was charged that the offense was committed at the barn. The whole trial concerned the transaction at the barn. All the evidence introduced was to establish the commission of the offense at the barn. The evidence showed that if any offense was committed at the bam it was the completed offense of rape, and not an assault with intent to commit rape, or an attempt to commit rape. The rule is that where the evidence shows a completed offense, the defendant should not be convicted of a mere assault with intent to commit the offense. (The State v. Mitchell, 54 Kan. 516, 38 Pac. 810.) No request for an election between two offenses, separate transactions, was made by the defendant. There was no error in not instructing the jury concerning an assault with intent to commit rape.
5. The defendant contends that there was no evidence to show that the crime of rape was committed. In support of this contention he argues that the evidence of the prosecuting witness clearly showed that she did not resist to the extreme. The defendant contends (quoting from his brief):
“That the law is that where a rape is committed by physical force, the party raped must not only cry out, but must resist to the extreme limit of her strength; doing everything in her power to prevent the ravishing.”
The rule contended for by the defendant was condemned by this court in The State v. Ruth, 21 Kan. 583, in the following language:
“To make the crime hinge on the uttermost exertion the woman was physically capable of making would be a reproach to the law and to common sense.” (p. 591.)
In 33 Cyc. 1427, the author says:
“It is said in some of the cases that there must be the utmost reluctance and the utmost resistance, but this rule is repudiated in other jurisdictions.”
The circumstances attending the commission of the offense charged against this defendant, as related by Mrs. Morrison, are offensive, revolting and disgusting. They will not be here detailed. They show that she resisted until after resistance was useless and unavailing, and that she never consented to the acts of the defendant. The rule contended for by the defendant is a barbarous one. It has no place in twentieth century civilization in this state. When a mature man invades another man’s home and there seeks to debauch the latter’s wife or daughter he should be compelled to see to it that he uses no force whatever to accomplish his purpose; and he should be compelled to see to it that his victim willingly submits to his embraces before he asks an appellate court to draw fine distinctions to relieve him from the penalties fixed by law for rape, after he is found guilty by a jury and sentenced by the trial court. The defendant’s contention that the offense charged was not proved by the evidence is without substantial merit.
6. The defendant complains of the conduct of counsel for the state. At the conclusion of the opening argument for the State the defendant waived his right to argue the cause, and submitted the same to the jury without further argument. After the jury had been out for a number of'hours it sent a request to the court for information concerning certain of the evidence that had been introduced. That evidence was read to the jury. One of the attorneys for the state then made the following request: .
“Now, if your Honor please, before this jury returns, in the interest of law enforcement, and that justice may not go wrong, I request the privilege of you of addressing this jury on the law and facts in this case. They have come back in here for some testimony, and the testimony seems to be indistinct in their minds, and in order that the law may be enforced, and justice be done, I request the privilege of addressing them.”
The court refused this request in the following language:
“The request is denied, and, Gentlemen of the Jury, you will pay no attention to statements of counsel made in here. You will determine this case from the evidence as given you from the witness stand, under the Court’s instruction. You may retire to further consider of yóur verdict.”
The attorney’s request was improper and should not have been made; but the jury understood that it was an attorney that made the request, and when it was refused and the jury were instructed to pay no attention to the statements of counsel, all effect that might have been momentarily produced by the request was obliterated, and if any effect then remained it must have been one of condemnation for the conduct of the attorney. This misconduct of counsel for the state was not sufficient to justify this court in reversing the judgment.
7. The defendant argues that a new trial should have been granted for the reason that one of the jurors had, prior to being impaneled as a juror, expressed an opinion concerning the result of the trial of the defendant. This juror, D. R. Keith, testified on his voir dire that he had no opinion and had expressed no opinion as to the result of the trial of the defendant. Three witnesses made affidavit that in conversations with the juror Keith, prior to the trial, he had said to each of them that “they will stick Dr. McLemore.” Keith made affidavit that he never made the statement that “they will stick Dr. McLemore,” or anything in substance like that. On these affidavits and on the examination of juror Keith, on his voir dire, the court found the facts involved in this matter against the defendant. There is nothing to show that the finding was incorrect. The matter was one primarily for the trial court and that finding will not be disturbed.
There are a number of errors disclosed, each of which is of minor importance, and none of which is sufficient to cause a reversal of the judgment. There was nothing in any of the errors committed that deprived the defendant of a fair trial in the court, or of fair consideration at the hands of the jury.
The judgment is affirmed.
West, J., concurs in the result but not in all things said. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued Lawrence township of Cloud county and Grant township of Republic county to recover for the loss of a horse alleged to have died from injuries received by reason of a defective bridge in a highway between the two townships. *A demurrer to the plaintiff’s evidence was sustained and the plaintiff appeals complaining of this ruling and of the rejection of certain evidence. The bill of particulars alleged, among other things, that the bridge was of a span of over ten feet, and was allowed to remain without any guard rails and in a dangerous and defective condition and with loose and rotten planks in the floor, to the knowledge of the defendants. It appears that there was a washout just east of the bridge on the north side of the approach thereto, and the plaintiff coming west drove to the south on account of this washout and his horse stepped upon a portion of a plank pro-j ecting over the stringer on the south side of the bridge, when the plank broke causing the horse to fall and receive the injury from which it died. The planks extended some two feet over the stringers and there were no barriers on either side of the bridge. There was testimony that the trustee of Lawrence township a little while after the accident said that the bridge had been in bad condition a long time and that he knew it but that it belonged to Republic county. The statute provides that recovery may be had from the county for damage caused by a defective bridge constructed wholly or partially by such county when the chairman of the board of county commissioners shall have had notice of such defects, for at least five days prior to the time when the damage was sustained, “and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.” (Gen. Stat. 1909, § 658.) Section 659 makes it the duty of the trustees of each township “to cause to be placed, in a substantial manner, and maintained in good repair, on each and every bridge of a span of ten feet and over erected by any township or road district upon any public highway in their respective townships, good and sufficient guard rails on each side of any such bridge.”
There was testimony that this bridge was built by a road overseer of Lawrence township, and that the two townships had divided up the road for purposes of repair, Grant township taking the portion including the bridge, and that both townships had to some extent contributed to its maintenance or repair. While the fact that it was built by the trustee may not be proof conclusive that he was acting for his township or for any road district the natural inference to be dra^n is that he was acting for the former and this inference was sufficient on this point to take the case to the jury.
There was no evidence that either county or Grant township had anything to do with erecting the bridge.
The evidence as to the length of the span is somewhat conflicting and still more confusing but a careful examination of the entire showing upon this point leads to the conclusion that this question also should have been submitted to the jury.
Under the allegations and proof the absence of guard rails might justifiably be deemed a contributing cause of the injury, and was for the jury to consider.
When the case was here before it was said to hinge upon the point whether or not the bridge was constructed wholly or partly by the counties so as to make them responsible under section 658, or whether this was one of “the other cases” from which recovery may be had from the townships. And in speaking of the bill of particulars it was said that “the fair inference could be drawn that the townships had built or assumed responsibility for the bridges and failed in their duty to keep' them in proper condition.” (Olsson v. Lawrence Township, 93 Kan. 440, 443, 144 Pac. 997.) The decision of Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010, logically compels the conclusion that in view of the language of the statutes quoted it is simply a question as to who erected the bridge and that mere assumed responsibility for it after its construction would not render a municipality liable. To this extent the former opinion is modified.
A record of boundaries of road districts in Lawrence township was offered in evidence for the purpose of showing that the place of the alleged injury was included in one of its districts. This record was produced by the township clerk and testified to as a part of the records of the township. It was also testified that the road in question had been used for many years, one witness thirty-seven years old saying it had been used as long as he could remember, and we see no reason why this record was not competent for the purpose of showing that the township recognized the location of the injury as within one of its road districts, which might be somewhat indicative that the township trustee in building the bridge had acted for the township.
The county clerk testified that he knew whether or not Cloud county had ever contributed anything towards the building of this bridge, but was not permitted to state what his knowledge was on the subject, nor whether he knew as to the county having designated the road in question as a county road. Whatever his knowledge was on the former subject was proper to be shown by competent evidence. (The State v. Schmidt, 34 Kan. 399, 8 Pac. 867.)
A careful examination of the entire record leads to the conclusion that plaintiff failed to make out a case against Grant township, but offered evidence sufficient to take the case to the jury as to Lawrence township, and hence the judgment is modified by sustaining the demurrer as to the former and overruling it as to the latter. | [
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Pierron, J.:
Lloyd Wayne Allen pled guilty to four counts of aggravated indecent liberties with a child and three counts of criminal sodomy. He was sentenced to 88 months on the primary offense. The sentences on the lesser charges were to run concurrently. The trial court found the primary offense was sexually motivated and departed to a postrelease supervision period of 60 months pursuant to K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i).
Allen argues the sentence imposed in this case constitutes an unconstitutional departure under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). This claim requires an interpretation of 22-3717(d)(l)(D)(i) and is a question of law subject to an unlimited standard of review. See State v. Jones, 24 Kan. App. 2d 669, 670, 951 P.2d 1302, rev. denied 264 Kan. 823 (1998).
Allen did not object to his sentence to the trial court. Generally, a constitutional challenge will not be entertained for the first time on appeal, but we should consider Allen s claim to prevent a denial of fundamental rights. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
Allen’s primaiy offense of aggravated indecent liberties with child carries a presumptive postrelease supervision period of 36 months. K.S.A. 2001 Supp. 22-3717(d)(l)(A). K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i) requires a sentencing court to impose the 36-month term unless the court finds substantial and compelling reasons to impose a departure term not to exceed 60 months “based upon a finding that the current crime of conviction was sexually violent or sexually motivated.”
Allen pled guilty to aggravated indecent liberties with a child and criminal sodomy for incidents involving sexual intercourse, including vaginal and anal penetration, and oral sex with a 14-year-old female. The trial court found the crimes were sexually motivated and imposed the 60-month term.
Aggravated indecent liberties with a child and criminal sodomy are defined by statute as sexually violent offenses. K.S.A. 2001 Supp. 22-3717(d)(2)(C) and (D). A sexually violent crime is also defined as “any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated.” K.S.A. 2001 Supp. 21-3717(d)(2)(L). A sexually motivated crime is one for which one of the purposes is the defendant’s sexual gratification. K.S.A. 2001 Supp. 22-3717(d)(2)(L).
We believe this case is generally resolved by State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002).
As stated in Justice Six’ opinion in Anthony:
“The resolution of Anthony’s claim requires our examination of the appropriate sentencing statutes. We begin by observing that postrelease supervision is mandatory. K.S.A. 2001 Supp. 22-3717(d)(1). Postrelease supervision is a component of the underlying prison sentence. An inmate has not served his or her sentence until the postrelease period is complete. K.S.A. 22-3722.
“Because Anthony was convicted of aggravated indecent liberties with a child, a severity level 3 nondrug offense, he was required to serve 36 months on post-release supervision. K.S.A. 2001 Supp. 22-3717(d)(1) mandates:
‘(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 1 through 4 crimes . . . must serve 36 months, plus the amount of good time earned and retained pursuant to K.S.A. 21-4722 and amendments thereto, on postrelease supervision.’
“The postrelease supervision period may be extended under certain circumstances. K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i) says, in part:
‘The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A) [36 months] . . ., unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually violent or sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.’
“K.S.A. 2001 Supp. 22-3717(d)(2) sets forth the definition of a ‘sexually violent crime,’ which encompasses a laundry list of offense complete with statutory citations. Anthony’s crime of aggravated indecent liberties is on the list and thus fits squarely within the definition of a sexually violent crime. See K.S.A. 2001 Supp. 22-3717(d)(2)(C).
“Anthony contends that the district court here imposed an upward durational departure sentence by subjecting him to the extended postrelease supervision period. We agree. The statutory maximum penalty for Antony’s crime includes a 36-month postrelease period. The district court’s extension of Anthony’s post-release period from 36 to 60 months increased the penalty for his crime beyond the statutory maximum.
“The question becomes whether the increased postrelease period runs afoul of the protections outlined in Apprendi and Gould. We conclude that it does not. Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i). In doing so, the court was not required to malee an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.” 273 Kan. at 729.
In the instant case, the trial court used the “sexually motivated” characterization of K.S.A. 2001 Supp. 22-3717(d)(2)(L), instead of the “sexually violent” characterization of K.S.A. 2001 Supp. 22-3717(d)(2)(C), as a reason to depart. Although aggravated indecent liberties is specifically listed in the statute as a “sexually violent” crime, there is no specific listing of “sexually motivated” crimes in subparagraph (L). However, we have no difficulty in finding that a “sexually violent” crime is also a “sexually motivated” crime under our statutes.
Therefore, the trial court was within its authority to order 60 months of postrelease supervision, as the pleas of guilty to aggravated indecent liberties and criminal sodomy were obviously pleas of guilty to sexually motivated, or sexually violent, crimes. As such, there was a factual finding in the legal proceeding below which would satisfy the requirements of Apprendi and Gould.
We do acknowledge that Anthony was convicted by a jury while Allen pled guilty. We also note State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001). In Cody, the defendant had pled guilty to multiple drug charges. The trial court made an upward durational departure based generally on reasonable, but unproven, inferences from the evidence that Cody was a major drug dealer.
Our Supreme Court rightly found this violated Apprendi and Gould on the basis that the rather unclear sentencing factors used for the upward departure had not been proven beyond a reasonable doubt simply by the defendant’s admitting to tire elements of the crime involved.
The instant case is distinguishable. While the trial court in Cody had to make inferences from the pleas to reach a finding of factors supporting an upward departure, no such inference is necessary here. The plea to a charge of aggravated indecent liberties is a plea to a crime which is sexually violent and sexually motivated by definition. No inference is necessary. Once the statutory nature of the crime is determined, the provisions of K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i) can be applied. There is no need for any evidentiary fact finding by the court, which is prohibited by Apprendi and Gould.
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Marquardt, J.:
David Shields appeals the decision of the Workers Compensation Board (Board), which found that Shields, K.A.T. Transportation (K.A.T.), and ACE-USA were not subject to the Kansas Workers Compensation Act (Act). We affirm.
While Shields was in Wichita, Kansas, on February 10, 2000, he was informed by telephone that he was hired as a long-haul truck driver by K.A.T., a Chesterton, Indiana, trucking company.
Shields began orientation on February 14, 2000, in Indiana. During orientation, he signed various agreements that stated all disputes with K.A.T. would be resolved under Indiana law, including workers compensation claims.
On November 24, 2000, after unloading boxes in Ohio, Shields experienced pain in his back and neck. The following morning, he experienced more pain in his back and tingling in his left arm. After Shields spoke with K.A.T. representatives, he visited an emergency room in Indiana. Shields’ problem was diagnosed as a pinched nerve or dislocated disk in his neck. Tylenol and steroids were prescribed.
Shields drove to Wichita and saw Dr. Scott Rees on December 1, 2000. Rees diagnosed Shields as having a degeneration and spurring of a spinal cord disk. He prescribed medication and informed Shields not to drive while on the medication. At K.A.T.’s request, Shields drove the truck back to Indiana and he returned to Kansas by train.
Shields filed an application for a workers compensation hearing, claiming that he had an injury to his back and neck on or about November 24, 2000, and “each day worked thereafter” from repetitive overuse and truck driving. He testified that he had been driving trucks for 25 years and would occasionally experience soreness after driving for long periods of time. He always worked through this discomfort without visiting a doctor. He testified that he had experienced soreness in his back 2 weeks prior to the injury in Ohio. He testified that he informed a K.A.T. employee after the injury that his back had been sore for a couple of weeks. Shields was taken off work on December 1, 2000.
K.A.T. claimed that Kansas was without jurisdiction to consider his claim because Shields had agreed to Indiana jurisdiction for workers compensation claims. K.A.T. argued that Shields’ alleged injury occurred outside of Kansas and his employment contract was entered into outside of Kansas. Finally, K.A.T. claimed that even if Shields’ injury occurred in Kansas, the election of Indiana law precluded Kansas from exercising jurisdiction of the claim.
Shields argued that his injury occurred in Kansas through years of driving trucks, specifically while finishing his duties for K.A.T., and that Kansas has jurisdiction of his claim because his employment contract was entered into in Kansas.
The administrative law judge (ALJ) found that Shields had selected Indiana as the forum for resolving workers compensation claims and that his injuiy was sustained outside the state of Kansas. Therefore, Kansas did not have jurisdiction of his claim.
Shields appealed the ALJ’s decision to the Board. The Board agreed that Shields’ employment contract was made in Kansas when Shields accepted the job offer on the telephone. The Board found that Shields’ injuiy occurred in Ohio while unloading his truck. The Board then found that Shields voluntarily signed agreements wherein he agreed that Indiana workers compensation laws would apply to the settlement of any claim arising out of a job-related injuiy. The Board concluded that the parties were not subject to Kansas workers compensation laws. Shields appeals.
Shields claims that his injury occurred in Kansas. The Board’s decision regarding the place of injury represents a factual finding. The determination of whether the Board’s factual findings are supported by substantial competent evidence is a question of law. An appellate court is to review the evidence in the light most favorable to the prevailing party below. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
The Board also found that Shields failed to prove he was injured further while driving back to Kansas. That finding should be affirmed absent proof of an arbitrary disregard of undisputed evidence or an extrinsic consideration such as bias, passion, or prejudice. Griffin, 268 Kan. at 34.
K.S.A. 44-506 provides that the Act shall apply to injuries sustained outside the state when the contract of employment was made within the state, unless such contract otherwise specifically provides. Shields claims that the injury occurred in Kansas and the contract provisions electing Indiana law are insufficient to deprive Kansas of jurisdiction.
Even though the Board found that the employment contract was made in Kansas, on appeal, K.A.T. briefly attempts to argue that the contract was not actually made until Shields took a physical examination and drug test and complete orientation in Indiana. However, K.A.T. did not cross-appeal this issue; therefore, the Board’s finding on this issue is final.
Shields testified that he had not been working as hard during the 2 weeks prior to his injury due to soreness in his back. He could not point to a specific time and place the injuiy occurred. He also testified that he would not usually be sore from loading or unloading a truck.
Linda Payton, K.A.T.’s insurance administrator and claims coordinator, stated in an affidavit that Shields informed her he did not believe his injuries were caused by the job but were the result of years of driving trucks. Shields argues that his injuiy should be classified as a repetitive use or degenerative type of injury and, therefore, his claim should be considered under Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 227, 885 P.2d 1261 (1994), where the claimant’s injury was deemed to have occurred on the last day he worked. Shields argues that the place of the last day worked becomes the place of injuiy. Here, part of Shields’ last day of work occurred in Kansas.
In Berry, this court addressed the problem of assigning a date of injury to a claimant suffering from carpal tunnel syndrome. In attempting to determine whether carpal tunnel is an occupational disease or an accidental injuiy, the court determined that carpal tunnel is caused by repetitive trauma over a long period of time. The court stated: “While it is true that it is caused by trauma and thereby fits the definition of an ‘injury caused by accident,’ it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred.” 20 Kan. App. 2d at 229. To simplify the process of determining a date of injury, the court adopted a rule that “the date from which compensation flows is the last date worked by the claimant.” 20 Kan. App. 2d at 229-30.
Shields also cites Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999), for the proposition that injuries suffered as the result of micro-traumas leading to increasing pain are also subject to the “last day worked” rule. Shields also cites Graff v. Trans World Airlines, 267 Kan. 854, 983 P.2d 258 (1999), which states that “[wjhere a repetitive trauma injuiy is caused or aggravated by work activities, some of which occurred in Kansas, the injury is compensable under the Act.” 267 Kan. at 859. Shields claims that these cases support his argument that his injury oc curred in Kansas and, therefore, is compensable under the Kansas workers compensation statutes.
Shields ignores the evidence that his injuiy occurred when he was unloading boxes in Ohio, and his previous soreness and pain through years of truck driving seemingly did not affect his ability to work. His argument under Graff does not recognize the fact that he signed an agreement which stated all disputes with K.A.T., including workers compensation claims, would be resolved under Indiana law.
Dr. Rees’ notes indicate that Shields first experienced a sharp, stabbing pain at the base of his neck on November 8, 2000, while lifting heavy boxes. The pain lasted for a few days. Shields had previously visited Dr. Jack L. St. Clair on November 28, 2000, and complained of this same incident that occurred approximately 3 weeks earlier.
Shields’ own testimony fails to mention this previous incident of pain after lifting boxes. He testified that he experienced soreness and stiffness over the years after driving long distances, but the pain was different from what he experienced in the present case. He also testified that he had been sore for 2 weeks and had not been driving as many miles. Shields testified that the doctor informed him the spurring in his neck was due to years of driving a truck, but a review of tire record on appeal does not reveal die cause of the spurring.
The question before this panel is whether the Board’s determination that Shields’ injury occurred in Ohio is supported by substantial competent evidence. There is evidence in the record on appeal that Shields had been suffering from soreness through the years he worked as a truck driver. The record as a whole could have led the Board to determine that Shields suffered some sort of injury due to the repetitive nature of his job. However, the question is not whether the record supports a contrary view, but whether it supports the findings made by the Board.
Shields testified that he felt it was necessary to seek medical treatment due to the tingling in his arm and the pain in his neck. Without medical testimony in the record on appeal to establish a claim that the injuiy was simply the culmination of years of truck driving, there is no independent medical verification of Shields’ claim.
There is substantial competent evidence to support the Board’s finding that Shields was injured in Ohio.
Shields argues that since the contract was formed in Kansas, the provisions he agreed to after arriving in Indiana constituted an improper attempt by K.A.T. to modify the contract. An analysis of K.S.A. 44-506 and the agreements signed by Shields are subject to an unlimited review by this court. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
K.S.A. 44-506 states:
“The workmen’s compensation act shall not be construed to apply to business or employment which, according to law, is so engaged in interstate commerce as to be not subject to the legislative power of the state, nor to persons injured while they are so engaged: Provided, That the workmen’s compensation act shall apply also to injuries sustained outside the state where: (1) The principal place of employment is within the state; or (2) the contract of employment was made within the state, unless such contract otherwise specifically provides . . . .”
K.A.T. was a carrier that operated in 11 states and engaged in interstate commerce. Shields testified that he had driven through all 11 states. K.S.A. 44-506 grants Kansas jurisdiction in such a case, unless the employment contract provides otherwise.
Shields argues that since his contract was created in Kansas, the language in K.S.A. 44-506(2) permits an employment contract to provide for workers compensation coverage in other jurisdictions if “such contract otherwise specifically provides.” Shields argues: “Thus it follows that a contract term that eliminates the coverage of the Kansas Workers Compensation Act and substitutes the coverage of another state must be made in Kansas to be effective . . . .”
Shields signed a variety of documents while he was at orientation in Indiana. One document was an agreement containing, in part, the following language:
“2. The laws of the state of Indiana, including the Indiana Workers’ Compensation Act and its benefits, shall apply to the settlement of any claim arising out of any job related death, injury or illness of the Employee.
“3. The Employee voluntarily elects and agrees to this method of settlement regardless of his or her state of residence or regardless of which state or country such accident may occur.”
This agreement was signed by Shields and a safety training supervisor for K.A.T.
Shields also signed a driver agreement, which provided that the agreement was “entered into and will be interpreted under the laws of the State of Indiana. DRIVER specifically agrees that Indiana will be the legal forum for all disputes, including worker s compensation claims arising out of the employment relationship.”
Finally, Shields signed a document entitled “Agreement to Select a State Other Than Ohio as the State of Exclusive Remedy.” This document listed Indiana as the state of exclusive remedy in a workers compensation action.
In Shehane v. Station Casino, 27 Kan. App. 2d 257, 3 P.3d 551 (2000), a claimant entered into an employment contract in Kansas to work as a performer for Station Casino in Missouri. The performer agreement signed by both parties provided that its terms and provisions were to be governed by Missouri law. Station Casino argued that the Kansas Workers Compensation Act did not apply to claimant’s action.
This court determined that the claim was not controlled by Missouri law because the agreement’s generic choice of law provision did not specifically provide that Missouri law would cover workers compensation claims and, therefore, did not meet the specificity requirement found in K.S.A. 44-506(2). In so finding, the court looked to K.S.A. 44-501(g), which states that the Act is to be liberally construed to bring employers and employees within its provisions to provide its protection to both. 27 Kan. App. 2d at 263.
The present case does not involve one agreement containing a generic choice of law provision. Rather, it involves several documents voluntarily signed by Shields which provide that workers compensation claims were to be settled according to Indiana law. The only logical interpretation of these documents is that Shields was agreeing to submit to jurisdiction in Indiana for the settlement of such claims.
Shields argues that the documents he signed in Indiana were not part of the original employment contract, but were modifications not contemplated by the Kansas oral contract. As K. A.T. mentions in its brief, the court in Shehane seems to address this point indirectly. In rejecting Station Casino’s argument that Missouri law controlled under the contract, the court appeared to say that had the agreement been more specific, Missouri law may have controlled the claim.
An oral employment contract reached between parties during a telephone call may be modified by subsequent written contracts between the parties. Shields has cited no authority that renders the voluntary agreements meaningless or without force and effect. They are part of the contract as a whole, and Shields could not have believed that when he accepted the job by telephone, no further discussion regarding specifics of the job would be necessary. The agreements are binding on Shields and vest jurisdiction over this action in Indiana.
Shields also raises the argument that the agreements are void because they required him to select workers compensation protection from a state other than Kansas. In support, he cites K.S.A. 44-543(b), which states, in part: “Any contract in which an employer requires of an employee as a condition of employment that the employee elect not to come within the provisions of the workers compensation act, shall be void.” This language appears in a subsection dealing with employees who own 10% or more of the outstanding stock of a corporate employer, and prohibiting such employees from contracting out of workers compensation protection. In the present case, Shields did not contract out of protection, but simply chose that of another jurisdiction. K.S.A. 44-543(b) is inapplicable to this case.
Finally, Shields claims that the agreements executed in Indiana are ineffective by their terms. He argues that only K.A.T.’s president could enter into an employment contract, the documents pertained only to the settlement of a claim and not to other resolutions, and documents necessary to make the agreements enforceable were not attached and filed as required.
These claims lack merit. Shields testified that he was never contacted by the president of the company, and the signed agreements do not bear the signature of anyone claiming to be K.A.T.’s president. However, there is no evidence in the record on appeal regarding whether K. A.T. ’s company policies permitted the president to designate other employees to enter into employment contracts or sign related documents. Without specific information regarding K.A.T.’s hiring policies, this panel cannot determine whether any violations occurred that would render the agreements unenforceable.
The same reasoning applies to Shields’ argument that the agreement to select Indiana as the state of exclusive remedy is unenforceable because required certificates of coverage were not attached and filed with the state. Shields claims that no such certificates were filed, and no certificates appear in the record on appeal, but it is impossible to tell from the record on appeal whether they were actually attached or filed with the State of Indiana.
Further, Shields’ argument that one of the agreements provides for Indiana law to control only the settlement or method of settlement, and not all possible resolutions, is equally without merit. The language of all the agreements read together clearly illustrates that any workers compensation actions were to be resolved under Indiana jurisdiction, and the selected language does not anticipate submitting the claim to Indiana jurisdiction only in the case of a legal settlement.
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Malone, J.;
This is an interlocutory appeal of an order suppressing all evidence obtained as a result of an automobile stop based upon an anonymous tip. The sole issue is whether the anonymous tip concerning a reckless driver on a highway provided a sufficient basis for a sheriff s deputy to stop the defendant’s vehicle.
On August 18,2000, at approximately 1:50 p.m., Johnson County Sheriff s Deputy Mark Leiker heard a dispatch request for a Spring Hill police officer to respond to a report of a “reckless” driver in a black Dodge pickup with Oklahoma license plates traveling northbound from the county line on 169 Highway. Deputy Leiker responded to the dispatch because he was in the area and a Spring Hill police officer was not available. Deputy Leiker parked near the intersection of 207th Street and 169 Highway, approximately 1 mile north of the county line. Approximately 8 minutes later, a black Dodge Dakota pickup with Oklahoma license plates passed through the intersection traveling northbound. Traffic on the highway was light at the time. Without attempting to follow the pickup, Deputy Leiker activated his emergency equipment and stopped the vehicle. Deputy Leiker did not observe any reckless driving by the defendant prior to the stop.
The subsequent investigation leading to Crawford’s arrest for driving under the influence (DUI) need not be related in detail. Crawford does not challenge the probable cause to arrest. Suffice it to say, Crawford failed his field sobriety tests, failed a preliminary breath test, and subsequently failed his Intoxilyzer breath test.
Crawford was charged with DUI, in violation of K.S.A. 2000 Supp. 8-1567. He filed a motion to suppress the evidence obtained during the vehicle stop. After a hearing on the motion, the district court ruled that the stop was investigatory in nature and that the deputy lacked the required reasonable suspicion to make a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The district court suppressed all evidence obtained by the police as a result of the stop and detention. The State timely appeals the ruling.
“In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment.” State v. Webber, 260 Kan. 263, Syl. ¶ 3, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). The facts and circumstances leading up to and including the stop in this case are not in dispute. Therefore, whether the district court properly suppressed the evidence is solely a question of law, and our standard of review is unlimited. State v. Vandiver, 257 Kan. 53, 56, 891 P.2d 350 (1995).
The State asserts the anonymous tip that a black Dodge Dakota pickup truck was driving recklessly was sufficient information to justify stopping the vehicle. Crawford counters that the stop was not justified as either a valid investigatoiy stop or a valid public safety stop.
The traffic stop of a vehicle by a law enforcement officer is a seizure under the Fourth Amendment to the United States Constitution. State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872 (1996). The law recognizes two different types of traffic stops. An “investigatory stop” is permitted under K.S.A. 22-2402, which is a codi fication of Terry, 392 U.S. 1. The law also permits a “public safety stop,” recognized in Kansas in State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). Whether a traffic stop can be supported solely by an anonymous tip is a fact-sensitive question which must be determined on a case-by-case basis. Resolution of the issue depends upon whether the stop is categorized as an investigatory stop or as a public safety stop. Therefore, our analysis will be twofold: (1) Was the stop permitted as an investigatory stop? and (2) Was the stop permitted as a public safety stop?
INVESTIGATORY STOP
K.S.A. 22-2402(1) provides authority for an investigatory stop:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.”
In State v. Slater, 267 Kan. 694, 700, 986 P.2d 1938 (1999), our Supreme Court identified three factors to be used in evaluating whether an anonymous tip provides a sufficient basis for an investigatory stop of a motor vehicle by police: (1) the type of tip or informant involved, (2) the detail given about the observed criminal activity, and (3) whether the police officer’s personal observations corroborate the information supplied in the tip. Regarding the first factor, the court has stated that the most favored of the tips are those which are in fact not really anonymous at all. Second on the scale of reliability are those tips in which, although the informant does not identify himself or herself, the informant gives enough information that his or her identity may be ascertained. Least reliable is an anonymous tip that is truly anonymous. 267 Kan. at 700-02.
The second factor identified in Slater is whether the informant gives enough detail about the observed activity to support a stop. A tip is more reliable if it is apparent that the informant observed the details personally instead of simply relying on information from a third party. 267 Kan. at 702.
The final factor in Slater is whether the police officer’s personal observations confirm the report of the informant’s anonymous tip. An officer may corroborate the tip by observing illegal activity or by finding the person and vehicle and the location as substantially described by the informant. 267 Kan. at 703.
Applying the Slater test to the facts of this case, we conclude that Deputy Leiker lacked sufficient basis for an investigatory stop of Crawford’s vehicle. First, the type of tip or informant involved was truly anonymous, which is the least reliable source of information. Second, Deputy Leiker was provided scant information about the observed criminal activity. He was only told that a black Dodge Dakota pickup with Oklahoma license plates was driving recklessly on 169 Highway. Deputy Leiker did not know how many people were in the truck, what the driver looked like, or what sort of behavior led to the characterization of the driving as reckless. Deputy Leiker did not even know if the informant observed the details personally or if the informant was relying on information from a third party. Finally, Deputy Leiker’s personal corroboration was minimal. He did find the vehicle at the location as substantially described by the informant. However, such corroboration will exist in almost every case. Deputy Leiker observed no illegal activity or any other type of behavior by Crawford to corroborate the anonymous tip of reckless driving.
Deputy Leiker lacked the required reasonable suspicion to stop Crawford pursuant to K.S.A. 22-2402. The district court did not err in suppressing the evidence on the basis of an invalid investigatory stop.
PUBLIC SAFETY STOP
We must next consider whether the stop was a valid public safety stop. “A civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify a stop, if safety reasons are based upon specific and articulable facts.” (Emphasis added.) Vistuba, 251 Kan. 821, Syl. ¶ 1. Vistuba involves a safety stop of a vehicle based upon an officer’s personal observations of erratic driving.
In State v. Tucker, 19 Kan. App. 2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), this court took Vistuba a step further and held that an anonymous tip may justify a safety stop of a ve hide. In Tucker, the police received an anonymous tip that a white male was driving a red 1960’s model Ford pickup southbound on K-61 Highway from Inman and that the driver appeared to be drunk and running vehicles off the road. Two officers located the pickup, and the description of the vehicle and the driver matched the anonymous tip. The officers did not see any erratic driving. However, the morning traffic on K-61 Highway was heavy. One of the officers testified that he pulled the vehicle over in the interest of public safety since the report indicated a potentially drunk person was running cars off the road.
Tucker argued on appeal that the safety stop of his vehicle was not supported by “specific and articulable facts.” 19 Kan. App. 2d at 922. The court upheld the stop and stated that “an anonymous tip may provide sufficient indications of reliability to support police action.” 19 Kan. App. 2d at 928. The court noted that whether an anonymous tip has provided sufficient facts to justify a safety stop of a motor vehicle by police must be determined from the totality of circumstances shown by the evidence. 19 Kan. App. 2d at 928. The court concluded under the facts of the case that the danger to the public was clear, urgent, and immediate, which justified the vehicle stop. 19 Kan. App. 2d at 931. In doing so, this court issued a strong warning:
“Our decision should be considered carefully within its context. . . . The balance [of the evidence] requires that a safety stop of the nature involved in this action be approved. However, we caution that the same type of tip may not be sufficient where the risk to the public is not urgent and the time exists to verify all aspects of the tip, including the caller’s reliability. Reliance on this decision to justify the use of an anonymous tip under other circumstances would, be unioise, and we strongly discourage any attempt to expand this decision beyond the perimeters indicated.” (Emphasis added.) 19 Kan. App. 2d at 931-32.
This court revisited the issue of a vehicle stop based upon an .anonymous tip in State v. Ludes, 27 Kan. App. 2d 1030, 11 P.3d 72, rev. denied 270 Kan. 902 (2000). In Ludes, a police officer was informed by dispatch that there was a person driving a motorcycle on a specified road who appeared to be injecting something into his arm with a needle. The officer drove to the specified location and saw a motorcycle. The officer followed the motorcycle but did not observe any driving infractions, nor did the driver exhibit any unusual behavior. Regardless, the officer stopped the motorcycle, later explaining: “ ‘I have a wife that’s a diabetic, and she has had problems with the past, is insulin dependent. And people can get into a lot of trouble if they don’t follow their insulin routine.’ ” 27 Kan. App. 2d at 1031.
Ludes was eventually arrested and convicted of DUI. On appeal, the court held that under the circumstances of the case, neither an investigatory stop nor a public safety stop was justified. 27 Kan. App. 2d at 1033-36. Regarding the public safety stop analysis, the court distinguished Tucker by noting the facts in that case involved an anonymous tip that a drunk driver was running other vehicles off the highway in heavy morning traffic. In Ludes, the court concluded:
“In the present case, the danger to the public was neither clear, urgent, nor immediate.
“Because the caller’s tip was so lacking in details and [the officer] did not observe any behavior which would indicate immediate danger to Ludes or the public, it cannot be held the stop was justified under the guise of a safety stop.” 27 Kan. App. 2d at 1036.
The facts of this case are much closer to Ludes than to Tucker. Here, the information contained in the anonymous tip was the report of a “reckless driver” on the highway. Deputy Leiker testified that 169 Highway had a histoiy of bad accidents. However, there was no information that the vehicle driver was intoxicated. There were no details to describe how or why the driving was considered “reckless.” When Deputy Leiker spotted the reported vehicle, traffic on the highway was light. This is far less than the information possessed by the officers in Tucker, where the danger to the public was clear, urgent, and immediate. Here, as in Ludes, there was insufficient evidence to support such a finding.
We recognize that this issue involves important public policy considerations.
“In determining whether a stop of a motor vehicle violates a defendant’s Fourth Amendment rights, a court must balance the rights of the individual to privacy and freedom of movement with the right of the public to be protected from unreasonable dangers; the greater and more immediate the risks to the public revealed by the tip, the less important is the corroboration and reliability of the tip,” Slater, 267 Kan. 694, Syl. ¶ 6.
The risk of danger presented to the public by a drunken driver is so great that courts cannot afford to impose strict, verifiable conditions on an anonymous tip before a traffic stop can be made in response to such a tip. The limited intrusion on time and freedom of travel occasioned by a safety stop is minimal. The risk to the public if the tip is accurate is extremely high. Tucker, 19 Kan. App. 2d at 931.
On the other hand, the potential for abuse in allowing such stops must be recognized by the courts. As noted in Ludes: “If successful, the public safety stop would literally emasculate the constitutional protection afforded a motorist’s privacy under Terry.” 27 Kan. App. 2d at 1035. Further, as noted in the district court’s memorandum decision in this case: “[A]n investigatory stop based on an anonymous tip without an indicia of reliability cannot be saved by simply renaming it a safety stop.” If the facts of this case were sufficient to justify a public safety stop, it would be hard to imagine any factual scenario where a traffic stop by law enforcement would not be upheld by the courts. In this case, it would not have been unreasonable for Deputy Leiker to have followed the vehicle until observing some evidence of erratic driving. We conclude there was an absence of specific and articulable facts to justify a public safety stop of Crawford’s vehicle.
Under the specific facts and circumstances of this case, we hold the anonymous tip that a vehicle was driving recklessly, without anything more, provided an insufficient basis to stop the defendant’s vehicle, either as an investigatory stop or as a public safety stop. Accordingly, the district court was correct in sustaining the motion to suppress evidence obtained as a result of the vehicle stop.
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Elliott, J.:
Thomas B. Mullins was convicted of aggravated criminal sodomy and aggravated indecent liberties with a child. On appeal, the convictions were affirmed, but the Supreme Court ordered that the conviction of and sentence for aggravated indecent liberties must be for aggravated incest. The sentences for both counts were remanded for proper sentencing. See State v. Mullins, 267 Kan. 84, 98-99, 977 P.2d 931 (1999).
Mullins then filed the instant K.S.A. 60-1507 motion, alleging ineffective assistance of counsel. The motion was denied after an evidentiary hearing, and Mullins appeals. We reverse and remand.
As background, three details from the Supreme Court opinion need highlighting. First, there were no visual signs of sexual abuse and no witnesses to the alleged offenses. As a result, Mullins was convicted “primarily based upon the testimony of [the victim].” Mullins, 267 Kan. at 85. Second, Pat Phillips of the KU Medical Center testified the victim’s physical exam was normal, but “physical indications of anal penetration were not present in 60 to 80 percent of the children sodomized.” 267 Kan. at 87-88. Third, at trial Mullins called no expert to rebut the testimony of nurse Phillips or of the victim.
At the 1507 hearing, Mullins called three witnesses; the State called none and did minimal cross-examination of the witnesses called by Mullins. A brief summary of the 1507 testimony follows:
Matthew O’Connor
Matthew O’Connor, a criminal defense attorney admitted in Missouri and Colorado, testified as an expert witness regarding the defense of sexual abuse cases. He has been involved in litigating about 40 sexual abuse cases.
O’Connor testified the criminal defense attorney must become familiar with the techniques of child interviews because that is where the majority of mistakes or tainting occurs — most obviously with the use of leading questions. Numerous experts are available on the standards for child interview techniques, according to O’Connor.
O’Connor opined that Mullins’ trial counsel did not adequately challenge the State’s experts; one of the largest failures was the failure to find tire study on which nurse Phillips relied for her testimony.
O’Connor also stressed the need for the defense attorney to either procure an expert for trial or to utilize one in preparation for cross-examination. In that way, the defense can challenge the child victim’s testimony without having to directly attack the child’s credibility. Rather, the defense could argue the interview process was flawed or tainted by improper techniques and, therefore, the child victim was mistaken.
O’Connor also testified the necessity of having a defense expert was common knowledge among criminal defense attorneys at the time of Mullins’ trial and that there could be no valid trial strategy in failing to call or utilize an expert in this type of case.
On inquiry from the 1507 judge, O’Connor testified he would be surprised if Muhins would have been convicted had trial counsel challenged the interview techniques used by State investigators through the aid of an expert and if trial counsel had challenged nurse Phillips’ testimony with respect to her opinion of the low occurrence of physical findings in young males who have been anally abused.
The State’s short cross-examination of O’Connor shed no new light on his testimony.
Robert Sanders
Robert Sanders is a psychologist and was qualified as an expert on the subject of interviewing children who have alleged sexual abuse.
Sanders testified an interviewer of a child must not have a “confirmatory bias” — defined as existing when the interviewer believes the accused is guilty. In this situation, the inquirer will neglect information tending to cast doubt on the person’s guilt and focus only on information supporting guilt.
Sanders discussed the three interviews given by the victim prior to trial. With respect to the first (initial disclosure to mother and stepfather), there was simply not enough information to evaluate the reliability of this interview.
The next disclosure was to the police and consisted mainly of the victim’s mother’s handwritten notes transcribing what the victim told her. Sanders was quite concerned with the extensive involvement of the mother and that the victim would see the police officer (Jarowitz), see Mullins, 267 Kan. at 87, as an extension of the adult system which does not like Mullins and with which the boy should cooperate. Sanders opined that the victim was in the “performance” mode during the entire interview and, thus, the disclosure was unreliable.
The last interview was with Detective Kitchens and Monica Mendoza of SRS. See Mullins, 267 Kan. at 87. Sanders expressed several concerns about this interview — including the fact there were two interviewers in an official setting, reinforcing the victim’s need to cooperate and tell the adults what they wanted to hear.
Sanders was also critical of the interview technique, especially when the victim did not go along with a suggestion and actually corrected Mendoza. Instead of exploring the development, Mendoza changed the subject by asking about a police report already made by the victim. Sanders concluded that the disclosures made during this interview were not reliable.
Sanders then concentrated on the interview and physical examination of the victim done by nurse Phillips. See Mullins, 267 Kan. at 87-88. Sanders found the disclosures made were also unreliable because there was no transcript of the interview — only a written report. Sanders could not discern the relationship between the interview and the written report.
Finally, Sanders discredited nurse Phillips’ testimony at trial, finding serious flaws in the study on which she relied. Sanders found nothing in the study to relate to the case being tried.
The State’s cross-examination shed no new light on Sanders’ testimony.
Kevin Reardon
Kevin Reardon was Mullins’ counsel at the criminal trial. At the time of his appointment, he had litigated less than 10 felonies to jury verdict, none of them being a sexual abuse case. Reardon did not remember specifically looking at the issue of child interview techniques in any depth.
Reardon did not interview the victim’s pediatrician or mental health providers and nothing indicates that he interviewed any of the State’s witnesses prior to trial. He could not recall looking into the possibility of hiring experts to conduct independent exams or to review the exams done by State’s witnesses. He did not look into the possibility of hiring his own expert even though he had “gen eral” concerns with the manner in which the Kitchens/Mendoza interview was conducted.
Reardon testified he was aware someone from the Children’s Center at the KU Medical Center would testify and that personnel at the Children’s Center believed what children told them and were very strong children’s advocates. But he did not interview any of the potential witnesses from the Children’s Center prior to trial.
Reardon also testified he had no opportunity to investigate hiring an expert to review the Children’s Center procedures because he got the report during voir dire. The record, however, discloses that during the preliminary examination (held some 15 months prior to trial), he cross-examined Mendoza about the contents of nurse Phillips’ report.
Reardon expressed surprise when informed the study relied on by nurse Phillips cited a further study which concluded that 83% of boys who suffered anal sodomy do show physical signs of the abuse.
Finally, Reardon testified to his lack of time and resources needed to defend Mullins. He concluded by conceding that in hindsight and with adequate resources, he would have hired an expert with respect to child interview techniques and that he had not focused on that part of the case as much as he should have.
The State’s cross-examination revealed little additional information.
Trial court’s 1507 decision
The trial court noted that Reardon had secured a psychological evaluation and polygraph examination of his client; reviewed the victim’s school, medical, and counseling records; and expended 122.9 hours in defending Mullins.
The trial court found Reardon had “provided honest, loyal, genuine and faithful representation” and concluded:
“Hindsight is 20/20. The art of defending people charged with child molestation has evolved in the past five years, particularly as a result of a few highly publicized cases in the national media. Perhaps Mr. Reardon should have attempted to secure expert testimony to counter the evidence presented by the investigating officers, social workers, and Ms. Phillips hut few attorneys would have done so at the time.” (Emphasis added.)
Analysis
Defendants charged with crimes are guaranteed “reasonably effective” legal assistance. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984). The two landmark cases on the subject are Strickland and, in Kansas, Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985).
A defendant must show counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 688, 694. Further, counsel’s performance must be evaluated for “reasonableness under prevailing professional norms.” 466 U.S. at 688.
The prejudice prong of Strickland requires the defendant to show there is a reasonable probability that, but for counsel’s errors, the result would have been different. A “reasonable probability” is defined as a probability sufficient to “undermine confidence in the outcome.” Chamberlain, 236 Kan. at 657.
On appeal, while we do not reweigh the testimony or the credibility of witnesses, our review of the performance and prejudice prongs of an ineffective assistance of counsel claim is plenary as these are mixed questions of law and fact. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997).
Here, Mullins raises two claims of ineffective assistance of counsel: failing to consult or procure an expert on the subject of interviewing techniques and failing to properly prepare for the cross-examination of nurse Phillips.
With respect to the first claim of ineffective assistance of counsel, we note that the decision of whether to call or not call a certain witness is a matter of trial strategy. See Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972).
On the other hand, defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made. Kenley v. Armontrout, 937 F.2d 1298, 1308 (8th Cir. 1991).
Further, when counsel lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of “trial strategy” is inappropriate. Clay v. State, 954 S.W.2d 344, 349 (Mo. App. 1997); see Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
Thus, our initial question is this: Was Reardon’s decision not to consider hiring an expert, either for use at trial or for use in preparation of cross-examination of the State’s witnesses, and to abandon all inquiry into interview techniques, objectively reasonable?
We must conclude trial counsel’s performance was deficient. The trial court concluded the art of defending child sexual abuse cases had “evolved” and that while counsel perhaps should have attempted to secure an expert, “few attorneys would have done so at the time.”
Simply put, this finding of fact is without any support in the record. O’Connor testified to the exact opposite — that the use of experts in this type of case was crucial and that fact was well known at the time of Mullins’ criminal trial. That testimony stands uncontroverted. Trial courts cannot disregard uncontroverted testimony unless it is shown to be untrustworthy. See In re Adoption of W.J., 262 Kan. 788, 795, 942 P.2d 37 (1997).
Here, there was no showing of strategic reasons for counsel’s failure to consult or procure an expert. Trial counsel’s performance was objectively unreasonable, and the first prong of Strickland and Chamberlain was met.
We must, therefore, determine whether Mullins was prejudiced by the deficient performance. The trial court, of course, did not analyze the prejudice prong of the Strickland/Chamberlain test.
As noted on direct appeal, Mullins was convicted primarily on the testimony of the victim. Mullins, 267 Kan. at 85. Trial counsel’s failure to challenge the reliability of the victim’s prior disclosures, as above described, severely hampered the ability to challenge the victim’s testimony at trial.
Had trial counsel procured the services of an available expert regarding proper interview techniques, the jury would have been presented with relatively strong evidence to potentially undermine the allegations of abuse (such as testimony of Dr. Sanders). At trial, the jury would have heard evidence of the “performance mode” and that the victim was deeply entrenched in this mode at trial.
However, because trial counsel failed to present (or even search for) such available expert testimony, the jury heard only the victim’s unchallenged allegations of abuse — bolstered by the testimony of nurse Phillips that the victim had not been coached, found to be improper by the Supreme Court on direct appeal. See Mullins, 267 Kan. at 88.
Under the Strickland/Chamberlain test, the benchmark is whether counsel’s conduct so undermined tire proper functioning of the adversary process that the trial cannot be relied on as having produced a just result. State v. Brown, 266 Kan. 563, 577, 973 P.2d 773 (1999).
In the present case, we must conclude the adversary process was so broken down by the failure of trial counsel to consult and/or procure an expert witness that we are compelled to hold the trial court erred in denying Mullins’ 1507 motion. We are compelled, primarily, on the essentially uncontroverted record at the 1507 hearing. For whatever reason, the State presented no evidence, no witnesses, and did little cross-examination of Mullins’ witnesses to provide the trial court any support for determining Mullins’ trial counsel was effective. See Cellier v. State, 28 Kan. App. 2d 508, 523, 18 P.3d 259, rev. denied 271 Kan. 1035 (2001).
Accordingly we reverse the trial court’s judgment and remand with directions to set aside the conviction and grant a new trial to Mullins. See K.S.A. 60-1507(b).
Mullins also faults trial counsel for failing to review the study nurse Phillips cited in her testimony before trial and to be ready to rebut it. This complaint necessarily relates back to the failure to properly investigate. And as noted before, trial counsel was aware of nurse Phillips’ report at the preliminary hearing, some 15 months before trial.
Standing alone, we are unable to hold that Mullins suffered the requisite prejudice by counsel’s failure to counter nurse Phillips’ testimony and report. As detailed above, Mullins was convicted primarily on the testimony of the victim.
By itself, there is no reasonable probability the result of the trial would have been different had defense counsel presented evidence to counter nurse Phillips’ testimony. On the other hand, we cannot separate the two claims of error due to the intertwining of the factual basis of the two claims. This second claim adds to the cumulative effect of the trial errors. See State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000).
Finally, the State’s reliance on State v. Gardner, 272 Kan. 706, 36 P.3d 229 (2001), is misplaced. There, neither prong of Strickland was met because defendant’s argument was founded on sheer speculation and there was simply no showing of prejudice. 272 Kan. at 709.
Reversed and remanded with directions to grant the K.S.A. 60-1507 motion, set aside Mullins’ convictions, and grant a new trial. | [
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Elliott, J.:
Following jury trial, defendant Unified School District (U.S.D.) No. 367 appeals the judgment and the district court’s denial of its motion for judgment as a matter of law or new trial. We affirm.
The factual background is straightforward and undisputed; the procedural background is somewhat muddled but manageable. On December 15, 1995, plaintiffs Michael R. Dunn and Terry Ray Ballou, Jr., seniors at Osawatomie High School, finished lunch early and headed back to class. To get back to their classroom, Dunn and Ballou had to pass through double-glass hallway doors that were closed but were normally open and had been open when they went to lunch 20 minutes earlier. The plaintiffs noticed from a distance of 50 feet away the doors were closed but proceeded at a fast pace toward the doors. Both reached for the crossbar to open the door at the same time, but Ballou’s hand slipped, striking the glass and breaking it. The glass in the door was plate glass, not safety glass, and as a result broke into knife-like pieces severely injuring both students.
Dunn and Ballou each filed a separate claim of negligence against U.S.D. No. 367 pursuant to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. To summarize, Ballou alleged that ■U.S.D. No. 367 was negligent in (1) failing to discover the plate glass and replace it with safety glass, (2) failing to warn of the danger the plate glass posed; (3) failure to leave a door with plate glass open for passage and to warn that the door was closed; and (4) failure to supervise the students. Dunn alleged that U.S.D. No. 367 was negligent in (1) fading to use safety glass on an interior door; (2) failing to take reasonable steps to make the school premises safe for anticipated uses by their teenaged students; and (3) failing to remove the plate glass in the face of overwhelming evidence of its propensity to cause enhanced injury when broken.
The plaintiffs’ claims were joined for discovery and trial. U.S.D. No. 367’s first motion for summary judgment, which argued it was immune pursuant to K.S.A. 75-6104(m) and that the claim was barred by the statute of repose, was denied by the district court. Following further discovery, U.S.D. No. 367 renewed its motion for summary judgment. The district court orally granted the motion in part and denied it in part on the date of trial. Specifically, the district court orally granted the renewed motion with respect to the governmental immunity found in K.S.A. 75-6104(m) and, thus, dismissed any claims of negligence for failure to replace the plate glass but denied the motion with respect to the statute of repose argument.
No journal entry was prepared with respect to the ruling on the renewed motion for summary judgment. Nonetheless, the case was ultimately tried on plaintiffs’ allegations of breaches of duties other than failure to replace the plate glass with safety glass. We will, therefore, assume without deciding that U.S.D. No. 367 cannot be held hable for any design or planning defect that led to the installation of the plate glass.
The trial commenced, but a mistrial was declared during the examination of the plaintiffs’ first witness.
The new trial commenced almost a year later. Following the reception of evidence and counsels’ arguments, the trial court instructed the jury that the defendant had a duty to warn of the danger of the plate glass, duty to guard against breakage of the plate glass door, duty to inspect the school grounds for dangerous conditions, and a duty to properly supervise students and provide a safe learning environment. The jury found each plaintiff to be 10% at fault and U.S.D. No. 367 to be 90% at fault; it found Ballou’s damages to be $123,013.52 and Dunn’s damages to be $153,378.06.
U.S.D. No. 367 then moved for a judgment as a matter of law or a new trial, arguing (1) the statute of repose barred plaintiffs’ claims; (2) defendant’s liabilityis barred by K.S.A. 75-6104(m); and (3) a private person would not be liable under the facts of this case as required by K.S.A. 75-6103. The motion was denied. U.S.D. No. 367 appeals, bringing several issues. We take them in a slightly different order than presented.
Does the statute of repose bar plaintiffs’ claims?
U.S.D. No. 367 argues that the statute of repose, K.S.A. 60-513(b), bars the plaintiffs’ claims.
It is difficult to determine from its brief exactly from what ruling U.S.D. No. 367 appeals. The district court orally denied its motion for summary judgment based on a statute of repose argument and also denied its motion for judgment as a matter of law and, in the alternative, a new trial based on a statute of repose argument.
Nonetheless, a determination of whether the statute of repose applies is a question of law which we review de novo. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996).
The statute of repose provides:
“Except as provided in subsection (c), tire causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act eivins. rise to the cause of action.” (Emphasis added.) K.S.A. 60-513(b).
Thus, 10 years from the occurrence of the act giving rise to the cause of action is the absolute limit for filing actions. Dobson v. Larkin Homes, Inc., 251 Kan. 50, 52-53, 832 P.2d 345 (1992).
U.S.D. No. 367 argues the act giving rise to the cause of action was the installation of the plate glass in the door which occurred in the late 1960s. This argument must be seen as contra to the argument U.S.D. No. 367 has urged throughout this case. U.S.D. No. 367 has consistently and forcefully argued during the entire pendency of this case that there can be no cause of action based on the planning and design of the building which led to the installation of the plate glass door. The district court agreed with this argument in orally granting U.S.D. No. 367 partial summary judgment, and we have assumed that proposition of law without deciding that such is the case. U.S.D. No. 367’s actions in the late 1960s, designing and planning a door with plate glass, is not an act that can give rise to a cause of action because that act is not actionable pursuant to K.S.A. 75-6104(m). Thus, the date of the planning and designing of the plate glass doors is immaterial to a statute of repose argument.
Appellant’s reliance on Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999), is misplaced. In Klose, the last act giving rise to plaintiff s cause of action occurred over 10 years after the statute of repose barred the action. In the present case, any tortious act or failure to act which gave rise to plaintiffs’ cause of action occurred well within the statute of repose. We will discuss below whether there were, in fact, any tortious acts or a failure to act that supports plaintiffs’ cause of action.
U.S.D. No. 367 argues “[t]he statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. The Klose appeal involved just such a contention, which was clearly rejected in the final paragraph of the Supreme Court’s opinion.”
A review of the Klose opinion and the appellant’s brief filed in that case rejects U.S.D. No. 367’s argument. The Supreme Court first held the statute of repose barred a claim against one of the defendants, Wood Valley Racquet Club. 267 Kan. at 168. The court then moved on to discuss plaintiff s claims against the other two defendants, holding those defendants owed plaintiff no duty of care. 267 Kan. at 169-74. The Supreme Court then noted in the last paragraph of the opinion that “Klose makes two final contentions. . . . The second is that Wood Valley had a duty to protect [plaintiff]. Neither is material in light of our conclusions that plaintiff s action against Wood Valley is barred by the statute of repose.” 267 Kan. at 174.
Klose does not support the defendant’s argument that the statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. We can deduce from the fact that Klose’s argument that Wood Valley owed him a duty of care was discussed well after the opinion’s discussion of the statute of repose that Klose’s argument had nothing to do with the statute of repose. In other words, it appears from the opinion that Klose did not argue Wood Valley breached a duty of care to protect him within the time period specified in the statute of repose, thus barring application of the statute of repose. Klose’s argument with respect to Wood Valley’s alleged duty of care had nothing to do with the applicability of the statute of repose. In the present case, both the district court and this court have been provided with Klose’s brief on appeal, and it is clear that Klose’s argument regarding Wood Valley’s alleged breach of a duty to protect him had nothing to do with the application of the statute of repose. Klose simply argued Wood Valley owed him a duty of care — the argument was not keyed to the statute of repose issue.
The district court did not err in any of its rulings regarding the statute of repose.
Does the Kansas Tort Claims Act (KTCA), KS.A. 75-6101 et seq., bar plaintiffs’ claims?
U.S.D. No. 367 makes two arguments that the KTCA bars any liability. First, U.S.D. No. 367 argues that (1) a private person would not be liable under the facts of this case, and (2) the KTCA bars all liability even for those torts independent of the “plan or design” exception found in K.S.A. 75-6104(m). We take each argument in turn.
Would a private person be liable for this accident?
U.S.D. No. 367 argues the trial court erred in overruling its motion for a judgment as a matter of law or a new trial because a private person would not be liable under the facts of this case.
The ICTCA governs tort claims brought against school districts. Jackson v. U.S.D. 259, 268 Kan. 319, 322-23, 995 P.2d 844 (2000). The KTCA states that unless a statutory exception to liability applies, a governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be Hable under the laws of this state. K.S.A. 75-6103(a); P.W. v. Kansas Dept. of SRS, 255 Kan. 827, Syl. ¶ 1, 877 P.2d 430 (1994).
Actionable negligence must be based on a breach of duty. The existence of a duty is a question of law for this court. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
Glynos v. Jogoda, 249 Kan. 473, 819 P.2d 1202 (1991), controls. In Glynos, plaintiff was injured when he went through a plate glass door at a private apartment complex. At the time the complex was built, the plate glass was sufficient to meet applicable building codes. Defendant appealed the judgment entered against it, arguing inter alia the trial court erred in denying its motion for a directed verdict because, as a matter of law, it could not be found negligent because the plate glass door complied with all applicable building codes. The Supreme Court held:
“Plaintiffs assert a claim for injuries resulting from Meadowlark Hill’s alleged negligence occurring in a common use area of the apartment complex. The duty of ordinary care owing from Meadowlark Hill to Daniel, transcends the building code issue. Conformity with the building code is not an absolute defense to a claim based on ordinary negligence.
“While compliance may be evidence of due care, it does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances.
“At the time of construction in 1968, the complex met all applicable building codes. We agree with Meadowlark Hill that it had no legal duty to rebuild in order to comply with each update in the building code. We do not imply such an onerous economic requirement.
“The question is, simply, did Meadowlark Hill exercise ordinary care to maintain a common area of the complex in a safe condition?” Glynos, 249 Kan. at 485.
Here, U.S.D. No. 367 words its argument as follows:
“Judge Hill was aware of the Glynos case but failed to heed its holding. He concluded that premises liability instructions were proper and that liability could be imposed for failing to replace the plate glass which was installed in conformity with the building codes applicable at the time the school was built. His instructions were clearly erroneous and bluntly violated the remand directions in Glynos.”
The record clearly refutes this argument. Contrary to U.S.D. No. 367’s argument, the jury was not instructed to find fault based on a premises liability theoiy with respect to the installation of the plate glass or on a theoiy the school should have replaced the plate glass. Glynos holds a private person may be liable for injuries resulting from the breakage of a plate glass door if it is proven the defendant breached a duty of care to exercise ordinary care to maintain a common area of an apartment complex. Glynos, 249 Kan. at 485.
Does K.S.A. 75-6104(m) bar plaintiffs’ claims despite any breach of duty?
U.S.D. No. 367 argues the grant of governmental immunity found in K.S.A. 75-6104(m) acts as a total bar to plaintiffs’ claims even if torts independent of the immunity statute are pled and proven.
K.S.A. 75-6104(m) states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(m) the plan or design for the construction of or an improvement to public property, either in its original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
Plaintiffs alleged in their petitions multiple duties and breaches of those duties and causes of their injuries. The causes alleged by plaintiffs can be summarized as failure to warn, failure to provide a safe learning environment, failure to inspect for dangers, failure to properly supervise the students, and failure to replace the plate glass in the doors with safety glass. The jury was instructed on all of these causes except the failure to replace the plate glass with safety glass, presumably based on the trial court’s oral ruling preceding the first trial that K.S.A. 75-6104(m) barred it as a basis of liability.
The failure to replace the plate glass with safety glass, however, was a “but-for” and proximate cause of the injuries sustained by the students. Thus, taking into consideration the jury’s verdict, there were multiple causes of the students’ injuries, one of which, the failure to replace the plate glass with safety glass, we have presumed is barred by K.S.A. 75-6104(m) as a basis for liability. The question becomes whether a governmental entity may be liable for damages caused in part by a breach of duly from which the governmental entity is immune from tort liability pursuant to K.S.A. 75-6104(m) and in part by breaches of duties not so barred.
We begin by noting our standards of review. This issue requires us to construe the KTCA, an issue of statutory construction over which we have unlimited review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
“[T]he Kansas Tort Claims Act takes an open-ended approach to governmental liability. In other words, liability is the rule while immunity the exception. This approach is consistent with the general principle of law that for negligent or tortious conduct, liability is the rule, immunity the exception. Durflinger v. Artiles, 234 Kan. 484, 501, 673 P.2d 86 (1983); Noel v. Menninger Foundation, 175 Kan. 751, 762, 267 P.2d 934 (1954). . . . K.S.A. 1983 Supp. 75-6104 contains the immunity exceptions to the general rule of governmental liability. In Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P.2d 360 (1964), this court observed ordinarily a strict or narrow interpretation must be applied to statutory exceptions. 194 Kan. at 44. In construing a statute, any doubt should be resolved against the exception, and anyone claiming to be relieved from the statute’s operation must establish it comes within the exception. In other words, the burden is not upon the claimants herein to establish the defendants do not come within one or more of the K.S.A. 1983 Supp. 75-6104 exceptions. Rather, the burden is upon the defendant governmental entity, or defendant employee, to establish governmental immunity under one or more of the exceptions of K.S.A. 1983 Supp. 75-6104. If the party claiming this exception cannot meet this burden, the general rule of liability, in K.S.A. 1983 Supp. 75-6103, governs.” Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs when we can ascertain that intent. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). “Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Engles, 270 Kan. 530, Syl. ¶ 3, 17 P.3d 355 (2001). The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. See State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982).
With these standards firmly in mind, we turn to the question posed. Is a governmental entity liable for damages caused in part by a breach of duty from which the governmental entity is immune from tort liability pursuant to K.S.A. 75-6104(m) and, in part, by breaches of duties not so barred?
This question has not been resolved with respect to K.S.A. 75-61.04(m), but has been with respect to two other subsections of K.S.A. 75-6104.
In Jackson v. U.S.D. 259, 268 Kan. 319, 995 P.2d 844 (2000), plaintiff was injured in a school gymnasium. The district court granted defendant summaiy judgment, ruling the “recreational use” exception to governmental entity liability, K.S.A. 75-6104(o), barred plaintiff s claim. That statute states a governmental entity or its employees acting within the scope of their employment are not liable for damages resulting from “any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or employee thereof is guilty of gross and wanton negligence proximately causing such injury.” (Emphasis added.) K.S.A. 75-6104(o).
Jackson argued, similarly to the plaintiffs in the instant case, that the immunity provisions of the KTCA do not apply because the defendant had a duty “under the common law to supervise school children in a non-negligent manner.” 268 Kan. at 331.
The Kansas Supreme Court rejected this argument, holding:
“The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of htigation. The benefit to the pubHc is enormous. The pubHc benefits from having faciHties in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The pubHc benefits from having a place to meet with others in its community. In the case of an indoor gymnasium, the public benefits from having a place to participate in recreational activities when the weather outside is wet or cold.
“There is no consideration of ordinary negHgence in a case in which the defendant asserts that it is immune pursuant to K.S.A. 75-6104(o), and, therefore, no consideration of duty or breach. K.S.A. 75-6104(o) is a complete defense to actions where the plaintiff aHeges only ordinary negHgence. [Citations omitted.] QuaHfied immunity, as found in K.S.A. 75-6104(o), means that the defendant is immune, regardless of any common-law duty, absent a showing of gross or wanton negHgence.” Jackson, 268 Kan. at 331.
See also Barrett v. U.S.D. No. 259, 272 Kan. 250, 32 P.3d 1156 (2001) (holding the recreational use exception eliminates any liability of the defendants for ordinary negligence); Lanning v. Anderson, 22 Kan. App. 2d 474, 921 P.2d 813 (1996) (holding rec reational use exception eliminates any liability of the defendants despite argument teachers and school districts owe a duty of ordinary care to properly supervise and provide a safe learning environment).
Thus, when the recreational use exception applies, it acts as a total bar to claims of ordinary negligence. However, the Kansas Supreme Court has interpreted the exception found in K.S.A. 75-6104(c) differently. That subsection provides immunity to governmental agencies when damages result from “enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution.” In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), a Bonner Springs police officer was badly wounded by three escaped inmates from the Kansas State Penitentiary in Lansing. The officer sued, alleging the State breached a duty to protect him from escaped convicts. The State claimed it was exempt from liability by virtue of K.S.A. 1981 Supp. 75-6104(c).
The Court rejected the argument that the exemption applied in that set of circumstances, reasoning:
“Trae, the statutes not only authorize the State, through the secretary of corrections, to assume and maintain custody of inmates in the State’s penal institutions, including the Kansas State Penitentiary at Lansing, Kansas, but they also impose a duty upon the secretary to retain custody. But state agencies all are created by law; their powers and their duties are established by law; and, in one sense or another, they carry out or enforce the law when they proceed with their day-to-day operations. If 75-6104(c) is given the broadest possible construction, then it becomes almost impossible to conceive of an action by a governmental agency which does not constitute enforcing or carrying out a law.
“We construe K.S.A. 1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant’s sole asserted claim of causal negligence is the public entity’s enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would he negligence at common law, and which act or omission causes damage.” (Emphasis added.) Cansler, 234 Kan. at 568.
See also Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 940 P.2d 84, rev. denied 262 Kan. 959 (1997) (claim not barred by K.S.A. 75-6104[c] because plaintiffs alleged torts independent of that subsection).
Thus, in contrast to the recreational use exception, the enforcement or failure to enforce a law exception does not act as a total bar to a claim of damages. Rather, when the plaintiff alleges and proves torts independent of the exception, the KTCA does not provide an exemption.
As noted above, whether the exception to liability at issue in this case, K.S.A. 75-6104(m), acts as a total bar to plaintiffs’ claims of damages has not been resolved in Kansas. However, the Cahfornia courts interpreting that state’s enactment of the same law concluded the exception is limited to “design-caused” accidents and “does not immunize [the governmental entity] from liability caused by negligence independent of design, even though the independent negligence is only a concurring, proximate cause of the accident.” Flournoy v. California, 275 Cal. App. 2d 806, 811, 80 Cal. Rptr. 485 (1969); see also Bay Area Rapid Transit Dist. v. Superior Court, 46 Cal. App. 4th 476, 482, 53 Cal. Rptr. 2d 906 (1996) (holding plaintiffs inability to bring forth evidence of a cause of injury independent of the design or plan of the train precluded claim).
Applying the standards of statutory construction noted above, we find the reasoning of the Cahfornia courts to be persuasive. The recreational use exception exempts governmental entities or their employees acting within the scope of their duties from liability resulting from “any claim for injuries resulting from the use of any public property.” (Emphasis added.) K.S.A. 75-6104(o). On the other hand, the design exception at issue here does not exempt governmental entities from “any claims” resulting from the “use” of a building designed or planned with prior approval from the governmental agency with authority to approve the plan or design and such plan or design met prevailing standards at the time of the design. Thus, the design or plan exception is more like the enforcement or failure to enforce a law exception, K.S.A. 75-6104(c), which similarly does not include the words “any claim.”
The legislature could have, but chose not to, grant governmental immunity to “any claim” arising from the design or plan of a build ing as it did the use of recreational areas. We do not believe the legislature intended to preclude claims for injuries caused in part by the plan or design of a building and in part by other independent tortious acts.
The defendant’s position to the contrary could lead to incredulous results and would be against the public policy of the State as expressed in the KTCA that liability is the rule and immunity the exception. Take for example a school built to code and approved by the State architect in 1890 but still in use today whose front concrete steps are crumbling. The school takes no action to warn of the danger or to replace the steps. A student slips and falls and is severely injured.
Anticipating such a hypothetical, U.S.D. No. 367 argues in its brief
“any claim that old buildings that were adequate when built must be upgraded is barred by this immunity.
“It would be absurd and illogical to suggest that the immunity does not apply unless the premises are constantly upgraded, when the obvious purpose of the provision is to relieve the government of any liability for failing to improve outdated premises.”
No authority is cited for “obvious purpose” of the design immunity.
We do not believe the legislature intended governmental entities to be perpetually immune from design or planning flaws or to be immune from liability when the design or plan is but one cause of injury. We note the California and New York courts have rejected the proposition that design immunity continues in perpetuity. See Baldwin v. California, 6 Cal. 3d 424, 434, 99 Cal. Rptr. 145, 491 P.2d 1121 (1972) (an initial design immunity exists but liability is permitted when later experience has demonstrated the dangerous nature of the public improvement); Weiss v. Fote, 7 N.Y.2d 579, 589, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960) (same).
As recently noted by the California Supreme Court in Cornette v. Department of Transportation, 26 Cal. 4th 63, 109 Cal. Rptr. 2d 1, 26 P.3d 332 (2001), the rationale behind the design immunity “is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.” 26 Cal. 4th at 69. However, when later experience
“ ‘has revealed the dangerous nature of the public improvement under changed physical conditions, the trier of fact will not simply be reweighing the same technical data and policy criteria which went into the original plan or design. Rather, there will then be objective evidence arising out of the actual operation of the plan — matters which, of necessity, could not have been contemplated by the government agency or employee who approved the design. No threat of undue interference with discretionary decision-making exists in this situation.’ ” 26 Cal. 4th at 73 (quoting Baldwin v. State, 6 Cal. 3d 424, 435, 99 Cal. Rptr. 145, 491 P.2d 1121 [1972]).
The legislature could have chosen to bar any claim resulting from the design or plan of a governmental building. We conclude the holdings of Jackson and Lanning, cases based on the recreational use exception, are inapposite to the facts of this case. Based on our statutory construction above and the persuasiveness of the California cases, we hold a governmental entity is not immune from liability caused by negligence independent of design, where that independent negligence is a concurring, proximate cause of the injury. This holding is consistent with the purposes of the KTCA and the exception found in K.S.A. 75-6104(m).
The trial court did not err in overruling defendant’s motion for judgment as a matter of law or new trial on this ground.
Did U.S.D. No. 367 breach a duty of care independent of the plan or design of the building?
U.S.D. No. 367 argues the plaintiffs did not submit a legally sufficient claim independent of K.S.A. 75-6104(m).
It is somewhat difficult to deduce from U.S.D. No. 367’s brief which ruling of the trial court it is appealing. In this section of its brief, U.S.D. No. 367 simply states our standard of review is the same as for its argument that K.S.A. 75-6104(m) bars all of plaintiffs’ causes of action discussed above. The standards of review discussed in the referred-to section of defendant’s brief is a shotgun approach and includes the existence of a legal duty, review of a denial of summary judgment, review of a denial of a motion for directed verdict, new trial, erroneous jury instructions, and im proper admission of evidence. U.S.D. No. 367 does not argue any evidence was improperly admitted or direct our attention to any jury instructions. This issue was not raised in defendant’s motion for summary judgment nor in its renewed motion for summary judgment. The issue was raised in its post-trial motion for judgment as a matter of law or, in the alternative, a new trial.
U.S.D. No. 367’s argument heading in this section of its brief reads: “Plaintiffs did not submit a legally sufficient case on any claim that was not barred by the statute of repose or by governmental immunity.” (Emphasis added.) While this heading seems to imply a sufficiency of the evidence argument, the brief argues: (1) The school district did not owe a duty of care not barred by K.S.A. 75-6104(m), and (2) plaintiff Dunn’s notice of claim pursuant to K.S.A. 12-105b was insufficient and bars all claims. We take each in turn.
We must decide what duty a public secondary school and its school district owes an 18-year-old student and a 17Vfe-year-old student. Existence of a duty is a question of law over which we have unlimited review. Barnett-Holdgraf v. Mutual Life Ins. Co. of New York, 27 Kan. App. 2d 267, 269, 3 P.3d 89 (2000).
In Greider v. Shawnee Mission Unified School D. 512, 710 F. Supp. 296 (D. Kan. 1989), a behaviorally disturbed 8th grade student injured his hand using a table saw. In discussing the duty the school district owed the student, the federal district court stated:
“The Kansas Supreme Court has never addressed the question ofwhether public schools and teachers owe a duty to properly supervise students and to take reasonable steps to protect students’ safety. However, it is likely that the court would recognize such a duty if the question were presented to it. This is apparent from dicta in at least two cases. See Paulsen v. Unified School District No. 368, 239 Kan. 180, 717 P.2d 1051 (1986) (court assumed that a duty to properly supervise and provide a safe environment to students existed, but affirmed the trial court’s dismissal on the grounds that no breach of the duty had been shown); Sly v. Board of Education, 213 Kan. 415, 516 P.2d 895 (1973) (court assumed that the duty to exercise due care for students existed and affirmed the trial court’s finding that no evidence of breach of the duty existed). The duty is generally recognized in those jurisdictions which have addressed the question. See Annotation, Tort Liability of Public Schools and Institutions of Higher Leamingfor Injuries Resulting From Lack or Insufficiency of Supervision, 38 A.L.R.3d 830 (1971).” 710 F. Supp. at 299.
In Kimes v. Unified School Dist. No. 480, 934 F. Supp. 1275 (D. Kan. 1996), plaintiff was a student at the Liberal Area Vocational Technical School. The federal district court held the school district did not owe her the duty discussed in Greider because that case and the Kansas Supreme Court cases it relied on involved minors. 734 F. Supp. at 1278. Rather, it found the duty described in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993), to be more applicable. 934 F. Supp. at 1278. Thus, the federal district court found that the proper duty owed by the school was “a duty of ordinary or reasonable care to their adult students.” 934 F. Supp. at 1278.
Regardless of plaintiffs’ ages, we believe the duty owed by a school district to its high school students is as described in Greider: “to properly supervise students and to take reasonable steps to protect students’ safety.” 710 F. Supp. at 299. High school students are still under the custodial control of the school district while on school grounds and are much more restricted in what they can do than a college student. A college student may choose to leave a class early or even miss class altogether with little or no immediate consequence, except on the final grade; the same is not true of high school seniors. High school seniors may not walk out of class early or skip class on their own volition without immediate consequence — for example, detention or a trip to the principal’s office. See Crow v. California, 222 Cal. App. 3d 192, 208-09, 271 Cal. Rptr. 349 (1990) (Unlike high school students whose attendance is compelled and over whom school officials have direct responsibility while the students are at school, adult college students attend school and participate in school activities voluntarily.).
Quite simply, high schools act in loco parentis with respect to its students. As stated by our Supreme Court in a case involving high school sophomores:
“The teacher/administrator-student relationship has been said to fall within the in loco parentis doctrine, although the doctrine is outmoded in the context of the university-student relationship. See Nero, 253 Kan. at 580. Children are released by their parents to the control and supervision of school officials for the time the children are involved in school or school activities. See Gammon v. Edwardsville School District, 82 Ill. App. 3d 586, 589, 403 N.E.2d 43 (1980) (Tn meeting that responsibility [for maintaining a discipline among pupils] teachers and school officials stand in the same position as do parents and guardians.’).” Beshears v. U.S.D. No. 305, 261 Kan. 555, 560, 930 P.2d 1376 (1997).
See generally Furek v. University of Delaware, 594 A.2d 506, 517 (Del. 1991) (“To the extent that the doctrine of in loco parentis is still viable, its application is limited to claims against high school authorities for injuries to students arising out of a failure to supervise.”); Dailey v. Los Angeles Unified Sch. Dist., 2 Cal. 3d 741, 747, 87 Cal. Rptr. 376, 470 P.2d 360 (1970) (“California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of tire children on the school grounds and to enforce those rules and regulations necessary to their protection.’ ”).
We recognize, however, “proper supervision” of a high school senior of normal intelligence is different than “proper supervision” of a behaviorally disturbed 8th grade student such as in Greider. Whether a school district properly supervised a student is a question of fact to be decided by the jury and reviewed only for the sufficiency of the evidence. See Ferrill v. Board of Education, Cent. Sch. Dist. No. 1, 174 N.Y.S.2d 91, 93 (1958).
Defendant only argues it owed no duty of care to properly supervise the plaintiffs and to take reasonable steps to protect students’ safety, an argument we reject. There is no argument the evidence was insufficient as to a breach of that duty or that a breach caused plaintiffs’ injuries. The trial court properly submitted this independent tort to the jury.
Was Dunns K.S.A. 12-10Sb notice sufficientP
U.S.D. No. 367 argues Dunn’s notice of claim pursuant to K.S.A. 12-105b was insufficient and, thus, bars recovery.
K.S.A. 12-105b requires that any person with a claim against a municipality which could give rise to a claim under the KTCA shall give notice of the claim by filing with the clerk or governing body of the municipality. K.S.A. 12-105b(d). For the purposes of K.S.A. 12-105b, “municipality” includes a school district. K.S.A. 12-105a(a). Such notice must include, among other things, “a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of.” K.S.A. 12-105b(d).
Plaintiff Dunn alleged in his petition that he filed a notice of claim pursuant to K.S.A. 12-105b. In its answer, defendant admitted as much. Further, defendant did not set up in its answer the defense of noncompliance with K.S.A. 12-105b. See K.S.A. 60-212(b) (“Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto.”). Defendant never sought to amend its answer. The first time-the defendant asserted that Dunn failed to comply with K.S.A. 12-105b was in its supplemental trial brief, and the issue was not listed in the pretrial order. The district court never ruled on the issue. The issue is not properly before this court.
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Lewis, J.:
This is a dispute between a third-party plaintiff, Nathan A. Moeder, and his insurance carrier, Shelter Mutual Insurance Company (Shelter). Moeder appeals the trial court’s decision holding that Shelter had no coverage on the vehicle he was driving and no obligation to defend Moeder in a lawsuit filed against him by Rebecca S. Regan and Allied Mutual Insurance Company (Allied). The only parties to this appeal are Moeder and Shelter. Plaintiffs Regan and Allied did not file briefs in this case and are not parties to this appeal.
Moeder acquired a 1991 Chevrolet S-10 pickup truck on May 15, 1997. On June 7, 1997, he collided with Regan’s vehicle. The parties all agree that Moeder was solely at fault in the accident.
Shelter insured Moeder on his parents’ automobile policy; the S-10 was not listed as a covered vehicle. This was apparently due to the fact that the Moeder family did not notify Shelter that they had acquired the S-10 until 3 days after the accident. At the same time as they gave Shelter notification of the S-10, the Moeders paid the necessary premium to insure it.
The insurance policy required that Moeder notify Shelter within 30 days of the acquisition of an additional vehicle for insurance coverage to apply to that vehicle. There is no question that notification was made within the 30-day period specified in the policy.
However, this lawsuit revolves around a provision in the insurance policy which stated it would cover a newly acquired automobile if it “is an additional auto and [Shelter] insure[s] all autos owned in whole or in part by [Moeders] on date of such acquisition.” The policy also defines “auto” as “a self-propelled, land motor vehicle with at least four wheels, not operated on rails or crawler treads.” The Moeders’ problem is that while they had most of their vehicles, including the S-10, insured with Shelter, they also owned a 1995 Kenworth tractor-trailer, which was insured not by Shelter but by Great Western Casualty Company.
Regan and Allied filed a lawsuit against Moeder to recover damages from the accident. Moeder made a demand on Shelter to defend him and indemnify him under the insurance contract. When Shelter discovered drat the Moeders owned a 1995 Ken-worth which was not insured by it, it refused coverage and refused to defend him. It did so on the basis of the provision in its policy quoted above which makes it clear there would be no coverage unless Shelter insured all autos owned in whole or in part by the Moeders.
After Shelter was made a third-party defendant by Moeder, the parties stipulated that the damages amounted to $6,500 and that Moeder was wholly at fault in the accident. The parties also agreed that no one would pursue damages until the trial court determined the issues on the dispute between Moeder and Shelter and a final order was issued.
This is an action in which summary judgment was granted in favor of Shelter. Ultimately, the trial court granted summary judgment to Shelter and against Moeder. It concluded the insurance policy was unambiguous and since the Moeders did not have all their automobiles insured by Shelter, Shelter had no obligation to provide coverage on the S-10 pickup.
Our standard of review of a grant of summary judgment is as follows:
“The standard of review for issues decided on summary judgment is well known. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with the evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Davis v. Miller, 269 Kan. 732, 737, 7 P.3d 1223 (2000).
It was Moeder s contention that Shelter was required to provide coverage for the S-10 under the policy s automatic insurance provision and also had a duty to defend him in the lawsuit filed against him by Regan. The interpretation of a contract is a question of law. This court may construe the instrument de novo and determine its effect regardless of the trial court’s interpretation of the agreement. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998).
The appellate courts of this state have indicated that an insurance company’s duty to defend is controlled as follows:
“ ‘The duty to defend and whether the policy provides coverage are not necessarily coextensive. The duty to defend arises whenever there is a “potential of liability” under the policy. The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint or petition and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, there would be no potential of liability under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability, and the duty to defend arises. [Citation omitted.]’ ” Quality Painting, Inc. v. Truck Ins. Exchange, 26 Kan. App. 2d 473, 476, 988 P.2d 749 (1999) (quoting Spivey v. Safeco Ins. Co., 254 Kan. 237, 246, 865 P.2d 182 [1993]).
Moeder maintains the Shelter policy was ambiguous as to the coverage. We disagree. For a contract to be ambiguous, it must contain language of conflicting meaning based on a natural and reasonable interpretation of the agreement’s language. Brumley v. Lee, 265 Kan. 810, 813, 963 P.2d 1224 (1998). The contract is ■ ambiguous if, after applying the rules of interpretation to the face of the instrument, there remains a genuine uncertainty as to which of two or more meanings is proper.
Our job is to use common sense and not to strain to create an ambiguity in a written instrument when one does not exist. Eggleston v. State Farm Mut. Auto. Ins. Co., 21 Kan. App. 2d 573, 574, 906 P.2d 661, rev. denied 257 Kan. 1091 (1995). The fact that the parties do not agree over the meaning of the terms does not in and of itself prove that the contract is ambiguous. Ryco Packaging Corp. v. Chapelle Int’l, Ltd., 23 Kan. App. 2d 30, 36, 926 P.2d 669 (1996), rev. denied 261 Kan. 1086 (1997).
Under the law, coverage clauses in automobile policies are to be liberally construed in favor of coverage. The insurance company is required to defend any limitations on that coverage by clear and explicit terms. See Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992).
In this case, there is no dispute that the Moeders owned the Kenworth on the date they acquired the S-10. It is equally undisputed that the Kenworth was not insured by Shelter at that time. Under the language of the policy, the terms of the policy clearly exclude coverage on the S-10 because all the motor vehicles were not insured by Shelter on the date of acquisition of the S-10. We hold the language in the automatic insurance provision is not ambiguous and clearly shows that Shelter had no duty to defend or to provide coverage in this action.
There are disputed contentions in the record concerning Shelter s capability or desire to insure an 18-wheeled vehicle such as the Moeders’ Kenworth. Moeder contends the proof would show that Shelter told him it was not capable of providing such coverage. Moeder extends this argument to ultimately conclude that if Shelter could not provide coverage for the Kenworth, that somehow voided the language in the automatic insurance clause.
We find no legal authority that construes the automatic insurance clause to ignore an owner’s separately insured vehicle under any circumstances. This argument has no merit.
In this action, the expectation of coverage is clear. A reasonably prudent person, if he or she read the newly acquired automobile clause in the policy, would understand that the policy provided no coverage unless all the vehicles owned by the Moeders were insured by Shelter at the time the S-10 was acquired. We hold the trial court did not err in concluding that Moeder was not entitled to coverage under the Shelter policy on the newly acquired S-10.
Finally, Moeder argues that Shelter waived its right to invoke the automatic insurance provision because it knew he was buying the Kenworth in 1996 and, despite this knowledge, accepted a premium on the S-10. We disagree.
Kansas cases hold that waiver and estoppel cannot be used to expand coverage of an insurance policy where the policy unambiguously excludes coverage for the insured’s claim. See Hillman v. Colonial Penn Ins. Co., 19 Kan. App. 2d 375, 377, 869 P.2d 248, rev. denied 255 Kan. 1001 (1994); Western Food Prod. Co. v. United States Fire Ins. Co., 10 Kan. App. 2d 375, 381, 699 P.2d 579 (1985). Since the insurance policy unambiguously excludes coverage of the claim made in this case, Moeder may not invoke the principles of waiver or estoppel.
The fact is, Shelter did not owe a duty to defend Moeder because there was no potential of liability under the policy. We further find no evidence that Shelter breached a covenant of good faith and fair dealing.
The trial court’s grant of summary judgment to Shelter is affirmed.
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Pierron, J.:
Roof-Techs International, Inc. (Roof-Techs) appeals from the district court’s decision to grant summary judgment in favor of The Law Company, Inc. and its insurance company, United States Fidelity & Guaranty Co.(Law); the State of Kansas (State); and Brent Bowman and Associates Architects, P.A. (BBA). The district court found Roof-Techs’ claims were barred by the statute of Hmitations. Central Mechanical Construction Co., Inc. (Central); D.L. Smith Electrical Construction, Inc. (Smith); the State; and Law collectively appeal from the court’s decision to grant summary judgment in favor of BBA. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
This case arises out of the renovation and expansion of Farrell Library on the campus of Kansas State University. The State was the owner, BBA was the architect, Law was the general contractor, and Central, Smith, and Roof-Techs were subcontractors.
The complex facts and issues of this case must be set out in detail for there to be an understanding of the eventual ruling. More than one reading may be necessary.
In November 1992, BBA entered into a contract with the State to provide architectural design and construction administration services for the Farrell Library Expansion and Renovation Project (the project). In May 1994, Law entered into a contract with the State for construction of the project. Thereafter, Law subcontracted mechanical, electrical, and roofing work to Central, Smith, and Roof-Techs, respectively.
In August 1997, Central filed suit against the State, BBA, and Law to recover damages incurred as a result of delays and problems in the project. The petition set forth a breach of contract claim against Law; a professional negligence claim against BBA; a negligent representation claim against the State, Law, and BBA; and claims for quantum meruit and unjust enrichment against both Law and the State. Central’s petition was subsequently amended to add Smith as a plaintiff.
In October 1997, Law answered the suit brought by Central and Smith, and filed a cross-claim against the State. Law’s claims against the State were breach of contract, breach of implied warranty, and misrepresentation. The State answered Central and Smith’s petition as well as Law’s cross-claim. The State asserted cross-claims against both Law and BBA for breach of contract, breach of warranty, indemnity/contribution, and negligence. BBA answered the claims asserted by the State, Central, and Smith, then added a cross-claim against the State for unpaid professional services.
In May 1998, Roof-Techs filed a separate lawsuit which mirrored that of Central and Smith and sought to recover damages sustained as a result of defects in the plans and delays on the project. The petition set forth a breach of contract claim against Law, a professional negligence claim against BBA, and a negligent misrepresentation claim against Law, the State, and BBA, collectively. In Oc tober 1998, the Roof-Techs case was consolidated with the Central and Smith case.
In April 2000, BBA filed a motion for summary judgment on the tort claims asserted directly against it by Central and Smith, primarily arguing the claims were barred by the statute of limitations. In June 2000, the State joined BBA’s motion and sought summaiy judgment on the tort claims asserted against the State by Central and Smith. In September 2000, the court granted the motions of BBA and the State, and entered judgment against Central and Smith on the tort claims asserted against BBA and the State.
Central and Smith did not appeal the judgment against them on their tort claims.
In November 2000, BBA filed a motion for summary judgment as to the tort claims asserted against it by Roof-Techs. In December 2000, Law and the State filed a similar motion seeking summary judgment with regard to the tort claims asserted against them by Roof-Techs.
Also in November 2000, Central, Smith, Law, and the State entered into a settlement and liquidation agreement whereby all claims among those parties were settled. As part of the agreement, the State paid $750,000 to settle all claims unrelated to BBA’s conduct. The agreement assigned to Law, Central, and Smith all claims the State might have against BBA. In addition, under the terms of the agreement, the breach of contract claims of Central and Smith and Law asserting defects in the architectural plans were purportedly “passed through” the State to be asserted against BBA.
In other words, the agreement intended to allow the contractors to step into the shoes of the State to present their claims directly against BBA. The agreement authorized the contractors to pursue those claims either in their own names or in tire State’s name.
In December 2000, an amended petition was filed which showed Central, Smith, Law, and the State as plaintiffs and BBA as the defendant. No formal order allowing the amendment was ever entered.
While the motions aimed at Roof-Techs’ claims were pending, BBA moved for summary judgment on the State’s indemnity claims and also moved to dismiss the amended petition. The motion for summary judgment alleged that BBA was entitled to judgment as a matter of law on all of the State’s cross-claims because the State had failed to designate an architectural expert. The motion to dismiss rested on essentially the same grounds, but added the allegation that the State’s indemnity claim should be dismissed because the State had extinguished any obligation to pay the contractors for damages attributable to the conduct of BBA by entering into the agreement with Law, Central, and Smith.
In January 2001, the court granted BBA’s dispositive motions with regard to the State’s claims. At the same time, the court granted the summary judgment motions of BBA, the State, and Law with regard to the tort claims asserted by Roof-Techs.
The court found that the statute of hmitations barred Roof-Techs’ claims for negligent misrepresentation against BBA, the State, and Law and also barred its claim for professional negligence against BBA. Concerning BBA’s motion for summary judgment against the State, the court found the agreement was not a valid liquidating agreement; it did not assign all claims of the State to Law, Central, and Smith; and the State’s failure to designate an expert witness to support its claims against BBA rendered those claims unenforceable and, thus, incapable of assignment. As to BBA’s motion to dismiss the amended petition, the court determined the agreement was effective to release the State from liability for any claims for harm that might have been caused by BBA, which rendered the State’s indemnity claims inappropriate. Further, the court reiterated its finding the State had failed to identify expert witnesses to sustain its claims against BBA directly. Thus, the court found no remaining legal basis for the amended petition and dismissed it accordingly.
Law, the State, Central, and Smith filed motions to amend the judgment. In addition, BBA filed a motion to “unconsolidate” the two consolidated cases under the theory that the Roof-Techs contract claim against Law could proceed, while the case involving Central, Smith, Law, the State, and BBA would be final and ripe for appeal. On March 12, 2001, the district court denied the motions to amend judgment filed by Law, the State, Central, and Smith. The court also denied the motion to unconsolidate, holding that “there are no longer any case(s) pending to which the motion to ‘unconsolidate’ can apply.” In so doing, the court presumably disposed of Roof-Techs’ contract claim against Law.
On March 26,2001, Roof-Techs sent a letter to the district court inquiring about the status of its contract claim against Law. The letter stated, inter alia: “[I]t appears the decision overrules all claims, including the contract claim of [Roof-Techs]. If this understanding is not correct, please advise.” There is no record of any answer from the court. Subsequently, on April 11, 2001, Roof-Techs filed a notice of appeal from the district court’s ruling. On April 10, 2001, Central, Smith, the State, and Law filed a joint notice of appeal from the district court’s ruling.
“ ‘Summary judgment is appropriate when the pleading[s], depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
The first issue that should be addressed is whether the district court actually granted summary judgment in favor of Law regarding Roof-Techs’ contract claim.
It is clear from the record that Law moved for summary judgment against Roof-Techs only on its negligence claims. Law’s memorandum in support contains a footnote that states: “[Roof-Techs] has also filed a breach of contract claim against Law which is not addressed in this motion.” Subsequently, Roof-Techs filed its response, which did not address the contract claim against Law. The district court granted summary judgment in favor of Law and against Roof-Techs on the negligent misrepresentation claim but did not direct summary judgment against Roof-Techs on the contract claim against Law.
There is no doubt that all parties were under the impression that Roof-Techs’ contract claim against Law was still pending. This is evidenced by the fact that Law specifically excluded the contract claim from its motion for summary judgment as well as the fact that BBA filed a motion to unconsolidate because it also assumed there was still a breach of contract claim by Roof-Techs against Law which had yet to be resolved. It was not until the district court’s March 12, 2001, letter decision that it became apparent the court was also dismissing Roof-Techs’ contract claim against Law. The letter decision stated: (1) The action was dismissed by order dated January 18, 2001; (2) the court declines to revisit any issue; (3) there are no longer any cases pending to which the motion to unconsolidate can apply; and (4) the letter decision serves as the court’s final decision and order, no further journal entry being required.
Although the contract claim was not specifically mentioned in the letter decision, it is clear it was the district court’s intention to dismiss all remaining claims. Following the March 12, 2001, decision and after speaking with Law, Roof-Techs submitted a letter to the court stating it appeared its contract claim was dismissed and to please advise if that was not correct. The record is void of any response by the court. The only logical assumption is that the court intentionally disposed of Roof-Techs’ contract claim against Law.
On appeal, Law essentially argues that although the district court failed to set forth tire basis for its dismissal of the contract claim, Roof-Techs’ failure to challenge the sufficiency of the court’s ruling is fatal to its appeal. Law cites United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 731, 915 P.2d 80 (1996), in support. In Farmland, the cross-appellant argued the district court erred when it found Farmland hable for the tort of intentional private nuisance without making a specific finding the nuisance was intentional. The Farmland court stated:
“Although the trial court should state the controlling facts in its decision (Supreme Court Rule 165 [1995 Kan. Ct. R. Annot. 171]), where the court fails to do so and the litigants fail to object, the trial court is presumed to have found all facts necessary to support the judgment, and omissions in findings will not be considered on appeal. [Citation omitted.]” 259 Kan. at 731.
However, the Farmland court then concluded the proper scope of review over the'nuisance claim was to determine whether there was substantial competent evidence presented that established intent. Following a brief discussion, the Farmland court found the record did not support the presumption that the district court found all necessaiy facts. The court then held die requisite finding of intent was not supported by substantial competent evidence and reversed the trial court. 259 Kan. at 732-34. In essence, the Farmland court ruled the presumption was overcome by the complete lack of evidence of intent.
In the instant case, Roof-Techs’ contract claim was dismissed on summary judgment without any explanation and without Law having moved for summary judgment on that claim. The record is void of any reason why the contract claim should have been dismissed on summary judgment. It is uncontested that Roof-Techs had a contract with Law, and it is uncontested that Roof-Techs brought the breach of contract claim within the statute of limitations.
Although the better approach would have been for Roof-Techs to file a motion to amend the judgment, the failure to do so is not fatal to its appeal. It is clear Roof-Techs was unsure whether the journal entry actually disposed of its contract claim because the journal entry was so lacking in substance. This is evidenced by the fact that counsel for Roof-Techs spoke with opposing counsel and sent a letter to the district court in an attempt to clarify the ruling. By that time, the time limit for posttrial motions had passed.
As in Farmland, the record in the instant case does not support the presumption that the district court found all necessaiy facts to support its decision, especially in light of the fact the contract claim was dismissed on summary judgment. The district court must be reversed with directions to reinstate Roof-Techs’ breach of contract claim against Law.
Roof-Techs’ initial petition contained a professional negligence claim against BBA and a negligent representation claim against Law, the State, and BBA, collectively. The professional negligence claim was based on the allegation BBA breached its duty of care by failing to provide adequate and accurate drawings and information upon which Roof-Techs had relied in formulating its bid. Additionally, Roof-Techs alleged BBA had failed to timely and adequately respond to requests for information and proposed change orders. The negligent representation claim was based on the allegations that BBA falsely represented that the drawings were adequate and sufficient to allow Roof-Techs to formulate an accurate bid on the project and BBA falsely represented that asbestos would be removed by others prior to the start of work.
Subsequently, BBA, the State, and Law all filed motions for summary judgment against Roof-Techs on the these tort claims, primarily arguing the claims were barred by the 2-year statute of limitations. The district court found Roof-Techs was aware of the discovery of asbestos in July 1995. Roof-Techs became aware it was suffering from delays as a result of the asbestos and change orders no later than the end of 1995. Thus, Roof-Techs’ injury was reasonably ascertainable at that time, and its tort claims were barred by the statute of limitations. Further, the court discounted Roof-Techs’ contention that the statute of limitations should have been tolled because Roof-Techs had been led to believe it would be able to recover the cost it was incurring from the delays by repricing and performing asbestos removal. Instead, the court found that Roof-Techs had been alerted no later than September 1995 that it would not be conducting additional work.
On appeal, Roof-Techs argues it did not fully comprehend the extent of the delay and damages it had suffered until the summer of 1996. Additionally, Roof-Techs claims that Law and the State enticed it into completing the project and that the additional costs incurred would be reimbursed if it remained on the job. Thus, Roof-Techs contends the district court should be reversed because there is, at a minimum, a question of fact as to when the injury became reasonably ascertainable.
The interpretation and application of a statute of limitations is a question of law for which the appellate court’s review is unlimited. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000). When a statute of limitations begins to run is a question of law over which this court has unlimited review. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
All parties agree the claims at issue are governed by the 2-year statute of limitations contained in K.S.A. 2001 Supp. 60-513(a)(4). The rule as to when a cause of action in tort is deemed to accrue is set forth in K.S.A. 2001 Supp. 60-513(b) as follows:
“Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
Here, Roof-Techs claims substantial injuiy did not occur until some time following the discovery of asbestos of the project site. Thus, under K.S.A. 2001 Supp. 60-513(b), the 2-year statute of limitations began to run at the point in time when the fact of injury became reasonably ascertainable to Roof-Techs. In the case of Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984), the court determined the application of K.S.A. 60-513(b):
“We hold the use of the term substantial injury’ in the statute does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Rather, it means the victim must have sufficient ascertainable injury to justify an action for recovery of the damages, regardless of extent. An unsubstantial injury as contrasted to a substantial injury is only a difference in degree, i.e., the amount of damages. That is not a legal distinction. Both are injuries from which the victim is entitled to recover damages if the injury is the fault of another. A separate classification for the two, for purposes of limiting actions thereon, is in violation of the Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States, because such classification has no legitimate legislative purpose. [Citation omitted.] It is the duty of the judiciary to construe statutes in such a way, if possible, as to sustain the act’s constitutionality. [Citation omitted.] Therefore, we construe the phrase ‘substantial injury’ in K.S.A. 60-513(b) to mean ‘actionable injury.’ ” 236 Kan. at 222-23.
Roof-Techs’ president, Michael Page, testified in a deposition that he was aware asbestos was present in the roof of the project in the summer of 1995. He also testified he was aware that by the end of 1995 that the discovery of asbestos was going to cause some delay in Roof-Techs’ performance. This was further evidenced by a September 1995 letter that Page wrote to Kelly Stillings of Law complaining that the discovery of asbestos had already caused delays and additional costs to Roof-Techs.
Notwithstanding the aforementioned facts, Roof-Techs contends it did not fully comprehend the impact of the delays and damages until the summer of 1996, and the statute of limitations did not commence to run until that time. Page, in his deposition, stated: “[By the end of 1995] I knew that we were delayed. I didn’t realize, probably until much later, the full impact of the delays.” The fact Roof-Techs may not have fully comprehended the impact of the delays is insufficient to toll the statute of limitations. “[T]he critical information is knowledge of the fact of injury, not the extent of injury. [Citation omitted.]” Bryson v. Wichita State University, 19 Kan. App. 2d 1104, 1108, 880 P.2d 800, rev. denied 256 Kan. 994 (1994).
Further evidence shows that Roof-Techs was sufficiently aware, at the latest, by the spring of 1996, that it had sustained actionable damages as a result of the asbestos-related delays and change orders. On October 26,1995, Page wrote a letter to Stillings in which he notified Law that Roof-Techs was being greatly delayed on the project due to change orders that were taking an extreme amount of time to be approved. The letter went on to state the change orders were no fault of Roof-Techs but had greatly affected its costs. The letter concluded that Law should notify the State and advise Roof-Techs as to directions for compensation.
On March 4, 1996, Page again wrote Stillings and indicated his belief Roof-Techs had sustained damages which entitled it to compensation. The letter stated: “Roof-Techs will be filing [a] claim, on the referenced project, for cost increases due to owner delays. Cost breakdowns will follow. If you have any questions contact me.”
Page’s deposition testimony coupled with his letters to Billings clearly establish that Roof-Techs was aware of all the necessary facts to commence the running of the statute of limitations by March 1996. Because Roof-Techs did not file its lawsuit until May 15, 1998, its tort claims are time barred.
Roof-Techs further argues, at least as to its tort claim against Law and the State, that the statute of limitations was tolled because Roof-Techs was enticed into beheving it would be compensated for its damages caused by the delays. In support, Roof-Techs cites to the fact it was invited to submit a proposed change order for an amended contract to include payment to Roof-Techs for asbestos removal. However, Roof-Techs knew no later than the end of 1995 the contract for the asbestos removal was awarded to a different company.
Further, Roof-Techs claims it was led to believe it could proceed with a delay claim, which it ultimately did, in order for the project to be completed. Although this is true, Roof-Techs fails to offer any legal authority on why that fact would toll the running of the statute of limitations. The burden of proving facts sufficient to toll the statute of limitations is upon Roof-Techs. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). Roof-Techs has not sustained this burden by demonstrating merely that Law told it to file a delay claim with the State for damages.
The district court did not err in finding Roof-Techs’ negligence claims were time barred by the 2-year statute of limitations.
While this case was pending on appeal, Roof-Techs filed a motion with this court requesting attorney fees and expenses incurred while responding to BBA’s motion for clarification of an order from this court that denied the State’s and Law’s motion for dismissal of the appeal. Roof-Techs claims BBA’s motion lacked a factual basis, was frivolous, and had no support in the law.
Without belaboring the point, Roof-Techs’ claim is wholly without merit. First, Roof-Techs was not even required to respond to the motion for clarification. Second, the motion for clarification apparently had some merit because it was granted in an order from this court. Finally, as required by Supreme Court Rule 7.07(b) (2001 Kan. Ct. R. Annot. 52), Roof-Techs did not attach an affidavit to the motion specifying “(1) the nature and extent of the services rendered; (2) the time expended on the appeal; and (3) the factors considered in determining the reasonableness of the fee. (See KRPC 1.5 Fees.)”
We turn to the question of the effect of the State’s failure to name an expert in the normal fashion.
For a large majority of the time this case was pending, up until the execution of the liquidation agreement, the State was not necessarily adverse to BBA. The State’s claims against BBA rested in breach of contract, breach of implied warranty, indemnity, and negligence. However, at the outset, the State took the position the contractors were owed nothing. As between BBA and the State, the State did not come forward in discovery with any evidence in support of a claim against BBA. The State did not retain or designate an expert witness to testify to any violation of the duties and standard of care between BBA and itself, or to causation of any damages to itself.
The deadline for the State and BBA to name experts and provide their reports, as required by K.S.A. 2001 Supp. 60-226(b)(6), was September 29, 2000. In October 2000, the district court entered an order directing the parties to exchange pretrial questionnaires by October 26, 2000. The State declined to submit a pretrial questionnaire setting forth any theory of a claim, damages, witnesses, or exhibits in support of a claim against BBA.
BBA filed its motion for summary judgment against the State on October 31, 2000. BBA moved to dismiss the State’s claims on the basis the State had no expert testimony to establish the standard of care, breach of the standard of care, or proximate cause. That expert testimony was needed to establish liability on the part of BBA was never, and is still not, disputed. The State never made a motion for permission to designate an expert out of time and/or to file a pretrial questionnaire out of time.
It is worth noting, as Law’s brief points out, that until the liquidation and settlement agreement came into existence, it would have been quite illogical for the State to designate an expert. The source of Law’s claim against the State was the Spearin doctrine (United States v. Spearin, 248 U.S. 132, 63 L. Ed. 166, 39 S. Ct. 59 [1918]), which held an owner of a construction project impliedly warrants the contract documents, including but not limited to the plans, are accurate and suitable such that the contractor can perform its work in accordance therewith. The State’s claim against BBA asserted that if the plans were defective, the ultimate responsibility should he with BBA. Thus, designation of an expert by the State to prove BBA’s liability would have also proved its own liability to the contractors.
In November 2000, the State, Law, Central, and Smith entered into a contract among themselves entitled “Settlement and Liquidation Agreement.” The agreement purported to assign the State’s claims against BBA to the remaining parties and to authorize the remaining parties to pursue the assigned claims in the name of the State or in their own name. Further, the agreement provided the State would pay $750,000 to settle its claims with Law, Central, and Smith. The parties to the agreement then discharged each other from liability for all claims among themselves, except to the extent of the amount recovered from BBA.
Law advised the district court of the agreement at the pretrial conference on December 7, 2000, and from that point forward, Law filed responses to BBA on behalf of the State. That same day, Law filed a response to BBA’s motion for summary judgment against the State, asserting the motion was moot because the contractors now stood in the shoes of the State and were prosecuting their claims through the State. Accordingly, the contractor’s experts were now the State’s experts. It is worth noting that at this point in the litigation, neither Law, Central, nor Smith had any claims pending directly against BBA.
On December 11, 2000, Law attempted to file an “Amended Pretrial Questionnaire” on behalf of the State. Of course, the State had never filed an original pretrial questionnaire. In this document, Law attempted to include the State in Law’s theories of recovery against BBA and attempted to designate the contractor’s witnesses, including their experts, to testify on behalf of the State.
The district court deferred consideration of a pretrial order and focused on the merits of BBA’s summary judgment motion, issuing its ruling on January 18, 2001. The court found the agreement among Law, the State, Central, and Smith was not really a liquidation agreement as the parties had captioned it, but rather an attempted assignment of the State’s claim, which was subject to summary judgment because tire State lacked admissible evidence sufficient to raise a genuine issue of material fact. The court ruled:
“In the case at bar, the State lost its ability to recover against BBA when it failed to timely designate experts (which all parties concede were necessary to prove the State, Law and/or the Subcontractors’ claims). Thus, the State cannot agree to bring an action against BBA for the claims of Law and the Subcontractors, the proceeds of which it would pass through’ to Law and the Subcontractors. The State has no remaining enforceable claims against BBA at all.”
Preliminarily, all claims against BBA not brought by the State have been dismissed. Law, Central, and Smith have not appealed the dismissal of their negligence claims against BBA. It follows that any claim against BBA must go through the State. Thus, the first issue that needs to be discussed is the question of whether the district court erred when it found the State lost its ability to recover against BBA by failing to timely designate any experts. If the district court was correct when it found the State had no remaining enforceable claims against BBA, then it would logically follow the settlement and liquidation agreement would be of no consequence because either the State could not assign what it no longer had, or Law, Central, and Smith could not prosecute any claims through any State claims that no longer existed.
The district court granted summary judgment in favor of BBA because the State failed to comply with discovery deadlines and failed to designate an expert, which was needed to prove liability against BBA. This decision will not be disturbed on appeal absent an abuse of discretion. See Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 768, 915 P.2d 86 (1996) (reviewing the trial court’s decision to exclude expert testimony based on late disclosure).
In its brief, Law’s (and the State’s) entire claim is based on the premise that one party may use another party’s expert to establish the standard of care. Law cites case law purportedly standing for the proposition that as a general rule, a party is not precluded from calling as its own witness an expert who has been retained and identified by the opposing parly. Thus, according to Law, the State should have been permitted to call the experts previously identified by the contractors, presumably because the pretrial questionnaire filed by the State indicated it intended to call those experts.
The legal authority cited by Law is not controverted. Although it does stand for the proposition that one party may use another party’s expert witness, the flaw in Law’s argument is the fact that in the cited case law, those parties had timely designated the adverse parties’ witnesses on the pretrial order. Here, the State did not. A pretrial questionnaire identifying expert witnesses was not filed on behalf of the State until after BBA moved for summary judgment due to the lack of designated experts. Further, there was never a motion filed on behalf of the State asking the court to allow it to designate an expert after the close of discoveiy.
Law argues that under the district court’s ruling, a liquidation and settlement agreement could never be entered into after the deadline for designating experts has passed because the party through whom the claims would have been passed would not have designated a liability expert. Law then claims that if the party through whom the claims are to be passed cannot rely upon experts previously designated by the injured parties, the injured parties will obviously not be interested in a liquidation agreement because such agreements are predicated on the availability of the pass-through claim process.
Although this may be true, it does not fully excuse the State’s lack of diligence in prosecuting its claims against BBA. The State could have, and probably should have, either sought an agreement with the contractors before the close of discoveiy, then designated the contractors’ experts as their own in a timely manner, or filed a motion with the court for an extension of time to complete discovery and designate experts. In the instant case, the State did neither.
It must still be determined if the trial court abused its discretion when it granted summary judgment against the State for failing to timely designate an expert witness.
“In determining whether to exclude witnesses not disclosed in compliance with the scheduling order, the Court must consider four factors: 1) the reason for failing to name the witness, 2) the importance of the testimony, 3) potential prejudice in allowing the testimony, and 4) the availability of a continuance to cure such prejudice. [Citations omitted.]” Potomac Elec. Power v. Electric Motor Supply, 190 F.R.D. 372, 377 (D. Md. 1999).
The reason the State failed to designate an expert is self-evident. As stated earlier, if the State had retained an expert to prove lia bility on the part of BBA, it would have necessarily proved its own liability with respect to Law’s claim against it. However, once the agreement was entered into with Law, Central, and Smith, the State was free to retain an expert. The State tries to paint a picture that it was in a “Catch-22” situation. However, if the State had settled prior to the closure of discovery, it could have avoided these problems. The importance of the testimony is equally as obvious. Without an expert, the State cannot prove liability against BBA.
BBA does not really allege prejudice. The contractors’ architectural expert opined that BBA deviated from the standard of care and failed to satisfy its contractual obligations, causing damages of over $4.3 million. The expert reports were issued in May 1999. From that day forward, BBA was aware of the evidentiary basis for the allegations against it. BBA also deposed the contractors’ experts. BBA knew of the experts, reviewed the experts’ reports, deposed the experts, retained a counter-expert, and had ample time to prepare, a defense. The fact the experts were not specifically designated by the State caused BBA little, if any, prejudice or surprise. BBA was well aware of its potential liability.
As we will detail below, the uncharted waters created by the kind of settlement and liquidation agreement involved here present new procedural questions. We find that for the reason set out above, the State should be forgiven for not naming an expert in a timely manner, as it would have been illogical for it to do so prior to the settlement and liquidation agreement being reached. While the State should have taken steps to name an expert thereafter, as suggested earlier, no actual prejudice can be seen.
We, therefore, find it was inappropriate for the district court to take the draconian step it did of extinguishing the State’s claims for its technical procedural failure under these facts. That portion of the district court’s decision is reversed, and the matter will be allowed to proceed.
Due to the novelty of the question, we will expand on our analysis.
“The legal effect of a written instrument is a question of law for the court to decide. On appeal, a written instrument or contract may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court. [Citation omitted.]” Dougan v. Rossville Drainage Dist., 270 Kan. 468, 486, 15 P.2d 338 (2000).
As previously mentioned, the State, Law, Central, and Smith entered into a settlement and liquidation agreement. As part of the agreement, the State paid $750,000 to settle all claims with Law, Central, and Smith that were unrelated to BBA’s conduct. The agreement assigned to Law, Central, and Smith all of the claims the State may have had against BBA. In addition, under the terms of the agreement, the breach of contract claims of Central, Smith, and Law asserting defects in the architectural plans were purportedly passed through the State to be asserted against BBA. In other words, the agreement intended to allow the contractors to step into the shoes of the State to present their claims directly against BBA. The agreement authorized the contractors to pursue those claims either in their own names or in the State’s name.
The legality of this land of agreement has been, heretofore, undetermined in Kansas. We note an article from the October 1998 edition of Construction Lawyer: Calvert and Ingwalson, Pass Through Claims and Liquidation Agreements, 18 Const. Law 29 (October 1998). The authors provide an excellent summary of the purpose and function of pass-through claims and liquidation agreements:
“ ‘Pass through claims’ are claims by an allegedly damaged party against an allegedly responsible party with whom it has no contractual relationship. These claims are presented by or through an intervening party in privity with both. The most common example of a pass through claim is a claim by a subcontractor arising out of the actions of the owner that is passed through to the owner by the prime contractor. A ‘liquidation agreement’ is a form of a settlement agreement in which a dispute between two parties with contractual privity is liquidated (settled) on terms delineating the rights, responsibilities, and procedures for presenting a pass through claim to a third party and allocating the costs expended and benefits received when doing so. It is an attempt by the parties to avoid an extra layer of litigation (i.e., litigation between themselves) with its attendant costs and risks by focusing on the party responsible.” 18 Const. Law 29.
The agreement at issue in the present case is slightly atypical. Usually, a subcontractor passes its claim against the owner through the general contractor. In the present case, however, the subcontractors and general contractor are passing their claims through the owner against the architect. As an added twist, the agreement in the instant case purports to assign the State’s claims against BBA to Law, Central, and Smith.
BBA extensively briefs the issue of assignment of claims. BBA’s main contention is that its contract with the State was one for personal services and Kansas law prohibits the assignment of contracts for personal services without the express consent of both parties. BBA relies on Alldritt v. Kansas Centennial Global Exposition, 189 Kan. 649, 371 P.2d 181 (1962), and Smith & English, Partners, v. Board of Education, 115 Kan. 155, 222 Pac. 101 (1924). These cases support BBA’s contention that Kansas law prohibits the assignment of personal services contracts.
The aforementioned cases, however, do not hold that a cause of action for breach of such contracts cannot be assigned. In fact, the Alldritt court expressly held that where the performance of any further personal services under the employment contract at issue were impossible, no consent of the other party was necessary to make the assignment valid. The Alldritt court further held that where the assignee’s rights in the contract in question were for money damages only, the contract was legally assignable. 189 Kan. at 657-58.
In Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 827 P.2d 758 (1992), a case cited by BBA, the court discussed the fact that actions for legal malpractice, whether they sound in tort or contract, are not assignable. The court found public policy considerations such as the unique quality of legal services, the personal nature of the attorney’s duty to the client, and the confidentiality of the attorney-client relationship precluded the assignment of legal malpractice claims. 250 Kan. at 498-99. The policy considerations expressed in Bank IV are not applicable to the instant case.
We find nothing in Kansas law that specifically prohibits the assignment of the State’s claims for breach of contract against BBA to Law, Central, and Smith. BBA confuses the issue of whether a contract for personal services can be assigned with whether a breach of contract claim, where the underlying contract was for nonlegal personal services, can be assigned. The former cannot be assigned, while the latter can. Of course, if the State had lost its claim due to its failure to designate, the State would have had no claim to assign.
We also note New York precedent dealing with this issue.
“General contractors on a construction project which have sustained no injury may not bring suit on behalf of a subcontractor for additional costs caused by the owner’s delays [citation omitted]. Subcontractors, lacking privity of contract, are precluded from bringing suit against the owners directly [citation omitted]. A liquidating agreement is designed to overcome these legal impediments and allow contractors to bring an action against the owner on behalf of their subcontractors [.]
“Liquidating agreements have three basic elements: (1) the imposition of liability upon the general contractor for the subcontractor’s increased costs, thereby providing the general contractor with a basis for legal action against the owner; (2) a liquidation of liability in the amount of the general contractor’s recovery against the owner; and, (3) a provision that provides for the pass-through’ of that recovery to the subcontractor [citation omitted].” Bovis Lend Lease LMB Inc. v. GCT Venture, 285 App. Div. 2d 69-70, 728 N.Y.S.2d 25 (2001).
Following Bovis, which we find persuasive, it appears the agreement in the instant case accomplished what was intended. In Paragraph 2.1 of the agreement, die State acknowledged its liability to Law, Central, and Smith for claims they asserted against the State based on the acts or omissions of BBA, but only to the extent that Law, Central, and Smith recover from BBA. Further, the State’s liability to Law, Central, and Smith, and Law’s liability to Central and Smith were liquidated to the amounts recovered from BBA and its insurers. Finally, die agreement contained a pass-through provision whereby the State agreed that Law, Central, and Smith were entitled to any amount recovered on the claims against BBA.
This is not the end of the analysis. The concept of these agreements begins with the fact the subcontractor can sue the general contractor who can then sue the owner. The agreements are intended to avoid an extra layer of litigation. Here, the subcontractors had a claim against the general contractor, who in turn had a claim against the owner, who in turn had a claim against the architectural firm. The subcontractors, general contractor, and owner got together and settled their claims, except for claims related to BBA’s liability, among themselves. At that point, the contractors could have still brought claims against the State based on BBA’s liability, and the State could have sought indemnity from BBA. The agreement intended to pass through the contractors’ claims against the State and liquidate the amount the State would owe the contractors to what they recovered from BBA. This is needed because the State is the only party in privity with BBA.
Typically, it would be the State who would bring the contractors’ claims on behalf of the contractors. It appears the State attempted to avoid this problem by appointing Law’s attorneys as special assistant attorneys general for the purpose of this matter, after this case was concluded in the district court and the appeal was in progress. The assignment is also unusual. If the assignment is valid, the contractors, as assignees, could pursue the State’s claims, which would have become their own through the assignment, and which, in reality, were initially their own claims anyway.
In its brief, BBA relies heavily on Severin v. United States, 99 Ct. Cl. 435 (1943), cert. denied 322 U.S. 733 (1944), and J.L. Simmons Company v. United States, 158 Ct. Cl. 393, 304 F.2d 886 (1962).
In Severin, the prime contractor brought suit against the government, which was the project owner, alleging damages caused by delays in the project on its own behalf and on behalf of its subcontractor. When speaking as to the prime contractor’s ability to recover on behalf of the subcontractor, the Severin court stated:
“If [the prime contractor] had proved that they, in the performance of their contract with the Government became hable to their subcontractor for the damages which the latter suffered, that liability, though not yet satisfied by payment, might well constitute actual damages to [the prime contractor], and sustain their suit.” 99 Ct. Cl. at 443.
The Severin court then found the prime contractor could not recover on behalf of the subcontractor because the two parties had previously entered into a contract with each other wherein they could not be held liable to each other for any delay caused by the owner. Thus, the prime contractor could not show any liability to the subcontractor for breaches of contract by the owner. 99 Ct. Cl. at 443.
In Simmons, the prime contractor sued on behalf of its subcontractors for damages caused by the government’s alleged breach of contract. Subsequent to completion, the prime contractor and its subcontractors signed a “Subcontractor’s Waiver of Lien and Release” which provided the subcontractors’ claims would be included in any claim prosecuted by the prime contractor against the government. The agreement also stated that either the disallowance of the subcontractors’ claims by the court or the payment to the subcontractors of the amount, if any, that might be recovered would completely extinguish all further obligation of the prime contractor to the subcontractor and would operate as a full and complete release of any and all liability. 304 F.2d at 887-88.
The Simmons court then reiterated that under Severin and its progeny, a prime contractor may sue the government (owner) on behalf of its subcontractors only “when the prime contractor has reimbursed its subcontractor for the latter’s damages or remains liable for such reimbursement in the future.” 304 F.2d at 888. The court found that even though the subject provisions were “somewhat inartistic,” they did not expressly negate the prime contractor’s liability to its subcontractors. Rather, the agreement recognized a liability and set forth the manner in which the prime’s liability was to be extinguished by requiring the prime to prosecute the claims. 304 F.2d at 890.
The more recent case of Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221 (10th Cir. 1999), also discusses the requirements of these types of agreements. There, the court stated:
“A settled-but-not-paid requirement, finally, also accords with the long-established rule that a contractor need not pay its sub before making a claim on its behalf. See George Leary Constr. Co. v. United States, 63 Ct.Cl. 206, 223, 1927 WL 2960 (1927) (Tt is easy to forecast the financial ruin of a Government contractor if the rule is to be established that he may not receive amounts due from the Government under his contract until he establishes . . . that he has paid his subcontractor all he owes him.’); see also Severin v. United States, 99 Ct.Cl. 435, 443, 1943 WL 4198 (1943) (holding that, if contractor is hable to sub, ‘that liability, though not yet satisfied by payment, might well constitute actual damages to [the contractor], and sustain their suit’ under rule that contractor may only sue to recover its own damages).” 175 F.3d at 1250.
The Morrison court went on to opine that the 'Severin doctrine .is a federal common-law doctrine that prevents a prime contractor from making claims against the government (owner) on its subcontractor s behalf if tire subcontractor has released the prime contractor from liability. 175 F.3d at 1251. In discussing the applicability of the Severin doctrine, the Morrison court stated:
“Courts have strictly limited the Severin doctrine, out of reluctance to leave subs with valid claims out in tire cold. Courts have applied Severin only if the government proves that a sub has executed an ironclad, unconditional release of a prime. [Citations omitted.] Post -Severin opinions often interpret releases and contracts very generously in order to let primes press their subs’ claims. [Citation omitted.] Those opinions also allow primes to rely on settlements with subs in which the prime’s liability is conditional. In such agreements, the sub releases the prime from any liability, and tire prime promises only that it will press the sub’s claim against the government and pay the sub whatever if recovers. [Citations omitted.]” 175 F.3d at 1251.
In sum, the concept of the instant agreement, at least in theory, seems to be legitimate and seems to follow the general guidelines for pass-through claims and liquidation agreements. There is nothing in the record that indicates any of the parties to the agreement signed any sort of waiver that would implicate a Severin problem, i.e., an agreement which released the State from liability to the contractors. The wording in the agreement appears to be sufficient to retain liability on behalf of the State for the amount of recovery against BBA.
Of course, there are also some problems and difficulties with the agreement. Initially, the defendant is not the government, as in most cases discussing these types of agreements. Regardless, the reasoning seems to be equally applicable to private entities. Next, this case has an extra layer of plaintiffs. There is no party in privity with all the other parties. Typically, the prime contractor is in privity with both the subcontractor and the owner (defendant). Here, the prime contractor (Law) is not in privity with the defendant (BBA), and the State, although in privity with the BBA and Law, is not in privity with the subcontractors.
Further problems are what to do about the puiported assignment of the State’s claims and the issue of who is actually prose cuting which claims — the State or Law, Central, and Smith. Typically, the contractors’ claims would pass through the State. Here, it at least appears the State’s claims are being passed to the contractors. Per the liability issue, it does not appear the State is being forced to prosecute the claims, such as the case in Simmons.
We, therefore, affirm the district court’s summary judgment as to the tort claims being dismissed due to the statute of limitations.
We reverse the summary judgment as to Roof-Techs’ contract claim against Law. We can find no justification for the district court’s action.
We reverse the district court’s dismissal of the State’s claims, and we allow Law to proceed by means of a pass-through process under the facts of this case.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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Beier, J.;
The State appeals the district court’s dismissal of charges against John Arrocha because he was not brought to trial within 90 days of arraignment as required by K.S.A. 22-3402(1). We must decide whether Arrocha was being held in custody solely because of the charges in this case and whether the district court erred in attributing certain periods between arraignment and dismissal to the State.
K.S.A. 22-3402(1) requires a criminal defendant charged with a crime to be brought to trial within 90 days of arraignment if he or she is being held in custody solely because of that crime. If delays are attributable to defense conduct or request, the periods they cover are not counted as part of the 90 days. Dismissal is the appropriate remedy if the State and court fail to abide by the 90-day time limit and the court has not granted a continuance for any of several reasons enumerated and described in K.S.A. 22-3402(3). Such a continuance may be granted, for example, if “[bjecause of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section.” K.S.A. 22-3402(3)(d).
In this case, Arrocha was bound over on charges of aggravated robbery and kidnapping on June 22, 2000. Defense counsel was not available for the July 12 docket call suggested by the court and requested a docket call setting in August. The district court set the docket call on August 17.
At the August 17 docket call, the defense sought a trial setting. The State indicated it was available for trial on September 18. Defense counsel asked for the trial to be set on October 30. The district court set the trial for October 30.
On October 20, the public defender moved to withdraw from the case, and Frank Gilman was appointed to represent Arrocha. On October 27, defense counsel moved for a continuance of the trial, and the State voiced no objection. The district court granted the continuance and offered to set the case for trial or put it on the next docket call. Defense counsel asked for a docket call on November 16 so that he could determine if he had any motions to file.
On November 16, defense counsel requested a jury trial setting, but the prosecutor asked for the case to be set on docket call. Defense counsel agreed, and the court set the case for the next docket call on November 30.
On November 30, the State and defense counsel appeared at the docket call. The earliest trial date assigned to any defendant at the docket call was January 8, 2001. We know that date was still available when Arrocha’s case was called, because it was assigned to the two cases that followed his. Despite this, his lawyer sought a trial date of January 29. When told January 29 was not available, he then asked the court to set the case for trial on January 22. The court did so.
On January 19, the district court granted defense counsel’s request to continue the trial date to February 12.
On February 9, the prosecutor moved to continue the jury trial, and the court set the trial date for February 26. The court made an explicit finding that this continuance would be taxed to the State for speedy trial purposes.
Arrocha was not able to post bond and remained in custody at all times after arraignment. He filed a motion to dismiss based on violation of the 90-day time limit in K.S.A. 22-3402(1).
At the February 23, 2001, hearing on the motion, the district court taxed the following time periods to the State: June 22 to July 12, 2000 (20 days); August 17 to September 18, 2000 (32 days); November 30, 2000, to January 19, 2001 (42 days); and February 12 to February 26, 2001 (14 days). Regarding the period from November 30, 2000, to January 19, 2001 — which was determinative of whether the total number of days taxed to the State exceeded the 90-day limit— the court stated:
“I don’t disagree with the State’s attorney that the docket call on November 30th transcript might come out the same way if some different tilings had been said, but they weren’t. And as I say, the Court’s time is the State’s time, and no one announced ready for any other date, and I think the State is stuck with that time.”
The State also argued at the hearing that the 90-day limit did not apply to Arrocha because he was not in custody solely because of the aggravated robbery and kidnapping charges. A detainer had been filed on February 21, 2001, because of outstanding warrants for Arrocha in Jackson County, Missouri. The district court rejected this argument, finding Arrocha had been in custody solely because of the charges in this case from the time of arraignment until after the 90 days had passed.
Effect of Missouri Detainer
Before we calculate the days attributable to the defense and to the State under the speedy trial statute, we must address which subsection of the statute applied to Arrocha. In order for subsection (1) containing the 90-day time limit to apply, Arrocha must have been in custody solely because of the charges in this case. See K.S.A. 22-3402(1): The State has contended the Missouri warrants made the 90-day limit inapplicable.
The Missouri warrants were issued in Jackson County on October 29, 2000, and December 2, 2000; but both Arrocha and die State were unaware of them until the filing of the detainer on February 21, 2001.
Without notice, Arrocha was unable to take steps to dispose of the warrants and return to the status of being held solely on the charges in this case. We are satisfied that, on the record before us, Arrocha was held in jail solely on the charges stemming from this case until the detainer was filed. The district court did not err in so finding.
Calculation of Time Under Speedy Trial Statute
On appeal, the question of whether Arrocha3s statutory speedy trial right was violated is a question of law over which this court has unlimited review. See State v. Smith, 271 Kan. 666, Syl. ¶ 6, 24 P.3d 727 (2001).
The State first argues Arrocha should have been assessed all of the time from the June 22 arraignment until the August 17 docket call, because defense counsel could have requested a jury trial setting at the time of the arraignment. According to the record, the district court made known its intention to set the case for docket call on July 12 before defense counsel asked for the continuance of the docket call to August. The prosecution and the court are on the same team for speedy trial calculation purposes. Thus the district court was correct to assess the 20 days from arraignment to July 12 to the State. The only delay caused by the defense fell between July 12 and August 17.
The State briefly argues that Arrocha acquiesced to all of the delay between August 17 and October 30. This argument is not supported by the record. On August 17, 2000, Arrocha requested a jury trial setting. The State announced it was ready for trial on September 18, but the defense was not. The court set the case for trial to begin on October 30, and the defense, the prosecution, and the court agreed that the defense would be assessed the time from September 18 to October 30. It is illogical to argue that the defense should also have been assessed the time from August 17 to September 18 when the State had sought the September 18 setting. The district court properly assessed the 32 days from August 17 to September 18 to the State.
The State further contends that it was available to bring Arrocha to trial on October 30 and therefore the time from October 30 until January 19 should be attributed to the defense. We agree but reach that conclusion by a different route, one that requires us to break the period into several shorter periods.
First, it is clear the defense did cause the delay from October 27 to November 16, because it initiated the substitution of counsel and ensuing continuance of the October 30 trial setting to the November 16 docket call. When November 16 came, the State was the party asking the court to set the case over to the docket call on November 30. However, defense counsel’s acquiescence in that plan meant the 14 days from November 16 to November 30 are attributable to Arrocha. See State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997) (defendant may waive speedy trial by acquiescing in grant of continuance; defense counsel’s actions attributable to defendant in computing speedy trial violations).
Thus, as of November 30, the total of days taxable to the State under K.S.A. 22-3402(1) rested at 52 days (20 + 32 = 52). As with the district court’s calculation, our assessment of the time from November 30 until the defense made its second request for a continuance of trial on January 19 is determinative. The proper attribution of the time after that point is clear: The defense bears the burden of the delay from January 19 until February 9; the State clearly bears the burden of the delay from February 9 until February 23, when the case was dismissed. If the defense must take responsibility for the period from November 30 until January 19, the State’s total of 66 days is well within the 90-day limit and dismissal was error. If, instead, the State must take responsibility for the period from November 30 until January 19, an additional 50 days, then its total of 116 days made dismissal mandatory.
The State argues November 30 to January 19 should be taxed to the defense because defense counsel initially sought a January 29 trial date and acquiesced in a January 22 trial setting when he appeared at the November 30 docket call. The counterarguments are that Arrocha’s counsel’s actions on November 30 did not constitute a waiver of his client’s speedy trial rights, that the State and the court bore the responsibility to bring Arrocha to trial within the statutory time limit regardless of Arrocha’s or his counsel’s conduct or statements on November 30, and that the record evidences no continuance under K.S.A. 22-3402(3)(d). The entire record of the treatment of this case at the November 30 docket call follows:
“THE COURT: State of Kansas v. John Arrocha.
“[PROSECUTOR] MS. CAMERON: State appears by Brenda Cameron.
“[DEFENSE COUNSEL] MR. GILMAN: Defendant appears in custody, with Frank Gilman, his attorney.
“We ask this be set for trial. I was hoping the court had the 29th available of January. It doesn’t look like it on the sheet.
“THE COURT: No. We don’t have a trial week that week.
“MR. GILMAN: Then the 22nd.
“THE COURT: You think this is a two-day case?
“MR. GILMAN: I’ll leave that up to the D.A.
“MS. CAMERON: I would say two days.
“THE COURT: January 22nd.
“MS. CAMERON: We have a sexual predator case that day in here.
“THE COURT: I really don’t think that will go that soon. 1 would be surprised. We have other cases set that day. We’ll give you a setting of January 22nd at 8:45. Pretrial conference will be January 19th at 1:30.”
Immediately after this exchange, the district court assigned two other cases trial dates of January 8, 2001, one of them after intially assigning a later date and then changing it to January 8 when the court raised a speedy trial question sua sponte. As mentioned above, January 8 was the earliest trial date assigned to any case during the November 30 docket call. Although we cannot be sure, it appears to have been the earliest trial date available on the court’s calendar.
The district court appears to have applied State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000), in finding the November 30 to January 19 time period should be charged to the State. In Hines, the State appealed the district court’s dismissal of charges against the defendant for a violation of his right to a speedy trial under K.S.A. 22-3402(1). The defendant was arraigned on November 3, 1998, and a substantial portion of the delays between arraignment and the April 19, 1999, trial date were attributed to a court-ordered continuance under K.S.A. 22-3402(3). On April 16, 1999, defense counsel requested a continuance of the trial because of the recent death of a family member; however, the defendant himself objected. The court continued the case and set the new trial date beyond the speedy trial maximum date. The State neither objected to the continuance nor raised the speedy trial problem.
Despite the fact that defense counsel requested the continuance, the Kansas Supreme Court found K.S.A. 22-3402(1) was violated:
“At the hearing on April 16, 1999, no mention was made of the statutory time left to tiy the defendant. While defense counsel requested a continuance, the defendant clearly did not waive his rights under K.S.A. 22-3402(1). Neither die State, whose obligation it is to insure that an accused is provided a speedy trial (see State v. Green, 254 Kan. at 672), nor the court mentioned the 90-day requirement in K.S.A. 22-3402(1). While it may have been impossible to set the defendant’s case within the time remaining . . . the record provides no evidence to support such a conclusion. Had the trial court been aware of or alerted to the defendant’s rights under K.S.A. 22-3402(1), the court may have been able to rely on the provisions of K.S.A. 22-3402(3)(d) to set the defendant’s trial on May 10, 1999, without violating the defendant’s right to a speedy trial under K.S.A. 22-3402(1).
“The State argues that the court did not abuse its discretion in granting the last continuance. We agree, and further agree that given the choices, the trial court’s grant of a continuance was an exercise of sound judicial discretion. Nevertheless, neither the State, which agreed with the continuance, nor the court, which granted the continuance and set the case for hearing beyond the time required by K.S.A. 22-3402(1), acknowledged any problem. We may not assume, based upon a silent record, that it was impossible to comply with the provisions of K.S.A. 22-3402(1) or that dre court’s setting was based on K.S.A. 22-3402(3)(d).” 269 Kan. at 704.
Hines appears to represent a unique exception for circumstances when defense counsel and the defendant openly disagree about setting a trial date beyond the statutory time limit. Generally, as noted above, defense counsel’s actions or statements that result in delay bind the defendant. For example, in Southard the defendant argued his speedy trial rights were violated under K.S.A. 22-3402(1). At arraignment, defense counsel had requested a separate hearing on motions to suppress. The district court set the requested hearing on the motions for 28 days later. Although the State had said it would also have a motion to argue at the hearing, the district court taxed the 28 days to the defense. This court affirmed.
Likewise, in State v. Biarda, 27 Kan. App. 2d 570, 571-72, 7 P.3d 317 (2000), the State appealed the dismissal of a complaint for a violation of the defendant’s right to speedy trial under K.S.A. 22-3402(2). The State argued on appeal that part of the delay in bringing the defendant to trial was attributable to the defendant because a continuance was granted from December 17,1998, until January 18, 1999, for the defendant to pursue a diversion. This court found that the defendant benefitted from the continuance because it permitted her to complete her application for diversion and the limited record did not reveal which party requested the continuance or whether the ultimate trial date was postponed by postponing the pretrial proceedings. 27 Kan. App. 2d at 572. In addition, the State provided documents that showed one pretrial continuance was the result of the application or acquiescence of the defense. Thus, we assessed the time to the defense under Southard.
We do not believe Hines was intended to lay down a broad rule requiring the State or the court to explore and resolve the speedy trial issue on the record each time defense counsel seeks a continuance or suggests a trial date. If the defense stands silent, neither advocating nor acquiescing in delay, or the defendant and defense counsel disagree as in Hines, the State must beware. In such circumstances, prosecutors and the district courts are well advised to put consideration of the applicable time limit in the speedy trial statute on the record, as well as any motion or order under K.S.A. 22-3402(3)(d). Such a precaution was not necessaiy here, because Arrocha’s counsel took the extra step of seeking a trial date beyond the 90-day time limit, and Arrocha was bound by his counsel’s action when he failed to speak out against it.
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Green, J.:
James McIntosh appeals his convictions of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. On appeal, McIntosh argues that the trial court erred by (1) denying his motion for an independent psychological examination of the victim; (2) denying his motion for an independent physical examination of the victim; (3) excluding evidence that the victim had accused her brother of trying to molest her; (4) excluding evidence that the victim’s mother accused McIntosh of molesting other children; (5) failing to dismiss the case because the police did not properly preserve evidence; (6) allowing an expert witness to describe the behavioral characteristics of sexually abused children; and (7) failing to give a multiple acts unanimity instruction. We disagree and affirm.
McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe’s daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police.
A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old.
McIntosh was charged with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months’ imprisonment.
Independent Psychological Examination
McIntosh argues that the trial court erred in denying his motion for an independent psychological examination of A.D. McIntosh portrays this issue as a matter of exclusion of evidence necessary to present his defense theory which would constitute a denial of his due process right to a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Although McIntosh had a right to present his theory of defense, that right is subject to statutory rules and case law interpretation of the rules of evidence and procedure. See State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). An examination of the record and pertinent authorities indicates that there is nothing more than an ordinary evidentiary ruling at issue. See State v. Sperry, 267 Kan. 287, 289, 978 P.2d 933 (1999). McIntosh cannot redefine the issue as a denial of the right to present a defense and thereby transform the issue from that of a simple evidentiary ruling into a constitutional issue.
In State v. Gregg, 226 Kan. 481, 487, 602 P.2d 85 (1979), the trial court denied the defendant’s motion for psychiatric examination of the complaining witness in a sex crime case. The Gregg court stated that “[t]he question then becomes whether the trial court abused its discretion in the denial of the motion.” 226 Kan. at 489; see State v. Lavery, 19 Kan. App. 2d 673, 676, 877 P.2d 443, rev. denied 253 Kan. 862 (1993). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
To support his argument that the trial court erred in denying his motion for an independent psychological examination of A.D., McIntosh cites K.S.A. 2001 Supp. 60-235(a), which provides:
“When tire mental or physical condition, including the blood group, of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined . . . .”
McIntosh’s reliance on this statute is misplaced because the statute is a rule of civil procedure. In fact, the Gregg court stated that “[a] psychiatric examination of a party in a civil action may be ordered pursuant to K.S.A. 60-235 when the party’s mental condition is in issue.” (Emphasis added.) 226 Kan. at 485. The instant case, however, is a criminal matter. As such, A.D. is not a party to the action because the parties in a criminal case are the State and the defendant. See State v. Dressel, 241 Kan. 426, 432, 738 P.2d 830 (1987). As a result, McIntosh cannot rely on K.S.A. 2001 Supp. 60-235(a) to support his argument that the trial court erred in denying his motion for an independent psychological evaluation of A.D.
Nevertheless, McIntosh could compel a psychological examination under Gregg. The Gregg court held that “a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.” 226 Kan. at 489. Some of the factors cited by the Gregg court to be considered in determining if such compelling circumstances exist are the child victim’s mental instability, the victim’s lack of veracity, whether similar charges by the victim against other men were proven to be false, and any other reason why the victim should have been required to submit to such an examination. 226 Kan. at 490.
Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D. to determine whether A. D. suffered from post traumatic stress disorder as found by the State’s witness. In addition, McIntosh wanted to ascertain the effect of the repeated questioning on A.D.’s memory of the alleged events. The trial court denied McIntosh’s motion for a psychological examination of A.D. after finding that none of the factors cited by the Gregg court were argued by McIntosh.
We find that the trial court correctly determined that McIntosh failed to establish a compelling reason for A.D. to submit to an independent psychological examination. At the hearing on the motion for a psychological examination, McIntosh did not argue that A.D. was mentally unstable, that she lacked veracity, or that she had made false charges against other men. Moreover, the grounds argued by McIntosh did not constitute a compelling reason to require an independent psychological examination. McIntosh could have attacked the finding of post traumatic stress disorder without conducting an independent examination of A.D. Similarly, McIntosh could have cross-examined the State’s witnesses concerning the psychological evidence as to the effect of repeated questioning on A.D.’s recollection of the alleged incidents. As a result, we find that McIntosh has failed to carry his burden to show that the trial court erred in denying his motion for an independent psychological evaluation of A.D.
Independent Physical Examination
McIntosh also argues that the trial court erred in denying his motion for an independent physical examination of A.D. McIntosh claimed that an independent physical examination was necessary because the State’s physician found evidence that A.D. had been sexually abused but that no photographs were taken of her injuries. McIntosh claims that the trial court’s refusal to allow an independent physical examination of A.D. prevented him from presenting his theory of defense which resulted in a denial of his right to due process.
However, as discussed in the previous issue, McIntosh is attempting to transform an evidentiary issue into a constitutional one. As a result, the issue is not whether the trial court’s denial of his motion for a physical examination of A.D. violated his due process rights. Instead, the issue is simply whether the trial court erred in denying McIntosh’s motion for an independent physical examination.
To support his argument that the trial court had authority to require an independent physical examination of the victim, McIntosh relies on K.S.A. 2001 Supp. 60-235(a). However, as previously discussed, that statute is not applicable in the present case because it only applies to civil proceedings.
The Kansas appellate courts have not considered whether a trial court may permit a criminal defendant to conduct an independent physical examination of the victim. In denying McIntosh’s motion for a physical examination of A.D., the trial court relied on Gregg, even though that case involved a psychological examination, not a physical examination. The trial court found that McIntosh failed to establish a compelling reason to require A.D. to submit to an independent physical examination. We find that although the trial court correctly denied McIntosh’s motion for an independent physical examination of the victim, it assigned an erroneous reason for its decision. See State v. Giles, 27 Kan. App. 2d 340, 346, 4 P.3d 630 (2000).
McIntosh’s motion for an independent physical examination of A.D. is simply a discovery effort. K.S.A. 2001 Supp. 22-3212 allows for limited pretrial discovery by the defendant in a criminal case. Although the statute permits discovery of “results or reports of physical or mental examinations,” the statute does not mention independent physical examinations. See K.S.A. 2001 Supp. 22-3212(a). As a result, the issue is whether an independent physical examination is subject to discovery under K.S.A. 2001 Supp. 22-3212. Interpretation of a statute is a question of law, and our review is unlimited. See State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
K.S.A. 22-3212 was interpreted in Dressel, 241 Kan. 426. In that case, the defendants sought to discover certain evidence which was in the possession of the victim, the Cargill Corporation. Most of the evidence was in Cargill’s possession and not in the possession of the State. When the defendants tried to compel discovery of certain items held by Cargill, the trial court consistently denied the motions because the court did not have jurisdiction to order Car-gill, a nonparty, to participate in the discovery. Our Supreme Court affirmed the trial court’s denial of the motions, holding that “[a] trial court has no authority to compel discovery from the complaining witness pursuant to K.S.A. 22-3212.” 241 Kan. at 437.
Here, McIntosh’s attempt to obtain an independent physical examination constituted an effort to compel discovery from the complaining witness which is prohibited under Dressel. Moreover, McIntosh was not simply attempting to obtain evidence that was in A.D.’s possession. Instead, McIntosh wanted A.D. to undergo an intrusive medical procedure. As such, the evidence sought by McIntosh has a vastly higher privacy quotient than the discovery sought in Dressel. As a result, we find that because a trial court lacks authority to compel discovery from a complaining witness under K.S.A. 2001 Supp. 22-3212, the trial court did not err in denying McIntosh’s motion for a physical examination of A.D.
This holding is consistent with the maxim espressio unius est exclusio alterius, which means “the inclusion of one thing implies the exclusion of another. . . . Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Because K.S.A. 2001 Supp. 22-3212 includes specific items that are subject to discovery by a criminal defendant, but excludes independent physical examinations, it is presumed that the legislature did not intend to permit discovery of independent physical examinations.
It is important to note that denying McIntosh the opportunity to conduct an independent physical examination of A.D. is not unfair. The objective results of the State’s physical examination of A.D, were available to McIntosh under the standard rules of discovery. McIntosh was able to cross-examine the physician on the results of that examination and defense experts could have reviewed and commented on those findings.
As a result, we find that under K.S.A. 2001 Supp. 22-3212, a criminal defendant is without authority to compel a complaining witness to submit to an independent physical examination.
Prior Allegation of Attempted Sexual Abuse
McIntosh next contends that the trial court erred in excluding evidence that A.D. accused her brother, W.D., of trying to molest her. At trial, McIntosh testified as follows:
“Q. And you’re going to tell this jury under oath here that you did not do it?
“A. That’s right. I did not do it. I can tell you some things. Ms. Cunning [the prosecutor] will probably object. When I lived in the house, [A.D.] came downstairs one morning and told her mother and I that [W.D.] had tried to molest her.”
The State objected on the grounds of hearsay and the trial court sustained the objection.
McIntosh argues that the trial court’s exclusion of this evidence constituted a denial of his fundamental right to present a defense. However, as was the case with McIntosh’s previous issues, he is attempting to transform a simple evidentiary ruling into a constitutional issue.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
The State argues that McIntosh failed to preserve this issue because he did not make a proffer as to the relevance or admissibility of the statement. “In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what the exam ining attorney expects to prove by the answer of the witness.” K.S.A. 2001 Supp. 60-243(c).
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.” K.S.A. 60-405.
See State v. Sherrer, 259 Kan. 332, 338, 912 P.2d 747 (1996); State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822 P.2d 591 (1991).
Here, through an unsolicited answer to a question, McIntosh testified that A.D. accused her brother of trying to molest her. However, McIntosh failed to malee a specific offer as to what he expected to prove by this testimony. After the trial court sustained the State’s objection, McIntosh’s attorney should have requested permission to approach the bench with the prosecutor and inform the trial court of the intent to make a proffer. See Barbara, Kansas Rules of Evidence with Objections and Evidentiary Foundations § 1.12 (4th ed. 1997). McIntosh’s defense counsel, however, failed to make a proffer. As such, we find that McIntosh failed to preserve the issue for appellate review.
Furthermore, McIntosh’s unsolicited answer probably should have been struck and the jury admonished to disregard it. McIntosh’s answer was obviously not responsive to the question.
Allegation of Sexual Abuse Against Another Child
In addition, McIntosh argues that the trial court erred in failing to allow evidence that A.D.’s mother had accused him of molesting another child. Specifically, McIntosh contends that the trial court’s error violated his fundamental right to present evidence in his own defense and violated his right of confrontation through effective cross-examination.
At trial, the following exchange occurred during defense counsel’s cross-examination of Zoe:
“Q: Was there any discussion [with] Dee Dee, about whether James had been molesting [B] as well?
“Ms. Cunning: Objection, Your Honor, as to relevance.
“The Court: What is the relevance in that?
“Mr. Frieden: Well, I want to know whether she [is] talking to people that she is thinking that Mr. McIntosh has molested some other, perhaps this [B],
“The Court: What does that have to do with this —
“Mr. Frieden: Well.
“The Court: — case?
“Mr. Frieden: I want to find out whether she is saying anything about Mr. McIntosh of a negative connotation.
“The Court: I am going to sustain the objection.”
On appeal, McIntosh argues that the testimony was relevant to his defense theory that A.D. leveled the allegations against him, in part, because of the influence and suggestion of her mother.
McIntosh argues that the trial court’s exclusion of this evidence constituted a denial of his fundamental right to present a defense. However, as was the case with McIntosh’s previous issues, he is attempting to transform a simple evidentiary ruling into a constitutional issue.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
The State argues that McIntosh failed to preserve this issue because he did not malee a sufficient proffer as to the relevance or admissibility of the statement. However, unlike the previous issue, we find that McIntosh’s proffer was sufficient because he informed the court of what he expected to prove by Zoe’s answer — that she was saying negative things about McIntosh.
Although McIntosh made an adequate proffer, we find that the trial court did not abuse its discretion in excluding the testimony because the evidence was irrelevant. Relevant evidence means “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b); see State v. Mims, 264 Kan. 506, 512, 956 P.2d 1337 (1998). Here, the proffered statement has no tendency in reason to prove any material fact. The evidence is not a statement made by A.D. that could reflect on her credibility as a witness. Instead, the statement was allegedly made by A.D.’s mother and, if made, constitutes mere speculation on her part. If McIntosh was attempting to suggest that Zoe had hard feelings for McIntosh, he could have asked her direcdy regarding any negative bias. However, no such inquiry was conducted. Even if Zoe had made the statement at issue, it would be irrelevant to the issue of whether McIntosh molested A.D. We find that the trial court did not abuse its discretion in excluding the statement and, as a result, the trial court did not violate McIntosh’s right of confrontation.
Failure to Record Victim Interviews
McIntosh further claims that the trial court erred in failing to dismiss his case because the investigating officer did not record his interviews with A.D. At trial, the investigating officer testified that he did not record his interviews with A.D. because he was “under standing orders from the District Attorney’s Office to not record interviews, period.” McIntosh contends that the State’s directive that police not record victim interviews violated his due process rights and his right to effective cross-examination. Specifically, McIntosh argues that the failure to record the interviews was prejudicial because it is impossible to know whether A.D.’s allegation that McIntosh sexually molested her was the result of incompetent interview techniques.
McIntosh concedes that he failed to raise this issue before the trial court. “An issue not presented to the trial court will not be considered for the first time on appeal. [Citation omitted.]” State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). Nevertheless, McIntosh insists that the issue can be considered on appeal because it involves a constitutional question. This court may consider an issue that is raised for the first time on appeal “if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights.” State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998).
Apparendy, the Kansas appellate courts have not addressed whether the failure to record an interview with a victim constitutes a denial of a defendant’s constitutional rights. As a result, this is an issue of first impression in Kansas, and an examination of cases from outside this jurisdiction is insightful.
For example, the issue was considered in State v. Weaver, 290 Mont. 58, 964 P.2d 713 (1998). The defendant in Weaver appealed the denial of his motion to dismiss which was based upon the investigating officer’s failure to record interviews with the victim. The defendant contended that there was a strong reason to believe that the interviews were unduly suggestive and coercive. On appeal, the defendant recommended that the court adopt a per se rule that absent exigent circumstances, child victim testimony may not be used in a prosecution such as his unless a contemporaneous record of the interview was made. While the Weaver court noted that “the better practice may be to create some record of the interviews,” the court declined to adopt a per se rule that interviews of child sexual abuse victims must be recorded. 290 Mont, at 73. Instead, the Weaver court found that because police officers are not required to take initiative or even assist in procuring evidence on behalf of a defendant, the failure to record the interviews did not constitute destruction of material exculpatory evidence. The court concluded that “[tjhere has been no indication in the present case that, had the interviews been recorded in some way, that evidence would have cleared Weaver of the charges against him.” 290 Mont, at 75.
The issue was also addressed in Hines v. State, 703 P.2d 1175 (Alaska App. 1985). The defendant in Hines argued that he was denied discoverable exculpatory evidence when the interviewing officer failed to record an interview with the victim and destroyed his notes of that interview. Similar to the instant case, the district attorney’s office had directed the police not to record statements from alleged victims of sexual assault. In finding that the defendant was not denied discoverable exculpatory material in violation of the state and federal Constitutions, the Hines court rationalized:
“ Where no specific rule or court decision requires the prosecution to preserve the evidence in question . . . the defendant bears the burden of proving that, if preserved, the evidence would have been exculpatory, [Citation omitted] and that the prosecution should have recognized that it might be exculpatory and preserved it. [Citation omitted.] Similarly, where there is no timely request for the evidence, the defendant must establish the materiality of the missing evidence. [Citation omitted.]’ ” 703 P.2d at 1180.
Although the Kansas appellate courts have not considered the effect of the failure to record an interview with a victim, our Supreme Court has held that the destruction of evidence may rise to the level of a constitutional due process violation if the defendant can show that the evidence in question was destroyed in bad faith. See State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000). The Lamae court held:
‘Where the State fails to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant, there is no due process violation unless the defendant shows bad faith on the part of the State.
“The presence or absence of bad faith by the State for purposes of the Due Process Clause necessarily turns on the State’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. The determination of whether the State acted in bad faith is one of fact.” (Emphasis added.) 268 Kan. 544, Syl. ¶¶ 1» 2.
Stated another way, “[u]nless a defendant can show bad faith on the part of the state, failure to process potentially useful evidence does not constitute a denial of due process of law.” Taylor v. State, 251 Kan. 272, Syl. ¶ 4, 834 P.2d 1325 (1992).
Although Lamae and Taylor involved the destruction of evidence and the instant case involves the preservation of evidence, this court nevertheless adopts the rationale from those cases. We hold that when police fail to record an interview with a victim, there is no due process violation unless the defendant shows bad faith on the part of the State. The presence or absence of bad faith for purposes of the Due Process Clause necessarily turns on the State’s knowledge of the exculpatory value of the victim’s interview at the time the State failed to record it. Moreover, the determination of whether the State acted in bad faith is one of fact.
We find that McIntosh’s due process rights were not violated when the police failed to record the interview with A.D. due to an alleged request from the district attorney’s office. First, McIntosh has not established bad faith on the part of the investigating officer for not recording the victim’s interviews or on the part of the district attorney’s office for supposedly issuing a “standing order” that no victim interviews be recorded. McIntosh did not question the State or the investigating officer as to the purpose behind this “standing order.” Moreover, McIntosh has not established that the State or the investigating officer knew the exculpatory value of the interview at the time the police failed to record it. “The presence or absence of bad faith by law enforcement officers . . . turns on the . . . knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. 488 U.S. at 57, n.” State v. Lamae, 268 Kan. at 551.
McIntosh also claims that the investigating officer’s failure to record the interview with A.D. violated his right to effective cross-examination. To support this argument, McIntosh cites United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). The Wade Court noted that the Court will
“scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 388 U.S. at 227.
Wade, however, is distinguishable from the instant case. Most significantly, Wade involved the denial of counsel during a pretrial event. The instant case does not involve the denial of counsel, but rather involves the failure to preserve evidence. As a result, McIntosh’s reliance on Wade is misplaced.
We find that despite the failure to record A.D.’s interviews with police, McIntosh was able to effectively cross-examine the investigating officer. Through cross-examination, the investigating officer admitted that had he recorded his interview with A.D. it would have shown whether A.D.’s sexual molestation allegations were the result of leading questions. Moreover, McIntosh questioned the officer as to the effect of leading questions on a victim’s answers. Through cross-examination, McIntosh was able to present evidence that showed that A.D.’s version of the events may not have been credible because of how the interview had been conducted. In addition, McIntosh had access to the investigating officer’s report which contains a summary of the interviews with A.D. As a result, we find that McIntosh’s right to effective cross-examination was not violated by the failure to record A.D.’s interviews with police
Because McIntosh’s due process rights and right to effective cross-examination were not violated by the failure to record the victim’s interviews, we find that the trial court did not err in failing to dismiss the case.
Expert Witness Testimony
Next, McIntosh argues that the trial court erred in allowing expert witness testimony that A.D. fit the profile of a sexually abused child. Specifically, McIntosh contends that the trial court erred in allowing the expert witness testimony because the testimony was without sufficient foundation.
The admissibility of expert testimony lies within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
At trial, the State asked John Theis, a licensed clinical social worker, whether there are common patterns of behavior among children who have been sexually abused. McIntosh objected, arguing that the question was vague and that Theis was not qualified on the subject. The trial court overruled the objection after finding that Theis was qualified to answer the question. Theis testified as follows:
“There are some common threads that run, you know, there is also some variability with that as well, but often children, they have been assaulted, have intrusive thoughts or images of the events; that’s commonly known as flashbacks. That’s the more vernacular term for that, common term for that, nightmares. Often they suffer from extreme guilt. They can socially withdraw. They can have acting-out behavior, fire-setting, avoidance of school, aggressive behavior, inappropriate sexual acting-out, myriad of symptoms.”
Theis further testified that he observed behaviors in A.D. that were consistent with a child who has been sexually abused. Specifically, Theis testified that A.D. emotionally broke down while she was talking about the sexual molestations. In addition, Theis stated that A.D. had sleep disturbance, feared for her safety, had distressing thoughts about the sexual assaults, distrusted others, was hyperviligant, felt guilt from being abused, and delayed disclosure of the abuse.
On appeal, McIntosh argues that the trial court erred in admitting this expert witness testimony. McIntosh insists that using the characteristics described by Theis as a way to identify child sexual abuse victims were improper because the profile of a sexually abused child has not been generally accepted.
An expert witness may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d). However, such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert’s opinion is admissible up to the point where an expression of opinion would require him or her to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990). An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Struzik, 269 Kan. 95, 99, 5 P.3d 502 (2000).
The issue raised by McIntosh on appeal was previously considered in State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989). The Reser court addressed whether there was adequate foundation to qualify a social worker as an expert on the symptoms consistent with child sexual abuse. The expert testified that children who are sexually abused tend to report fairly consistent symptoms or common patterns of behavior resulting from the trauma, including failure to report the abuse immediately. The expert also testified that the complaining witness in that case exhibited behavior consistent with children who had been sexually abused. The Reser court found that the expert witness, who was licensed as a clinical specialist, with a master’s degree in social work, with years of experience in the field of child sexual abuse, and with world-wide recognition in the field of child sexual abuse, was “eminendy qualified as an expert to testify as to the common patters of behavior resulting from child sexual abuse and that this victim had symptoms consistent with those patterns.” 244 Kan. at 315.
McIntosh argues that this court should decline to follow Reser because the court failed to address whether characteristics of child sexual abuse have been generally accepted. McIntosh adds that Reser is a decade old, and research subsequent to the case shows that the supposed indicators of child sexual abuse cited in that case are not generally acceptable. While it may be true that there is not a universally accepted profile for sexually abused children, the Reser court held that expert testimony on common patterns of behavior by child victims of sexual assault is admissible as corroborating evidence of the abuse. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Maybin, 27 Kan. App. 2d 189, 205, 2 P.3d 179, rev. denied 269 Kan. 938 (2000). Because our Supreme Court has not indicated that it is departing from its previous position that expert testimony on common patterns of behavior of child victims of sexual assault is admissible corroborating evidence, this court is duty bound to follow Reser.
McIntosh suggests that this court follow State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984). In Bressman, a physician testified that in her opinion the complaining witness had been raped. On appeal, the defendant argued that the trial court erred in admitting tire expert witness testimony because it was without sufficient foundation. The Bressman court agreed, finding that the trial court committed prejudicial error in permitting the expert witness testimony because there was not a sufficient foundation to qualify the physician as an expert to give such an opinion since there was no showing that she was trained as an expert in psychiatry and that she had examined the complaining witness for the purpose of rendering a diagnosis as to whether she evidenced rape trauma syndrome. 236 Kan. at 304.
Bressman, however, is distinguishable from the instant case. The Bressman court recognized that under State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), qualified expert psychiatric testimony regarding rape trauma syndrome is relevant and admissible. Although expert opinion testimony on rape trauma syndrome is admissible, the Bressman court found that the physician did not qualify as an expert witness because she was not trained in psychiatry and because she did not examine the victim for the purpose of rendering a psychiatric diagnosis. Accordingly, McIntosh’s reliance on Bressman is misplaced because the case supports the admission of expert witness testimony as to the characteristics of sexual assault victims, provided the testimony is given by a qualified expert.
As a result, we follow our Supreme Court precedent in Reser and hold that qualified expert witness testimony on the common patterns of behavior of a sexually abused child was admissible to corroborate the complaining witness’ allegations. In addition, we find that Theis was qualified as an expert on child sexual abuse. Theis was a licensed clinical social worker with a master’s degree in social work and had regularly conducted sexual abuse evaluations. In fact, Theis’ qualifications were very similar to the qualifications of the expert witness in Reser, who was found to be a qualified expert on child sexual abuse. Accordingly, we find that Theis was qualified as an expert witness in this case.
We further find that the trial court did not abuse its discretion in admitting Theis’ testimony. There was a sufficient foundation for the expert witness testimony and Theis was qualified as an expert witness. Moreover, the expert testimony was not used to prove that A.D. was sexually abused, but rather was used to corroborate her allegations. As a result, we find that the trial court did not abuse its discretion in admitting expert witness testimony that A.D. fitted the profile of a sexually abused child.
Multiple Acts Unanimity Instruction
Finally, McIntosh claims that his right to a unanimous verdict was violated by the trial court’s failure to give a multiple acts unanimity instruction. He claims that it was impossible to ascertain whether the jury reached a unanimous verdict as to the specific acts involved because the jury heard many different allegations of sexual abuse, but convicted him of each of the general allegations involving the widest time frame.
As a threshold matter, this court must first determine whether this is a multiple acts case. Whether this case is a multiple acts case is a question of law over which this court has unlimited review. See State v. Hilson, 28 Kan. App. 2d 740, 742, 20 P.3d 94, rev. denied 271 Kan. 1039 (2001). In a multiple acts case, more than one act is alleged and any one of them could support the crime charged. In these cases, the jury must be unanimous as to which act constitutes the crime. State v. Kinmon, 26 Kan. App. 2d 677, 678, 995 P.2d 876 (1999).
“ ‘To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ ” State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
In many child sexual abuse cases, the abuse “ hesult[s] in an amalgamation of the crimes in the child’s mind.’ [Citation omitted.]” State v. Arculeo, 29 Kan. App. 2d 962, 974, 36 P.3d 305 (2001). In these cases, it is unfeasible for the State to elect a particular criminal act for each charge. Here, however, A.D. could remember specific acts committed against her by McIntosh. Accordingly, the State elected a particular criminal act for each of the counts against McIntosh.
Specifically, the State elected five specific instances upon which to base the charges that were submitted to the jury. The first incident was the first time McIntosh touched A.D. inappropriately. During this incident, McIntosh forced A.D. to touch his penis and put his penis in her mouth. This resulted in Count 1, aggravated indecent liberties, and Count 2, aggravated criminal sodomy-oral. The second incident occurred while A.D. and McIntosh were watching cartoons. McIntosh touched A.D.’s front private, had sexual intercourse with her, put his penis in her mouth, and made A.D. rub his penis. This resulted in Counts 3 through 6, two counts of aggravated indecent liberties, and single counts of rape and aggravated criminal sodomy-oral. The third incident occurred when A.D. was asleep on the couch and McIntosh digitally penetrated her. This incident resulted in Count 8 for rape. The fourth incident involved McIntosh pointing to the private parts of a Barbie doll, describing to A.D. what he was going to do to her, and then sexually assaulting her. Because A.D. could not remember when this incident occurred, the State alleged that this incident occurred between the time McIntosh moved into the home and when he moved out. This incident resulted in Counts 11 through 14, aggravated criminal sodomy-oral, aggravated criminal sodomy-anal, rape, and aggravated indecent liberties. Finally, the fifth incident elected by the State occurred in the spare room of A.D.’s home on a mattress. This incident resulted in Counts 15 through 18, aggravated criminal sodomy-oral, aggravated criminal sodomy-anal, rape, and aggravated indecent liberties. The jury convicted McIntosh of the Counts 11 through 14 relating to the Barbie doll incident.
We find that because the State elected the particular criminal act upon which it relied for each charge, the trial court was not required to instruct the jury that all of them must agree that the same underlying criminal act was proven beyond a reasonable doubt. Because each charge was predicated on a particular criminal act, we are assured that the jury unanimously agreed to the underlying criminal act giving rise to each conviction. As a result, McIntosh’s argument that the juiy rejected the allegations for specific months, and instead convicted him on one of each general allegation covering the widest time frame, is without merit. The trial court did not err in failing to give a multiple acts unanimity instruction.
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Beier, J.:
This appeal arises out of a truck accident in California which injured a 6-year-old. We must determine whether the primaiy insurance policy’s coverage limit was stated in Canadian or United States dollars, and, if Canadian, whether either or both of two other policies come into play.
Rehance National Indemnity Company appeals from the district court’s judgment (1) that the coverage limit was stated in Canadian dollars and thus Zurich Canada’s insurance policy did not provide full coverage for the insureds’ $2 million loss; (2) that Reliance’s policy provided secondary coverage; and (3) that the excess insurer, TIG Insurance, was not responsible for any part of the $2 million loss. TIG cross-appeals, joining in Reliance’s claim that Zurich’s policy fully covered the loss and, in the alternative, opposing the assertion that Reliance’s policy did not cover the loss.
We must address the following issues:
• Did Reliance acquiesce in the judgment, thereby barring all or part of this appeal?
• Did the district court err in finding Zurich’s policy was not ambiguous?
• Did the district court err in applying Canadian law to interpret Zurich’s policy?
• If Canadian law does apply in this case, did the district court properly interpret and apply Canadian law?
• If Zurich’s policy does not fully cover the loss, did the district court err in finding Reliance’s policy provided coverage for the loss? and
• Did the district court err in finding TIG’s policy did not cover the loss in this case?
Factual Background
The Parties
Layne Christensen Company (Layne) is a Delaware corporation with its principal place of business in Johnson County, Kansas. Elgin Exploration Company, Limited (Elgin) was incorporated in and has its principal place of business in the province of Alberta, Canada. In December 1995, Layne acquired Elgin when it purchased Elgin’s then-parent corporation, Christensen Boyles Corporation (CBC).
At all relevant times, Elgin and/or Layne were covered by automobile insurance policies issued by several different carriers, including the three involved in this case. Zurich Canada (Zurich), is a Canadian insurance company with its principal place of business in Ontario. TIG Insurance Company (TIG) is a California corporation with its principal place of business in Texas. Reliance National Indemnity Company (Reliance) is a Wisconsin corporation with its principal place of business in Pennsylvania.
The Underlying Suit
In 1996, Elgin was working on a project in California. On August 26, 1996, an Elgin employee from the project was driving a truck rented by Elgin when he struck Devin Wallen, the 6-year-old child. Wallen was seriously injured.
Wallen and his mother filed suit in California state court against Elgin and the driver shortly after the accident. The Wallen suit was settled by Elgin in July 1997 for $2 million in United States dollars. Representatives of Zurich, TIG, and Rebanee approved the settlement. Zurich contributed $1,456,133.96, the equivalent of $2 milbon Canadian dollars, toward the settlement. TIG and Rebanee each paid $146,933.02, and Layne/Elgin contributed $250,000, all in United States dollars. All parties reserved their rights to seek a declaration of their respective obligations for the loss.
The Zurich Policy
In July 1993, Johnson & Higgins Ltd. (J&H), an insurance brokerage firm based in Alberta, Canada, requested a price quote from Zurich for an automobile fleet insurance pobey for Elgin. Although Elgin previously had insurance through its parent corporation CBC, Zurich was told Elgin wished to “remove themselves from the parent’s insurance programme.” The request sought a $2 milbon coverage limit but did not specify whether the limit was to be measured in United States or Canadian dollars. Zurich was in formed that Elgin operated primarily in Canada, but that Elgin had three trucks in the United States. Zurich provided Elgin a conditional price quote and requested additional details on its United States exposure.
Ultimately, Elgin accepted Zurich’s quote and policy number 9991237F was issued for 1 year beginning August 24,1993. Zurich charged the first year premium in Canadian dollars. The policy covered all vehicles Elgin owned, leased, or registered in its name. The coverage limit was $2 million; there was no deductible. Coverage exhended to Elgin’s automobiles while they were operated or parked within Canada, the United States, or upon a vessel plying between the two countries.
The Zurich policy and its later endorsements were silent as to whether the $2 million limit was measured in Canadian dollars if an accident occurred in the United States. No documents were provided to Elgin stating that claims would be calculated in Canadian dollars, even for accidents occurring in the United States. However, no explicit representation was made that such claims would be paid in United States dollars.
In August 1994, Zurich renewed Elgin’s policy for a second 1-year period to run through August 24,1995. Zurich charged a premium in Canadian dollars. The premium was financed and paid through J&H in Calgaiy. The policy was renewed for a third year in August 1995 in the same fashion.
In April 1996, after Elgin and its parent corporation had been acquired by Layne, Elgin notified Zurich its new insurance brokers were the Lockton Companies (Lockton) and its Canadian representative, Morris & Mackenzie, Inc. Lockton is a Missouri corporation with its principal place of business in Kansas. Morris & Mackenzie, Inc. (M&M), is a Canadian insurance broker with offices in Alberta, Canada.
In July 1996, Zurich notified M&M that it would not renew Elgin’s fleet policy for a fourth year because of Elgin’s loss history. A policy provision requiring 60 days’ notice of nonrenewal prompted Zurich to offer to extend the policy’s term to September 24, 1996. M&M requested the policy be extended. At about this same time, M&M advised Zurich that Elgin was going to use a rented truck and five other vehicles on the California job. The rented truck identified in the notice was the truck ultimately involved in the Wallen accident.
At M&M’s request, Zurich extended Elgin’s policy to October 15, 1996, as reflected in endorsement 95-13. An additional premium was charged for the extension. Zurich also issued Endorsement No. 95-14, which re-rated the policy to include the six vehicles being used in California. The additional premium for this coverage was $7,002. “Re-rating” meant Zurich added a territorial surcharge because its exposure in California was higher. One of the factors used in determining the surcharge was the exchange rate between Canadian and United States dollars, although it appears to have exerted downward pressure on the surcharge. Another endorsement, No. 95-15, was issued adjusting Elgin’s premiums for the policy period ending August 1996, requiring an additional payment.
During the years the Zurich policies were in effect, the insurance brokers billed Elgin for the premiums, accepted payments from Elgin, and then forwarded the payments less commissions to Zurich. The payments made by the brokers to Zurich included payments from Elgin and from other entities who had obtained Zurich policies through the brokers.
Regarding the 1996 endorsements, Zurich authorized M&M to bill Elgin for the additional premiums. M&M did not bill Elgin for those endorsements until December 1996 and January 1997 (after the Wallen accident). Apparently, M&M sent the invoices to Lock-ton in Kansas who, in turn, sent them to Layne.
In March 1997, Lockton issued a single invoice to Elgin to cover the premiums for Endorsement Nos. 95-13, 95-14, and 95-15. Within 2 weeks, Layne paid Lockton $23,682 in United States dollars for the endorsements. Lockton subsequently issued a check to M&M drawn on a United States bank and payable in United States funds. The check covered the premium for all of the endorsements, less Lockton’s commissions. The premiums were paid in United States dollars without converting the charges for the currency exchange rate. Therefore, the payment exceeded $23,682 in Canadian dollars.
Between 1993 and 1996, any losses for which Elgin was indemnified under the Zurich policy were not paid in United States dollars. Neither Elgin nor Layne was aware of any United States claims having been paid by Zurich in United States rather than Canadian dollars, and the record is silent on whether there were, in fact, any claims in the United States. At various times, Zurich issued certificates to governmental entities verifying Elgin’s insurance coverage; the certificates indicated the coverage was based on Canadian dollars, but it is apparent the certificates would not have been seen by Elgin personnel.
The Reliance Policy
Effective May 1, 1996, Rebanee renewed policy number NKA 0121853-01 to Layne, providing automobile babbity coverage for 1 year with a policy limit of $2 million. The renewal submission provided to Rebanee by Layne’s agent, Lockton, bsted vehicles owned by or leased to Layne’s United States operations.
The Reliance pobey covered autos owned by the insured “as per schedule on file with company.” The “Named Insured Endorsement” attached to the policy identified a number of companies covered by the policy; a revised endorsement included Elgin as a named insured. A “Broad Named Insured Endorsement” to the policy also stated that the named insured included Layne and/or “any corporation, subsidiary (including subsidiaries) or partnership” of which Layne owned more than 50 percent. Another endorsement issued later altered the Broad Named Insured Endorsement coverage; it indicated coverage would not apply when primary insurance, other than the Rebanee policy, was payable. The amended endorsement states an effective date of May 1,1996, but it also bears a date of “09/12/97.” Reliance’s counsel drafted this endorsement in June 1997 — nearly a year after the Waben accident — and it was revised to its current form by Lockton. Rebanee conceded the amended endorsement was not issued until September 12, 1997, although it purportedly was effective May 1, 1996.
Rehance’s pobey stated it provided primary insurance for any auto the insured owned and excess insurance for any covered auto the insured did not own.
The TIG Policy
Effective May 1, 1996, TIG issued an excess policy of casualty insurance to Layne, providing coverage for 1 year. The policy’s coverage limit was $25 million. TIG agreed to pay all sums in excess of the applicable limits of the underlying insurance listed in an attached schedule. The attachment shows automobile liability coverage by Zurich and Reliance, both with $2 million policy limits.
The Current Litigation
On August 20, 1997, Layne and Elgin (referred to collectively as “plaintiffs”) filed this declaratory judgment action against Zurich, TIG, and Reliance in Johnson County District Court, seeking a declaration that they were fully covered by one or more of the policies for the Wallen accident. Plaintiffs claimed that Zurich’s policy limit was based on United States dollars and that Zurich’s policy was primary over the policies of TIG and Reliance. Plaintiffs also alleged that, if Zurich’s policy limit was payable in Canadian dollars, TIG’s policy provided the remaining coverage for the Wallen settlement. Plaintiffs asserted that neither Layne nor Reliance intended the Reliance policy to provide coverage for claims against Elgin. Finally, plaintiffs asserted that, if Zurich’s coverage was limited and Reliance’s policy provided coverage, plaintiffs were not obligated to pay any deductible.
All three defendants filed answers with counterclaims against plaintiffs and cross-claims against the other insurers. While discovery was proceeding, the trial court suggested the parties try to develop a comprehensive stipulation of facts to narrow the issues. Ultimately the parties filed a stipulation of fact consisting of 99 paragraphs and 50 attached exhibits. The parties specifically reserved their rights to assert additional uncontroverted facts on summary judgment.
Approximately 1 year after this action was filed, M&M notified Lockton that Elgin had overpaid its premium by paying it in United States dollars rather tiran in Canadian dollars. Lockton subsequently issued a $4,725.60 check to Elgin for the currency differential. Between March 1997 and August 1998, Zurich never advised Lockton or Layne the premium was overpaid.
All of the parties filed summary judgment motions on the issue of Zurich’s policy limits. The court heard arguments and, on January 29, 1999, issued a memorandum and order. It concluded that the Zurich policy was made in Canada and that the law of Alberta, Canada, should control. Looking at Canadian law, the court concluded the coverage limit was stated in Canadian dollars. The court concluded the term “dollars” was not ambiguous as a matter of law and the parties’ intent could be ascertained from their actions.
Approximately 1 year after summary judgment was entered in favor of Zurich, Reliance filed a motion for partial summary judgment to determine the extent of coverage, if any, under its policy. Plaintiffs and TIG also filed motions for summary judgment on this issue. A different district judge heard arguments on these motions in February 2000 and ruled against Reliance from the bench. In April 2000, the district court issued the journal entry setting forth its ruling. It found that Reliance’s policy unambiguously provided coverage for the Wallen suit; that Reliance’s coverage was excess to that provided by Zurich; and that Reliance was required to reimburse plaintiffs $250,000 and TIG $146,933.02, plus interest, for their contributions to the settlement.
Reliance filed a timely notice of appeal challenging both summary judgment orders. TIG filed a timely notice of cross-appeal. Plaintiffs also filed a notice of cross-appeal but have since abandoned that effort. We remanded the matter for determination of an appropriate bond, and Reliance later posted a bond as to TIG’s judgment.
On November 30, 2000, Reliance executed a settlement agreement with plaintiffs. Under the agreement, Reliance paid $250,000 to the plaintiffs to settle all claims and plaintiffs’ motion for attorney fees. In exchange, plaintiffs released Reliance from any and all liability arising from these cases. Plaintiffs also agreed to withdraw their attorney fees motion and discontinue collection efforts. Reliance reserved its right to pursue its appeal against Zurich and TIG, and plaintiffs assigned their rights to Reliance to prosecute all claims plaintiffs had against TIG and Zurich. The agreement gave Reliance full and sole authority to settle any claims on appeal, but the parties agreed to divide the proceeds of any judgment or settlement favorable to Reliance based on a specified formula. The formula appeared to give the Plaintiffs a proportionate share of any judgment based on the interest Reliance was not paying in the settlement.
Discussion
Acquiescence by Reliance
We must first determine whether Reliance has acquiesced in any part of the district court’s decision by settling with plaintiffs.
Acquiescence in a judgment, which cuts off the right of appellate review, occurs when a party voluntarily complies with the judgment by assuming the burdens or accepting the benefits of the judgment contested on appeal. Varner v. Gulf Ins. Co., 254 Kan. 492, 494-95, 866 P.2d 1044 (1994). The rationale is that a party who voluntarily complies with a judgment should not be allowed to pursue an inconsistent position by appealing from that judgment. A party’s actions impliedly acquiescing in the judgment are sufficient for application of this rule. McDaniel v. Jones, 235 Kan. 93, 101-02, 679 P.2d 682 (1984).
Because acquiescence involves a question of the appellate court’s jurisdiction, the matter raises a question of law. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Also, because it necessarily arises after a judgment is rendered, there is no standard of review that governs our consideration of the issue. We thus approach it in the same fashion we would approach any other question of law presented to us.
There were two judgments in this case. The first judgment included the trial court’s rulings that Zurich’s policy limit was $2 million in Canadian dollars and that Zurich had paid its full policy limit in the Wallen settlement. The second judgment included the second district judge’s decisions that Reliance’s policy provided secondaiy coverage, that Reliance was obligated to pay the balance of the Wallen settlement, and that TIG’s excess coverage was not triggered.
Reliance relies heavily on Foley Co. v. Scottsdale Ins. Co., 28 Kan. App. 2d 219, 15 P.3d 353 (2000), in arguing its appeal is not barred. In Foley, a general contractor and its insurer filed suit against a subcontractor, the subcontractor’s insurer (Scottsdale), and an insurance broker, seeking indemnification for damages paid in another lawsuit. Scottsdale filed a cross-claim against the insurance broker, alleging the broker breached its agency agreement by unilaterally listing the general contractor as an additional insured to Scottsdale’s policy. The trial court held Scottsdale was required to pay a portion of the underlying judgment; the court also denied Scottsdale’s cross-claims against the broker. Scottsdale appealed from the judgment entered in favor of the broker, but it paid the judgment entered against it in favor of the plaintiffs.
On appeal, the broker contended Scottsdale had acquiesced by paying the plaintiffs’ judgment. This court noted that, by paying the plaintiffs, Scottsdale had acquiesced in part of the judgment but was not appealing from the ruling in favor of the plaintiffs. We recognized that Scottsdale’s claim against the broker related to a separate judgment and that Scottsdale had “not adopted a position that is inconsistent with the judgment contested on appeal.” 28 Kan. App. 2d at 223. Accordingly, there was jurisdiction.
Generally, acquiescence to one part of a judgment does not bar appellate review of a distinct, separate part of the judgment. See First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, 324, 736 P.2d 909 (1987); Brown v. Combined Ins. Co. of America, 226 Kan. 223, 231, 597 P.2d 1080 (1979).
Reliance argues that, because it settled only with plaintiffs, it may still appeal from the judgments entered in favor of Zurich and TIG, emphasizing they were not parties to the settlement. When testing for acquiescence in a judgment, however, the focus has always been whether the position taken by tire party on appeal is inconsistent with the judgment. See First Nat’l Bank in Wichita, 241 Kan. at 324; Foley, 28 Kan. App. 2d at 223. The parties to a settlement and those to an appeal need not be identical for acquiescence to occur. In Brown, the court found no acquiescence, even though the insurer paid the undisputed portion of the disability claim and appealed the remainder of the judgment; the parties involved in the payment were the same parties litigating the appeal. 226 Kan. at 231.
Reliance’s settlement with the plaintiffs is not inconsistent with its claims against Zurich on appeal. The parties conceded below that Zurich had primaiy coverage for the Wallen accident and that none of the other policies was implicated until Zurich paid its limits. Reliance’s payment to its insureds is not inconsistent with its claim that Zurich’s policy should have covered the entire Wallen settlement. If Reliance prevails on appeal as to the extent of Zurich’s coverage, Zurich must make Reliance whole.
The settlement poses a more serious question of acquiescence, however, with respect to the coverage issue Reliance is pursuing against TIG. By making a nonrefundable payment of the judgment to plaintiffs, Reliance impliedly conceded its policy provided secondary coverage for the accident. On appeal, Reliance contends its policy did not cover the Wallen accident at all; rather, TIG’s excess coverage followed Zurich’s coverage. The inconsistency in Reliance’s two positions is exactly the type of inconsistency that gave rise to the acquiescence doctrine.
Reliance attempts to persuade us that its payment to plaintiffs was a subrogation payment, not merely a setdement payment, and that it primarily purchased plaintiffs’ right to prosecute claims against Zurich and TIG. Along the way, it relies on the doctrine of equitable subrogation.
Reliance’s arguments are unsound. First, Reliance’s claim that its payment was not a settlement payment is without support. The document requiring the payment is titled “Settlement Agreement.” The payment of $250,000 was made “in full and final settlement” of the various claims. Plaintiffs released Reliance “from any and all liability or obligation.” The payment was made for “reasonably equivalent value in settlement of a disputed claim.” Finally, Reliance agreed not to enforce any judgment it might obtain against plaintiffs in the appeal and promised to indemnify plaintiffs for any judgments Zurich or TIG might obtain against plaintiffs if Reliance prevailed on appeal.
Although the agreement also recites that Reliance is subrogated to plaintiffs’ rights against Zurich and TIG, Reliance also agreed to pay a portion of any proceeds it recovered to plaintiffs. On the other hand, there was no provision requiring plaintiffs to repay any portion of the settlement amount if Reliance’s appeal was successful. It is clear that the primary goal of the agreement was to enable Reliance to settle its claims with plaintiffs to avoid attorney fees and interest.
In addition, the cases cited by Rehance also do not support its claims. In Hocker v. New Hampshire Ins. Co., 922 F.2d 1476 (10th Cir. 1991), several employees sued their employer’s primary insurance carrier and an excess carrier when neither provided a defense to a negbgence claim. The excess carrier then filed a cross-claim against the primary carrier, seeking indemnification. Applying Wyoming law, the trial court entered substantial verdicts against both insurers. Ultimately, the trial court denied the excess carrier’s claim for equitable subrogation and the carrier appealed. On appeal, the Tenth Circuit denied the excess insurer’s cross-claim for equitable subrogation because of unclean hands — it had failed to investigate or defend the underlying claims. Because of its own bad faith, the court held the excess carrier was not in the position to invoke equity. 922 F.2d at 1485.
In Ins. Co. of North America v. Medical Protective Co., 768 F.2d 315 (10th Cir. 1985), a physician’s excess carrier, Insurance Company of North America (INA), was required to pay part of a judgment in a medical malpractice case when the jury’s verdict exceeded primary coverage. INA, in turn, sued the primary insurance carrier for failing to exercise good faith to settle the case within its pobey bmit. The trial court held that INA was subrogated to the rights the insured had against the primary carrier for failure to settle. The Tenth Circuit affirmed. 768 F.2d at 323.
Finally, in Reese v. AMF-Whitely, 420 F. Supp. 985 (D. Neb. 1976), the defendant in a products babibty case brought third-party claims against two others it contended had contributed to an accident. The federal district court, applying Nebraska law, held that a tortfeasor may pursue a claim for equitable contribution from joint tortfeasors when one party discharges more than its proportionate share of the judgment. 420 F. Supp. at 987.
These cases provide btde assistance to Rebanee. Reese is simply inappbcable because, unbke Nebraska, Kansas adheres to the common-law rule that there is no right of contribution among joint tortfeasors. KPERS v. Reimer & Roger Assocs., Inc., 261 Kan. 17, 35, 927 P.2d 466 (1996). Neither of the courts in Hocker or Ins. Co. of North America addressed the question of acquiescence, and only the latter applied Kansas law. In addition, the party pursuing claims in Hocker and Ins. Co. of North America was the excess carrier suing the primary carrier. This might support hearing Reliance’s claims against Zurich, plaintiffs’ primaiy insurer, but it provides no support for Reliance’s claims against TIG.
Reliance’s last argument regarding acquiescence is that it preserved its right to pursue an appeal in the settlement agreement. However, an agreement between the parties that the right to appeal is not waived cannot vest an appellate court with jurisdiction to determine issues where jurisdiction is otherwise lacking. Labette Community College v. Board of Crawford County Comm’rs, 258 Kan. 622, 626, 907 P.2d 127 (1995).
For all of the foregoing reasons, we hold that Reliance acquiesced in the judgment as to TIG but not as to Zurich. It may continue its effort to redefine the extent of the Zurich policy on appeal, but it may no longer argue that TIG’s excess coverage was triggered before its own coverage came into play. Its settlement with the plaintiffs, necessarily conceding the coverage issue it wishes to continue litigating, means the game is over as to TIG.
Governing Law
In interpreting Zurich’s policy, the district court applied Canadian law, finding that the rule of lex loci contractus should apply and that the contract was made in Alberta, Canada. Both Reliance and TIG claim this was error, but for different reasons. Reliance contends Kansas law should apply because Zurich’s policy covering the California trucks was made in Kansas. TIG argues California law should apply because that was where Zurich was obligated to perform its contract — i.e., pay for the loss.
There appears to be some differences between Kansas law and California law on one hand and Canadian law on the other. A choice-of-law analysis is therefore necessaiy. When addressing choice-of-law issues, the Kansas appellate courts follow the Restatement (First) of Conflict of Laws (1934). See Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 848, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001).
The Restatement (First) contains two general principles for contracts cases. The primary rale, lex loci contractus, calls for the application of the law of the state where the contract is made. Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 209-10, 4 P.3d 1149 (2000); Restatement (First) of Conflict of Laws, § 332 (1934). The second rale provides that the law of the place of performance determines the manner and method of performance. Aselco, 28 Kan. App. 2d at 848; Restatement (First) of Conflict of Laws, § 358.
Courts have straggled on occasion to determine whether the issues in a particular case are governed by lex loci contractus or the law of the place of performance. See Novak v. Mutual of Omaha Ins. Co., 29 Kan. App. 2d 526, 28 P.3d 1033, rev. denied 272 Kan. 1419 (2001) (applying lex loci contractus when determining validity of contract provision); Aselco, 28 Kan. App. 2d at 848, 852 (applying performance rule on duty to defend issue and lex loci contractus to contract interpretation issue).
Even the Restatement itself acknowledges that the line between the two principles is not a bright one:
“[Tjhere is no logical line which separates questions of the obligation of the contract, which is determined by the law of the place of contracting, from questions of performance, determined by the law of the place of performance. There is, however, a practical line which is drawn in every case by the particular circumstances thereof. When the application of the law of the place of contracting would extend to the determination of the minute details of the manner, method, time and sufficiency of performance so that it would be an unreasonable regulation of acts in the place of performance, the law of the place of contracting will cease to control and the law of the place of performance will be applied. On the other hand, when the application of the law of the place of performance would extend to a regulation of the substance of the obligation to which the parties purported to bind themselves so that it would unreasonably determine the effect of an agreement made in the place of contracting, the law of the place of performance will give way to the law of the place of contracting.” Restatement (First) of Conflicts of Law, § 358, Comment b (1934).
Some pre-Restatement cases seem to follow the rale that payments under a contract should be made in the currency of the country where the payment is to be made. If the currencies of the relevant countries bear the same name but have different value, the currency of the country where the money is payable is presumed to be intended by the parties. See Mountain Lumber Co. v. Davis, 9 F.2d 478, 480 (S.D.N.Y. 1925), aff'd 11 F.2d 219 (2d Cir.), cert. denied 271 U.S. 674 (1926); see also Weiss v. State Life Ins. Co., 4 D.L.R. 5 (Can. 1935) (recognizing presumption but finding it rebutted). These cases seem to apply the place of performance rule.
However, in our view, this case calls more for an interpretation of the original contract. The question of the meaning of the coverage limit goes to the substance of the obligation rather than the manner of performance. See Simms v. Metropolitan Life Ins. Co., 9 Kan. App. 2d 640, 642-43, 685 P.2d 321 (1984) (when construing provision defining treatment coverage, law of place contract made controls); see also 4 Holmes’ Appleman on Insurance 2d, Conflicts and Choice of Law § 21.5, p. 274-75 (1998). It also makes more sense that the policy limit should remain constant regardless of where a covered accident occurred, i.e., where performance turned out to be required, unless the parties have been explicit in their intention that the limit be malleable. We conclude that lex loci contractus applies in this situation.
The issue then becomes: Where was the contract made? The district court decided this issue based on the parties’ stipulations, as well as affidavits and documents, meaning this court is in as good a position as the district court was to answer this question. See American States Ins. Co v. Farmers Alliance Mutual Ins. Co., 28 Kan. App. 2d 754, 756, 20 P.3d 743, rev. denied 271 Kan. 1035 (2001). We therefore exercise plenary review on this issue.
Several Kansas cases have concluded that “ ‘the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, die law of the forum is preferred.’ ” Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990) (quoting Shutts v. Phillips Petroleum Co., 235 Kan. 195, 221, 679 P.2d 1159 [1984], rev'd in part on other grounds 472 U.S. 797 [1985]). Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply. Failure to present facts sufficient to determine where the contract is made may justify a default to forum law. See SIG Arms Inc. v. Employers Ins. of Wausau, 122 F. Supp. 2d 255, 258-59 (D. N.H. 2000); Lobo Exploration Co. v. Amoco Production, 991 P.2d 1048, 1051-52 (Okla. Civ. App. 1999), cert. denied, 529 U.S. 1124 (2000); Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 204-05 (Tex. 2000). Here, under a de novo standard of review, Zurich would have the burden of proving that the contract was made in Canada and that Canadian law should therefor control.
A contract is made where the last act necessary for its formation occurs. Wilkinson, 269 Kan. at 210. In cases involving insurance policies, our courts have repeatedly held the contract is made where the policy is delivered. See, e.g., Safeco Ins. Co. of America v. Allen, 262 Kan. 811, 822, 941 P.2d 1365 (1997) (Missouri law controlled when policy issued in Missouri); American States Ins. Co. v. McCann, 17 Kan. App. 2d 820, 823-24, 845 P.2d 74, rev. denied, 252 Kan. 1091 (1993). In the case of group policies, the contract is made where the master policy is delivered. Frasher v. Life Investors Ins. Co. of America, 14 Kan. App. 2d 583, 585, 796 P.2d 1069 (1990); Simms, 9 Kan. App. 2d at 643-44.
In this case, the original policy apparently was issued and delivered in Canada. Although the stipulations are vague, they indicate Elgin, based in Alberta, was seeking a policy independent of its United States parent corporation. The insurance broker involved with obtaining the original policy in 1993 and the renewals through April 1996 was based in Alberta. The premiums were paid to the Alberta broker and forwarded to Zurich.
Reliance argues the contract was made in Kansas because the 1996 endorsements, which extended the coverage date and provided coverage for the California truck at issue, were delivered in Kansas. It assumes delivery occurred when the endorsements were received in Kansas, and it assumes tire endorsements constituted a new or separate contract for purposes of determining where the contract was made. Neither assumption is correct.
Zurich delivered the 1996 endorsements to M&M, who, in turn, forwarded them either to Elgin or to Lockton. M&M was Elgin’s agent for purposes of obtaining the insurance. As a broker, it was acting on behalf of the insured in procuring the insurance coverage and acting on behalf of the insurer for other purposes. See Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 679-82, 634 P.2d 133 (1981).
The Restatement (First) of Conflicts of Law also provides some guidance. Section 318 recognizes that when an insurance policy becomes effective on deliveiy through an insurance company’s agent, the place of contracting is where the policy is delivered to the insured. When a policy is requested through a broker acting for a client and the policy is effective on delivery, the place of contracting is where the policy is posted or delivered to the broker. Restatement (First) of Conflicts of Law § 319 (1934).
Reliance’s second assumption is that receipt of the endorsements constituted the making of a contract. However, endorsements merely alter part of the general terms of an insurance policy. In this case, the endorsements contained no language as to the policy limit; they merely extended the last day of coverage and added several vehicles to the list covered by the policy. An endorsement must be read together with the policy. “The policy remains in full force and effect except as altered by the words of the endorsement.” 4 Holmes’ Appleman on Insurance 2d § 20.1, p. 153 (1998). The endorsements in this case made no new contract and did not alter the place of the making of the original contract for choice-of-law purposes.
Application of Canadian Law
Reliance and TIG argue alternatively that, even if Canadian law applied, the district court misinterpreted and misapplied it. Zurich and the district court relied on a statute contained in the Alberta Insurance Act and an appellate court decision interpreting a similar Ontario statute to find that the policy limit at issue here was unambiguously stated in Canadian dollars. They also relied on course of dealing to resolve the issue.
To the extent the district court’s decision was based on its interpretation of the Alberta Insurance Act, this court’s standard of review is de novo. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Section 206 of the Alberta Insurance Act, R.S.A. (1980), ch. 1-5 § 1 et seq., provides: “Insurance money is payable in Alberta in lawful money of Canada.” “ Insurance money ” is defined as “all insurance money, benefits, surplus, profits, dividends, bonuses and annuities payable . . . under a contract of insurance.” R.S.A. (1980), ch. 1-5 § 2(1.1).
None of the parties cites to any published decision in Alberta or from the Canadian Supreme Court interpreting Section 206. We have also been unsuccessful in finding any Canadian authority interpreting this provision. The district court relied instead on the Canadian Supreme Court decision in Weiss, which interpreted a similar provision in Ontario’s statutory scheme.
In Weiss, the defendant, an insurer based in Indianapolis, Indiana, issued two life insurance policies to a Canadian citizen. After the insured died, a dispute arose as to whether the insurance benefits were to be paid in Canadian or United States dollars. The insurer paid the widow the face value in Canadian dollars. The wife pursued her claim that the benefits should have been paid at the higher United States dollar rate, which would have yielded about $4,000 more. The Ontario Court of Appeals held that the payment of the value of the policies in Canadian dollars was required.
On appeal to the Canadian Supreme Court, three of the five justices affirmed the Ontario Court of Appeals. 4 D.L.R. at 5. In the majority opinion, Justice Dysart noted the insurer was registered in Ontario and had agents there taking applications and collecting premiums. The court emphasized that the Ontario Insurance Act stated policies issued to Ontario residents and delivered in Ontario were to be construed under Ontario law and all moneys payable “ ‘shall be paid at the office of the chief officer or agent in Ontario ... in lawful money of Canada.’ [Citation omitted.]” 4 D.L.R. at 13-14. The majority found the statutory provisions and the conduct of the parties in paying the premiums in Canadian dollars rebutted any presumption that the benefits were to be paid in United States dollars. 4 D.L.R. at 14.
Two justices dissented in Weiss. They conceded that all the premiums paid by the insured were paid in Canadian currency and noted the policies called for payment at “the Home Office of the Company.” Still, they found the policy unambiguously called for payment at the value of United States dollars because, under Canadian choice-of-law rules, the law of the place of performance governed what currency was intended. 4 D.L.R. at 8. In discussing the Ontario Insurance Act, the dissenters concluded the legislature merely intended to bring foreign insurers into the country for purposes of service of process, and the statutes were not intended to alter the policy limit. 4 D.L.R. at 11-12.
Weiss is persuasive in some respects. It appears Alberta’s and Ontario’s statutes regulating insurance are structured similarly. Ontario’s 1980 revised statutes have similar provisions to those in the Alberta statutes. See R.S.O. (1980), ch. 1.8, §§ 127, 129, 130, and 131. Section 130 of Ontario’s Insurance Act states: “Insurance money is payable in Ontario in lawful money of Canada.”
But the Weiss decision is less than compelling for several reasons. First, the majority stated explicitly it was limiting its decision “to the circumstances and the policies in this case.” 4 D.L.R. at 16. Second, Weiss involved individual life insurance policies issued to a Canadian insured; accordingly, the risk of loss was anticipated to arise in Canada. Finally, we have found only one other case or legal authority citing Weiss, a Manitoba case decided in 1945, where Weiss was cited in deciding whether an insurance policy was made in Manitoba or Ontario for purposes of estate taxes. We question whether Weiss states any broadly applicable principle, given that it was issued more than 60 years ago and has not been cited in general legal treatises in Canada since, e.g., Canadian Encyclopedic Digest (Ontario 3d ed. 1998).
Moreover, the wording of the relevant statutes has changed somewhat since Weiss was decided in 1935. Current Alberta law provides that “[ejvery contract insuring a person domiciled or resident in Alberta ... or the subject matter of which is property within Alberta, shall be deemed to be made in Alberta and shall be construed accordingly.” (Emphasis added.) R.S.A (1980), ch. I-5, § 202(1). In this case, the subject matter of Zurich’s policy, El gin’s vehicles, were located in Alberta, several other Canadian provinces, and the United States. The truck involved in the Wallen accident was insured specifically with the understanding that it was to be located in California.
In view of this weak authority for the contrary proposition, we conclude that the plain language of Section 206 of the Alberta Insurance Act speaks only to the form in which payments on insurance policies are to be made, not to the manner in which their value is to be determined. The statute does not regulate the type of currency that determines the amount of the payments, only the currency in which the insured receives the amount determined.
This conclusion spurs us to look to Canadian common law for assistance in determining whether the district court erred in concluding that the policy limit was stated unambiguously in Canadian dollars.
Under general Canadian legal principles, construction of an insurance contract (as with any other contract) is a two-step process. Consolidated-Bathurst v. Mutual Boiler, 1 S.C.R. 888, 899, 112 D.L.R.3d 49 (Can. 1979). First, Canadian courts will attempt to ascertain the intent of the parties based upon the words they have used in the contract. As part of that process, Canadian courts will apply other rules of construction to search for an interpretation, from the whole of the contract, that would appear to promote or advance the true intent of the parties. In devining the true intent of the parties, Canadian courts consider “the time of entry into tire contract, that is, the commercial atmosphere in which the insurance was contracted.” Whissell Ventures Ltd. v. Royal Insurance Co. of Canada, 74 A.C.W.S.3d 476, 496 (Lexis 159550) (Alberta QB 1997) (citing Consolidated-Bathurst). If this first step fails, Canadian courts go to the second step and apply the rule of contra proferentem, construing the language in a manner favorable to the insured. When doubt exists as to the meaning of a limiting term, the insurer is obligated to protect itself against liability to which it would be subject. Later court decisions refer to this process as the “law of reasonable expectations” doctrine. Whissel Ventures at 498. Canadian courts have long emphasized, however, that the contra preferentem doctrine “ 'ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a doubt, or magnifying an ambiguity, when the circumstances of the case raise no real difficulty.’ ” Whissel Ventures at 496-97 (quoting Cornish v. Accident Ins. Co., 23 Q.B. 453, 456 (C.A. 1889).
We conclude that this contract, when viewed in the “commercial atmosphere” Canadian law requires us to examine, unambiguously states the policy limit in Canadian dollars. Like the district court, we are persuaded by the fact that all parties to the original contract were Canadians, as well as the location of nearly all of the insured risks in Canada. See Davis by Davis v. Outboard Marine Corp., 415 N.W.2d 719, 723 (Minn. App. 1987), rev. denied (1988) (applying Minnesota law comparable to Canadian law; “dollars,” as used in insurance contract between Canadian nationals covering risks located primarily in Canada must have referenced Canadian currency). The California rental truck involved in the accident in this case was a geographic anomaly, when the risks insured by the policy are considered as a group. In addition, all premiums, until those mistakenly paid in United States dollars after the accident, were paid in Canadian currency. There is no evidence in the record that Zurich ever sought additional payments to bring the premiums in line with a United States currency interpretation, and the only documentary evidence of its understanding of which currency the policy limit was measured in — the certificates of insurance delivered to Canadian governmental agencies — reflected Canadian dollars. Further, this outcome strikes us as fair because, although Zurich re-rated the policy before the later endorsements were issued, to the extent the exchange rate between the United States and Canada was considered, it exerted downward pressure on the price.
In sum, we depart from the district court on some of its reasoning but not from its result. As the district judge observed: “Had the underlying accident occurred in Canada, it is impossible to fathom how ambiguity could even be argued. The site of an accident giving rise to a claim under an insurance contract should not control the construction of that contract.” Therefore, we agree that Zurich’s $ 2 million policy limit was stated in Canadian dollars.
Conclusion
For all of the forgoing reasons, we hold: (1) Reliance's settlement with plaintiffs did not result in acquiescence to the judgment with respect to the extent of Zurich’s coverage; (2) we must apply Canadian law to interpret Zurich’s policy; (3) Zurich’s policy unambiguously stated the $2 million policy limit in Canadian dollars; and (4) Reliance acquiesced to the judgment against it and in favor of TIG by settling with the plaintiffs.
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Lewis, J.:
Arby Lee Trolinger filed an action seeking a divorce from appellee Valerie S. Trolinger. Approximately 1 week later, Valerie filed a protection from abuse action under the Protection from Abuse Act, K.S.A. 60-3101 et seq. The trial court issued a protection from abuse order, restraining Arby from abusing, threatening to abuse, harassing, molesting, or in any way disturbing the peace of Valerie or her minor child. The order went on to state that Arby should have no contact with Valerie. Arby appeals from the protection from abuse order.
It is rare that we see an appeal from the issuance of a protection from abuse order. This is probably due to the fact that such things are normally transitory in nature and operate for a limited amount of time. Be that as it may, we have before us an action in which it is argued that the trial court had no authority under the evidence to issue the order in question.
We pause to note that this court is extremely reluctant to involve itself in something as subjective as an order for protection from abuse. These matters frequently develop in emergency situations, and the ultimate judgment of the trial court in a case such as this may literally involve risk to the lives of all or some of the parties involved. Our view of these cases is a view based on the printed word as it comes to us in the record on appeal. We are quite reluctant to substitute our judgment based on that record for the much more objective judgment of the trial judge, who is there in the courtroom and is able to view the parties and malee a real-life judgment on the situation that exists. It is only in a case of the most egregious breach of the trial court’s discretion that this court would become involved in second-guessing a trial court’s decision in entering a decree protecting one of the parties to a domestic relations action from abuse.
With the veracity expressed above and the background, we proceed to the merits of Arby’s arguments on appeal.
Valerie never specifically testified that Arby had done great physical harm to her, but she did testify that he had frightened her and that she was afraid of him. According to Valerie, Arby had made a point of having a discussion with her and told her how he could make bodies disappear. According to Valerie, Arby kept loaded weapons in the home, and the Oklahoma authorities had investigated him for possible involvement in the disappearance of his former wife. On one occasion, Valerie attempted to call her son while she was at home and found the phone had been disconnected, a car key was missing from her keyring, and the garage was padlocked.
Valerie testified about regular instances in which Arby would restrain her against her will by squeezing her to a point where she feared he was going to crack one of her ribs. She also testified that Arby had hit her son. According to Valerie, she was constantly in fear that Arby would do bodily injury to her and to her son.
Arby basically denied everything. He admitted he kept loaded guns around the house and that he had told Valerie about his missing ex-wife and even admitted he had discussions with Valerie about how to “get rid of bodies.” However, Arby had peaceful and reasonable explanations to give for all of these incidents. He admitted to hitting Valerie’s son but claimed the three incidents were spankings and approved by Valerie.
As to Valerie’s testimony concerning the fact that Arby frequently squeezed her to the point she feared he was going to crack a rib, Arby gave an equally benevolent explanation. According to Arby, he was only hugging her and had no intention of causing her injury.
After hearing the testimony of both parties, the trial judge concluded that Valerie
“established by a preponderance of- evidence that there was intentional bodily injury in the form of squeezing. That there were — and that the defendant attempted to cause bodily injury to the plaintiff. And it’s on that basis that I am granting the petition for protection from abuse.”
After further discussion, the judge also ruled:
“[T]he defendant is restrained and shall not abuse, threaten to abuse, harass, molest or anyway disturb tire peace of the plaintiff or her minor child wherever they may be. Defendant shall have no contact with the plaintiff [and the child].”
The judge went on to clarify the restraining order and its relationship to Arby’s stepson as follows:
“Well, I didn’t make a — I guess I didn’t make a finding one way or another. There were allegations that the child was — there was physical hitting of the child as well and, therefore, I think it’s appropriate to have a no contact order concerning him as well.
“I am going to find that by a preponderance of the evidence that there was intentional — that there was bodily harm against [the stepson] by the defendant.”
Arby argues that the trial court erred in basing its orders on the squeezing of Valerie and on his hitting her minor son. It is his position that the orders had to be based on a finding of substantial physical pain or impairment to support the conclusion that Arby abused Valerie and her son by intentionally causing bodily injury under the facts.
Arby does not challenge the trial court’s findings of fact but rather its conclusion of law.
K.S.A. 2000 Supp. 60-3102 provides in part:
“As used in this act, ‘abuse’ means the occurrence of one or more of the following acts between persons who reside together, who formerly resided together or who have or has had a child in common:
“(a) Intentionally attempting to cause bodily injuiy, or intentionally or recklessly causing bodily injury.
“(b) Intentionally placing, by physical threat, another in fear of imminent bodily injury.” (Emphasis added.)
We conclude that Arby’s argument is without merit since an order may be based on intentionally attempting to cause bodily injuiy. We conclude there was substantial competent evidence in the record that Arby at the very least attempted to cause bodily injuiy to Valerie. There was no requirement under the law that Valerie had to prove that Arby actually drew blood or caused her bodily injury before she was entitled to the order.
Arby bases his argument on the decision of Paida v. Leach, 260 Kan. 292, 301, 917 P.2d 1342 (1996). In that case, the court concluded that bodily injury under the Protection from Abuse Act requires a finding of substantial pain or impairment. However, that definition is not a broad one and must be confined to and considered within the context of the rest of the opinion.
The court in Paida was faced with drawing a line between acceptable parental discipline of a child and unacceptable parental conduct which causes more than minor or inconsequential injury to the child. In particular, the court was concerned with the boundary of State intrusion and sought to limit trial court discretion and intervention in the way parents discipline their children. The court specifically recognized:
“The discipline of children and the abuse of spouses share little common ground. Because these disparate family interactions fall under the same legislative enactment, the trial court can and should determine in light of all the circumstances in each individual case whether the plaintiff has shown abuse by a preponderance of the evidence. Those circumstances will include the age of tire alleged victim and his or her relationship to the alleged abuser. Neither reason nor the limits clearly expressed by the legislature in the Act permits a trial court judge to overlook the infliction of bodily injury. However, the Act is not intended to dictate acceptable parental discipline or unnecessarily interfere in the parenFchild relationship absent a clear need to protect the child.” (Emphasis added.) 260 Kan. at 300.
As will be noted, the court in Paida indicated that the trial court needs to determine whether a plaintiff has shown abuse in fight of the circumstances in each individual case. Paida does not establish a bright fine rule that the victim must actually show that he or she has shed blood or suffered real physical pain in order to obtain an order which may avoid that circumstance.
We hold the trial court was not required to find substantial pain and impairment before concluding that Valerie was abused as a matter of law. The trial court is required to look at all the circumstances and render a finding of abuse if it is shown by a preponderance of the evidence. We conclude the trial court did that in this particular matter. Its finding of attempted abuse is sufficient to support the issuance of the order in this case.
Arby then argues the order was in error when it restrained him from coming around his stepson. The trial court based its ruling concerning the stepson on the physical hitting done by Arby. Arby portrays these incidents as spankings.
As pointed out earlier, it is veiy difficult for this court to make a factual determination in a case of this nature. We understand that people’s fives and well-being are concerned and that the trial court is the best judge as to whether there has been abuse sufficient to require an order of the type entered in this case. The trial court is the sole arbitrator as to the credibility of the witnesses and must determine which witness it believes. As we read this trial court’s decision, it did not believe Arby’s explanation that these hittings were merely spankings. It did believe that Arby had inflicted pain or impairment on his stepson and that the child needed to be protected from Arby by the order issued. We conclude that under all the circumstances of this case, the trial court did not err in finding that Valerie had shown abuse of her son by Arby by a preponder anee of the evidence. We, therefore, affirm the trial court’s order insofar as it relates to the stepson.
One problem with Arby’s argument is that it literally suggests that we apply a different standard to his stepson than we have applied to Valerie. This is not a workable solution; Valerie and her son are a family, they live together, and to apply different standards would simply undermine the order issued to one or the other of the family group. We do not intend to do that, and we believe the trial court can look at the familial relationships and the problems which might be caused by applying one standard to Valerie and another to her son.
In any event, we find no error with the order for protection from abuse insofar as Valerie or her son are concerned.
Arby finally argues that the alleged actions he took against Valerie and her son were not recent in time and did not present an ongoing risk to Valerie and her son and, because of that fact, did not warrant the issuance of an order for protection from abuse. We disagree.
K.S.A. 60-3101(b) provides that the Act shall be liberally construed “to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims.”
We have no intention of interfering with the ability of the trial court to protect victims of domestic violence. The fact that the actions testified to may not be recent in time and may not present an ongoing risk are factors which must be considered by the trial court in determining whether it is appropriate to issue an order for protection from abuse. We believe it would be contrary to the intent of the law to hold that no order could be issued unless the acts of violence were recent and presented an immediate threat to tire victims who seek protection.
The statutory scheme is designed to promote protection of the victims and make access to the court easy and prompt. For that reason, the trial court is simply charged to exercise its discretion in light of the circumstances presented. The circumstances presented would include such factors as those Arby now insists must be proven to obtain an order. We hold that the Act does not require focusing on the timing of either recent abuse or future risk as a condition precedent to the issuance of an order for protection from abuse.
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Pierron, J.:
Defendants Kelly W. Maxfield, Andrew J. Lloyd, and Rex A. Pendlay were indicted by a grand jury for one count of second-degree unintentional murder in the death of Brian Wagner.
Maxfield, Lloyd, and Pendlay were tried together, and a juiy convicted all three of the lesser included offense of involuntary manslaughter. Maxfield argues there was insufficient evidence to support his conviction, the trial court erred in not granting a motion for separate trials, the trial court erred in not granting a mistrial based on the prosecutor’s introduction of inadmissible hearsay, the prosecutor committed reversible error during closing arguments, the trial court should have instructed on the lesser included offense of battery, and the cumulative effect of the trial errors denied him a fair trial. Lloyd and Pendlay appealed on similar grounds.
On April 21, 1999, at approximately 1:30 a.m., Brian Wagner sustained severe injuries during a fight in the parking lot of Turtle’s Bar in Emporia. Wagner was hospitalized and died 6 days later.
Adam Best, Wagner’s roommate and teammate on the Emporia State University football team, testified that he, Wagner, and Trevor Hall went out around 10 p.m. that evening and visited several bars. While Wagner and Hall drank heavily, Best was not drinking to help rehabilitate his injured knee and in hopes of bettering his grades. Best said that at one of the bars tire men spoke with Tabitha Thomas and Megan Scott who they knew from school.
Later, the men headed to a friend’s house in Best’s Jeep. As they passed the Turtle’s parking lot, they saw Thomas’ white convertible parked in the alley and an altercation between a group of girls— Thomas, Scott, Leah Johnson, and Tracy Uttinger. Best drove around the block and parked close to the convertible to investigate the situation. Hall got Thomas’ attention, and she came over to the Jeep. Thomas was visibly upset and said she had been in an argument with Uttinger.
Best testified that Uttinger came over to the Jeep and began arguing with Wagner, who was in the back seat. Best said the argument consisted of rude comments and name calling by both Wagner and Uttinger. While the argument between Wagner and Uttinger escalated, Pendlay, Maxfield, Nick Buxton, and Ryan Law intently watched the situation from outside of Bruff s Bar. After helping pick up glasses and conversing with the bartender at Bruff s, Lloyd and Jessica Burress joined the four outside. Buxton, who was Uttinger’s boyfriend, walked over to the Jeep with the rest of the men to investigate the problem between Wagner and Uttinger.
Buxton and Hall began a heated conversation which eventually led to the fatal fight. The testimony concerning the participants of the fight and their actions is highly controverted. One certainty in this case is that a majority, if not everyone but Best, was intoxicated. The jury had a monumental task of not only listening to many days of testimony, but also of keeping straight the witnesses and their relationships, and their definite biases. It is also clear that during the fight, Wagner was chased, and he either turned around or began running backwards and fell, hitting the back of his head on the pavement. Although strenuously challenged, one or more witnesses testified that at some point they saw Lloyd, Maxfield, and Pendlay on top of Wagner striking him while he lay motionless on the ground. As noted before, there was a welter of conflicting testimony.
Jennifer McLinn testified she worked at Bruff s and was leaving when she heard screaming from the Turtle’s parking lot. She saw a group of men involved in a fight. McLinn saw three men chasing Wagner, who was running forward and then backwards. The three men were swinging at Wagner as they ran, and then Wagner fell backwards, hitting his head on the pavement. Wagner lay motionless with his hands at his side, and the three men began hitting him. McLinn saw Lloyd, whom she knew from work, strike Wagner once on the upper head. She screamed at the other two men to stop hitting Wagner because he was unconscious, but they continued. McLinn ran back inside Bruff s and told her boss to call the police.
When Officer Ray Mattas arrived on bicycle patrol, he saw a man laying unconscious in the center of the Turtle’s parking lot. Buxton and two women were at the man’s side attempting to render aid. Officer Mattas said Wagner’s nose was pretty much flat, like it was pushed back into his face, and he was gurgling on blood and having a hard time breathing.
Paramedics arrived at the Turtle’s parking lot at 1:47 a.m. Wagner was taken to Newman Hospital. Dr. Kyle Garrison, the emergency room doctor, testified that Wagner had massive upper body trauma confined mostly to his head and shoulder region. He diagnosed Wagner as suffering from a closed-head injuiy. Dr. Garrison also testified that Wagner’s blood was tested at the hospital and had an alcohol content of .195.
Due to the internal injuries to his head, Wagner was flown by Life Watch to Wesley Hospital in Wichita. Dr. Eustaquio Abay, a neurosurgeon who cared for Wagner, testified that Wagner had a basilar skull fracture, a broken nose, facial fractures of the nasal bone and cheekbone, bruises on the forehead, bruises on both sides of head, fracture of left temporal bone, and a bruise, contusion, or swelling behind the head. Dr. Abay said Wagner had substantial injuries to his head which were not caused by a single blow. Dr. Abay testified Wagner never regained consciousness and, after extensive testing, was declared brain dead. Life support was removed on April 27, 1999, and Wagner died that day.
The coroner, Dr. Erik Mitchell, testified that Wagner had died of blunt head trauma. Dr. Mitchell listed Wagner’s injuries: multiple scalp bruises and scalp wounds, loose left incisor tooth, lacerated lip, slight subdural blood, left occipital fracture of the skull, left cerebellar contusion and necrosis, frontal contusions and hematomas, bruised tongue, bruised and injured neck and collarbone, blood on the epiglottis, and multiple facial injuries. The medical care witnesses explained the coup and contre coup injuries sus tained by Wagner s brain as it was violently forced backward and then forward when he struck his head on the pavement.
Dr. Mitchell testified that Wagner’s injuries were caused by multiple blows to his head. Dr. Mitchell concluded Wagner died not from a single injury, but as a result of all injuries combined. He likened the situation to driving a nail into a board — first you start out with a heavy blow, which drives the nail in hallway, and then additional smaller blows until the nail is driven fully into the board.
On September 8, 1999, a grand jury indicted Lloyd, Maxfield, and Pendlay with one count of unintentional second-degree murder. Separate complaints were filed against Lloyd, Maxfield, and Pendlay. However, all three complaints were consolidated for trial, over strenuous objection, and the defendants were tried together. After nearly a 2-week trial, the jury convicted all three defendants of the lesser included offense of involuntaiy manslaughter. None of the defendants had any criminal history, and each was sentenced to the presumptive sentence of 32 months’ imprisonment.
First, Maxfield argues there was insufficient evidence from which a rational factfinder could have concluded he was guilty beyond a reasonable doubt of involuntary manslaughter.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Maxfield was charged with second-degree unintentional murder, but was convicted of the lesser included offense of involuntary manslaughter. After instructing on second-degree murder, the trial court instructed the jury it could find Lloyd guilty of the lesser included offense of involuntary manslaughter if the State proved “[tjhat the defendant Kelly Maxfield unintentionally killed Brian Wagner . . . [and] (a) [t]hat it was done recklessly or (b) [w]hile in the commission of the offenses of either disorderly conduct or battery as defined in these instructions.” The trial court then instructed the jury on the elements of disorderly conduct and battery.
Maxfield argues the State failed in its burden to prove that he unintentionally killed Wagner, i.e., that his conduct caused Wagner’s death. He contends that since the jury did not convict him of unintentional second-degree murder, then the jury must have concluded the State failed to prove beyond a reasonable doubt that he struck Wagner in the head while he lay unconscious on the ground. Maxfield argues that even if the jury believed he struck Wagner on the ground, but concluded that such conduct only amounted to involuntary manslaughter, the medical evidence was insufficient to show that his conduct actually killed Wagner.
There is sufficient evidence demonstrating Maxfield’s participation in the fight and his conduct against Wagner after Wagner fell to the ground.
McLinn testified she worked at Bruff s and that as she headed back to her car after the bar closed, she heard screaming from the Turtle’s parking lot. When she walked back to the parking lot, she saw a group of men involved in a fight. She saw three men chasing Wagner, who was running forward and then backwards. The three men chasing Wagner were swinging at him as they ran, and then Wagner fell backwards, hitting his head on the pavement. Wagner lay motionless with his hands at his side. The three men began hitting Wagner on the ground. McLinn saw Lloyd, whom she knew from work, strike Wagner once in the upper head. McLinn screamed at the other two men to stop hitting Wagner because he was unconscious, but they continued, and she ran back inside Bruff s and called the police. McLinn described the other two men as one with a yellow shirt, blondish red hair, and a goatee and the other man with a white T-shirt, dark hair, and tan pants.
Ryan Law testified Maxfield was involved in the fight. As Law watched the fight, he said Maxfield and Pendlay came running past him and they were chasing Wagner. Law said Wagner tripped and hit his head on the concrete. Wagner did not move after the fall. Law testified that after Wagner’s fall, Maxfield got on top of Wagner and hit him two or three times in the stomach and kidney area.
Tracy Uttinger testified that at the end of the fight, she saw Wagner on the ground and Maxfield was on top of him. She said Maxfield had on a white T-shirt and was hitting Wagner in the stomach. Uttinger said she told the prosecutor in the interview that she could not believe Maxfield was hitting Wagner, and because Maxfield was her friend, she did not want to say anything about him initially.
Jessica Burress testified that after Wagner went down, Maxfield approached Wagner on the right side. She said Maxfield hit Wagner two or three times in the upper chest and head area. Burress said she could not see exactly where Maxfield was hitting Wagner.
Detective Davis testified Buxton told him he saw Maxfield hit Wagner two or three times while Wagner was on the ground and that Pendlay and Lloyd were around somewhere. At trial, Buxton said he did not see anyone strike Wagner on the ground.
The medical evidence produced by the State also supports Max-field’s conviction. Dr. Mitchell testified Wagner’s injuries were caused by multiple blows to his head. Dr. Mitchell concluded Wagner died not from a single injury, but as a result of all injuries combined.
We have thoroughly reviewed the extensive record produced by Maxfield’s lengthy trial. We recognize the inconsistences of the evidence and how some witnesses implicated certain defendants and other witnesses testified completely to the contrary. However, one of the biggest hurdles Maxfield has on appeal is that we will not reweigh the evidence or pass on the credibility of the witnesses. See State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997). Only if no reasonable juror could arrive at the conclusion the juiy reached will we reverse a verdict. After a review of all the evidence, viewed in the light most favorable to the prosecution, we find there is sufficient evidence to support Maxfield’s conviction for involuntary manslaughter beyond a reasonable doubt.
Next, Maxfield argues the trial court committed reversible error when it denied his motion to sever. As a result, he contends, the trial court’s decision compromised his ability to present a defense and denied him a fair trial.
The determination of whether defendants charged separately may be tried together is in the trial court’s discretion. Therefore, the trial court’s decision is reviewed by an abuse of discretion standard. State v. Aikins, 261 Kan. 346, 359, 932 P.2d 408 (1997). The burden on the movant is to present sufficient grounds to establish actual prejudice. State v. Vincent, 258 Kan. 694, Syl. ¶ 1, 908 P.2d 619 (1995). In State v. Butler, 257 Kan. 1043, Syl. ¶ 9, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 916 P.2d 1 (1996), tire court set forth the factors for a court to consider in resolving a motion for severance:
“(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.”
All three defendants requested that the court grant them separate trials. At the hearing on the motions, Lloyd said that if Max-field were called to testify in a separate trial, Maxfield would state he never saw Lloyd strike Wagner, and there would be no way to present this exculpatory evidence in a combined trial if Maxfield chose not to testify. Lloyd admitted to the trial court that the same problem of Maxfield not testifying would occur in separate trials depending on the order of the individual trials. Lloyd also told the court Pendlay would make a statement in which he would inculpate himself and Lloyd.
The State responded at the severance hearing that it would not be offering Pendlay s out-of-court statement in its case in chief. The trial court stated it would rely on the State’s contention. Counsel for all three defendants then argued there was a great potential for antagonistic defenses. Lloyd also suggested the State could bolster a weak case against one defendant by using a stronger case of another defendant, which would not occur in a separate trial. The State responded that it would not offer any out-of-court statements of any defendants in any way in the case in chief and, therefore, there would be no problems under Bruton v. United States, 391 U.S. 123, 136, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). The State then clarified that it would be using a statement made by Lloyd in which he implicated himself.
The trial court denied the motions for separate trials. The judge held: “I am convinced that the Court can provide adequate.safeguards at a trial together to continue this trial as one trial and not three separate trials. The burden of proof on the defendants has not been met.”
In his appellate brief, Maxfield fails to explain how he was unfairly prejudiced by not having a separate trial. He discusses the inconsistency concerning how many men allegedly hit Wagner while he was on the ground. Maxfield then states: “[T]he evidence in this case necessarily required Appellant to point the finger at his codefendants, and impliedly allege through the use of cross-examination and the testimony of defense witnesses, that it was the other two, not he, who had struck Wagner after the fall.”
In Bruton, tire United States Supreme Court held the prejudicial effect of the use of an out-of-court statement or confession made by one defendant which served to inculpate another defendant could not be cured through the use of a limiting instruction. The court concluded the admission of these inculpating statements violated a defendant’s Sixth Amendment right to confront the witness against him or her. 391 U.S. at 136.
As the trial court pointed out, the prejudice claimed by the three defendants might still arise in separate trials depending on the order of the individual trials. The trial court stated that if it severed the trials, it would be forced into a situation of playing favorites in setting the order of separate trials because all three defendants would not be able to benefit from the severance.
We find no abuse of discretion in the trial court’s decision not to grant the defendants separate trials. Maxfield has presented no evidence he was not able to “point the finger” at his codefendants through cross-examination and defense witnesses. Furthermore, after thorough review of the trial transcript, we find the trial court was true to its word that it would not allow any statements from the witnesses concerning statements made by one defendant impheating or exculpating the other two defendants. The trial transcript is full of examples of witnesses being instructed to not reveal any statements made by the defendants concerning the other defendants.
Dovetailing on the issue of separate trials, Maxfield argues the trial court erred in not granting a mistrial based upon the prosecutor’s introduction of inadmissible hearsay testimony.
The declaration of a mistrial is a matter entrusted to the trial court’s sound discretion. Maxfield has the burden of showing substantial prejudice before we will find an abuse of discretion. See K.S.A. 22-3423(1); State v. Arteaga, 257 Kan. 874, Syl. ¶ 6, 896 P.2d 1035 (1995). Judicial discretion is abused only when no reasonable person would take the view of the trial court. State v. Rinck, 256 Kan. 848, 853, 888 P.2d 845 (1995) (no abuse of discretion found in district court’s denial of motion for mistrial).
The starting point for this argument is the State’s assurance and tire trial court’s acceptance during pretrial motions that the State would not introduce any statements made by one defendant which would be prejudicial to either one or both of the codefendants. During trial, Buxton testified on behalf of the State. Buxton testified that a few weeks before trial, he gave a sworn statement to the State in exchange for immunity. Buxton testified that during the fight he saw Maxfield and Wagner exchange blows, but that he did not see Maxfield or anyone else hit Wagner after Wagner was on the ground. Buxton then admitted that he gave Detective Davis a different story a month after the fight in which he said Maxfield struck Wagner in the head two or three times after Wagner was on the ground. The prosecutor then asked whether Buxton told Detective Davis the truth and he answered, “Well, I was trying to but what I really ended up doing was repeating a lot of rumors that I had heard over and over again. And at that time I just — I don’t know, I guess I kind of believed them to be true.”
Out of the hearing of the jury, counsel for Maxfield moved for a mistrial based upon the fact that Detective Davis’ report showed that one of the people Buxton had talked to was Lloyd. Maxfield argued the evidence violated the Bruton rule and the State had succeeded in eliciting the very evidence that it assured the court it would not. Maxfield asked the court to strike the evidence from the record if it did not grant a mistrial. The trial court denied the motion for mistrial, finding the testimony was admissible as a prior inconsistent statement.
After Detective Davis was recalled to the stand to confirm what Buxton had told him, counsel for Maxfield renewed the motion for severance, arguing that he was prevented from fully cross-examining Buxton as to the source of his information and therefore Maxfield was unable to confront the witnesses against him.
As previously discussed, Bruton holds that the admission of a codefendant’s confession impheating the defendant at trial is prejudicial error when the defendant does not have the opportunity to cross-examine the confessing codefendant. 391 U.S. at 137. The court in State v. Butler, 257 Kan. 1110, 1114, 916 P.2d 1 (1996), stated that the Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant to confront the witnesses against the defendant, including the right to cross-examine those witnesses.
Maxfield argues he was unable to adequately cross-examine Buxton to determine who was responsible for the rumors he relied on in concluding that he saw Maxfield strike Wagner two or three times while Wagner was on the ground. He contends that if Max-field testified the rumors came from Lloyd, then he would be unable to confront Lloyd, who did not testify at trial. Maxfield also contends that eliciting this testimony showed ill will on the part of the prosecutor because he already knew about Buxton’s prior inconsistent statement and that Buxton relied on Lloyd’s statements in giving his statement to Detective Davis.
We do not find the evidence complained of by Maxfield rises to the level requiring a new trial. The purpose of the Bruton rule is to prevent evidence of a codefendant’s statement from implicating another defendant in a joint trial. 391 U.S. at 137. The statements complained of by the defendant clearly do not fall within that purpose. Simply put, Buxton did not testify concerning statements made by .any of the three defendants in this case implicating the other two. Buxton testified that his prior statement to Detective Davis was false because it was based on rumors. Buxton never told the juiy whose statements he relied on in formulating the false statement to Detective Davis.
Furthermore, any error the trial court committed in allowing Buxton’s testimony was harmless error. See State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997) (errors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done). The underlying premise of the Bruton rule is the Sixth Amendment right to confront witnesses testifying against the defendant. Here, Buxton was fully cross-examined concerning the statements he made to Detective Davis. On cross-examination, Buxton testified the statement he gave Detective Davis about seeing Maxfield strike Wagner on the ground was not true. What better cross-examination is there than one in which a witness, who is given immunity, testifies that the incriminating statement was not true? Buxton said the reason he recanted the statement made to Detective Davis was because it was based on rumors.
We find the trial court did not abuse its discretion in allowing the testimony from Buxton or in denying Maxfield’s motion for a mistrial.
Next, Maxfield argues the prosecutor committed misconduct during closing arguments. The comments at issue were not objected to at trial. Consequently, our review is to determine whether the magnitude of the error of the prosecutor’s comments denied the defendant’s constitutional right to a fair trial. State v. McCorkendale, 267 Kan. 263, Syl. ¶ 6, 979 P.2d 1239 (1999).
In determining whether the prosecutor’s comments require a new trial, we first look at whether the remarks were outside of the considerable latitude allowed a prosecutor in closing argument. State v. Spresser, 257 Kan. 664, 669-70, 896 P.2d 1005 (1995). If the prosecutor has proceeded beyond the bounds of permissible comment on the evidence, then we determine whether the remarks are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. See State v. Lumley, 266 Kan. 939, 964-65, 976 P.2d 486 (1999).
Maxfield complains of the following statement in the prosecutor’s rebuttal closing argument:
“We have a circumstance that the physical evidence, when you start looking at these things and trying to put them together, how could it have gone and what’s the most likely scenario. And, yes, the burden is a reasonable doubt. But that burden of reasonable doubt only goes to the elements that the judge gives you, not what defense counsel want me to be required to prove. Because, believe me, these are intelligent men. They can come up with lots of things that can’t ever be proven and keep asking you, as a jury, and with three of them, they get to all do it, you know, they didn’t prove this, therefore my guy is not guilty. Nobody is guilty. Well, I suppose Brian is still alive then. He wasn’t beaten to death. So you have to work and try to figure out what happened to him.”
Maxfield argues the prosecutor s comment that the reasonable doubt standard did not apply to what defense counsel wanted the prosecutor to be required to prove was a clear misstatement of the law. Maxfield contends the prosecutor’s statement was clearly outside the wide latitude allowed the prosecutor since the comment had nothing to do with the evidence, but only served to dilute the requirement that the State prove Maxfield killed Wagner.
We find no error in the prosecutor’s closing argument such that Maxfield was denied a fair trial. The prosecutor’s comment was a simple reminder to the jury that the reasonable doubt standard applied to the elements of the crime as provided in the juiy instructions. The prosecutor in no way misstated the reasonable doubt standard. See State v. Mitchell, 269 Kan. 349, 360, 7 P.3d 1135 (2000). Understandably, because of the sheer amount of contradicted testimony, this was the prosecutor’s attempt to keep the jury focused on the elements of the crime.
Furthermore, we find the prosecutor’s statement concerning defense counsel and the unanswered or unproven allegations was not reversible error. The comments clearly do not rise to the level of those in State v. Magdaleno, 28 Kan. App. 2d 429, 17 P.3d 974 (2001), or State v. Pham, 27 Kan. App. 2d 996, 10 P.3d 780 (2000), where the prosecutor labeled defense counsel as a liar and not interested in the truth. The prosecutor clearly stated in the contested part of the closing argument that “the burden is reasonable doubt” and that the burden “only goes to the elements that the judge gives you.”
We find the prosecutor’s statements were within the wide latitude permitted during closing argument and the remarks were not so gross and flagrant as to prejudice the jury against Maxfield and deny him a fair trial. See Lumley, 266 Kan. at 964-65.
Next, Maxfield argues the trial court erred in not giving the jury instruction for the lesser included offense of batteiy or disorderly conduct.
The trial court has a duty to instruct on all lesser included offenses established by the evidence. When the trial court refuses to give a specific instruction, the standard of review is to examine all the evidence viewed in the light most favorable to the party requesting the instruction, and determine whether the evidence at trial could reasonably support a jury verdict on the lesser included offense or is contrary to die defense asserted. State v. Hunt, 270 Kan. 203, 208-09, 212, 14 P.3d 430 (2000).
Maxfield contends the evidence adduced at trial showed that he may have struck Wagner and may have been involved in brawling and fighting. However, he states that while a reasonable jury could have concluded that he was guilty of battery or disorderly conduct, his conduct was not the cause of Wagner s deadi. Without the battery instruction, Maxfield argues, the jury was not given die opportunity to find that he did not cause Wagner s death. Maxfield theorizes that if the jury believed he had done something, but had not been the direct cause of Wagner s death, then without a battery instruction the jury had no choice but to convict him of the greater crime of involuntary manslaughter. Maxfield argues such a theory is bolstered by the State’s closing argument which suggested that the State did not have an obligation to prove that Maxfield did anything other than participate in the fight in order to support a conviction of involuntary manslaughter.
Maxfield was charged with second-degree unintentional murder, but was convicted of the lesser included offense of involuntary manslaughter. Second-degree unintentional murder, as defined in K.S.A. 21-3402(b), is the killing of a human being committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” Involuntary manslaughter,, as defined in K.S.A. 2000 Supp. 21-3404(b), is the unintentional killing of a human being committed in “the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined by K.S.A. 21-3436.”
Under the second-degree unintentional murder charge, the trial court instructed the jury that in order to convict Maxfield, the State had to prove “[t]hat the defendant Kelly Maxfield killed Brian Wagner unintentionally but recklessly under circumstances showing extreme indifference to the value of human life.” The trial court also instructed the jury it could find Maxfield guilty of the lesser included offense of involuntary manslaughter if the State proved “[tjhat the defendant Kelly Maxfield unintentionally killed Brian Wagner . . . [and] (a) [t]hat it was done recklessly or (b) [w]hile in the commission of the offenses of either disorderly conduct or battery as defined in these instructions.” The trial court then instructed the jury on the elements of disorderly conduct and battery.
Although the argument is technically plausible, we find it is highly unlikely the jury would convict on murder or manslaughter because it could not convict of battery or disorderly conduct. The commission of a battery or disorderly conduct in the present case was an element of the offense of involuntary manslaughter, and a jury would need to find Maxfield committed one of those two crimes in order to sustain a conviction for involuntary manslaughter. However, battery and disorderly conduct, while proven, are not lesser included offenses of involuntary manslaughter here. An instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997). “Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.” State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995).
The State charged Maxfield with a homicidal crime. Maxfield’s commission of the battery merged into the homicidal crimes of unintentional second-degree murder and involuntary manslaughter when Wagner died 6 days after the fight. A completed homicide, whatever its degree, does not have any nonhomicidal lesser included offenses. Rather, the jury can acquit a defendant if it does not believe a defendant’s actions resulted in the death of a victim.
The trial court did not err in refusing to give the jury a lesser included instruction on battery or disorderly conduct.
Last, Maxfield argues the cumulative effect of the trial errors denied him a fair trial and justify reversal of his conviction.
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000).
Maxfield argues that even if each of the errors discussed on appeal do not merit reversal on their own, the cumulative effect of the errors was substantially prejudicial and denied him a fair trial. He contends the evidence against him was far from overwhelming and his participation in the fight is unclear at best. He also states the medical evidence does not demonstrate whether Wagner died from injuries as a result of the fight or the injuries sustained when he fell backwards and hit his head.
The only errors Maxfield cites to are those already discussed above. Having found no error in any of Maxfield’s issues, his claim of cumulative error must likewise fail. See State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992). Although tire evidence against Maxfield cannot be characterized as overwhelming, there is certainly an abundance of testimony, although controverted, describing Maxfield’s participation in the fight and his striking Wagner after Wagner fell on the ground and lay unconscious. See State v. Valdez, 266 Kan. 774, 802, 977 P.2d 242 (1999). There was evidence that Wagner died from the cumulative effects of all the blows, which the jury, under these facts, could attribute partially to Maxfield.
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Brazil, J.:
Russell Lee Shumway appeals his conviction of murder in the second degree, arguing that the district court violated his due process rights by admitting unreliable testimony against him, that the district court erred in instructing the jury on murder in the second degree as a lesser included offense of felony murder, and that the district court imposed a disproportionate sentence in violation of his Eighth Amendment rights.
We affirm.
On the morning of October 8,1999, Mitch Davis was discovered in his backyard by a neighbor. He had suffered multiple blows to the head from a blunt instrument, causing hemorrhaging and, ultimately, death. An autopsy also revealed large amounts of methamphetamine in the victim’s bloodstream; however, the investigating pathologist determined the use of drugs was not a contributing factor in the death.
Shortly thereafter, the Scientific Investigation Unit of the Topeka Police Department processed the crime scene and confiscated a blood-stained, 2x4 board, which had been found by a neighbor in the alley behind the victim’s properly. The blood on the board was matched to blood from the victim. Although the board was tested for fingerprints, the results were inconclusive.
Pursuing some tips received from the Crime Stoppers network, the police attempted to track down some potential witnesses, John and Mary Finney, who, following the murder, were either living in a motel or on the street. After the investigators persistently called John Finney’s mother in an attempt to locate him, Finney contacted the police to arrange an interview. On October 21, 1999, Finney appeared at the police station.
During an interview, Detective Eaton produced some photographs of the crime scene, a few Crime Stoppers reports, and a couple of fabricated reports impheating Finney and the defendant in the murder. Despite the pressure the police tactics were designed to bring to bear, Finney repeatedly denied any involvement in the crime and eventually requested permission to leave.
However, when the detective asked Finney to stay a bit longer, Finney consented. The detective then sought the assistance of Captain Mills, who also spoke with Finney, promising to help him out and indicating that he did not believe that Finney had committed the murder. Still, Finney refused to talk, desiring to talk with his wife, Mary. Consequently, when Finney promised to return the following day, the police released him.
Finney did not return as promised the following day. Rather, the police searched for nearly 2 weeks before locating him and Mary at a hotel. With some prompting by the police, the Finneys reluctantly agreed to return to the police station with the officers to talk about the murder investigation.
John Finney told the police, in that interview, that the defendant had committed the murder. According to Finney, Shumway and he had been drinking and decided to visit a friend in North Topeka or to get money from Finney s mother for more alcohol. Because neither Finney nor Shumway owned a vehicle other than a mobile home, they started out on foot.
As they walked through the alley behind the victim’s house, Finney noticed a couple of bicycles in the victim’s yard and suggested that they take the bicycles. Shumway and Finney entered the yard, but they soon realized that the bicycles were chained,
According to Finney, he then suggested leaving the yard and returned to the alley. Finney realized that Shumway had not followed him, so Finney peered over the privacy fence into the backyard. He stated he witnessed Shumway hitting the victim with a 2-to 3-foot long 2x4.
Finney asked him to stop. Shumway allegedly requested Finney to take the 2x4 while he searched the victim’s pockets. Finney refused, announced that he was leaving, and ran home. He explained to his wife and to Shumway’s wife what had occurred.
When Shumway returned, he reported that he had just beaten someone, had taken some credit cards and money from the victim, and had hidden the stolen items under a bush. Shumway had blood stains on his sandals, shorts, and shirt. While he showered, his wife supposedly disposed of the sandals, shirt, and shorts.
Based upon these statements and the circumstantial physical evidence gathered from the crime scene, Shumway was charged with first-degree murder, aggravated robbery, and attempted misdemeanor theft.
While Shumway was incarcerated in the county jail, pending his trial, he allegedly sought the advice of Edward Radford, commonly known to assist inmates in postconviction motions for relief. According to Radford, Shumway eventually admitted that he had killed the victim. He also purportedly detailed his participation in the crime to two other inmates of the county jail, John Powers and Russell Lutz.
After several days of trial, the prosecution requested an instruction on second-degree murder as a lesser included offense of first-degree felony murder, which the court granted. Subsequently, the juiy returned a verdict finding Shumway guilty of murder in the second degree and attempted misdemeanor theft.
At sentencing, the district court denied Shumway s motion for a downward departure and sentenced him to serve a controlling sentence of 620 months.
STATEMENTS OF THE PROSECUTION WITNESSES
Shumway s primary claim relates to the State’s reliance upon the testimony of John and Mary Finney to establish the basis for his murder conviction. He claims that John Finney’s statements were impermissibly coerced by the investigating officers; thus, the statements were inherently unreliable and should not have been admitted against Shumway. He also argues that Mary Finney’s testimony was tainted by association with John Finney’s allegedly coerced statements.
The prosecution first argues that Shumway possesses no standing to challenge the coercive nature of the interrogation techniques used to elicit statements from John Finney because constitutional protections must be raised by the person claiming that such rights have been infringed. If Shumway was attempting to exclude the statements because Finney’s right to self-incrimination had been violated, the State’s position would be affirmed. State v. Valdez, 266 Kan. 774, 794, 977 P.2d 242 (1999) (“[T]he right against self-incrimination pertains only to the person incriminated by his own testimony, not to others incriminated by his testimony.”).
However, the question presented by this appeal concerns Shumway’s right to a fair trial.
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, [citation omitted], and even though there is ample evidence aside from the confession to support the conviction,” Jackson v. Denno, 378 U.S. 368, 376, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
If John Finneys statements had been involuntarily coerced by police conduct, rendering such statements inherently unreliable, the use of the statements jeopardized Shumway s right to due process. Thus, he possesses standing to challenge the admission of such statements at trial. United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999) (concluding that, although a defendant’s rights are not directly implicated by police coercion of a witness’ statements, the defendant’s right to due process is implicated by admission of false statements involuntarily elicited from the witness).
As the State contends, a defendant’s allegation that a witness’ testimony is untrue does not rise to the level of a constitutional violation. Determining the veracity of a witness’ statements is a function of the jury. See Jackson, 378 U.S. at 386-87 n.13 (“Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.”).
Therefore, Shumway’s belief that John and Mary Finney fabricated a story to incriminate him, standing alone, does not provide him with standing to argue that his due process rights were violated. Shumway possessed all of the truth-testing devices of the criminal process, such as the right to confront and cross-examine the Finneys. Their veracity was a question for tire jury.
However, where law enforcement officers overcome the will of an individual and coerce statements from the person supporting the officers’ interpretation of the evidence, due process is offended regardless of the truth or falsity of the statements. Thus, the use of coerced statements from a material witness may be properly challenged by a criminal defendant.
To determine whether an accomplice witness’ statements are voluntary, a court looks at the totality of the circumstances. Factors include the duration and manner of the interrogation; the ability of the individual on request to communicate with the outside world; the individual’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statements were the product of tire free and independent will of the individual. The prosecution bears the burden of proving that an accomplice witness’ statements are admissible by a preponderance of the evidence. Cf., State v. Lane, 262 Kan. 373, 385, 940 P.2d 422 (1997).
During the Jackson v. Denno hearing held in this case, the evidence established that only John Finney was initially interviewed by the police. In the course of the interview, the interrogating officers exhibited a couple of falsified documents incriminating Finney and the defendant. The officers also promised to assist Finney and to protect him.
While tírese practices cannot be commended, it is unnecessary to decide whether such practices were unconstitutionally coercive. It is clear that Finney did not succumb to the coercive practices applied by the police during his first interview. Not only did Finney continually deny complicity in the murder, he continually denied any knowledge of the murder or Shumway’s participation in the murder. Moreover, he testified during the hearing that he was not concerned by the falsified police reports because he knew that he had not touched the board used to kill the victim.
Two weeks after the initial interview, the officers interviewed John Finney again, but any coercive effect created by the first interview was too attenuated from the second interview to raise doubts concerning the voluntary nature of Finney’s subsequent statements. See Wong Sun v. United States, 371 U.S. 471, 487-88, 491, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (finding a sufficient attenuation when “several” days passed between illegal government conduct and the confession).
In this case, any alleged coercive tactics used by law enforcement officers in an initial interview with a witness were too attenuated from a second interview 2 weeks later to raise doubt concerning the voluntary nature of the witness’ statements.
During the second interview, no false documents were presented. While both John and Mary Finney admitted to using methamphetamine and alcohol prior to their interviews, both also tes tified that the use of these substances did not hamper their understanding of the questions posed to them. Consequently, there was no evidence from which to conclude that John Finney’s statements, and those of Mary, were not the product of their own free and independent desire to relate the events of the murder.
Shumway also alleges that the first police interview of John Finney was highly suggestive. He claims that Finney’s testimony was exclusively based upon photographs and police reports shown to Finney in his interview which Finney used to fashion his testimony during his 2-week hiatus from police contact.
This argument does not concern the voluntariness of a witness’ statements, so much as it casts suspicion on the authenticity of the witness’ identification of the perpetrator of the crime. Although this precise issue has never been raised in a reported Kansas opinion, the standard of review of an allegedly suggestive witness identification procedure has frequently been addressed by the courts of this state. See, e.g., State v. Love, 267 Kan. 600, 603, 986 P.2d 358 (1999).
Determining whether the suggestive nature of a witness identification violates a defendant’s due process of law is a mixed question of fact and law. An appellate court reviews the factual underpinnings of the district court’s decision under a substantial competent evidence standard but exercises unlimited review of the legal conclusion to be drawn from those facts. See Love, 267 Kan. at 603.
The linchpin of the constitutional analysis undergirding identification procedures is the reliability of the identification. See Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993) (citing Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 [1972]).
The Kansas Supreme Court has adopted a two-fold analysis for eyewitness identifications. See State v. Skelton, 247 Kan. 34, 39-40, 795 P.2d 349 (1990). First, a court should determine whether the procedure used to elicit the identification was unnecessarily suggestive. Second, if the court determines that the procedure was unnecessarily suggestive, an appellate court must consider whether the suggestive nature of the procedure led to a substantial likeli hood of irreparable misidentification of the perpetrator, under the totality of the circumstances.
To aid in the assessment of the reliability of pretrial identifications, the United States Supreme Court devised five factors which are to be considered by the court:
“[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and die confrontation.” Biggers, 409 U.S. at 199-200.
Here, arguably, the investigation photos depicting the crime scene, as well as the police reports articulating the suspected course of events, might suggest some details of the crime. However, since Finney s testimony inevitably implicated himself in the circumstances surrounding the murder, if not in the murder itself, the likelihood of misidentification was negligible. At the time of his statements, Finney was not offered immunity from prosecution. Rather, Finney’s statements assisted the prosecution in convicting Finney of attempted theft.
Finney’s admitted involvement with Shumway on the night the crime was committed afforded Finney the opportunity to observe him and pay attention to particulars with respect to the commission of the crime. Furthermore, when Finney eventually admitted his involvement, he did not hesitate to identify Shumway in the commission of the crime. Finney’s testimony provided a foundation from which the court could conclude that Finney had observed Shumway’s attack upon Mitch Davis.
Finney’s knowledge of the crime may have been related to his greater complicity, and his statement may have been merely an attempt to avoid justice by blaming the entire episode upon Shumway. However, Shumway did not accuse Finney of greater complicity in the crime but, rather, claimed no part in the crime. Shumway’s denial had no effect upon the relative admissibility of Finney’s testimony, and the jury was entitled to adopt the version of the facts it deemed most credible.
Understanding the suspect nature of accomplice confessions, the Kansas Supreme Court has held that the State must either provide evidence to fully corroborate the testimony of the accomplice or the district court must provide a cautionary instruction. See State v. Moody, 223 Kan. 699, 702, 576 P.2d 637, cert. denied 439 U.S. 894 (1978). Here, Finney’s statements were partially corroborated by the testimony of Radford, Powers, and Lutz. Moreover, the court provided the jury with a cautionary instruction concerning accomplice testimony.
Shumway misapplies the holding of Lee v. Illinois, 476 U.S. 530, 539, 90 L. Ed. 2d 514, 106 S. Ct. 2056 (1986). Lee involved the use of an accomplice’s statement when the defendant was not provided an opportunity to cross-examine the witness. As Finney testified at trial and was subject to cross-examination, Shumway was not denied the right to confront the witnesses against him. Lee is inapplicable, and Finney’s statements were properly admitted for evaluation by the jury.
As the court did not err in admitting the statements of John Finney, the statements of Mary Finney, which were based upon John Finney’s version of the events, were not tainted and were also properly admitted. Again, Shumway was provided an opportunity to explore the foundations of Mary Finney’s testimony to demonstrate any inconsistencies or bias contained therein.
MURDER IN THE SECOND DEGREE
Shumway also complains that the district court improperly instructed the jury on second-degree murder. He alleges three reasons for the instruction’s impropriety. First, he claims that the instruction on second-degree murder as a lesser included offense of felony murder provided him with no notice of the State’s intent to seek an intentional homicide charge, as opposed to the felony-murder charge, which may be supported by either an intentional or a reckless act. Consequently, Shumway claims he was deprived of his due process right to defend against the second-degree murder charge.
K.S.A. 1999 Supp. 21-3107(2) provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a ciime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
As the statute clearly permits a conviction of a lesser included crime for which Shumway was not originally charged, this court must initially consider his claim that second-degree murder was not a lesser included crime of felony murder under the statutory scheme implemented at the time the offense was committed.
A. Second-Degree Murder as a Lesser Included Offense of Felony Murder.
The primary thrust of Shumway’s argument revolves around a construction of the first-degree murder statute, K.S.A. 21-3401. Relying upon State v. Vontress, 266 Kan. 248, 262, 970 P.2d 42 (1998), in which the Kansas Supreme Court concluded that premeditated first-degree murder and felony murder were separate and distinct offenses, Shumway contends that no strict identity of elements between intentional second-degree murder and first-degree felony murder exists. Felony murder may be supported by either a negligent or an intentional homicide, whereas second-degree murder, as instructed in this case, requires that the killing be intentional.
While it is clear that a comparison of felony murder and intentional second-degree murder demonstrates an absence of equivalent elements, a crime may be a lesser included offense not only when there is an identity of elements but also when one crime is a lesser degree of the other. K.S.A. 1999 Supp. 21-3107(2)(a). While the Kansas Supreme Court has declared felony murder to be a separate and distinct offense from premeditated murder, both offenses are classified as first-degree murder. K.S.A. 21-3401.
Intentional and unintentional second-degree murder are lesser degrees of the crime of first-degree murder and, therefore, second-degree murder is properly a lesser included offense of first-degree murder, whether premeditated murder or felony murder. See State v. Pierce, 260 Kan. 859, 864, 927 P.2d 929 (1996).
Chief Justice McFarland recently, in a dissenting opinion, explained the correlation of the homicide statutes in relation to K.S.A. 21-3107(2)(a), in the following manner:
“(2)(a) A lesser degree of the same crime: The most common of degree crimes are the four homicide statutes: murder in the first degree, K.S.A. 21-3401; murder in the second degree, K.S.A. 21-3402; voluntaiy manslaughter, K.S.A. 21-3403; and involuntary manslaughter, K.S.A. 21-3404. The only element they have in common is a dead person for whose death the defendant is culpable. The degrees of homicide do not build upon each other. For example, involuntary manslaughter is a reckless unintentional killing under certain specified circumstances and is not a crime necessarily proven in a higher degree of homicide. By including degrees of the same offense in the definition of included crimes, a defendant cannot be convicted of two degrees of homicide for one death. This is not an elements test— rather (2)(a) states different degrees of a crime are included crimes.” State v. Garcia, 272 Kan. 140, 150, 32 P.3d 188 (2001) (McFarland, C.J., dissenting).
Because second-degree murder is statutorily defined as a lesser included offense of first-degree murder, the defendant may properly be convicted of second-degree murder even though he was not originally charged with the offense.
B. Factual Basis for Requested Instruction.
Shumway also contends that the evidence strongly supported the charge of felony murder and, therefore, the instruction on second-degree murder should not have been given. The Kansas Supreme Court has determined that the failure to instruct the jury on lesser included offenses for felony murder is not error unless the State’s evidence supporting a conviction on the underlying felony was weak or inconclusive. See State v. Sandifer, 270 Kan. 591, 597-98, 17 P.3d 921 (2001).
In every case cited by Shumway, except State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976), the appellate court has been faced with a district court’s denial of a defendant’s request for a lesser included instruction, rather than the district court’s instruction on a lesser included offense at the request of the State in opposition to the will of the defendant. Here, Shumway presents the anomalous position that instructing the juiy on the lesser included offense of second-degree murder was erroneous, while the State ba sically argues its evidence concerning the underlying felony might have been perceived as weak or inconclusive by the jury.
“Ordinarily, in a felony-murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. But where, as here, there is conflicting evidence as to the commission of the felony, and where the evidence will support a conviction of a lesser degree of homicide, instructions on appropriate lesser degrees should be given.” Bradford, 219 Kan. at 343.
Here, the prosecution’s theory of the case supposed that Shumway killed the victim in an attempt to rob the victim of his credit cards, money, or other personal valuables. The only evidence supporting this theory was Shumway’s admissions, reported through Finney. John Finney testified that he witnessed Shumway rifling through the victim’s pockets after hitting the victim with the 2x4 board. Finney also testified that Shumway reported he had taken some money and credit cards from the victim and had placed them with the murder weapon under a bush.
Alternatively, Finney admitted he never witnessed Shumway taking anything from the victim. Moreover, the State never recovered credit cards or money belonging to the victim, even though the board was found under a bush near the crime scene.
Consequently, while the State provided evidence of an aggravated robbery, the evidence was far from overwhelming. Based upon the lack of physical evidence and direct testimony related to the aggravated robbery, it was entirely possible that the jury believed the State had failed to prove the underlying felony of aggravated robbery. The jury likely believed that Shumway committed the murder yet doubted whether Shumway’s motive was robbery.
The evidence supported an instruction on second-degree murder. We need not evaluate the strength of the State’s case concerning the underlying felony. The juiy’s finding of not guilty on the aggravated robbeiy charge demonstrated that the State’s evidence on that charge was not sufficient to carry the burden of proof in a criminal prosecution.
Irrespective of the jury’s verdict, however, the premise that a court is not required to instruct on lesser included offenses of felony murder unless the underlying felony is weak or inconclusive does not necessarily support the corollary of that proposition — that the court necessarily errs in instructing a jury on lesser included offenses where the evidence of the underlying felony is not weak or inconclusive.
The applicable standard of review of a district court’s instructions is whether the instructions, read as a whole, properly and fairly state the applicable law and whether a jury could have been confused or misled by the instructions. If not, the instructions, even if erroneous in some small way, do not constitute reversible error. See State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
There is no question that the law articulated by the district court’s instructions properly and fairly stated the law applicable to the facts of this case. Thus, the district court committed no error in instructing the jury on second-degree murder as a lesser included offense of felony murder over Shumway’s objection.
C. Due Process Violation.
Turning to the consideration of Shumways primary argument, this court essentially must consider whether the State’s requested lesser included instruction on second-degree murder violated Shumway’s due process rights by failing to give him notice of a charged offense.
Shumway relies upon State v. Thompkins, 263 Kan. 602, 952 P.2d 1332 (1998), superceded, in part, by statute, see Vontress, 266 Kan. at 262-64. In Thompkins, the Kansas Supreme Court reversed a conviction for first-degree premeditated murder on the basis that the State improperly sought an instruction on premeditated murder during trial after the premeditated murder count had been dismissed from the complaint at the preliminary hearing and the State failed to implement procedural remedies to reinstate the premeditated murder charge. 263 Kan. at 619-21.
“The charging document is the jurisdictional instrument which gives the court authority to convict a defendant of crimes charged in the complaint or of the lesser included crimes thereof. Conversely, if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.” State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995) (citing State v. Chatmon, 234 Kan. 197, 204-05, 671 P.2d 531 [1983]).
In this case, the State lawfully proceeded to trial on the felony-murder charge. At the close of its case, the State sought to have the district court instruct on a lesser included offense. Unlike Thompkins, Chatmon, or Horn, the requested instruction in the present case involved a lesser included offense of the charged offense. If a district court possesses jurisdiction over an offense charged in a complaint, it equally possesses jurisdiction to convict the defendant of a lesser included offense. See Horn, 20 Kan. App. 2d at 693 (analyzing State v. Patterson, 12 Kan. App. 2d 731, 754 P.2d 1207 [1988], in light of State v. Gibson, 246 Kan. 298, 787 P.2d 1176 [1990], which concluded that sexual battery was not a lesser included offense of rape).
Since the district court properly exercised jurisdiction over the offense for which Shumway was convicted, the only constitutional argument remaining to Shumway concerns a lack of notice to defend. Based upon Shumway s arguments at trial, however, there was no indication that any lack of notice prejudiced him in any manner. His theory of the crime involved pointing to another suspect and denying his own involvement. It is unclear how this defense would have differed if the State had originally charged Shumway with second-degree murder as an alternative to felony murder.
Even trial errors of constitutional magnitude may be deemed harmless if an appellate court is prepared to declare that the error had little, if any, likelihood of having changed the result of the trial. See State v. Fulton, 269 Kan. 835, 845, 9 P.3d 18 (2000). Any error related solely to Shumway’s lack of notice concerning an instruction on second-degree murder was harmless to the extent that no additional evidence was presented and neither Shumway’s nor the prosecution’s theories of the case were prejudiced due to the jury’s consideration of the instruction on second-degree murder.
THE SENTENCE
Shumway’s final argument relates to the sentencing scheme in place at the time of his conviction. According to Shumway, his sentences violate the Eighth Amendment to the United States Constitution because his sentence for intentional second-degree murder does not allow him early release for good time credits until he has served over 43 years of his 51-year, 8-month sentence. See K.S.A. 1999 Supp. 21-4704(a) and K.S.A. 1999 Supp. 21-4706. In contrast, he argues that a person who committed the crime of first-degree felony murder in 1999 would be parole eligible in 20 years. See K.S.A. 1999 Supp. 22-3717(b)(2) and K.S.A. 1999 Supp. 21-4706.
As the sentencing court did not impose a departure sentence, this court has no jurisdiction to consider Shumway s claim in a direct appeal. Consequently, this issue is dismissed for lack of jurisdiction. See State v. Lewis, 27 Kan. App. 2d 134, 140, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000).
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Beier, J.:
Michelle Sweat appeals her jury convictions for attempted first-degree murder, conspiracy to commit first-degree murder, and aggravated burglary. She also challenges her sentences as disproportionate to those given her coconspirator.
The charges against Sweat arose out of the shotgun shooting of Lloyd Eddens, who collapsed on his neighbor s front porch after being shot in his home. When police arrived, Eddens’ intestines lay outside of his body and in his arms. Despite his wounds, Eddens was able to identify Sweat as the woman who had been at his house with the man who shot him.
The next day, the police interviewed Armando Fierro, then 18 years old. Fierro admitted to shooting Eddens accidentally while executing a plan concocted by Sweat to kill Eddens by a less gruesome method. Before Sweat’s trial, Fierro pleaded guilty to attempted first-degree murder, conspiracy to commit first-degree murder, and aggravated burglaiy. He testified against Sweat.
Fierro’s story was that he knew Sweat through her son and that she had recruited him to help kill Eddens. According to her plan, Sweat was to enter Edden’s house first, send him out on errand, call Fierro in from her car, and then await Eddens’ return. When Eddens came back, Fierro was to force him to the ground by means of the shotgun. Then Sweat was to handcuff Eddens and inject air into his veins. The plan went awry when Eddens grabbed the shotgun and it accidentally fired into his belly.
Fierro and Sweat fled to Sweat’s car and disposed of their shoes as well as the syringes, handcuffs, and shotgun they had collected in preparation for the killing. They also attempted to clean the car inside and out. Fierro, apparently on his own, later returned to a park where he and Sweat had disposed of the syringes, handcuffs, and shotgun and redistributed these items to multiple disposal sites.
Sweat was interviewed the day after Fierro. At the opening of her videotaped interview, she was advised of her Miranda rights, and she signed a written waiver of them. Although she appeared tired, she did not appear to be irrational or under the influence of alcohol or drugs. The interviewing detectives acknowledged that Sweat had said she had taken Valium, but they did not ask her about it. During the interview, Sweat claimed she was an innocent victim and did not know the person who shot Eddens. At trial she continued to maintain her innocence but admitted knowing that Fierro wielded the shotgun.
Additional pertinent facts will be reviewed as we discuss Sweat’s various claims.
Sufficiency of Complaint
After Sweat was convicted, she filed a motion to arrest judgment, challenging her convictions for conspiracy and attempted first-degree murder because the prosecution failed to allege the overt acts that supported those offenses. The complaint read in pertinent part:
“[O]n or about the 23rd day of June, 2000, in said County of Reno and State of Kansas, one MICHELLE L. SWEAT then and there being, did then and there, unlawfully, FELONIOUSLY, and willfully: . . . commit an overt act towards the perpetration of the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill the person of Lloyd Eddens, who intended to commit said crime, but failed in the perpetration thereof or was prevented or intercepted in executing such crime.
. . On or about the 23rd day of June, 2000, in said County of Reno and State of Kansas, one MICHELLE L. SWEAT then and there being, did then and there, unlawfully, FELONIOUSLY, and willfully: agree with another person, to-wit: Armando Fierro, to commit the crime or to assist in committing the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill Lloyd Eddens, in an overt act, and further such conspiracy was committed by such person or said co-conspirator.”
After oral argument, the district court denied the motion, finding the complaint comported with the statutes and Sweat “was adequately advised of what she was charged with.”
The motion for arrest of judgment sets up Sweat’s first issue on this appeal. She argues that the district court erred by denying her motion and that her convictions for attempted first-degree murder and conspiracy to commit first-degree murder must be reversed.
The sufficiency of a charging document to confer jurisdiction is a question of law over which this court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). Because Sweat properly preserved her issue regarding the sufficiency of the complaint through a motion to arrest judgment, the following test controls:
“ ‘In Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.’ ” State v. Crockett, 26 Kan. App. 2d 202, 205, 987 P.2d 1101 (1999) (quoting State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 [1992]).
We look first at the sufficiency of the complaint’s allegation of conspiracy.
K.S.A. 21-3302(a) provides:
“A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”
Sweat relies upon Crockett in support of her argument that the complaint is fatally defective because it failed to allege the particular overt act committed by her or Fierro in furtherance of their conspiracy. Crockett also was convicted of conspiracy to commit first-degree murder. The charging document in his case read:
“ ‘Raymond J. Crockett, Jr. and one Ronnell F. Jones did unlawfully, feloniously, knowingly and willfully enter into an agreement with one another to commit a crime, to-wit: First Degree Murder, as defined by K.S.A. §21-3401, and in furtherance of such agreement committed the following overt acts, to-wit: planning on the time, location and manner of killing Terrance Canada, in violation of K.S.A. §21-3302.’ ” 26 Kan. App. 2d at 203.
On appeal, a panel of this court first noted that K.S.A. 21-3302(a) requires a charge of conspiracy to include an allegation of the overt act upon which the charge is based. The panel then held that conversations among coconspirators to form and plan the conspiracy did not qualify as overt acts in furtherance of it. Thus the charging document alleging “ planning on the time, location and manner ” of killing the victim was fatally defective. 26 Kan. App. 2d 202, Syl. ¶¶ 5 and 6.
The flaw in the complaint in this case is even more obvious than the flaw in Crockett’s information. Sweat’s complaint does not even attempt to allege any specific overt act committed in furtherance of the conspiracy. It is not sufficient to say merely that tire defendant willfully agreed with another person to commit the crime or to, assist in committing tire crime. Her conspiracy conviction must therefore be reversed; the district court lacked jurisdiction to try her on that charge.
We reach the opposite conclusion on the attempt charge.
On this charge, Sweat first argues the language of the complaint was defective because it also omitted any allegation of a specific overt act.
K.S.A. 21-3301(a) provides in relevant part: “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.”
Sweat’s argument is without merit. The attempt statute is different from the conspiracy statute because attempt does not include a requirement that the overt act be “alleged” as well as proved. See K.S.A. 21-3302(a).
Furthermore, State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992), resolved this issue adversely to Sweat. Humphrey was charged with two counts of attempted first-degree murder, and the complaint read in pertinent part: “ ‘[Humphrey] unlawfully, feloniously and willfully [committed] an overt act towards the perpetration of the crime of Premeditated Murder of Tina [Gray] on 12-22-87 as defined by Section 21-3401 K.S.A. with the intent to commit said crime, but failed in the perpetration thereof.’ ” 252 Kan. at 28. As in this case, Humphrey argued on appeal that the information was fatally defective and void because it did “ ‘not state what the overt act was nor does the information state why or how there was a failure in the perpetration thereof.’ ” 252 Kan. at 28. The Kansas Supreme Court ruled that such specificity was not required.
Sweat’s second argument attacking the language of the complaint on attempt is based on the State’s presentation of evidence of multiple overt acts toward the perpetration of the crime of first-degree murder. Sweat contends that a real possibility that jurors might not be unanimous on the particular overt act existed, and she points to State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999), for support. Smith is distinguishable from this case because it deals with a conspiracy charge rather than an attempt charge.
State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), provides more guidance on this multiple acts challenge to the attempt charge. Kleypas argued that an attempted rape jury instruction was clearly erroneous because it failed to specify the overt act that would support conviction. Because the jury was required to be unanimous on the overt act committed, he argued, the court should have required either that the State elect an overt act or that the jury instructions include a multiple acts unanimity instruction. The Kansas Supreme Court rejected Kleypas’ argument:
“[T]he attempted rape charge at hand presents neither a multiple acts nor an alternative means situation. The possible overt acts need not themselves be illegal or chargeable as criminal offenses and, thus, this is not a multiple acts case. Nor are the overt acts alternative means of committing the offense. Rather, they are acts, however innocent in themselves, which signify and trigger liability for the offense of attempt. As such, there was no requirement that the jury be instructed as to a specific overt act.” 272 Kan. at 942.
Applying Kleypas to this case, the failure to specify a single overt act for the jury to rely upon on the attempt charge did not create a multiple acts problem.
Suppression of Statements
Sweat also argues on appeal that her statements to police should have been suppressed because she had taken eight Valium in the hour before she was interviewed. She also testified that she had trouble walking into the building where she was interviewed, that she was veiy tired during the interview, that she was not aware of all of the questions being asked, and that one of the detectives had asked her if she was going to pass out. She also said she did not remember signing the form waiving her Miranda rights. After a hearing in which the district court viewed at least part of the videotape of Sweat’s interview with the detectives, Sweat’s motion to suppress her statements to the police was denied.
“Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits tire statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence.” State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).
In State v. Norris, 244 Kan. 326, 768 P.2d 296 (1989), Norris argued his statements were involuntary because of pain from an injury, lack of sleep, and intoxication. He had consumed more than half of a case of beer and some whiskey the day of the murder; and his treating doctor, an arresting officer, and a detective conducting the interrogation all noticed an odor of alcohol. However, no one observed anything unusual about his speech or mannerisms to suggest intoxication. Norris’ speech sounded normal and clear in the tape recording of the interrogation.
The Norris court first noted that “ ‘[t]he fact that an accused had been drinking and using drugs does not per se establish involuntariness.’ ” 244 Kan. at 334-35 (quoting State v. Baker, 4 Kan. App. 2d 340, 343, 606 P.2d 120 [1980]). Noting that the defendant’s trial testimony did not deviate significantly from his statements during the interrogation, the court concluded substantial competent evidence supported admission of the statements.
Similarly in State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001), Cribbs argued he was entitled to suppression of his statement to police because he testified that he was smoking marijuana and freebasing crack before the interview. An interviewing officer testified that Cribbs stuttered when he got nervous and cried during part of the interview, but he appeared to be sober, was not glassy-eyed, did not slur his speech, and had normal balance. The officer did not smell any intoxicants, and Cribbs did not admit to any drug use that day.
Relying on Norris, this court first noted that drinking and drug use does not per se establish involuntariness. Pointing out that the defendant’s statements outlined essentially the same version of events he later testified to, we found that, under the totality of the circumstances, substantial competent evidence supported the district court’s finding of voluntariness. Cribbs, 29 Kan. App. 2d at 927.
This case is analogous to Norris and Cribbs. First, Sweat’s version of events at the interview was substantially the same as her testimony at trial; the only significant difference was her early denial that she knew the shooter. Second, evidence was presented that Sweat took Valium prior to the interview, and the officers had some knowledge of this. Although she appeared tired, the interviewing officers testified that she did not appear to be under the influence of alcohol or drugs, did not appear irrational, and appeared to understand and answer the questions appropriately. The district court reviewed the videotape and pointed out that she never said she did not understand a question, that she told her side of tire stoiy without interruption, and that she did not appear to be a person who was impaired by her ingestion of Valium.
The videotape of the interview and the officers’ testimony provide substantial competent evidence to support the district court’s finding of voluntariness. During the interview, Sweat spoke very clearly, was animated at times, argued with the officers, and appeared to understand what was going on. Although she intermittently put her head down, she appeared to adopt this posture when her responses were being challenged. The only time she put her head down for an extended period of time was when the officers were outside of the room. There was no error in the district court’s denial of her motion to suppress.
Testimony of Defense Attorney’s Former Client
Before trial, the prosecutor moved to endorse Kerri Raine as a witness. Defense counsel objected because he had represented Raine on a separate criminal matter while she was sharing a cell with Sweat. The district court granted the motion to endorse.
When the State called Raine as a witness during Sweat’s trial, defense counsel again objected because of the prior representation. The following colloquy then occurred:
“MR. FRIEDEN: Even before the jury gets in here, I do want to note my objection to Miss Raine’s testimony. I represented her previously. I want to note my objection. I drink we’ve argued about this at the motion for endorsement of witnesses, so now that Miss Raine is now in the room.
“THE COURT: As I understand it your representation of her was in another entirely different matter.
“MR. FRIEDEN: Yes, not related to this.
“THE COURT: She’s been incarcerated as a result of that, but the questions that are going to be propounded] to her today have nothing to do with that incarceration?
“MR. FRIEDEN: No.
“THE COURT: And I’m not sure what, if in fact —
“MR. FRIEDEN: I know Miss Raine. I know that she may object to me cross-examining her. I don’t know whether she would or not, but I do want to point out my prior representation.
“THE COURT: You’re representing an entirely different client in an entirely different matter. You know you’re not dre first public defender to be put in this position, and there is no conflict.”
Raine ultimately testified Sweat had told her while they were sharing a cell that Sweat and “some little boy” had planned to scare Eddens because he was threatening to tell Sweat’s husband something, and Eddens had $10,000 to $20,000 in his house. Sweat described purchasing syringes at a drugstore in preparation for the crime and said she was worried police would obtain a videotape from the store. She also was concerned that the police would find the knife she had dropped at the crime scene, and she said she regretted using the boy because he had told his friends.
The determination of the existence of a conflict of interest requiring disqualification of an attorney is governed by an abuse of discretion standard. See In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 566, 781 P.2d 731 (1989), cert. denied 494 U.S. 1070 (1990). Sweat argues her conviction must be reversed because the district court did not conduct an appropriate inquiry into whether a conflict of interest existed, relying on Holloway v. Arkansas, 435 U.S. 475, 484, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978); Hoang, 245 Kan. at 565-66; and State v. Jenkins, 257 Kan. 1074, 1081, 898 P.2d 1121 (1995).
In Holloway, three codefendants filed pretrial motions for appointment of separate counsel after their appointed counsel said there was a risk of representing conflicting interests. The district court denied the motions and the codefendants were convicted. On appeal, the United States Supreme Court found the district court’s failure to appoint separate counsel or assure itself that the risk of conflict was slim deprived the petitioners of effective assistance of counsel. Reversal was held to be automatic whenever a district court improperly required joint representation over timely objection. 435 U.S. at 488.
In Hoang, Hoang was represented by counsel from the public defender’s office. When the district court was informed that defense counsel’s office had represented the key prosecution witness against Hoang, the district court found a conflict of interest existed, disqualified defense counsel, and declared a mistrial. Hoang’s new counsel moved to dismiss the charges on the grounds that the mistrial was granted improperly and would result in double jeopardy, and the motion was denied. On appeal, Hoang argued the district court abused its discretion by finding a conflict of interest existed and disqualifying defense counsel.
The Supreme Court first noted the district judge’s obligation when faced with a situation in which defense counsel may have a conflict of interest because of prior representation of a prosecution witness:
“The judge must consider the whole picture not just the desires of the parties. The balancing of interests becomes extremely involved. If a defense attorney’s scope of cross-examination of a key prosecution witness is restricted to avoid possible violation of the attorney-client privileges of the witness, then the defendant has major claims of ineffective assistance of counsel and lack of a fair trial. If the examination is not restricted, then the witness’ attorney-client privilege may be violated. It is a significant public policy that individuals be free to disclose confidential information to their attorneys without fear of subsequent examination on and disclosure of those communications. The judge has a duty to maintain the integrity of the administration of the justice system.” 245 Kan. at 562.
The court concluded the district court did not abuse its discretion in finding a conflict and disqualifying counsel. The court further concluded that, under Rule 1.10 of the Model Rules of Professional Conduct, the district court could have found Hoang’s defense counsel had imputed knowledge of any confidential information relayed by the witness to his public defender. 245 Kan. at 566; see 2001 Kan. Ct. R. Annot. 365.
In Jenkins, the defendant argued he was denied effective assistance of counsel because defense counsel had represented the key prosecution witness on unrelated charges. The Kansas Supreme Court relied on Holloway and Hoang and held:
“[W]here the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. In this instance, a showing that there is an actual conflict of interest will result in automatic reversal.” 257 Kan. at 1084.
Because the district court was aware of the conflict but failed to inquire further, Jenkins’ conviction was reversed and his case remanded for new trial.
This case is distinguishable. Here, defense counsel represented an adverse prosecution witness and Sweat on separate cases but at the same time they were sharing a jail cell. Raine’s testimony against Sweat had nothing to do with Raine’s separate case. Defense counsel properly brought the simultaneous representation to the attention of the district judge, and the district judge properly gave counsel an opportunity to explain the nature of any conflict. Defense counsel did not articulate any actual conflict of interest that would prevent him from representing Sweat to the best of his ability. The fact that Raine had no fondness for her former lawyer, as counsel’s remarks and her eventual testimony demonstrated, did not necessitate either disqualification of counsel or exclusion of Raine’s evidence against Sweat. There was no abuse of discretion on the part of the district court.
Admission of Photograph of Victim’s Injuries
During Eddens’ testimony, the prosecution admitted a photograph of him taken at the hospital, which showed Eddens’ intes tines outside of his abdomen. Defense counsel’s objection to the admission of the photograph was overruled. Sweat argues that the ruling on this objection was an abuse of the district court’s discretion. See State v. Gholston, 272 Kan. 601, Syl. ¶ 2, 35 P.3d 868 (2001) (in determining whether photograph should be admitted, district court must determine relevance, existence of proper foundation; district court has broad discretion). In her view, the photograph was shocking, revolting, and prejudicial; and its probative value was limited because no testimony accompanied its presentation to the juxy.
In Gholston, the Kansas Supreme Court noted that photographs that illustrate the nature or extent of wounds inflicted can be admissible when they corroborate the testimony of witnesses or are relevant. Photographs that proye the elements of tire crime, including the fact and manner of a death or the violent nature of the crime, are relevant and admissible. 272 Kan. at 613.
Recently the Kansas Supreme Court said: “Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. Nevertheless, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue.” State v. Kirby, 272 Kan. 1170, Syl. ¶ 9, 39 P.3d 1 (2002.)
It is true that the photograph of Eddens admitted in this case was gruesome and the manner in which the injury was inflicted was not in dispute, but the photograph corroborated both the responding officer’s description of Eddens’ injuries and Eddens’ own testimony without being unduly repetitive. The photograph tended to support the attempted first-degree murder charge. The district court did not abuse its discretion by admitting the photograph into evidence.
Testimony About Codefendant’s Violent Behavior and Statements
Sweat’s son, Marcus Hill, testified at her trial. When defense counsel asked Hill “what type of person” Fierro was, the prosecutor objected on relevance grounds. The defense proffered testimony that Fierro was a violent person — always getting into fights; harming animals; and talking about guns, shooting people, and getting into the Mafia. Hill also said he had seen Fierro selling guns.
The district court disallowed the testimony:
“Specific instances of conduct are not allowable to try to determine conduct on a specific occasion. So, if that’s what you’re pointing at. Of course, Mr. Fierro has admitted to being the one who carried the gun, who shot the victim in this case and I don’t think it, his testimony bears on this case. I don’t think it’s relevant. I don’t think it’s admissible as relating to his reputation in the community.”
We review the district court’s refusal to admit this evidence under an abuse of discretion standard. See State v. Matson, 260 Kan. 366, 378-79, 921 P.2d 790 (1996).
Sweat contends her son should have been permitted to testify under K.S.A. 60-446, K.S.A. 60-447, and State v. Blackburn, 251 Kan. 787, Syl. ¶ 2, 840 P.2d 497 (1992).
K.S.A. 60-446 provides: ‘When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.”
K.S.A. 60-447 provides:
“Subject to K.S.A. 60-448, when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.”
The threshold question that must be answered before these statutes come into play is: Was Fierro’s character or a trait of his character in issue? The answer is no. Other than his tendency to be truthful or untruthful, neither Fierro’s character nor any particular trait of his character was placed in issue by his or any other testimony. In Blackburn, the witness in question was the defendant, and he placed his violent propensity or lack thereof in issue by denying that he would ever engage in the type of conduct alleged. Fierro did not deny that he shot Eddens and caused grievous injury. He admitted this act of dramatic violence from the beginning. The district court did not abuse its discretion in denying admission of Hill’s testimony to prove Fierro’s violent nature under 60-446, 60-447, or Blackburn.
On this issue, the State also argues K.S.A. 60-422(c) made Hill’s testimony inadmissible.
K.S.A. 60-422 provides in relevant part:
“As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
The State is correct that, to the extent Sweat was attempting to call Fierro’s credibility into question with Hill’s testimony, 60-422(c) and (d) supported the district court’s ruling. The Kansas Supreme Court has held that K.S.A. 60-422(c) and (d) limit the proof of character traits of dishonesty and lack of veracity to opinion testimony and evidence of reputation permitted by K.S.A. 60-446. See State v. Smallwood, 223 Kan. 320, 326, 574 P.2d 1361 (1978). The proffered testimony included both specific instances of conduct Hill had observed and general testimony about Fierro’s violent character. None of this proffered testimony was relevant to Fierro’s honesty or veracity. Again, to the extent the district court may have relied upon 60-422(c) or (d) to exclude Hill’s testimony, there was no abuse of discretion.
Ineffective Assistance of Counsel
Before she was sentenced, Sweat submitted a written statement to the court, alleging she had received ineffective assistance of counsel. The statement read in pertinent part:
“There were no circumstances that led up to the offense. I do feel I have been wrongfully accused of the conspiracy charge. I feel I had inadequate representation and would like to appeal my case.
. . There is a bt of evidence that didn’t come up in Court that should have. ... I feel my trial was rushed .... My trial was less than a week from start to finish and a lot of evidence was not submitted by either side. Also there were phone records I was waiting on, in which I,told my attorney but he never mentioned them. I feel I had inadequate, and insufficient representation.”
In response to these vague complaints, the district court found “that counsel was certainly adequate at trial, if not more than adequate.”
Since she took this appeal, Sweat has sought a remand for an evidentiary hearing on this issue, but her request focused upon her argument that her counsel had a conflict of interest because of his representation of Raine. Having disposed of that issue adversely to Sweat above, no remand for an evidentiary hearing is necessary.
Sentencing Disparity
Sweat’s last issue on appeal focuses on the difference between her sentence and that given to Fierro.
Sweat’s criminal history score was E. The district court sentenced Sweat to 234 months for attempted first-degree murder, 117 months for conspiracy to commit first-degree murder, and 32 months for aggravated burglary, all to run consecutively. Fierro’s criminal history score was G. He was sentenced to 195 months for attempted first-degree murder, 117 months for conspiracy to commit first-degree murder, and 32 months for aggravated burglary, all to run concurrently.
The district court had this to say at the time:
“Miss Sweat, I sat through this entire trial. I also took the plea from Mr. Fierro and Tve been privy to the information that the police had in this matter by way of the case and by way of the plea of the co-defendant in this case. And it’s clear to this court, and I think it’s clear to anyone who listened to the evidence in this case, that you were the one who planned this and that you were the perpetrator of this action, for whatever reason, to get even with Mr. Eddens. I don’t think we ever understood that relationship that existed between the two of you. I don’t think we know what the truth of that matter is. But we know that the truth of the matter is, as far as the juiy saw it and as far as those who sat in this courtroom and listened to testimony, and especially your testimony, that Mr. Eddens is a very lucky person to be alive.
“It has always been this court’s position that someone who plans and taires the life of another person — and I have expressed this publicly before — if someone plans and kills another person that they perhaps forfeit their right to live. And that has been my position on the death penalty.
“In this particular case you planned to kill somebody and you took steps towards that, and fortunately this person did not die. You’ve taken away from his life. We — I can’t say how much of Mr. Edden’s life has been taken away from him. I do know that because of your prior criminal history and the fact that you stand before this court today with a criminal history of E, which elevates the sentence that tire court has to give you, your sentence in this case is going to be substantial. And you’re a 36 year old woman who as a result of your actions today and as a result of the actions that you’ve taken with another person and to bring an 18 year old boy into a scheme to kill somebody who’s a, by testimony of everybody, the best friend of your son, is something that needs to be severely punished. And anyone out there who thinks that you can go around and try to draw up a scheme to ldll somebody simply because you have a disagreement with them, whatever that disagreement may be, needs to Mow that those acts do not go unpunished.”
Sweat argues the district court did not provide adequate reasons on the record for the disparity in sentences and that her culpability relative to Fierro was the same.
“Generally, disparity in the sentences of codefendants does not amount to abuse of discretion where the trial court considers the individual characteristics of the defendant being sentenced, the harm caused by that defendant, and the prior criminal conduct of that defendant.” State v. Smith, 254 Kan. 144, Syl. ¶ 4, 864 P.2d 709 (1993).
“A trial judge is not bound to sentence a defendant to a term equal to or shorter than the sentence given his or her codefendant. When a defendant receives a longer sentence than his or her codefendant, and reasons therefor appear in the record, the sentence imposed will be tested on appeal against a standard of abuse of discretion.” 254 Kan. 144, Syl. ¶ 5.
Both Sweat and Fierro were given the standard sentences in the grid boxes for their convictions. The major difference in their controlling terms arose out of the district court’s decision to sentence Sweat consecutively and Fierro concurrently. Sweat’s controlling term is 383 months, while Fierro’s controlling term is 195 months. If Sweat’s sentences also had been imposed concurrently, she would have a controlling term of 234 months.
Sweat relies primarily upon State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992), in which two defendants were convicted of the same crimes and given identical sentences; however, one was to serve the sentences consecutively and the other concurrently. This meant one defendant had to serve 45 years before becoming eligible for parole, while the other had to serve 30 years.
The sentencing court 'summarily dismissed an argument based on the wide difference in parole eligibility by finding the codefendant’s sentence irrelevant. The Kansas Supreme Court held the district court abused its discretion by not considering the disparity and ruled the district court must state its reason on the record for imposing a longer sentence on one defendant. 251 Kan. at 531.
Bailey does not control here. Although the district court did not specifically compare Sweat’s and Fierro’s sentences, it noted its involvement in accepting Fierro’s plea and articulated its reasons for imposing Sweat’s terms of imprisonment. The district court specifically mentioned that Sweat had planned Eddens’ murder and that she had engaged in her behavior because she wanted to get even with the victim. The court also noted that her sentence would be elevated because of her criminal history and said she needed to be “severely punished” because she convinced her son’s 18-year-old friend to help her. The evidence presented clearly supported these statements by the district court, and these statements constituted an adequate on-the-record rationale for the sentencing difference. The district court did not abuse its discretion.
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Green, J.:
Travis Queen appeals the dismissal of his claims against Lynch Jewelers, LLC, and James Lynch for conversion and for violations of the Federal Truth in Lending Act (TILA) and the Kansas Consumer Protection Act (KCPA). We affirm.
On Januaiy 27, 2000, Travis Queen shopped for a diamond engagement ring at Lynch Jewelers, a jewelry store in Wichita, Kansas. Queen selected a loose diamond weighing 1.03 carats and a semimount diamond setting as an engagement ring for his girlfriend, Shannon Ham. The purchase totaled $6,142.20.
Lynch Jewelers arranged for Beneficial Credit Services Corporation (Beneficial) to finance Queen’s purchase. Queen attempted to finance the entire amount of his purchase, but was only approved to finance $2,500 through Beneficial. Lynch Jewelers made arrangements to accept Queen’s down payment of $1,000 and extended an oral, interest-free loan covering the remainder of the purchase price. The interest-free loan is not at issue in the instant appeal.
The $2,500 financed through Beneficial was initially memorialized in a January 27, 2000, installment contract filled out by James Lynch, an employee of Lynch Jewelers. The January 27, 2000, installment contract indicated that the annual percentage rate of interest (APR) for this transaction was 18.29%, resulting in a $767 finance charge and total payments of $3,267 over the 36-month repayment period. Each of these terms was stated in the contract. James Lynch arrived at the 18.29% interest rate after checking the “red book,” a resource given to Lynch Jewelers by Beneficial. The red book contains tables of mathematical calculations which are used to determine the monthly total of payments, the finance charge, and the APR for loans assigned to Beneficial.
James Lynch filled out the January 27,2000, installment contract in Queen’s presence. James Lynch reviewed the credit terms, including the APR, finance charge, amount financed, total payments, and total sales price with Queen before asking Queen to execute the installment agreement. Queen testified that after the January 27, 2000, installment agreement was filled out, he was neither confused nor misled by its terms. After reading the installment contract, Queen signed it, and James Lynch removed the top copy of the contract marked “Buyer l’s copy” and gave it to Queen. Queen did not receive a separate copy of the credit disclosures before signing the contract.
Beneficial did not accept assignment of the January 27, 2000, installment agreement because the applicable APR had increased to 21%. This change in the APR caused corresponding changes to the finance charge, total payments, and the total sales price on Queen’s installment contract.
Queen returned to Lynch Jewelers on February 1, 2000, to relay Ham’s ring size. Mary Ellen Lynch, an employee of Lynch Jewelers, assisted Queen during this visit. Queen testified that Mary Ellen Lynch told him that James Lynch had made a mistake on the first contract and that he would need to sign a second one. Queen testified that Mary Ellen Lynch retrieved a retail installment contract from a drawer. This document had been completely filled out in typewriting and was dated February 1,2000. The February 1, 2000, installment agreement disclosed the APR as 21%, with finance charges totaling $890.84. The second installment agreement also reflected appropriate changes to the total sales price and the monthly payments. All other terms remained the same.
Mary Ellen Lynch told Queen that his monthly payments increased to $94.19, but did not explain that the payments increased because James Lynch inadvertently listed the wrong APR on the first contract. Queen reviewed the new contract and executed it. Mary Ellen Lynch gave Queen his copy of the second agreement after he signed it. Queen did not receive a separate copy of the second retail installment agreement before signing it. Beneficial accepted assignment of the February 1, 2000, installment agreement.
Queen picked up the ring from Lynch Jewelers on February 10, 2000, and gave it to Ham on February 20, 2000. On March 20, 2000, while visiting her mother in Nebraska, Ham noticed that the center stone was missing from the band and located it a few feet from where she had been sitting. The next day, Queen and Ham looked at the band and stone under a jeweler’s microscope and observed that none of the band’s retaining prongs were bent, broken, or missing and saw no chips in the diamond.
On March 24, 2000, Queen returned to Wichita and examined tire stone under two other jeweler’s microscopes. The stone and band were also examined by a certified diamondologist, who did not observe any chip in the stone or unusual abrasion on the band. Later that day, Queen took the band and stone to Lynch Jewelers and questioned why the solitaire dislodged from the setting.
Lynch Jewelers requested a chance to repair the ring, but Queen said that he would have to discuss that option with Ham. Queen told Lynch Jewelers that he would call diem that same evening with his final decision and left the ring at the store. After discussing the issue with Ham, Queen called Lynch Jewelers that evening and demanded a return of his money. James Lynch told Queen that the diamond was chipped and that there was an abrasion to the band.
On March 25, 2000, Queen hand delivered a memorandum to Lynch Jewelers wherein he rescinded the purchase and demanded a refund. Lynch Jewelers refused to refund the money Queen had paid on the ring. In addition, James Lynch told Queen that he would not get the ring back until it was paid off. On March 27, 2000, James Lynch and John Lynch, another Lynch Jewelers employee, sent a signed letter to Queen wherein they stated that Queen would have to pay his account in full before the ring would be returned to him. Lynch Jewelers repaired the ring by removing scratches from the band, removing a chip from the center stone, and resetting the stone into the band.
Queen brought suit against Lynch Jewelers and James Lynch (collectively referred to as the defendants), wherein he asserted several grounds for relief. Specifically, the claims brought by Queen against the defendants were revocation of acceptance, fraud, conversion, and violations of the KCPA and the TILA. Before trial, Queen moved for summary judgment on his conversion claim and on the TILA violation. The defendants also moved for summary judgment on Queen’s claims for the KCPA violation, conversion, fraud, and the TILA violation. The trial court denied Queen’s motion for summary judgment and granted the defendants’ motion for summary judgment on the conversion, fraud, and KCPA claims.
After hearing the evidence at trial, the trial court granted a directed verdict against Queen on his TILA claim. As such, the only claim submitted to the jury was revocation of acceptance. The jury found that Lynch Jewelers breached its contract with Queen and awarded him damages in the amount of $4,507.84, the total amount he paid for the ring to the date of trial.
Federal Truth in Lending Act
Queen’s first argument on appeal is that Lynch Jewelers violated the TILA by failing to provide him with written TILA disclosures before consummation of the installment contract. Queen claims that Lynch Jewelers’ failure to provide separate TILA disclosures violated the TILA and required reversal of the directed verdict granted to Lynch Jewelers and entry of summary judgment on his behalf.
“ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ [Citation omitted.]” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
Determination of whether the trial court erred in granting a directed verdict against Queen on his TILA claim requires interpretation of the TILA. Interpretation of a statute is a question of law, and our review is unlimited. This court is not bound by the trial court’s interpretation of the statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
The purpose of the TILA, 15 U.S.C. § 1601 (2000) et seq., is “to assure meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him.” 15 U.S.C. § 1601(a) (2000). To that end, the TILA mandates that creditors make specific disclosures when extending credit to consumers. See 15 U.S.C. § 1638(a) (2000). These disclosures include the identity of the creditor, the amount financed, the finance charge, and the total number of payments. 15 U.S.C. § 1638(a). It has been said that the TILA changed the philosophy of “let the buyer beware” to “let the seller disclose.” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 377, 36 L. Ed. 2d 318, 93 S. Ct. 1652 (1973).
When Congress enacted the TILA, it gave the Federal Reserve Board paramount authority to implement and interpret the Act. The Board’s power to prescribe regulations is extremely broad. Congress explicitly stated that the Board’s regulations “may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper” to effectuate the purposes of the Act or facilitate compliance with the Act. 15 U.S.C. § 1604 (2000). In addition to giving the Board broad regulatory powers, Congress provided in the Act itself that the disclosures required by the Act are to be made in accordance with the regulations of the Board. 15 U.S.C. § 1631 (2000). Moreover, Congress has indicated that the Board’s interpretations should be deferred to by the court. Super Chief Credit Union v. Gilchrist, 232 Kan. 40, 43-44, 653 P.2d 117 (1982); see 15 U.S.C. § 1640(f).
For the purpose of this appeal, the relevant portion of the TILA is 15 U.S.C. § 1638(b)(1) (2000), which governs the form and time of disclosures for closed-end credit transactions. The statute provides that “the disclosures required [by the TILA] shall be made before the credit is extended.” 15 U.S.C. § 1638(b)(1). Also important is Regulation Z, 12 C.F.R. § 226.1 (2000) et seq., promulgated pursuant to the Federal Reserve Board’s authority under the TILA. Regulation Z provides in pertinent part:
“(a) Form of disclosures. (1) The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures shall be grouped together, shall be segregated from everything else ....
“(b) Time of disclosures. The creditor shall make disclosures before consummation of the transaction.” 12 C.F.R. § 226.17 (2002).
Consummation of a credit transaction occurs when the consumer becomes contractually obligated on the credit transaction. See 12 C.F.R. § 226.2(a)(13) (2002). Queen became contractually obligated on the credit transaction when he signed the contract. Queen is a consumer as defined by 15 U.S.C. § 1602(h) (2000), and Lynch jewelers is a creditor as defined by 15 U.S.C. § 1602(f) (2000).
The TILA is to be broadly construed to provide protection for the consumer. As such, any failure to disclose information as required by the TILA or Regulation Z results in a technical violation. See Walters v. First State Bank, 134 F. Supp. 2d 778, 780 (W.D. Va. 2001).
Queen argues that Lynch Jewelers was required under the TILA to give him a written copy of the TILA disclosures before he entered into the credit transaction. This issue deals with the timing and the proper form for the TILA disclosures. The Kansas appellate courts have not addressed this issue and, as a result, consideration of cases from outside the jurisdiction is necessary.
To support his argument that Lynch Jewelers’ actions violated the TILA, Queen relies on Polk v. Crown Auto, Inc., 221 F.3d 691 (4th Cir. 2000). In Polk, a car dealership representative orally explained the credit terms to the buyer, but did not disclose the terms in writing in a form the buyer could take with him. After the parties consummated the credit transaction, the dealership representative gave the buyer copies of tire retail installment sales contracts which contained the credit terms. The buyer alleged that the dealership violated the TILA and Regulation Z by not disclosing the credit terms before consummation of the transaction. The Polk court agreed, finding that the dealership was required to make the TILA disclosures to the buyer in writing and in a form that he could keep before consummation of the credit transaction. The grant of summary judgment to the dealership was reversed, and the case was remanded with directions to order judgment in favor of the buyer. 221 F.3d at 692.
Some district courts have interpreted Polk as requiring a creditor to give a copy of the TILA disclosures to the consumer in a form he or she can keep before consummation of the transaction. For example, Walters, 134 F. Supp. 2d 778, relied on Polk in holding that a bank violated Regulation Z when it gave a copy of the credit contract containing the TILA disclosures after the consumer signed the contract. The Walters court rationalized that “[s]urely, the requirement of Regulation Z, as interpreted in Polk, that the consumer be given written disclosures, in a form that she can keep, means more than that the consumer simply must be shown the disclosures on the original credit contract prior to signing it.” 134 F. Supp. 2d at 781.
Walters noted that its holding was consistent with the holding in hozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D. 321 (W.D. Mich. 2000). In hozada, the creditor argued that showing a consumer the written disclosures is sufficient to comply with the TILA disclosure requirement. The hozada court responded to that argument as follows:
“Were the court to accept the position of [the creditor] that the regulation required only that consumers be shown the disclosures before becoming contractually obligated, the phrase ‘in a form that the consumer may keep’ would be rendered meaningless. In other words, if the regulation means no more than that the disclosures be made to consumers in vmting, no additional meaning would be conveyed by requiring the form be one the consumer could keep.” 197 F.R.D. at 337.
The hozada court concluded that Regulation Z requires “delivery of a copy of the required disclosures to a consumer before consummation of the transaction” and cited Polk in support of that proposition. 197 F.R.D. at 337.
However,' Polk does not require that a creditor separate the consumer’s copy of the credit contract from the other copies of the contract and give the copy to the consumer before the consumer signs the contract. Such a requirement was rejected in Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp. 2d 535 (E.D. Va. 2001). The buyer in Nigh purchased a vehicle from a dealership, financing it with a retail sales contract. An employee of the dealership discussed the credit terms with the buyer, filled in a retail sales contract, and gave the buyer a copy of the contract after execution. The buyer brought suit against the dealership, alleging that the dealership violated the TILA by failing to provide a copy of the credit terms before he signed the sales contract so that he could shop for better credit terms.
The Nigh court rejected the argument that the creditor was required to provide the consumer with a separate copy of the TILA disclosures before consummation of the transaction. Instead, Nigh held that giving the consumer the TILA disclosures on the contract before the consumer signed the contract complied with the TILA timing requirement. The court explained that the contract contained the required disclosures, the consumer had the opportunity to read the contract before signing it, and the consumer could have deferred signing if he chose to shop for a better interest rate. 143 F. Supp. 2d at 548-49.
The Nigh court noted that Polk does not state that the retail installment contract cannot be the document that the consumer may keep. 143 F. Supp. 2d at 548-49. In fact, the Federal Reserve Board’s official staff commentary to Regulation Z provides that the disclosures may be made on the same document as the credit contract, provided they are segregated from the rest of the document. Official Staff Commentary on Regulation Z, 12 C.F.R. Pt. 226, Supp. I, § 226.17.
Nigh further noted that Polk is directed to the timing of the disclosures rather than the form of the disclosures. Nigh stated that “[t]he Polk court’s principal holding was that a [sic] auto dealership (or other creditor) cannot give a buyer/debtor a copy of his credit terms after the consummation of a transaction; the dealer must provide a detailed disclosure of the credit terms in writing before consummation of the transaction.” 143 F. Supp. 2d at 548. Nothing in Polk addressed the meaning of the language “in a form that the consumer may keep” in Regulation Z. Nigh, however, considered this issue and, as noted previously, found that a credit contract containing the TILA disclosures presented to the buyer before consummation of the credit transaction complies with the form requirements of the TILA. 143 F. Supp. 2d at 548-49.
We find the rationale applied in Nigh persuasive and hold that a creditor complies with the TILA disclosure requirements when tire creditor presents a credit contract containing the TILA disclosures to a consumer before consummation of the credit transaction. Regulation Z requires a creditor to give the consumer the TILA disclosures in a form he or she can keep before consummation of the transaction. We find that there is no meaningful distinction between separation of a consumer’s copy from the other copies of a credit contract containing the TILA disclosures before or after signature. As a result, we reject Queen’s contention that Lynch Jewelers was required to provide him with written copies of the disclosures separate from the copies of the contracts before he signed the contracts.
Queen has not shown, and cannot show, that Lynch Jewelers failed to comply with the TILA disclosure requirements. The uncontested evidence establishes that Lynch Jewelers provided him with contracts containing the TILA disclosures for his review before signing. The contracts, indisputably, were in writing and were in multiple copy form, with one copy for Queen. As such, the TILA disclosures were in a form capable of being kept or taken away. Queen was in physical possession of all copies of the contracts when he signed them. There is no evidence that Queen could not have kept or taken away his copies of die contracts containing the TILA disclosures before he signed. Queen chose to sign immediately and did not shop around for better credit terms. Lynch Jewelers should not be held hable for Queen’s decision.
As a result, we find that the evidence submitted in this case supports the determination that Queen cannot prove that Lynch Jewelers failed to malee the TILA disclosures in a form that he could keep before consummation of the transaction. The trial court did not err in granting a directed verdict in favor of Lynch Jewelers on the TILA claims.
Conversion
Next, Queen claims that the trial court erred in denying his motion for summary judgment on his conversion claim and entering summary judgment in favor of the defendants on that claim. The trial court found that the defendants were entitled to summary judgment because, as a matter of law, the act of retaining possession of the ring after Queen revoked acceptance could not constitute conversion. The trial court rationalized that the defendants could not have committed conversion because they had no obligation under the Uniform Commercial Code to return the ring to Queen after he revoked acceptance.
The standard of review for a motion for summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
“When the issue on appeal is whether the trial court correctly granted summary judgment, an appellate court should read the record in the light most favorable to the parly against whom summary judgment was entered.” Bi-State Dev. Co., Inc. v. Shafer, Kline & Warren, Inc., 26 Kan. App. 2d 515, 517, 990 P.2d 159 (1999).
Conversion is defined as “the unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other’s rights.” Moore v. State Bank of Burden, 240 Kan. 382, 386, 729 P.2d 1205 (1986). A conversion may be based upon the detention of or unreasonable withholding of possession from one who has the right to possess it. 18 Am. Jur. 2d, Conversion § 47, pp. 176-77. One in possession of a chattel, as a bailee or otherwise, who, on demand, refuses without proper qualification to surrender it to another entitled to its immediate possession is subject to liability for conversion. Restatement (Second) of Torts § 237 (1965). “To maintain an action for conversion, a plaintiff must have actual possession of the property or a right to immediately take possession of the property.” Gillespie v. Seymour, 14 Kan. App. 2d 563, 572, 796 P.2d 1060 (1990).
Queen alleges that the defendants converted the ring when they failed to return it after he demanded its return. However, the trial court found that the defendants did not commit conversion because they had no obligation under the Uniform Commercial Code to return the ring to Queen after he revoked acceptance. “Revocation of acceptance is a refusal to keep delivered goods that occurs after a buyer has accepted and the time for rejection has expired.” Johnson v. General Motors Corp., 233 Kan. 1044, 1046, 668 P.2d 139 (1983).
If Queen had possession of the ring after revocation of acceptance, then he would have been required to follow any reasonable instructions by Lynch Jewelers with respect to the ring. See K.S.A. 84-2-604. If Lynch Jewelers did not provide reasonable instructions, then Queen could have stored the rejected ring, reshipped the ring to Lynch Jewelers, or resold the ring for Lynch Jewelers’ account, all at Lynch Jewelers’ expense. See K.S.A. 84-2-604. In addition, Queen could have cancelled under K.S.A. 84-2-711 or covered by purchasing a substitute ring and recovered damages under K.S.A. 84-2-712. If Queen had possession or control of file ring after he rightfully revoked acceptance, he would have had a security interest in the ring. See K.S.A. 84-2-711(3).
Queen, however, did not have possession of the ring when he revoked acceptance. Instead, the ring was in the possession of the defendants because Queen voluntarily left the ring with them. Queen argues that he had the right to possession of the ring under K.S.A. 84-2-711(3). However, a buyer’s right to possession after revocation of acceptance is not absolute. Under K.S.A. 84-2-604, it seems that Queen elected to return the ring to the defendants. As such, to determine whether Queen has a claim for conversion, we must determine whether the defendants had rightful possession of the ring.
As noted previously, revocation of acceptance is a remedy available to an aggrieved buyer after acceptance of goods whereby the buyer may refuse to keep the goods. See Johnson, 233 Kan. 1044, Syl. ¶ 1. Although no case law could be found on the issue, a seller who has possession of goods at the time of revocation has no obligation under the Uniform Commercial Code to return the goods to the buyer. Such a requirement would be inconsistent with revocation of acceptance as a remedy for an aggrieved buyer to refuse to keep goods. As a result, we find that a seller in possession of goods when a buyer revokes acceptance has no obligation to return the goods to the buyer.
This finding is consistent with K.S.A. 84-2-604, which provides that a buyer’s exercise of any of the options under the statute “is not acceptance or conversion.” The Kansas Comment to the section states that K.S.A. 84-2-604 prevents a buyer’s actions “from being treated as acceptance or conversion of the goods.” K.S.A. 84-2-604, Kansas Comment, 1996. If a buyer cannot be held liable for conversion when he or she retains possession of goods after revocation of acceptance, it follows that a seller cannot be held hable for conversion if it is in possession of tire goods when the buyer revokes acceptance.
Here, the defendants were in possession of the ring when Queen revoked acceptance and had no obligation under the Uniform Commercial Code to return the ring to Queen. Because the defendants were in rightful possession of the ring after Queen elected to return it to them, as a matter of law, they could not have committed conversion. As a result, we find that the trial court did not err in granting summary judgment in favor of the defendants on Queen’s claim of conversion.
The Kansas Consumer Protection Act
Finally, Queen contends that his claims under the KCPA, K.S.A. 50-623 et seq., should have survived summary judgment. “Whether a deceptive act or practice has occurred under the Kansas Consumer Protection Act is not a question of law for the court, but rather a question of fact for the jury to decide.” Manley v. Wichita Business College, 237 Kan. 427, Syl. ¶ 2, 701 P.2d 893 (1985). Although the issue of whether a supplier has engaged in a deceptive act in violation of the KCPA typically is a jury question, summary judgment is appropriate if there is no evidence of deceptive conduct. See Stair v. Gaylore, 232 Kan. 765, 775-76, 659 P.2d 178 (1983) (affirming directed verdict for defendant on some KCPA claims because no evidence of deceptive or unconscionable acts was presented and reversing on other KCPA claims).
The KCPA prohibits, inter alia, a supplier from engaging in “any deceptive act or practice in connection with a consumer transaction.” K.S.A. 50-626(a). The Act also provides that “[n]o supplier shall engage in any unconscionable act or practice in connection with a consumer transaction.” K.S.A. 50-627(a). Under the KCPA, a “supplier” is a person who, in the ordinary course of business “solicits, engages in or enforces consumer transactions . . . .” K.S.A. 50-624(i). A “consumer transaction” is “a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer . . . .” K.S.A. 50-624(c). A “con sumer” is one who “seeks or acquires property or services for personal, family, household, business or agricultural purposes." K.S.A. 50-624(b). The defendants acknowledge that they are suppliers under the KCPA and that the sale of the ring was a consumer transaction under the statute.
In his petition, Queen alleged that the defendants violated the KCPA when they
“made the following various misrepresentations knowingly, or with reason to know, that they were false and were thus in violation of K.S.A. 50-626 and 50-627:
“a. the setting was represented by James Lynch to be a T4 carat’ white gold ring;
“b. the stone had suffered ‘chip’ damage when in Plaintiff s possession, which the seller repaired ‘without loss of carat weight’, and the setting suffered abrasion damage;
“c. the seller had lawful right to possession of the stone and ring, in spite of the demand for its return by Plaintiff on March 26, 2000.”
Queen further alleged that “the totality of the Defendant seller s conduct in this transaction constitutes unconscionable conduct under K.S.A. 50-627
At the hearing on the motions for summary judgment, Queen reiterated that his KCPA claims were based on the acts alleged in his petition. Queen did not allege any additional conduct by the defendants to support his KCPA claims. Queen also stated at the motions hearing that the defendants’ conduct violated subsections (a) and (b)(8) of K.S.A. 50-626. As noted previously, K.S.A. 50-626(a) generally prohibits any deceptive practice in a consumer transaction. Subsection (b)(8) of the statute prohibits “falsely stating, knowingly or with reason to know, that a consumer transaction involves consumer rights, remedies or obligations.” K.S.A. 50-626(b)(8). The trial court granted summary judgment to the defendants on Queen’s KCPA claims because there was no evidence to support those claims.
On appeal, Queen alleges multiple violations of the KCPA. First, Queen claims that the defendants’ violations of the TILA constitute a violation of the KCPA. This argument, however, was not presented to the trial court and, as a result, will not be considered for the first time on appeal. See Wood v. Groh, 269 Kan. 420, 434, 7 P.3d 1163 (2000) (“A new legal theory may not be asserted for the first time on appeal . . . .”).
In addition, Queen claims that the defendants violated the KCPA by vandalizing the ring and accusing him of causing the damage. First, Queen’s allegation that the defendants vandalized the ring cannot be considered on appeal because it was not presented to the trial court. Furthermore, Queen’s allegation that the defendants accused him of vandalizing the ring does not involve any false statement regarding consumer rights, remedies, or obligations, nor does the statement constitute a deceptive practice. See K.S.A. 50-626(a); K.S.A. 50-626(b)(8). As such, the trial court was correct in granting summary judgment to the defendants on this alleged violation of the KCPA.
Queen also claims that the defendants’ statement that they had the lawful right to possession of the ring is a violation of the KCPA. This claim must fail because, as found previously, the defendants had lawful possession of the ring after Queen revoked acceptance. Because the defendants had lawful possession of the ring, their statement to that effect did not constitute a violation of the KCPA.
Finally, Queen alleges that the defendants violated the KCPA when they represented that the solitaire was a “one carat diamond” after the chip was repaired. Again, Queen revoked acceptance of the ring before the solitaire was repaired and before the defendants represented that it was a 1 carat diamond. Accordingly, the defendants’ statement that the solitaire was a 1 carat diamond after repair is not a statement regarding a consumer right, remedy, or obligation. See K.S.A. 50-626(b). Moreover, Queen has presented no evidence that the repair process caused the solitaire to weigh less than 1 carat.
As a result, we find that the trial court did not err in granting summary judgment in favor of the defendants on Queen’s claims that they violated the KCPA.
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one for compensation under the act relating to compensation to veterans of the world -war. Compensation was denied by the compensation board. The veteran appealed to the district court, and compensation was again denied. Meantime, the veteran died, and the action was revived in the name of his widow, Linnie E. Knuth. The widow appeals.
The question involved is whether or not the veteran was a resident of Kansas when he entered the service. There is no conflict in the evidence which established the following facts:
George F. W. Knuth was born in Germany on March 12, 1875. When a boy he came with his parents to Minnesota and settled in that state. On July 2, 1898, when he was a little more than twenty-three years old, he enlisted in the army of the United States and, with the exception of a few days between discharges and reenlistments, he remained in the army until he retired in 1930. His death occurred in September, 1931. All of his discharges were honorable.
In 1909 Knuth was transferred to Fort Leavenworth. Fort Leavenworth remained Knuth’s military station until he retired from the army, and he was not away from the station except from October, 1918, to March, 1919, while on military duty.
In March, 1905, Knuth married the present appellant at Oakland, Cal. In 1906 or 1907 a son was born, who is still living. Knuth was transferred to Fort Leavenworth in January, 1909, and his wife came in February. At first they lived on Ottawa street in the city of Leavenworth, which is in Leavenworth county, Kansas. Later Knuth purchased a house and lot at 608 Dakota street in the city of Leavenworth. Fort Leavenworth is also in Leavenworth county, Kansas, and the city of Leavenworth adjoins the military reservation on the south. On May 1, 1909, the Knuths moved into their own home at 608 Dakota street. About 1915 Knuth tore down the house and erected on the lot a more modern home. From May 1,1909, until his death, Knuth and his family made their home at 608 Dakota street, Leavenworth, with this exception: Knuth attained the rank of master sergeant. The government furnished quarters on the military reservation to master sergeants, and from sometime in 1913 until December, 1917, Knuth and his wife occupied such quarters. As indicated, Knuth himself was absent on duty from October, 1918, to March, 1919. When he returned, he returned to his home on Dakota Weet.
In 1910 Knuth registered as a voter residing at 608 Dakota street in the city of Leavenworth, and he voted regularly at elections, even during the period he was occupying government quarters at the fort.
Under the Kansas compensation act Knuth’s service in the world war dated from April 6, 1917. A term of enlistment expired in January, 1917. On January 12, 1917, he reenlisted and gave Fort Leavenworth as his residence at that time. As indicated, at that time Knuth and his wife were living in government quarters at the fort, but in December, 1917, they moved back to their home at 608 Dakota street.
The state of Minnesota enacted a soldiers’ bonus law in 1919. The Kansas compensation act became effective January 19, 1923. In March, 1921, Knuth made application for bonus under the Minnesota law. The application was allowed, and the bonus was paid.
■ In the verified application for'the Minnesota bonus, Knuth gave the date of his enlistment as July 2, 1898, gave the place of his enlistment as Worthington, Minn., and stated he had been in the United States army ever since July 2, 1898. He stated he was a resident of Minnesota for twelve years previous to enlistment, and gave his legal residence at the time of enlistment (1898) as Brewster, Minn. He gave his legal residence at the time of his application (1921) as the United States army, gave his business address as United States army, and gave his permanent address as Post Headquarters, Fort Leavenworth, Kan. The state of Minnesota received credit for Knuth’s service in the world war.
The district court found Knuth was not a resident of Kansas on April 6, 1917, but the court did not indicate the place of Knuth’s residence on that date. The statute reads:
“The term ‘residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. . . .” (R. S. 77-201, 23d subdiv.)
While for many purposes there is a clear legal distinction between residence and domicile, the statute was really dealing with domicile. (Modern Woodmen v. Hester, 66 Kan. 129-136, 71 Pac. 279; Pendleton v. Pendleton, 109 Kan. 600, 201 Pac. 62; Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054. See, also, Hart v. Horn, 4 Kan. 232.)
What constitutes domicile and how domicile may be acquired, maintained and changed are sufficiently discussed in the opinions in the cases cited. In the case of Keith v. Stetter, 25 Kan. 100, the opinion by Brewer, J., reads:
“The residence of a man who has a family which he maintains, and which has an established home, is prima jade with that family. Wherever he locates that family in anything like a fixed and permanent residence, it is presumptively his chosen place of residence. Wherever he may go for business or pleasure, he resides at home, and home is where the family dwell.” (p. 103.)
In this instance, Knuth’s domicile after coming to the United States was in Minnesota, and it is elementary that he neither gained nor lost his domicile by reason of service in the United States army. However, in 1909 and 1910 he did everything a man could do to manifest abandonment of the Minnesota domicile, which existed as a matter of legal theory only, and to manifest adoption of 608 Dakota street, city of Leavenworth, Kan., as his domicile in fact. The presumption arising from the facts which have been stated is that when he settled his family in the home he had purchased and lived there with them, that place was his domicile, and there is no evidence to overthrow the presumption. In 1913 the government provided quarters for master sergeants at the fort. Knuth took advantage of the opportunity and moved into the government quarters. In 1915, while occupying quarters at the post, he made the house into a modern home. He continued to exercise the privilege of citizenship by voting in the city of Leavenworth, and in 1917 he moved back to his home at 608 Dakota street, city of Leavenworth, Kan.
When Knuth’s term of enlistment expired in January, 1917, he reenlisted and gave his residence as Fort Leavenworth, where he was in fact living. What did he mean when he said his residence was Fort Leavenworth? The statement was perfectly true and perfectly normal if the word residence was used in the popular sense, but was very queer if used in the legal sense. Did Knuth understand the difference between residence and domicile and mean to say he had abandoned the home he had purchased and improved and occupied, intending not to return, had renounced the political privileges which residence in the city of Leavenworth afforded and which he was regularly exercising, and had adopted as a permanent abode for himself and family a place where he could not continue to reside for a day at his own volition, and a place to which he could not return, if absent, except on orders? The reenlistment was just another reenlistment in the army, and the court holds it would be unreasonable to interpret Knuth’s designation of residence as designation of domicile. Nothing occurred between January 12 and April 6, 1917, to effect a change of Knuth’s domicile, and the necessary conclusion is that when Knuth entered service in the world war he was a resident of Kansas within the meaning of the veteran’s compensation act.
The material statements contained in the application for the Minnesota bonus have been recited. No statement of fact contradicted the fact that in April, 1917, Knuth was a bona fide resident of Kansas. The fact of residence controls, and not the procuring of payment of bonus by another state. (Parrish v. Soldiers’ Compensation Board, 117 Kan. 301, 231 Pac. 332.)
The judgment of the district court denying compensation is reversed, and the cause is remanded with direction to enter judgment for the veteran’s widow. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action, as originally brought by F. M. Horn against A. Beal, was one to recover on three cattle transactions between the parties. One count was to recover $7,000, another one to recover $111.50 on a commission for the sale of cattle, and still another to recover $14,500. Interest on the several claims was asked.
While the case was pending in the district court, and before trial, A. Beal died testate, and there was a revivor of the case in the names of Harlan E. Beal and the National Bank of Topeka, executors of the last will of A. Beal. Harlan E. Beal and the National Bank of Topeka thereafter prepared the defense and tried the case, contesting the claims of plaintiff. The defendants prevailed in the action, and plaintiff appeals.
The principal controversy between the parties arises upon the first and third counts of plaintiff’s petition, in which he asked a recovery of $7,000 on the first count, and $14,500 upon a third count. On the first, plaintiff alleged, in substance, that in 1925 the plaintiff and A. Beal entered into an oral agreement that the plaintiff should use his time and experience in the purchase of cattle in Texas and that A. Beal would furnish the money to pay for them, the cattle to be pastured and fed by Beal and then marketed, the profits and losses to be equally divided between plaintiff and Beal after deducting any legitimate expenses incurred by either party in handling them.
It was alleged that in 1926, by oral agreement, 300 head of steers were purchased from W. R. Schreiner, of Texas; that plaintiff went to Texas and made the purchase, and that on October 14, 1926, the cattle were received and paid for by a draft on Beal, and then it was arranged to have them wintered by Schreiner; that these cattle were shipped to Beal at Valencia in the spring of 1927; that on or about August 1, 1927, W. H.'Shroyer, who was a cattle dealer of the Missouri Live Stock Commission Company, of St. Joseph, Mo., came to the plaintiff’s office and represented that he had a buyer interested in the purchase of said steers. Beal and .plaintiff, con sidered the price at which they would sell the cattle and then agreed not to sell them for less than $100 per head. That on August 2, Shroyer came to plaintiff and after further negotiations proposed that the cattle be sold to W. D. Heidrick on a basis of $95 a head for 240 of them, and $90 a head for the remaining sixty. That Shroyer then produced a written contract of sale of the date of August 2, 1927, which was signed by Beal, and W. D. Heidrick, by Shroyer, and which plaintiff signed. Plaintiff alleged that the contract as so signed and delivered to Shroyer was done with the fraudulent intent of deceiving and defrauding plaintiff; that Beal did not sell the cattle to Heidrick as stated for the price mentioned therein, and in truth and in fact no sale was made at that time. The contract of sale, it was alleged, was executed by Beal in conspiracy with Shroyer with the purpose of defrauding plaintiff; that the statements in the contract were false and fraudulent, and were made for the purpose of inducing plaintiff to accept his proportionate share of the profits derived from the claimed sale, and that Beal after-wards purchased the cattle from Shroyer and thus fraudulently obtained ownership of the cattle to be held and sold by him on a higher market; that the cattle were actually sold in the fall of 1927 by Beal, at a price of approximately $40,000, the exact amount being unknown to plaintiff, and that plaintiff was induced to accept as his proportionate share of the profits the sum.of $1,960.53, under the sale contract, and that this sum was accepted by him relying on the truth of the representations made by Beal. Plaintiff claimed that his share of the net profits received from the actual sale of the cattle was approximately $7,000 in addition to the amount received by plaintiff for which he made settlement. For this $7,000 he asked judgment against defendants.
The claim of $111.50 under the second count was for one-half of the commission, $223, claimed to have been paid on the sale of the 300 head of steers sold to Shroyer which was charged to him in the settlement and which he alleges he would not have paid except for the fraudulent representations that an actual sale had in fact been made.
In the third count plaintiff alleges that in 1926 he told A. Beal that W. R. Schreiner, of Texas, had 400 three-year-old steers for sale and advised Beal to make arrangements for their purchase. The plaintiff says that he procured an option for their purchase and delivery in the succeeding fall, and he states that it was arranged that the purchase should be made by both parties on the same terms as to payment and division of profits as in former deals; that later, in October, 1927, when plaintiff inquired of Schreiner when he would be ready to deliver the steers he was told that they had been already sold to Beal for $70 per head, to be pastured and fed by Schreiner until May 1, 1928, and that at the time of the sale to Beal the latter had fraudulently represented to Schreiner that the reason plaintiff did not come down on the purchase was that plaintiff was too busy to get away. He further alleged that the steers purchased by Beal were the same ones upon which he had obtained an option and that they were to be purchased upon the same arrangements as the other deals between him and B.eal. He alleged that there had been three former cattle deals between them on the basis mentioned, in one of which there had been a loss which was adjusted in the settlement made, in which the profits had been equally divided between them, and that there was a profit on the purchase of the 400 steers of $29,000, one-half of which he claimed as his share in the transaction.
In their answer defendants deny there was ever any general partnership between Beal and the plaintiff, but they admitted that there were several individual or special agreements in which plaintiff had an interest, but that settlements had been made at the closing of these deals. One of these was the purchase and handling of the 300 steers mentioned in the first count of the petition, and that these steers were purchased and shipped to Valencia to Beal and after being pastured and fed were sold to Shroyer, and that the profits of the transaction were equally divided between them. On January 16, 1928, they alleged, the settlement was made. They specifically deny that there was any misrepresentation or fraud in the sale to Shroyer and allege that Shroyer purchased the 300 head of steers and later sold them to A. Beal and his son, Harlan E. Beal, for a small margin of profit. Shroyer, they alleged, sold the cattle to A. Beal and H. E. Beal, and that the plaintiff had no connection with ;fche purchase, had no interest in those steers then or since that time. They state that they purchased them solely on their own account, and that neither A. Beal nor his son, Harlan E. Beal, ever had made any agreement that plaintiff should have any part in the ownership of the cattle or profits or rights in that purchase. They deny that plaintiff had any interest or connection with the transaction mentioned in the third count of the petition where 400 head of cattle were purchased by A. Beal and his son, Harlan E. Beal, alleging that they were purchased solely on their own account and that plaintiff had no interest in them.
On the issues joined testimony was produced and the jury made special findings as follows:
“1. Was the written contract for sale of the 300 head of cattle described in plaintiff’s first cause of action, which was signed by F. M. Horn, A. Beal and W. D. Heidrick by-W. H. Shroyer, on August 2, 1927, a sale in good faith to W. D. Heidrick? A. A sale to W. D. Heidrick, in good faith, if he wanted them; if not, to W. H. Shroyer.
“2. Did F. M. Horn sign the contract mentioned in question 1, believing at the time he signed it that it was a sale in good faith to W. D. Heidrick? A. Yes, either W. D. Heidrick or W. H. Shroyer.
“3. Did W. D. Heidrick give W. H. Shroyer any authority to purchase for him the cattle described in plaintiff’s first cause of action? A. No.
“4. Did W. D. Heidrick, prior to the execution of the written contract mentioned above, agree to meet W. H. Shroyer at Valencia or Topeka, at any certain time, for the purpose of going out and examining the cattle mentioned in said written contract, with a view to purchasing the same? A. No certain time.
“5. Did W. D. Heidrick tell W. H. Shroyer that if he did not arrive at a certain time, to inspect the cattle, that Shroyer might purchase them himself? A. No.
“6. Did W. H. Shroyer write out and cause to be signed by A. Beal, at the Jayhawk Hotel, contract of sale mentioned above before he took it to the office of Mr. Horn for his signature? A. No.
“7. Did F. M. Horn agree that W. H. Shroyer should be paid, and did W. H. Shroyer agree to accept, a commission of approximately $223 for making a sale of the cattle in question to W. D. Heidrick? A. Yes.
“8. Did F. M. Horn ever agree to pay W. H. Shroyer a commission of approximately $223 for making a sale of said cattle to himself? A. No.
“9. Was plaintiff’s half of the commission charged by Shroyer paid by plaintiff? A. No.
‘TO. Was the claimed purchase of the cattle mentioned in the contract of August 2, 1927, and the claimed resale thereof to A. Beal, or to Beal and his son, a bona fide sale or was it a pretended sale made for the purpose of transferring the title to plaintiff’s interest in the cattle to Beal, or to Beal and his son? A. Yes, bona fide sale.
“11. Was plaintiff advised, either by A. Beal or Shroyer, on August 2 or August 3, 1927, of any sale of the cattle in question other than the sale to W. D. Heidrick, as evidenced by the written contract? A. The sale to be made either to W. D. Heidrick or W. H. Shroyer.
“12. Was there a sale of the cattle described in plaintiff’s first cause of action from Beal and Horn to Shroyer, and if so, when was it made, and what was the consideration paid by Shroyer to Beal and Horn? A. Yes, August 2, 1927. $95 for 240 head and $90 for the cuts.
“13. If you find there was a sale from Beal and Horn to Shroyer, did Shroyer sell the cattle to Beal, or to Beal and son, and if so, on what date was said sale made? A. A. Beal & Son, Harlan E. Beal, on or about August 3, 1927.
“14. If you answer the last question in the affirmative, what was the consideration for the sale from Shroyer to A. Beal or A. Beal and son? A. $95 for 240 head and $90 for the balance plus commission to the Missouri Live Stock Commission Company, St. Joseph, Mo.
“15. Did plaintiff procure an option from W. R. Schreiner for the purchase of the 400 head of cattle described in plaintiff’s third cause of action, for himself and A. Beal, in the spring of 1927? A. No.
“16. Was there an agreement between plaintiff and A. Beal by which they were to buy and handle the cattle described in plaintiff’s third cause of action as partnership cattle, and if so, when was such agreement made'? A. No.
“17. Were the cattle described in plaintiff’s third cause of action partnership cattle under any agreement entered into between plaintiff and A. Beal? A. No.
“18. Did A. Beal purchase from W. R. Schreiner, on August 13, 1927, for himself and his son, Harlan Beal, 364 head of three-year-old steers under written contract dated August 13, 1927, and marked defendants’ exhibit 5? A. Yes.
“19. Did A. Beal or his son Harlan Beal at any time after August 13, 1927, agree to give plaintiff any interest in the cattle referred to in defendants’ exhibit 5? A. No.
“20. Did A. Beal have any cattle deals with plaintiff Horn after January 16, 1928? A. No.
“21. Did Harlan Beal, acting for his father, A. Beal, on January 16, 1928, make a final settlement with plaintiff for all profits and losses on the several partnership deals between the parties, and did Harlan Beal pay plaintiff at that time $638.85 for A. Beal, in full settlement of the profits on the several previous cattle deals? A. Yes.
“22. Did W. H. Shroyer, at the time of the contract, August 2, 1927, marked plaintiff’s exhibit 1, give A. Beal, for Horn and Beal, a draft on the Missouri Live Stock Commission Company of St. Joseph, Mo., for $3,000, as a payment on the purchase price of the cattle mentioned in said contract, according to the terms of the same? A. Yes.
“23. Did plaintiff, at the time of accepting said check mentioned in question 21, have full knowledge of the material facts relating to the sale of 300 head of cattle described in plaintiff's exhibit 1? A. Yes.
“24. If you answer the last question in the negative, state what facts plaintiff did not have knowledge of. A. -.”
The court approved the special findings of the jury, with the exception of one to the effect that plaintiff had not paid the commission on a sale of the cattle, and this finding, in view of the result of the case, is of no material importance. Judgment was then entered for the defendants, except as to the commission charge of $111.50.
No motion for a new trial was made by plaintiff within three days after the findings of the jury came in. A motion was made within three days after the findings were approved and adopted by the court, and an entry of judgment made, and this was several months after the findings of the jury were returned. On this question plaintiff asserts that the jury were only acting in an advisory capacity, that the case was one of equitable cognizance and that in such a case the findings do not become effective until adopted by the court. The trial court stated on the motion for a new trial that the court did not ask or suggest that the advice of the jury be taken, but that the jury was called under an agreement of counsel. It further remarked that he did not regard the case as one of purely equitable cognizance, but that in the counts mentioned sums of money were asked for which A. Beal had wrongfully received. It was not an action for a dissolution of a-partnership nor for an accounting in any proper sense of that term. As to the first count there was no question as to the sale contract, but the principal complaint was as to whether a fraud had been committed by A. Beal in obtaining the plaintiff’s signature.
Defendants contend that plaintiff is not entitled to a review of the proceedings, as the motion for a new trial was not made within time. Plaintiff contends that the case was one of equitable cognizance, that the jury was only acting in an advisory capacity and that its findings did not become effective until they were approved and adopted by the court and a judgment thereon entered. The court stated, as we have seen, that it did not regard the case as one of equitable cognizance and that it was not one for a dissolution of a partnership or an accounting in any proper sense of that term. The court finally ruled that whether or not the motion for a new trial was made within time, the court, even on plaintiff’s theory, would be compelled to render judgment for defendants on the merits of the case.
'Without determining the contention of defendants and assuming that the motion for a new trial was filed in due time, we think that the judgment for defendants must be upheld.
On the first count the plaintiff charged conspiracy and fraud against A. Beal, but there was testimony that a bona fide sale was made by Horn and Beal of the- 300 head of cattle involved in that transaction. A written contract was prepared and signed by Horn and Beal, and W. D. Heidrick by Shroyer, in which the prices were specified. It was testified that Shroyer, a dealer for the Missouri Live Stock Commission Company, had undertaken to sell the cattle to Heidrick of Hamilton, and had arranged with him', to come to Topeka and look at the cattle with a view of purchasing them and had told Heidrick that if he did not come and buy the cattle Shroyer would himself buy them. Shroyer waited for the coming of Heidrick at the appointed time, but he did not come, and that then Shroyer told Horn and Beal that he still expected Heidrick would come, and proceeded to prepare a contract in writing in which Heidrick’s name was inserted as the purchaser, but that when Heidrick did not afterward appear Shroyer then agreed to buy the cattle at the agreed price, and when the deal was made he gave a draft as a payment for the cattle, and to this transaction no objection was made by Horn. It turned out that the sale was made to Shroyer and not to Heidrick under the prepared writing, but was orally made to Shroyer for the prices agreed on as specified in the incomplete sale to Heidrick. After effecting the purchase and having learned that Beal had a large quantity of com for feeding cattle and that Beal and his son were contemplating buying cattle to which to feed the corn, Shroyer proposed a sale of these cattle to them. After some negotiations Beal and son purchased the cattle for a profit to Shroyer of $223.
Plaintiff contended that the sale of the cattle to Shroyer and the. resale of the same to Beal and son was done to eliminate and defraud him. Later in the year and after feeding the cattle for a considerable time, Beal and son sold them for a higher price than the price at which they were sold by Horn and Beal to Shroyer. Whether that was an actual sale in good faith or one made to- deceive and defraud plaintiff was a question of fact for the jury. On conflicting testimony the jury has found that it was an actual and bona fide sale. Beal and son had a right to buy the cattle previously sold to Shroyer, and although Beal and Horn were former owners and had sold the cattle, there was no legal reason why Beal should not join with his son afterwards in buying them and feeding them in the hope of finding a better market. This they could do honestly, and the jury has determined that it was a real and an honest transaction. There was sufficient consideration for the purchase, and the finding of the jury has been approved by the court which heard the evidence on which the finding was based. It is not necessary to cite authorities that the finding of the jury approved by the court is binding on this court on appeal.
On the third cause of action the jury found that the plaintiff did not procure an option for the purchase of that herd of cattle, ánd further that there was no agreement by plaintiff with Beal that he should have an interest in those cattle, or that they were to handle them together as partners and, further, that they were purchased and paid for by A. Beal and his son, Harlan, on August 13, 1927; and, also, that there was no subsequent agreement that plaintiff would have any interest in the cattle. While plaintiff testified that he had obtained an option on the cattle and offered some other testimony that he had an understanding with A. Beal that he was to have an interest in them, the jury has found to the contrary on what appears to be sufficient evidence. There was evidence that the sale was made directly to A. Beal and son, who paid for the cattle and pastured and fed them and finally marketed them. On the motion for a new trial, in which the plaintiff insisted that the evidence did not support the findings, the trial court stated that the findings of the jury on this branch of the case were’ strongly supported by the evidence, and a reading of the record leads us to the same conclusion.
On the second count, involving the $111.50 commission charged to plaintiff, the finding of the jury against the claim of plaintiff was set aside by the trial court. The judgment was in favor of plaintiff on that item, and while defendants complain of the ruling, it has not appealed therefrom and is not entitled to a review of the ruling.
The contention of plaintiff that there was error on the rulings on the admission of evidence and restricting the cross-examination is not sustained, nor was there error in refusing to grant a new trial.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover .damages sustained in an automobile wreck. Judgment was for defendant. Plaintiff appeals.
Charles and Frances Bunn were husband and wife. In this case Charles is suing Frances Bunn, his wife, and Jack Cady, the driver of the car. The theory of plaintiff is that the injury was caused by the negligent driving of Jack Cady; that Charles Bunn was a pas senger in the car; that Jack Cady was the agent of Frances and hence Frances is liable to Charles for the injury. A demurrer to the petition was sustained and from that order this appeal is taken.
The allegations of the petition which interest us now are as follows:
“That the defendant, Jack Cady, was at all times hereinafter mentioned in the employ of the defendant, Frances Bunn, and was acting as her agent; that said employment was by an oral agreement entered into between Jack Cady and Frances Bunn, which was made on the evening of June 8, 1930, at the Bunn home at Independence, Kansas; that the defendant, Frances Bunn, in the presence of Jack Cady and Charles Bunn, plaintiff herein, stated that she desired her husband, Charles Bunn, to go to Wichita, Kan., the next day to visit with his son who was then living at Wichita; that said Frances Bunn requested said Charles Bunn, her husband, to go to Wichita the next day to visit his son, stating that her Reo Flying Cloud automobile was in first-class condition and that she would have it ready the next morning in good shape, filled with oil, water, and gasoline, for the trip to Wichita, and asked Charles Bunn if he would make the trip in her car, to which Charles Bunn replied that he would go in said automobile the next day to Wichita. Thereupon Frances Bunn, without any knowledge whatever of the ability of Jack Cady as a driver or as to whether or not he was a careful driver or otherwise and without making any investigation as to the ability of said Jack Cady as a driver, asked Jack Cady in the presence of Charles Bunn if he would drive the car to Wichita the next day and return it to Independence, Kan., for a consideration of $10, and said Jack Cady replied that he would drive said car to Wichita and take Charles Bunn in said car to Wichita the next day for the sum of $10, and that he would bring the car back from Wichita; and thereupon the sum of $10 was paid to him by Frances Bunn.”
Appellee argues that these allegations are insufficient allegations of agency to charge Frances Bunn with liability; that under the allegations, if there was an agency stated, it constituted Jack Cady the joint agent of Charles and Frances Bunn, and that, in any event, it is not alleged that the car was being operated in furtherance of the business of Frances Bunn.
It is well settled that the owner of an automobile is not liable for injuries caused in its operation by another unless such other was the servant or agent of the owner and acting in furtherance of his business. (See Halverson v. Blosser, 101 Kan. 683, 168 Pac. 853, and cases there cited.) It will hardly be argued that where a person is injured by the negligence of one who is his agent, as well as the agent of another, that the other person is liable. (See Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37, 2 C. J. 855.) .
With these rules in mind we will examine the allegations of the petition. The language of the petition states as clearly as it could an arrangement between a husband and wife for the husband to go on an errand in which they were both interested. In discussing the question of whether these people were engaged in a joint adventure, this court has said that the fact that several people are riding in a car bound for a common destination and for a common purpose does not necessarily make the journey a joint adventure, but there must be, in addition, a mutual privilege of direction and control. (See Link v. Miller, 133 Kan. 469, 300 Pac. 1105.)
In the case at bar, under the allegations of the petition, the purpose of the trip and the destination were of as much interest to Mr. Bunn as to Mrs. Bunn. As to the other element spoken of — that is, the mutual privilege of direction and control — while that privilege was not mutual it passed to Mr. Bunn as soon as the journey started. It cannot be said that Mrs. Bunn exercised any control over the manner in which the car was driven after it left Independence. On the other hand, Mr. Bunn had full control. We have therefore concluded that the petition makes it a case where the negligent driver was the agent of the husband and wife jointly and that the husband cannot recover damages from the wife.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant, the Kansas City Public-Service Company, from a judgment against it for- damages for injury to the plaintiff, a guest in an automobile with her father, caused by a collision of the automobile with a street car at the end of the Twelfth street bridge at the intersection" of Twelfth street and Metropolitan avenue, in Kansas City, Kan., the petition charging the defendant street-car company with negligence as follows:
“The defendant was negligent in operating its said street car at a high, dangerous and rapid rate of speed; in operating said street car at said time and place and under the circumstances above set out, in such a way as to run into and against the plaintiff, who was rightfully upon the tracks of defendant corporation, who did see, or by the exercise of ordinary care and foresight could have seen, plaintiff in said position. That defendant was further negligent in failing to reduce the speed of said street car, or stop it altogether, when the plaintiff was seen upon the tracks, and in full view of the operator of defendant’s car; in operating said street car at such a rate of speed that it could not be stopped in time to avoid striking plaintiff, and in failing to use the means of control of said street car to avoid striking plaintiff.”
Appellant makes four assignments of error, as follows:
“1. In overruling the demurrer of defendant to the evidence.
“2. In admitting evidence of certain injuries to plaintiff over objection of defendant.
“3. In giving instruction No. 5 to the jury.
“4. In overruling defendant’s motion for a new trial, in overruling defendant’s motion to set aside special findings of the jury, and in overruling defendant's motion for judgment on the special findings.”
With reference to the last assignment of error particular attention is called to the answers made by the jury to three special questions, 2, 3 and 9, which are as follows:
“Q. 2. At what rate of speed do you find the street car was proceeding at the time of the collision? A. 12 miles per hour.
“Q. 3. At what rate of speed do you find the street car was proceeding when it passed the south curb line of Metropolitan avenue? A. 18 miles per hour.
“Q. 9. If you find the defendant was negligent, then state specifically each act of such negligence. A. Defendant was not sufficiently cautious in approaching intersection, traveling at too high rate of speed to control street car.”
Appellant insists that the answers to questions 2 and 3 should be set aside because there was absolutely no evidence to support them. These questions were properly submitted to the jury because there was evidence given by the motorman of the street car directly upon the inquiries made therein. Of course the jury may not have given credit to his evidence and may have disregarded it altogether, which it had a perfect right to do, but it has no right in the absence of any other testimony on the subject to supply testimony which it might have regarded as being more nearly reasonable. The motorman testified that “he was running about twelve miles an hour coming into Metropolitan avenue,” and that he was going “not over seven miles if that” when the collision occurred. Where there is a conflict or different estimates of speed, distance or value, the jury may within the bounds of the testimony name what to it appears to be a happy mean. But here we have nothing but the one set of answers as to the speed at these two points, and the jury answers the questions by increasing the speed at one point fifty per cent and at the other over seventy per cent above the only testimony’ given concerning the same.
Appellee urges that a comparison of the distance the jury found - the street car had to travel before reaching the point of collision' with the distance the automobile traveled during the same time, including the time the automobile stood on the track stalled, might afford the jury a means of arriving at a conclusion as to the speed of the street car, having already found the speed of the automobile. This could have been presented to the jury in an appropriate examination of a witness on a set of hypothetical questions or otherwise, but it is not usually a duty or privilege of the jury to' make such calculations to arrive at an answer propounded to it by the court. This appears to be purely a mathematical question capable of producing a positive answer. The appellee does not assist us in making this calculation, but if the formula prescribed by the appellee is correct, the result will far exceed the finding of the jury as to the speed of the street car at the point of collision; and applying the same formula to the relative distance traveled immediately before the last setting of the brakes, the speed of the street car at its entrance into Metropolitan avenue would be about one-half of what the jury found and much less than the speed given by the witness. While circumstances are proper for a jury to consider in connection with the direct testimony in arriving at its answers to special questions, they must lead by logical deductions to a reasonable certainty in order to be accepted by the jury.
“To find a fact by presumption or inference, the inference should be a logical deduction and reasonably certain in the light of all other proper presumptions and of all collateral facts.
“Where there is no substantial evidence, direct or circumstantial, tending to prove a material fact in issue, a finding that it exists cannot be sustained.”
(Duncan v. Railway Co., 82 Kan. 230, syl. ¶¶[ 1, 2, 108 Pac. 101.).
“A finding of the jury upon any point in the case cannot be upheld when all the evidence in the case relating to such point is against the finding.” (McNeely v. Duff, 50 Kan. 488, syl. ¶[ 2, 31 Pac. 1061.)
Appellee also reasons that the street car must have been moving at a greater rate of speed than seven miles per hour at the point of collision, because it ran from eight to fifteen feet after the collision. This calls for testimony along many lines, as the setting of brakes, the extent of resistance, the condition of the track, the weight of the car and the distance required to stop it at different speeds. No evidence along any of these lines appears in the record.
Appellee suggests that even if the answers to these two questions should be set aside, that should not disturb the general verdict as the question of .speed was not material, and cites the case of May v. Kansas Power & Light Co., 134 Kan. 470, 7 P. 2d 108, where the court did hold that two answers to special questions as to the speed of the street car were immaterial and could be disregarded, but there the jury had found that the negligence of the defendant consisted of “Failing to stop street car,” and the court held that although, speed was alleged as a ground of negligence, it was eliminated by the definite finding of negligence along other lines.
The answer as to negligence in our case was very different and included the matter of speed. It was, as quoted above, “Defendant was not sufficiently cautious in approaching intersection, traveling at too high rate of speed to control street car.” The question of speed is by no means eliminated in this finding as it was in the May case, supra.
Appellee also cites the case of Billings v. Aldridge, 133 Kan. 769, 3 P. 2d 639, where it was said:
“ , . . It has been properly held that when special findings, material to a general verdict, are set aside by the trial court for the reason that they are contrary to the evidence, a new trial should be granted (Railway Co. v. Davis, 64 Kan. 127, 67 Pac. 441; Brice-Nash v. Street Railway Co., 102 Kan. 36, 169 Pac. 189); but from what has been said concerning these questions they were not in fact material, they might very well have been omitted altogether, and the setting of them aside did not require the granting of a new trial.” (p. 779.)
In that case the trial court sustained the motion of the defendant to set aside the answers to three special questions because they were not supported by the evidence, and this court approved that ruling and found they “were not in fact material” because they “were purely hypothetical in that they did not relate or pertain to a sitúa tion disclosed by the evidence,” and upheld the general verdict in favor of the plaintiff.
The question of speed of the street car has not been eliminated in the case at bar by the answer to special question number nine, and because the answers to questions numbered two and three are material and have to be set aside because they are not supported by the evidence, a new trial is rendered necessary.
“When a special finding upon a material matter in issue is submitted to a jury for determination, the party submitting such special question is entitled to an answer in harmony with the evidence in the case, and where the answer of the jury thereto is in direct opposition to the evidence, or is unsupported by any evidence, it is the duty of the court to set aside the verdict and award a new trial to another jury.” (Railway Co. v. Davis, 64 Kan. 127, syl. ¶ 1, 67 Pac. 441.)
“A verdict of the jury must be set aside where special findings material to its support are determined by the court to be contrary to the evidence.” (Brice-Nash v. Street Railway Co., 102 Kan. 36, syl. ¶ 3, 169 Pac. 189.)
On account of the negligence found in the answer to special question number nine, the motion of the appellant for judgment in its favor on the special findings notwithstanding the general verdict cannot be sustained. It is unnecessary to consider the other assignments of error.
The judgment is reversed, and the cause is remanded with directions to grant a new trial.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for workmen’s compensation. Judgment was for respondent. Claimant appeals.
• The workman was a healthy, noncomplaining workman. On July 2 as he was rolling a car wheel, in the course of his employment, it hit an obstruction and started to tip over. The evidence is not clear as to whether the wheel struck his stomach or he strained the muscles of the stomach in steadying the wheel. He complained of soreness that evening. The next morning the company doctor examined him and diagnosed his trouble as a hernia. He was given a truss, which he wore. That day he complained of pain and quit work about 3:30. On July 4 he lay around the house, and did the same on the fifth, which was Sunday, and also on the sixth, which was a day the plant did not work. On the seventh he went back to work. On the eighth, ninth and tenth he. worked. The record is not clear as to his complaints on these days. On the evening of July 10 his pain was so severe that he was taken to the hospital. On this occasion his trouble was diagnosed as appendicitis, and he was operated on. The record is not clear as to the condition of the appendix. On July 18 he was again operated on. This time a perforated gastric ulcer was found. He died August 20 without having left the hospital. The action was filed by his widow.
As in many workmen’s compensation cases the question is, Did death result from an accident arising out of and in the course of the employment? There seems to be no doubt that the immediate cause of death was the perforated gastric ulcer. Was the ulcer caused by the accident with the car wheel? To start with, the record is not clear as to the nature of the accident. Mrs. Little testified that deceased stated the wheel struck him. One of the doctors testified that he said he strained himself when the wheel tipped. Several doctors testified at the hearing before the commissioner. Some of them testified that a blow could cause a gastric ulcer. Some of them testified that it could not. There was some evidence that there were indications of a trauma of the abdomen. There was some evidence that there were no such indications. It was the duty of the commissioner of workmen’s compensation to hear the evidence and make findings of fact. This was done and the finding was that death was not the result of an accident arising out of and in the course of employment of deceased. This finding was approved by the trial court. It certainly cannot be said that the finding was not made on conflicting evidence. The evidence was very conflicting. The argument of claimant consists of an effort to induce this court to weigh the evidence in the record and reach a different conclusion from that reached by the commissioner and the trial court. We have no jurisdiction to do that. Our examination of cases under the workmen’s compensation act is limited to questions of law. (See R. S. 1931 Supp. 44-556.) We will, however, examine the record to ascertain if there is competent evidence to sustain the findings of fact. (See Harrigan v. Western Coal and Min. Co., 133 Kan. 573, 300 Pac. 1115.) An examination of this record has convinced us there is sufficient competent evidence to sustain the finding of the commissioner and of the trial court.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for the alleged negligence of defendant in the maintenance of the ninth floor of its office building in Wichita which caused plaintiff to fall and sustain injuries.
Defendant’s demurrer to plaintiff’s evidence was sustained on two grounds specified in the judgment of the court, to wit:
“First. That the plaintiff failed to show any actionable negligence on the part of the defendant; and
“Second. If the acts of the defendant had been negligent the plaintiff was guilty of such negligence as to bar her recovery.”
These rulings are assigned as error.
The evidence for plaintiff and the admitted facts tended to show that the hallway and corridors of the ninth floor of defendant’s office building were composed of terazzo marble. On August 13, 1931, defendant caused that floor to be waxed and treated with a substance named “Wonder Water Wax,” which made it slippery for pedestrians. On the following afternoon plaintiff, an employee in an office in the building, walked over the newly waxed, floor, and while in the exercise of due care she slipped and fell, thereby sustaining severe injuries and consequent loss of time and expenses for professional treatment.
Without amplifying the evidence in plaintiff’s behalf at greater length, we turn to defendant’s brief to discover, if possible, some justification for the trial court’s decision on the demurrer. Its counsel suggest that plaintiff did not “make an effort to show that the floor was improperly waxed.” But she adduced evidence covering the facts of the accident. It was shown in her behalf that she was properly shod for her work as an office woman. She did not know that the floor had been'waxed, or that the waxing had made it slippery. Her witnesses showed that other persons had slipped on the floor the same day. (45 C. J. 1245-1248.) Under this state of the evidence the question whether the floor had been improperly or negligently waxed, to the peril of those having a right to walk on it, was a conclusion which the triers of fact, the jury, might properly deduce. Moreover, the evidence in plaintiff’s behalf was fairly susceptible of interpretation that the floor was waxed as a mere experiment — to be tried at the hazard of the safety of persons • lawfully using the floor. The argument is made that the employees of defendant were entitled to a reasonable time to remove the slippery stuff from the floor, as if want of such time would relieve defendant of liability to plaintiff for damages. We cannot approve such an argument. It seems clear to us that plaintiff made out a ;prima fade case of negligence against defendant, and the trial court erred in taking the case from the jury. (Phillips v. Commercial Nat’l Bank, 119 Kan. 339, 342-346, syl. ¶ 1, 239 Pac. 984. See, also, Robinson v. F. W. Woolworth Co., 80 Mont. 431; John Gerber Co. v. Smith, 150 Tenn. 255.)
Another argument in support of the ruling on the demurrer advanced by counsel for appellee is that plaintiff’s evidence disclosed that she was guilty of contributory negligence. We have read the record with particular care, but find it difficult to glean any semblance of contributory negligence on the part of plaintiff. However, for the nonce we will assume that the jury might make such a discovery or draw an inference to that effect from plaintiff’s evidence. Nevertheless it was manifest error for the trial court to hold that plaintiff was guilty of contributory negligence as a matter of law. (Railway Co. v. Johnson, 69 Kan. 721, syl. ¶ 2, 77 Pac. 576; and citations under Negligence, Hatcher’s Kan. Dig. 1623; id. Supp. 206, 207.)
It follows that the judgment on the demurrer must be set aside and the cause remanded for further proceedings consistent herewith. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.
This is an action in tort by an insurance carrier having been theretofore adjudged in a workmen’s compensation case to pay the dependents of a deceased workman a definite award, to recover on its behalf and on behalf of the dependents damages from third parties for their negligence which caused the death of the workman. The demurrers of the defendants to .the petition were overruled. A plea in abatement filed by one of the defendants, The Shell Petroleum Corporation, was also overruled. This defendant appeals, alleging error in both these rulings.
The petition alleged that plaintiff was an insurance carrier and had executed and delivered to one W. H. Schwartz a policy insuring him against liability under the workmen’s compensation law, that Schwartz had by written contract with The Shell Petroleum Corporation engaged to drill a certain oil well in Greenwood county, Kansas, the company “to furnish the drilling rig, casing, fuel and water, and that when said well reached the oil-bearing sand- said Schwartz should shut down, notify Shell Petroleum Corporation thereof and that it should thereupon take full charge of the well and of the operations thereat, and direct, manage and control the drilling into, shooting and testing of the sand and placing the well on the pump, paying said Schwartz for the use of his tools and drilling equipment and of the workmen employed by him for all time so spent the sum of $80 per day of twenty-four hours.” That when oil-bearing sand was reached by Schwartz, on March 19,1929, the petroleum company took full charge of the well, tools and equipment, and managed, controlled and supervised the completion of the well, including drilling into and shooting the oil-bearing sand, that it employed the Barton Torpedo Company to shoot the well with an explosive, and the defendant Pearl Blair represented the torpedo • company and he acted jointly with the petroleum company representatives, Bielde and Lingo, in lowering the container, and then they fastened the reel to the fly wheel of the engine used in the drilling for the purpose of withdrawing the torpedo line from the hole; that Logan Herbert, the tool dresser in the employ of Schwartz, was di rected by those in charge to start the engine, and when he did so the reel came loose from the flywheel and struck him, inflicting a serious wound from which he died.
The petition gives details of negligence, names the dependents, specifies the award of the compensation commissioner as $4,350 against Schwartz and plaintiff insurance company, which the latter is regularly paying, attaches a copy of the award and prays for a judgment of $10,000 for the benefit of itself and the dependents, as their interests may appear.
A general demurrer to this petition was overruled and then the petroleum company filed a plea in abatement, attaching a copy of the contract between the petroleum company and Schwartz, calling special attention to the part of that contract which obligated Schwartz to procure an insurance contract under the workmen’s compensation law, and that no right of action was given such insurance carrier against the petroleum company. The plea further alleged that the petroleum company, Schwartz and Herbert were all operating under the workmen’s compensation law at the time of the accident. The errors assigned by the appellant are in overruling the demurrer and the plea in abatement.
The difficulty and confusion which has arisen in the case is in the apparent shifting o'f position by the Shell Petroleum Corporation since the writing of the contract between that company and Schwartz. The contract on its face is unmistakably designed to eliminate the company from liability under the workmen’s compensation law. Throughout the entire contract the company is regularly and frequently referred to as the “owner,” and Schwartz as the “contractor.” The attitude of the appellant in the demurrer, the plea in abatement and the brief, presented here on review, is not upon the theory of appellant being the owner, but as being the principal contractor and Schwartz the subcontractor.
The principal contractor and the subcontractor can both be made liable under the workmen’s compensation law, while an owner, generally speaking, is not liable under that law. R. S. 1931 Supp. 44-503 in the first paragraph (a) makes such principal contractor liable to the workman employed by the subcontractor as if employed immediately by him.
Doubtless the trial court in overruling the demurrer and the plea in abatement regarded the contract as one between an owner and contractor, as it especially emphasized the former. However, it enumerates privileges and duties which go much farther than any ordinary owner could or would reasonably go, such as furnishing the drilling rig and other equipment, also taking full charge of the well and the operations thereat and managing the shooting and testing of the well and assuming the responsibility until the shot hole is cased off. These rights and privileges reserved to itself in contracting with Schwartz make the petroleum company more nearly in line with the definition of a principal contractor, as defined in the first pragraph of the section above cited, than an owner, as it is regularly denominated in the contract.
The requirement of the contract that Schwartz procure a $10,000 bond from an insurance carrier to cover injuries to employees and servants of Schwartz under the workmen’s compensation law and providing a failure to secure the same within ten days would constitute a breach of the contract, plainly recognized a legal liability for such injuries on the part of the petroleum company which it was attempting by its contract to avoid.
The very evident import of the first paragraph of the section of the statute above cited was for the protection of the workman and to enable him to reach the principal contractor as well as the subcontractor and his bondsman, and if Schwartz and his insurance carrier in this case should both have happened to be insolvent the dependents of the deceased workman could undoubtedly have reached the petroleum company as the principal contractor and made it liable, notwithstanding the evident design exhibited in the contract was to avoid such liability.
In the case of Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, the oil company contracted with another party to erect a derrick for the purpose of using it in drilling an oil well at that place. One^of the workmen fell off the derrick and was injured, and the court held the work of building the derrick was part of the company’s business within the meaning of R. S. 44-503, and the company letting the contract was liable for compensation. It was said in the opinion:
“The statute was enacted for the very purpose of giving employees of the contractor remedy against the principal, and the court has so held. (Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468.)” (p. 722.)
This brings us to the all-important question in this case as to whether a party liable under the workmen’s compensation law can be made liable as a third party in a tort action for the same injury. This exact question was before this court in the case of Leebolt v. Leeper, 128 Kan. 61, 275 Pac. 1087, and it was there held—
“. . . that the injured workman’s immediate employer was a subcontractor, and that under the provisions of the workmen’s compensation act (R. S. 44-501 et seq.) he was limited in recovery to the provisions of that act, and could not maintain an action for damages against the general contractor with whom his immediate employer had contracted.” (Syl.)
This action, as well as that just cited, was commenced under the provisions of R. S. 1931 Supp. 44-504, authorizing the bringing of actions for damages by the injured party or his employer against third parties, “other than the employer,” prescribing the rights to do so as between the employee and employer within a certain period, and it has been definitely held that this section was intended for the benefit and guidance of the employer and employee and was not designed to relieve or affect a third party who negligently injured an employee. In the case of Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877, it was held:
“The provisions of our workmen’s compensation act (R. S. 44-504) are intended for the benefit and guidance of employer and employee operating under the act.- They are not designed to relieve from liability a third party who negligently injured the employee. . . .” (Syl. If 1.)
Reference is made in this case to the ruling along the same line in the case of Jolley v. United Power & Light Corp., 131 Kan. 102, 289 Pac. 962. Both of these cases were actions for damages against third parties and did not include any of the employers of the injured party, and the defendants therein complained of failure of employer and employee to strictly follow the provisions' of section R. S. 44-504. Appellee cites both these cases in support of its theory that the Shell Petroleum Corporation was a third party, for the reason that it was not a party to the compensation case and award, urging that it cannot possibly be liable in or under the workmen’s compensation case, because that case is now closed and no liability has attached, and that at most it was only a guarantor is case Schwartz and his insurance carrier were financially unable to respond and pay' the compensation award. If that were the correct test as to whether or not the principal contractor was a third party, it would in effect-place the matter at the option of the workman and the subcon-: tractor whether the principal-contractor would be liable under'the compensation law or in an action in tort. No such options exist under the compensation law, and the fact that the principal con tractor has not been made liable and is only a guarantor under the compensation law does not eliminate the principal contractor from the list of those that are liable thereunder, nor render it possible for the principal contractor to be a third party.
It is not contended by the appellant that the Barton Torpedo Company, employed by the Shell Petroleum Corporation to shoot the well, might not be a third party and liable for the negligence alleged. The appellee then concludes in its reasoning that the Torpedo Company, being the servant of the Shell Petroleum Corporation, the negligence of the servant is in law imputed to the master, citing Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586, where that general rule was applied by the court to work that was particularly dangerous to others not connected with the work. Appellee also cites a case where the compensation law was applicable, and it was there held:
“When an employee' and his employer are within the provisions of the workmen’s compensation act and the employee is injured by the negligence of a third person, the employee, or his dependents, if the injury result in death, may proceed to recover compensation from the employer and at the same time may maintain an action for damages against the third party whose negligence caused the injury.” (Moeser v. Shunk, 116 Kan. 247, syl. ¶ 3, 226 Pac. 784.)
In that case the injured workman was driving a truck for his employer, both operating under the workmen’s compensation law, and while so driving the truck had a collision on account of the negligence of one Shunk, having no connection with the business of the workman or his employer. It may be admitted that the general rule is as urged by the appellee, as to imputing the negligence of the servant to the master where the relation of master and servant exists, but does that common law or general rule supersede the special and specific provisions limiting the liability of those operating under the workmen’s compensation law? We think not. The first section of the workmen’s compensation law, R. S. 1931 Supp. 44-501, after outlining the purpose of the act states: “Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act.” This same sentence was contained in the first section of the original act in this state and was construed in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, as follows:
“The original workmen’s compensation act (Laws 1911, ch. 218, as amended by Laws 1913, eh. 216) leaves an employee in industries within its purview no other remedy than the one provided by the act, where neither the employer nor employee has-filed a statement of his election not to accept thereunder.” (syi. H 1.)
This ruling was later confirmed in McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247, and subsequent decisions..
Notwithstanding the designation in the contract of the Shell Petroleum Corporation as the owner, the substance and contents of the entire contract attached to the plea in abatement and the allegations of the petition, which must at this time be taken as true, show that corporation to be the principal contractor and liable under the compensation law, but not liable in an action in tort for the negligence causing the injury for which the compensation award had been made against the subcontractor and his insurance carrier.
For the reasons herein stated we think it was error to overrule the demurrer to the petition and the plea in abatement.
The judgment is reversed, and the cause is remanded with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover a balance due on a note and chattel mortgage executed by a minor.
On May 31, 1930, the defendant, Harold Irwin, purchased a Ford roadster from plaintiff and, to secure payment of a part of the purchase price, executed a combined note and chattel mortgage for $274.70, which included a list of questions and answers, viz.:
“Residence: 415 South Star. City: El Dorado. County: Butler, Kansas. Occupation: Confectionery. Employed by: Self. Business address: El Dorado Swimming Pool. Previously employed by: Self. Have bank deposit with: El Dorado National. Age: 18. Number of dependents: None. Owe any debts: None. References: W. H. Irwin, 415' S. Star St., El Dorado, Kansas.”
His father also signed the note and mortgage.
On June 6, 1930, the defendant traded the roadster to plaintiff for a coupé and gave another note and mortgage for $374, which contained similar questions and answers and showed his age to be 18. His father also signed this note and mortgage.
On August 22, 1930, the defendant traded the coupé for a delivery automobile and gave another note and mortgage which contained similar questions, although the record as abstracted makes no showing as to age.
When this last note and mortgage was executed, the father did not sign, telling plaintiff’s salesman that he didn’t want to sign the note with Harold this time — that he would stand back of him on anything he did — that he wanted Harold to feel the responsibility.
Default was made by the defendant, and plaintiff brought a replevin action to recover the delivery car but, before the action was finally disposed of, defendant surrendered the car to the plaintiff, who sold it according to law, credited the proceeds on the note and chattel mortgage, and instituted the present action to recover a balance due. The defendant, answering by his guardian ad litem, admitted the execution and delivery of the note and chattel mortgage and alleged, among other things, that at the time he received the car he was a minor; that he is 19 years of age; that he was not engaged in business for himself; that the car was not a necessary; that he had returned the car and thereby rescinded and disaffirmed the contract.
Trial was had to a jury, and the facts with reference to the three automobiles were shown, as well as evidence which showed that the defendant had been engaged in business for himself at the times the various cars were purchased. Defendant demurred to plaintiff’s evidence and the demurrer was overruled. Thereafter the trial proceeded, and the case was submitted to the jury under written instructions against which plaintiff lodged no complaint and which are referred to because it is stated therein that it is admitted that Harold Irwin was a minor at the time he bought the delivery car, that the car was not a necessary under the statute, and because, without summarizing the same, it is evident the court’s theory was that defendant’s engaging in business determined the matter rather than that the defendant was a minor and that plaintiff knew it when it dealt with him. As the appeal is decided on the correctness of the court’s ruling on the demurrer, it is not necessary to show the answers of the jury to the special questions propounded nor whether defendant was entitled to judgment thereon.
Two sections of the statute are applicable here:
“A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority.”
“No contract can be thus disaffirmed in cases where, on account of the minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reasons to believe the minor capable of contracting.” (R. S. 38-102, 38-103.)
These sections have been a part of our statutes since 1859 (Laws 1859, ch. 96, §§ 2, 3), were embodied in the revision of 1868 (G. S. 1868, ch. 67, §§ 2, 3), and have not been changed since first enacted. They seem to have been taken almost literally from the Iowa statutes, where they appear as early as 1851 (Iowa Code 1851, §§ 1488, 1489), the latter section being identical with our R. S. 38-103.
In Burgett v. Barrick, 25 Kan. 526, where a minor who had not misrepresented his age was sued on a chattel mortgage, the principal question was the correctness of the lower court’s instructions, and this court said:
“The district court defined the language 'capable of contracting’ to mean ‘legally capable of contracting;’ and further charged the jury that this ‘occurs, either when the party has reached the age of majority, or when, being a minor, he has been vested with the legal capacity of adults by an act of the legislature, or by a judgment of a court in a proper case.’ Counsel for the plaintiff contends that the direction of the court was erroneous, and that the statute makes ‘his having engaged in business as an adult’ a ‘good reason’ for capacity to contract; in short, that the words ‘capable of contracting,’ as used in the statute, mean mentally and physically capable of contracting, rather than legally capable of contracting. We disagree with this interpreta tion, and adopt the exposition of the statute given by the learned trial judge to the jury.” (p. 530.)
In Dillon v. Burnham, 43 Kan. 77, 22 Pac. 1016, Dillon defended a claim for merchandise sold him on the ground he was a minor, and in answer to special questions the jury found he had not misrepresented his age to the plaintiffs, but that he was engaged in business as an adult, conducting a mercantile business; that he had represented to the governor he was 21 years old; that he had bought and sold real estate and given deeds therefor; that he had executed chattel mortgages as an adult and had paid poll tax and that the company had good reasons to believe him legally capable of contracting. In disposing of the appeal, this court, speaking through the then Justice, now Chief Justice, Johnston, said:
“When he misrepresents his age, or where he engages in business as an adult, thus giving the other party to the contract good reason to believe that he has reached major^, or is legally capable of contracting, the defense of infancy is not available. If the other party is deceived, either by the minor’s direct misrepresentation or by implied misrepresentation by reason of his conduct in carrying on business as though he was legally capable of doing so, the contract which he makes may be enforced like that of an adult. Dillon’s contract must be held binding upon the latter ground, as the jury has found that he was engaged in business as an adult at the time the debt was contracted, and that the other party had good reason to believe from the implied misrepresentation arising from his conduct that he was legally capable of contracting.” (p. 81.)
The question here presented has not been before this court, but it was before the Iowa court in Better v. Marchant, 30 Ia. 350, 351, and in discussing the proposition of age, representations, knowledge, etc., it was said:
“Where an infant, at the time of making a contract, represents himself to be of full age, when he is not, and thereby deceives the other contracting party, he is estopped from taking advantage of his infancy. Or if, from the minor having engaged in business as an adult, the other party had good reason to believe the minor to be of contracting age, the latter cannot set up his infancy as a defense to an action on his contract thus entered into. If the infant deceives the other contracting party as to his majority, either by direct misrepresentations made, or by implied misrepresentations, from his having engaged in business as an adult, he is bound by his contracts. Oswald & Co. v. Broderick & Co., 1 Iowa 380; Prouty v. Edgar, 6 id. 353, 372. But where the party dealing with an infant knows the fact that he is a minor, and therefore incapable of contracting, he is not deceived. The fact that an infant has engaged in business as an adult does not, of itself, necessarily make his contracts binding. It is only when, from that fact ‘the other party had good reason to believe the minor capable of contracting,’ that the infant is bound so that he cannot disaffirm his contracts. Having engaged in business as an adult affords good reason to the other party, not knowing the fact of minority, to believe the minor capable of contracting. But when the fact of minority is known to the other party, he can have no good reason to believe it to be otherwise from the mere fact of the minor having engaged in business as an adult.”
The above decision does not seem to have been modified by the Iowa supreme court, but has been cited in subsequent decisions involving rights of minors.
Notwithstanding there was evidence that Harold Irwin had been engaged in business for himself, it was clearly shown that when he purchased the cars from the plaintiff he not only did not misrepresent his age, he affirmatively showed he was a minor, and with that knowledge at hand the plaintiff knew that he was not legally capable of contracting — that the only way he could be legally capable of contracting would be through having the rights of majority conferred upon him, and no one claims that was done. If it was done, the burden was on the plaintiff to show it. The plaintiff, aware of the fact that the defendant was a minor, dealt with him and knew that as a minor he had a right to disaffirm, which he did in a somewhat belated manner. Under the circumstances it cannot be said, as a matter of law, that plaintiff had good reason to believe the minor capable of contracting; the converse is true — that when plaintiff knew of defendant’s minority, it could have no good reason to believe him capable of contracting.
It follows that the demurrer to the plaintiff’s evidence should have been sustained, and on account thereof, it is not necessary to discuss other matters of which complaint is made.
The judgment of the lower court is reversed, and the cause is remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents the question whether a judgment debtor should have six months or eighteen months in which to redeem a farm which was sold in foreclosure.
The facts were stipulated. In 1924 one Brown owned the farm. He mortgaged it to the plaintiff bank to secure an indebtedness of $7,000. This was not a purchase-money mortgage. In 1926 Brown sold the farm to defendant Smyth, the consideration being $8,000, of which sum Smyth paid $500 in cash and assumed and agreed to pay the $7,000 mortgage. Shortly afterwards Smyth paid $1,000 on the mortgage, and paid nothing more.
In time the mortgage was foreclosed, the mortgaged premises were sold, the sale confirmed, and the period of redemption fixed at eighteen months.
The one error assigned is predicated on the redemption period. Appellant contends that since Smyth never paid as much as one-third of the agreed purchase price he is only entitled to a period of six months in which to redeem.
The pertinent statute, in part, reads:
“The defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs, and. taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided, and shall, in the meantime, be entitled to the possession of the property; but where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six months from the date of sale. . . (R. S. 60-3439; R. S. 1931 Supp. 60-3439.)
“Whenever a lien shall be given for the purchase price of any real estate, and default shall be made in the conditions of the mortgage or instrument giving such lien before one-third of the purchase price of such real estate shall have been paid by the purchaser thereof, such purchase-money lien may be foreclosed by the legal holder thereof in the manner now provided by law for the foreclosure of other mortgages, and such real estate may be sold under a judgment of foreclosure, as now provided by law: Provided, That whenever any such real estate shall be so sold, and the same shall not be redeemed from the judgment by the payment of all principal and interest due upon such lien and costs of such foreclosure within six months from the date of such sale, such sale shall become absolute, and the purchaser at such foreclosure sale shall be immediately entitled to a deed to the real estate purchased. . . .” (R. S. 60-3466.)
While it is agreed that when the $7,000 lien was given by Brown it was not a purchase-money mortgage, appellant contends that it became such by the contract of sale and conveyance of the mortgaged property to Smyth. As to Smyth, appellant argues, it became a purchase-money mortgage; his assumption of the mortgage indebtedness was by far the largest part of the purchase price; and since he has never paid as much as one-third of it, six months is all he is entitled to as a period of redemption.
A majority of this court does not approve this reasoning. It holds that appellant’s contention is not warranted by the plain text of the statute. The mortgage when given was not a purchase-money mortgage; its character then became fixed; and nothing the parties or their privies could thereafter do could alter or modify its legal significance. The judgment was therefore correct, and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a condemnation proceeding where land owned by the Cities Service Company was condemned and appropriated for the purposes and uses of the Riverside drainage district, under the drainage act of 1905, R. S. 24-401 et seq. An appeal from the award was taken to the district court where a trial was had with a jury, which returned a verdict in favor of the Cities Service Company, assessing the amount of its recovery at $40 when it was asking $2,389.17. The Cities Service Company appeals.
A tract of about twelve acres adjoining the city of Wichita was owned by the appellant, on which it had erected a gas compressor station and some other improvements. Across this tract there was a small natural watercourse named the Big Slough, and twelve inches under the bed of the watercourse the appellant had a pipe line in which gas was transported across the country to Kansas City and on to northern markets. That part of the Big Slough where it was crossed by the pipe line was wholly within appellant’s tract, and the tract was within the boundaries of the drainage district. The drainage district deemed it necessary and determined to widen and deepen the Big Slough. Learning of this purpose, the representatives of the appellant had a conference with the officers of the drainage district as to the scope and plan of the improvement which would widen and deepen the stream and require the removal of the pipe line. The appellant then prepared to locate its pipe line at the crossing of the watercourse. It was found necessary to change and lower about 225 feet of the pipe line, and because of the hazard in handling a gas pipe carrying a pressure of from three hundred to four hundred pounds per square inch, it was found necessary to employ skilled labor, and it took twenty-five men about nine days to make the change. Proof was made that the work was all done in the most economical way possible. The reasonable pay for such labor was said to be $4 per day for each nine-hour day, and that the work of lowering the line cost $801.76 for labor and $877.78 for material. The balance of appellant’s claim was made up of freight, express, teams and trucks, and $110 for a man to supervise the work during its progress. With their verdict the jury returned answers to special questions that were submitted, as follows:
“1. Do you find that it was necessary, in order for appellant to maintain its property in a similarly usable condition, to replace its eighteen-inch pipe line below the bed level of the drainage ditch involved herein? A. Yes.
“2. If you find that appellee is entitled to have deducted from your award, if any, some amount for special benefits, you will state that amount of deduction you have allowed for such benefits. A. -.
“3. If you find appellee to be entitled to deductions for special benefits to the appellant, you will state what constitutes such special benefits. A. -.
“4. How much of the 0.74 acres of land taken by the appellee was not within the natural watercourse at the time it was taken? A. Approximately one-half acre.
“5. What do you find to be the fair and reasonable market value per acre, in June, 1930, of the portion of the tract taken not within said natural watercourse? A. $80 per acre.
“6. (a) What do you allow for labor, if any, in removing pipe? A. (a) -.
(b) For material? A. (6) -.
(c) For miscellaneous expense? A. (c) -
The court in an instruction to the jury treated the pipe line as originally placed in the bed of the stream as an obstruction and, in effect, instructed that the plaintiff was not entitled to compensation for removing and replacing the pipe line. The following is the instruction which raises the principal questions in controversy between the parties:
“For your guidance in determining the amount of damage, if any, the appellant is entitled to recover herein, you are instructed that at the time the Riverside drainage district appropriated land therefor and constructed a drainage ditch through the appellant’s land, it had the right to widen and deepen to the extent necessary for proper drainage the channel of the then existing natural watercourse known as the Big Slough, throughout its course over appellant’s land, and to condemn and cause to be removed therefrom any obstructions placed in said channel or between the banks of said natural watercourse, without compensating the appellant therefor, and in this connection you are instructed that neither the expense incurred by appellant in removing and replacing its pipe line which had theretofore been laid in said natural watercourse, nor the expense incurred in removing and replacing its pipe line outside of the limits of said watercourse, in so far as such expense was necessary and incident to the removal and replacement of that part of its pipe line that had theretofore been laid in said natural watercourse, can be recovered by appellant in this action; nor can appellant recover anything for that portion of the land appropriated by appellee for the drainage ditch constructed by it which was theretofore land lying between the banks of said natural watercourse.
“You are further instructed that the expense of appellant made necessary by the condemnation and appropriation of that part of appellant’s land lying outside of the limits of said natural watercourse and paid or incurred in connection with the removal and replacement of the appellant’s pipe line theretofore laid outside of the limits of said natural watercourse, as said watercourse existed prior to the construction of said drainage ditch, in so far as such expense was not necessary and incident to the removal and replacement of that part of its pipe line that had theretofore been laid in said natural watercourse, is a proper item of damages to be recovered by appellant herein, and should you find any such expense to have been incurred by appellant, your verdict will include such reasonable sum as you ma3r find has been so incurred by appellant.”
The plaintiff requested the following instruction, which was refused :
“The law is that a drainage district cannot appropriate private property without just compensation being given, therefore, the meaning of the expression ‘taking of property’ is not confined to the actual physical appropriation of land or improvements, but includes the causing of an owner of land as a matter of necessity to move, alter, relay and construct improvements, fixtures and appurtenances to its land to make itself whole or place itself in a similarly beneficial position with regard to the use of all its property as a whole as it was before the appropriation.”
The plaintiff was the owner of the twelve-acre tract of land, including the bed of the watercourse. It was a nonnavigable stream, and the plaintiff owned the banks and beds of the creek and the right to use them subject, of course, to the rights of riparian owners in the flow of the water. (City of Emporia v. Soden, 25 Kan. 588; Wood v. Fowler, 26 Kan. 682; Clark v. Allaman, 71 Kan. 206, 80 Pac. 571; Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041; Railway Co. v. Shriver, 101 Kan. 257, 166 Pac. 519; Piazzek v. Drainage District, 119 Kan. 119, 237 Pac. 1059; People v. Economy Power Co., 241 Ill. 290.)
The pipe line of plaintiff was an improvement of a permanent nature, was originally placed twelve inches below the bed of the stream across which it was laid, and it could not be regarded as an obstruction when it was placed there. The plaintiff was as much entitled to damages for the removal and replacement of the pipe line as it would be if it had been a substantial building on the bank of the watercourse which required removal before the widening and deepening process was begun by the drainage district, and it would hardly be contended that the owner of the building in such a case would not be entitled to compensation. The drainage district had announced its purpose to deepen and widen the watercourse, and the plaintiff, as was its duty, proceeded with the relocation of the pipe line, a process of an expert character, thus to adapt the property to the plan and project of the drainage district. The drainage district is given the power and control over natural watercourses and to widen and deepen them as may be necessary for drainage or sanitary purposes. It may take private property for public use by the exercise of eminent domain. It may enjoin the placing of obstructions which prevent the flow of water in the watercourse and have them adjudged to be a public nuisance. In the statute it is provided that any person owning the lands condemned and appropriated may have an appeal from the award of the commissioners as to the value of the lands, crops, buildings or other improvements, and for all other damages sustained by reason of the appropriation. .In such an appeal the district may contest the title of the claimant •to the land, also whether an obstruction has been wrongfully placed in the channel of the stream, or that for any reason the appellant is not entitled to compensation. (R. S. 1931 Supp. 24-407; R. S. 24-443.)
Defendant seeks to justify the instruction given by the court on the theory that the taking and appropriation was an exercise of the police power of the state, and that the plaintiff holds its property, which is charged with a public interest, subject to an exercise of the police power, and that in such cases private rights may be invaded without compensation. The rule applies in some emergencies, such as the destruction of property to avert impending peril, as to prevent the spread of fire, the washing out of a highway during a freshet or flood, and the abatement of a nuisance. There are cases, too, where franchises have been granted to a street-car company, gas company, telephone company, and the like, to place rails, poles and pipes in public streets and other highways, and which they can be required to move without compensation. The primary use of the highways is for public travel, and the companies accept the grants and occupy the highways with their utilities on the implied and reserved power of the city to require their removal when the streets are needed for the higher purpose of public travel and the public safety. Property cannot be appropriated without compensation under the guise of the police power. If the requirements are unreasonable and arbitrary and operate to deprive an owner of his property within the purview of the law of eminent domain, they will not be upheld. In an ordinary case of condemnation and appropriation of an owner’s property, as in the present case, the constitutional right to compensation cannot be ignored or denied.
The drainage district is an administrative agency which has broad powers in the control of watercourses and in measures to effect proper drainage, but its orders, if unreasonable and arbitrary, are not beyond judicial review. In Drainage District v. Railway Co., 99 Kan. 188,161 Pac. 937, it was said:
“The plaintiff board is an administrative agency. Within its powers it is supreme. But its orders must be reasonable. And it cannot be the final judge of the reasonableness of its own orders. That would be tying administrative and judicial powers in one hand, and this our own constitution will not allow. (Citing cases.) ... It may therefore be said generally that when the state creates an agency to serve its public needs and confers administrative powers upon it, whatever be the language of the statutes conferring such powers, a just and reasonable exercise of such powers is intended, and the power’ to make or exercise unreasonable, arbitrary and confiscatory orders is not intended. Such is the spirit of our own bill of rights and of the fourteenth amendment, which have been expounded times without number by this court and by the federal supreme court.” (pp. 204, 205.)
Cases cited by plaintiff that the city may require a corporation occupying the streets to lower tracks and a gas and water pipe, by reason of changes of grades of streets, without being entitled to damages from the city, like that of Scranton Gas Co. v. Scranton City, 214 Pa. St. 586, are not applicable here. The city had the superior and reserved power in the streets and could exercise the police pow’er to require changes for the convenience and safety of the public without paying compensation to a corporation holding a grant or easement over the street. Nor do cases cited by defendant apply where appropriations are made on a navigable river where the owner has no title in the bed of the same. In respect to the taking of private property from one party for the use and benefit of another under the police power,, it was said by Mr. Justice Holmes, in Penna. Coal Co. v. Mahon, 260 U. S. 393:
“The protection of private property in the fifth amendment presupposes that it is Wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the fourteenth amendment. (Citing eases.) When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the constitution of the United States.
“The general rule, at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go — and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” (pp. 415, 416.)
In Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, it was said, among other things, by Mr. Justice Brewer:
“The equal protection of the laws which, by the fourteenth amendment, no state can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another or of the public” (p. 399.)
Further along in the opinion it was said:
“Is it just to deprive one party of all compensation in order that another may make some profit?” (p. 409.)
And again:
“The equal protection of the laws — the spirit of common justice — forbids that one class should by law be compelled to suffer loss that others may make gain.” (p. 410.)
We conclude that the plaintiff was entitled to recover not only the value of the land actually taken, but the reasonable expense of the relocation of the pipe line made necessary by the improvement of the watercourse on the plans of the drainage district.
There is complaint of the introduction of a resolution of the drainage district passed by the district after the condemnation, more than a year after the award of the commissioners, and shortly before the trial of the appeal, to the effect that the pipe line was an obstruction, a nuisance to be removed, which was received over the objection of the plaintiff. That part-of the resolution was not admissible. An issue in the case cannot be determined by the resolution of one of the parties made in its own behalf. It was self-serving in character, and the case was to be tried on the facts and law presented at the trial on the issues that had been formed.
Because of the error in the instructions there- must be a reversal of the judgment and a new trial granted.
There are some other objections, but the view1 we have taken of the case makes it unlikely that the rulings will be repeated.
The judgment is reversed and the cause remanded with the direction to grant a new'trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
R. C. Mathews was charged with the murder of J. E. Warren, and the trial resulted in a conviction for murder in the first degree. The defendant appeals.
J. E. Warren owned a ranch in the south part of Cowley county, and the defendant, Mathews, had been a tenant on Warren’s farm. The tenancy terminated on March 1, 1932, and Mathews was engaged in moving from Warren’s ranch at the time of the .tragedy. On March 2, 1932, Warren and his son were making a daily tour of the ranch, to feed and care for 310 head of cattle. In a cornstalk field owned by Warren, in which Mathews had turned his own live stock, the Warrens found the cattle trespassing and proceeded to drive them out on the road and to impound them as trespassing cattle. As they were driving the cattle on a road which runs across Warren’s ranch towards his home place, one of the Mathews family saw Warren and his son taking up and driving away, the cattle and rode a horse about a mile south to tell Mathews of the occurrence. Mathews immediately mounted his horse, rode back to his house and procured his son to bring him a twelve-gauge Winchester pump gun, and went up the road in pursuit of the Warrens, who did not know of his approach until he was within 25 or 30 feet of them and directly behind them, when, according to the testimony of the state, Mathews shouted, “Get to shootin’, Big Boy,” and instantly shot Warren in the back. Warren only lived about an hour after he was shot. Two more shots were fired by the defendant, and then Warren’s son, who was along and had a pistol with him, in defense of his father fired shots, one of which struck Mathews in the neck, making a slight wound. The defendant went to Newkirk, Okla., at once, where the Kansas officers found and arrested him. ■ A preliminary examination was held, and the magistrate found that a crime had been committed and that there were good grounds for holding the defendant guilty of its commission.
The first complaint raised on this appeal is that the magistrate was not warranted in finding that a crime had been committed and that there was probable cause to believe that the defendant had committed it. The complaint upon which the warrant was issued is included in the record and is a sufficient charge of the murder of Warren by the defendant, and it is conceded that the warrant contained a charge in the terms of the complaint.
Several witnesses were examined, among them a doctor called after the encounter, who took Warren to the hospital. On examination he found a ragged hole of three or four inches in Warren’s back, which went straight through the body, entering one or two inches to the right of the spine. The hole was big enough to stick three fingers into it. Warren was still conscious and inquired of the doctor if he could get well, and the doctor answered, “Jim, I think you are a dead man.” The doctor asked Warren who shot him and the reply was: “It must have been Shorty Mathews;” and when asked, “How did he shoot you in the back,” replied: “I don’t know, I never saw him.” Shortly afterwards Warren became unconscious and died about an hour later. Witnesses who described Mathews’ shotgun, which was found there, testified the cartridges carried No. 4 shot and that the gun was near the body of Warren, where much blood was found.
There was testimony offered to show that the shooting occurred in Kansas near the Oklahoma state line, and it is now conceded that it occurred in Kansas. The testimony also showed that after the shooting defendant went to Oklahoma and was there found and arrested.
Although the facts were not fully brought out in the examination, we think it is sufficient to accomplish the purpose of a preliminary examination. That purpose is to give the accused notice of the nature and character of the offense charged against him. It has been decided that:
“It is essential that the defendant shall have notice! of the nature and character of the offense charged against him, but under the law he must take notice not only of the charges in the complaint and warrant but also of those developed in the evidence offered at the preliminary examination.” (State v. Killion, 95 Kan. 371, 376, 148 Pac. 643.)
Under the law stated, the charge made and the evidence taken fully advised the defendant of the charge which he was required to meet in the final trial of the case. See, also, State v. Bailey, 32 Kan. 83, 3 Pac. 769; State v. Tennison, 39 Kan. 726, 18 Pac. 948.
On the trial, which resulted in a verdict of guilty of murder in the first degree, the principal complaint of defendant is that the evidence is not sufficient to sustain the finding. He insists that Warren was the aggressive party in the encounter and was, in fact, engaged in stealing the defendant’s live stock when the shooting occurred; further, that Warren and his son were each armed with guns, and that while he called at his home and got the shotgun to pursue the Warrens, it was not done with the purpose of shooting them, but as a cautionary measure that if Warren should attack him he might be able to defend himself. The only witnesses to the shooting of Warren were Joe Warren, the son of deceased, who was about nineteen years of age, and the defendant. Joe Warren testified about the assault and the shooting, and after stating that he and his father were making the rounds of the ranch to feed and take care of 310 cattle, and in going the rounds they came to a stalk field near the house where Mathews had been living and discovered cattle and horses in the field. They did not see Mathews and had the impression that he had moved away from the ranch, and they were taking up and driving the live stock from the field. He said:
“As we drove them up through the timber along that road we didn’t see Shorty Mathews coming after us at any time. The first indication we had that Shorty Mathews was near was two things right together. I saw a movement out of the corner of my eye and heard a shout. I heard him say, ‘Get to shootin’, Big Boy.’ Right then a shotgun shot. I could see it. in his (Shorty Mathews’) hand. Shorty Mathews at that time was just a little behind me. I didn’t know how far — not very far — about three, four or five steps. Maybe a little farther than 15 or 20 feet. My father was just a step or so ahe'ad of me. As the road comes up there it splits. It was just in front of that little island in the middle of the road there where we were that he s"id. ‘Ont to shootin’, Big Boy.’ The road there goes around on each side of that little island, I call it. We were just north of that. Just passed it. As we went around where the road splits I was on the left side or west side. Father was on the right-hand or east side. When I heard this shout I looked around, I saw Shorty Mathews, with a gun raised up. He was holding like this (indicating). He was aiming at my dad. Up to that time I hadn’t known that Shorty Mathews was anywhere near there. I hadn’t heard any sound from him until he said, ‘Get to shootin’, Big Boy.’ The shot struck my father in the back. He (Shorty Mathews) was pointing the gun at my dad. After the shot I turned my head and my father had a hole in his coat — the same coat that was introduced in evidence. As soon as Shorty Mathews shot, father started to turning. He just stuck his gun back like this (indicating), and pulled the trigger; he about half way turned his head far enough to see out of the corner of his eye. I didn’t hear father say anything. The next thing Shorty Mathews did was he worked his gun for another shot. I turned my head just then. I heard this second or third shot, whichever it was. That, didn’t hit father. Shorty at that time was coming right on after father. He was holding his gun up to his shoulder. My father’s gun was right in front of him and I couldn’t see it. He didn’t have it in a position to shoot. Father was sitting right straight in the saddle looking forward. Shorty came up closer to dad. He was aiming his gun towards dad. I heard the shot. It was a shotgun shot. At that time I got my pistol, cocked it, and shot at Shorty. I shot in his general direction. He was close to me. I knew he was shooting at my father. I wanted to save my father. . . .
“After I shot Shorty, father went right on down the road ahead of me. At first he sat up in the saddle like he wasn’t hurt much, but he kept slumping lower every time the horse would hit. Finally he fell off on his face. I got off to see how bad he was hurt. He was unconscious. I tried to talk to him. His gun was lying where he dropped it when he fell off, right near where he fell. . . .
“Mathews was still on his horse when he shot. After he fired the first shot he still kept right on after father on the horse. Father’s horse was going right on north away from Mathews. ...
“There wasn’t any time from the time I first knew Mathews was there that my father turned around and advanced towards Mathews. He was headed away from Mathews all the time.”
The testimony of the defendant was to the effect that when informed that his cattle were being driven away he went to the house and procured the gun and followed the Warrens up the road over which the cattle were driven. He denied that he made the expression, “Get to shootin’, Big Boy,” and did say, “Jim, wait a minute.” When Warren turned and fired a shot at him he was then about fifty feet away and that his horse began plunging and that he did not fire a shot at Warren until after he had been shot at, and further that the first shot was accidental, as he pulled the trigger when he was trying to hold the horse, and that he believed that his third shot was the one that struck Warren, and that was almost at the same time that Joe was shooting at him. He testified further that when Jim Warren fired he was shooting with his left hand. On that phase of the case it may be said that a number of witnesses testified that Warren was right-handed and always shot right-handed.
It is clear that although somewhat in conflict, the testimony abundantly supports the theory of the state and the verdict of the jury. It shows that he was pursuing Warren armed with a shotgun and began shooting while they were moving north and away from him and were unconscious of his presence there until the fatal shot was fired. The fact that Jim Warren was shot in the back is persuasive evidence that Warren was not advancing on the defendant at the time. The horse upon which Warren was riding was still going north away from the defendant and continued to. do so until Warren fell from his horse in a helpless and dying condition. The evidence of Joe Warren, the son, confirmed as it is by a number of circum stances, is wholly inconsistent with the theory that the defendant had to shoot Warren to save his own life.
In the course of defendant’s testimony, he said:
“I admitted a while ago that I shot Jim Warren in the back. At the time I shot him in his back his horse was facing north. I was behind him. Immediately before I started shooting, . . . his horse was practically headed north, most of the time. I never said his horse was ever facing south.”
Defendant calls attention to the fact that the Warrens, themselves, were armed with guns on the trip they made that morning. There was testimony that it was the general practice of cattlemen, when out to run or handle cattle, to carry guns, and one witness said that Warren frequently carried a gun when he was out handling cattle. Further, he stated that there were rabbits and coyotes in that region and that occasionally Warren killed rabbits and coyotes. The latter, he said, destroyed chickens on the place. It may be noted, too, that the Warrens did not expect to meet or see Mathews on the tour, nor did they anticipate trouble with him. Certainly there was sufficient evidence to support the charge of murder. Defendant’s own admissions go far to uphold the verdict.
Complaint is made of the instructions given the jury. The court informed the jury that defendant was charged with having willfully, deliberately, premeditatedly and with malice aforethought, killed and murdered Warren by shooting him with a shotgun; that defendant had entered a plea of not guilty and is presumed to be innocent until proven guilty beyond a reasonable doubt. The court then defined the degrees of murder as follows:
“The defendant is charged with the murder of Jim Warren. Murder at common law is where a person of sound memory and discretion unlawfully kills any reasonable creature in being in the peace of the state, with malice aforethought, either expressed or implied.
“Our statute divides murder in two degrees, murder in the first degree and murder in the second degree.
“Murder in the first degree under our statute is where there is an unlawful killing as above defined, and wherein there are the elements of deliberation and premeditation. That is, in order to constitute murder in the first degree under our statute there must be, in addition to a malicious killing, prior deliberation and premeditation; that is, the mode or plan to be earned out must have been prior to the actual killing and have been deliberated upon or thought out. However, this plan or means of taking life does not precede the killing any considerable length of time, so that the mode decided, upon, however short the time, would be sufficient if the mind of the slayer actually determined upon the manner in which he should commit the offense.
“Murder in the second degree is the unlawful killing of another by a person with malice, but not necessarily should there be any deliberation or premeditation as to the mode or manner of killing. That is, to constitute the charge of murder in the second .degree the chances of how the killing should be done do not have to be weighed, considered or estimated, nor the means planned, contrived or schemed beforehand, as is necessary in first-degree murder.”
It will be observed that the instruction, omits the word “willful,” a term used in. the statute which defines the offense of murder. The word as used in the charge of murder means intentionally or designedly done, and not accidentally. (State v. Avery, 111 Kan. 588, 591, 207 Pac. 838; Gatewood v. Commonwealth, 215 Ky. 360; 4 Words and Phrases, 2d Ser., p. 1295.)
In instruction number six the court added:
“If you determine that the killing was malicious, unlawful, deliberately and premeditatedly done, you should so find in your verdict.”
That was the finding of the jury. The language employed by the court in its instruction fairly includes and covers a willful or intentional act. The court charged that it must have been done unlawfully and maliciously with deliberation and premeditation, he having thought out in advance a mode of killing, a plan which he carried out, having deliberately thought out the plan or means of killing. Doubtless the court would have added the word inadvertently omitted, if its attention had been called to it, but we think that the terms used clearly import a willful act, and that no prejudice resulted to defendant from the omission of the word in the instruction.
The evidence fully supports the theory that the killing was willfully and feloniously done with malice and with deliberation and premeditation. The charge as to murder in the second degree, wherein the elements of deliberation and premeditation were eliminated, is without material error.
There is some criticism of a remark of the court that evidence of the admission made by defendant, did not leave room for the claim that he acted in lawful defense of his own person, but the court gave a charge in respect to the law of self-defense. In view of the defendant’s admissions there was no material error in the remark.
Some objections are made to rulings on the admission of evidence, but it is plain that they cannot be regarded as grounds of error nor do they require special consideration or comment.
Our conclusion is that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of violating the city ordinance of Liberal which imposed a poll tax on all male persons between twenty-one and fifty years of age who are not'a public charge.
The city ordinance was in substantial accord with R. S. 68-201, and provided that the tax could be satisfied by paying three dollars in cash or by two days’ service at manual labor.
From conviction in the police court and sentence to pay a fine of $5, defendant appealed to the district court where he waived a jury trial and was convicted and sentenced as before. He appeals on the principal ground that the evidence in both courts below showed that he was a public charge and therefore exempt from the provisions of the ordinance.
That evidence, briefly summarized, was to this effect: Defendant was thirty-seven years old, a resident of Liberal, and owned a home in that city and also owned an automobile. He was physically incapacitated to perform manual labor. He had been a soldier in the United States army from April 6, 1917, until September 3, 1918, when he received an honorable discharge on account of total disability. This entitled him to admission to the United States army hospital at Fort Bayard, N. M., and likewise to be received as a beneficiary in any United States soldier’s home. Because of his physical incapacity the federal government has been paying him $100 per month as. a pension; and the bureau of war risk insurance has awarded him the sum of $10,000, payable at the rate of $57.50 per month, which payments he has been receiving since September 3, 1918.
The question before us is simply this: Does a man who is physically incapacitated, who owns his home and an automobile, and who now has and for several years yet to come will have a war risk insurance income of $57.50 per month, and who draws a government pension- of $100 per month, fall within the class of persons which the city ordinance exempts from the payment of a poll tax as “a public charge”? In the primary meaning of the term, “a public charge” is a pauper supported at public expense. In its more comprehensive aspects a public charge means any person requiring the supervisory care of public authority because of his helpless destitution, his mental or moral irresponsibility, or his delinquent proclivities. (United States v. Williams, 175 Fed. 274, 275; 50 C. J. 852.)
In our own early case of State, ex rel., v. Osawkee Township, 14 Kan. 418, where the constitutionality of a statute enacted ostensibly for the relief of the poor was under discussion, it was said:
“It must be borne in mind, however, that the term ‘poor’ is used in two senses. We use it in one sense simply as opposed to the term ‘rich.’ Thus we speak of the ordinary laborers, mechanics, and artisans as poor people, without a thought of describing persons who are other than self-supporting. Indeed the large majority of our people are poor people, and yet they would feel insulted to be told that they are objects of public charity. We use the term also' to describe that class who are entirely destitute and helpless, and therefore dependent upon public charity.” (p. 421.)
In Town of Rhine v. City of Sheboygan, 82 Wis. 352, it was held that a man and wife who had a house and three acres of land worth $1,200 subject to an encumbrance of $450, for which they refused an offer of $1,100, but who were otherwise without means, were not entitled to support as public charges under the Wisconsin statute which cast the support of poor persons on the town where they had a legal settlement. The court said:
“While such person is possessed of property not absolutely indispensable for' daily use, he must apply it to his support by sale or by way of security. It is not the poor man, as contradistinguished from the man of ample means or the rich, that is an object of charity; it is the pauper, and not the poor man in the ordinary sense of the term, the man not only in want, but who has no means or resources for relieving it, who is entitled to the statutory aid provided in obedience to the dictates of the humane policy of the statute relating to the poor.” (p. 354.)
Cases can be imagined where persons may temporarily become a public charge through sickness or other misfortune although they do own property, where their property cannot be promptly used as a basis of credit. In Coffeen v. Preble, 142 Wis. 183, where such a situation was under consideration, it was held:
“It was a question for the jury in this case whether a family consisting of father, mother and minor son, all of whom were ill with typhoid fever and bedridden, were entitled to relief from the town, although they owned a homestead worth $725, subject to a mortgage not exceeding 1450, and had about $7 in money and some credit at a grocery.” (Syl. II3.)
See, also, instructive note to this case in 27 L. R. A., n. s., 1079-1082. '
From these authorities it would seem that defendant, being the owner of a home and an automobile, was not a public charge, and therefore he was properly subjected to the payment of the city poll tax.
This conclusion renders it unnecessary to consider whether the fact that defendant was receiving a monthly income of $57.50 from his war risk insurance (not to mention his government pension of $100 per month) would be sufficient to exclude him from the class of being a public charge. In State, ex rel., v. Shawnee County Comm’rs, 132 Kan. 233, 294 Pac. 915, 283 U. S. 855, 75 L. Ed. 1462, it was held that when the proceeds of a war risk insurance policy have become part of the general mass of property within the state, it is subject to taxation. ,The logical deduction from that decision is that defendant would have been deprived of no exemption right guaranteed by state or federal law if he had been held subject to the poll tax although possessed of no other means with which to, pay it. The court has noted with complaisant detachment the comment on the case just cited which appears in the February, 1933, issue of the Kansas Bar Association Journal with its citations of later cases from other jurisdictions (pp. 239-241). Still later cases, not yet officially reported, in accord with our view are: United States Fidelity & Guaranty Co. v. Montgomery, (Ala.) 146 So. 528; State v. Blair, (Tenn.) 57 S. W. 2d 455.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the holder of a check against the maker. The defense was lack of proper indorsement. At the close of the evidence the trial court sustained defendant’s motion for judgment in his favor upon the pleadings and all the evidence. Plaintiff has appealed.
The petition alleged that plaintiff is a national bank doing business at Garden City; that the defendant, Thomas L. Daniel, was in the grain business at Deerfield, Kan.; that about July 23, 1931, defendant purchased from Isaac'Young and W. H. Foster a quantity of wheat', for which he became indebted in the sum of $202.06, and in payment therefor executed'his negotiable check for that amount, drawn on the Deerfield State Bank, in which check the payee was designated as “Young & Foster,” and delivered the check to Isaac Young; that about July 23, 1931, Isaac Young indorsed the check as follows: “Young & Foster, by Isaac Young,” and sold and delivered the same to plaintiff, who paid Young the sum of $202.06 therefor; that plaintiff duly presented the check to the Deerfield State Bank for payment, but the bank refused payment, at defend ant’s request, although he had funds on deposit in the bank sufficient to pay the same; that both Isaac Young and W. H. Foster were interested in the wheat sold defendant for which the check was issued, but plaintiff did not know the exact interest of each of the parties in such wheat, but alleged that their interests therein were known to defendant at the time the check was issued; that Isaac Young and W. EL Foster were not partners, or engaged in business as a firm or otherwise under the name of Young & Foster at the time the check was issued, which fact was then known to defendant but was not known to plaintiff at the time it became the owner thereof. A copy of the check is attached, and the prayer is for judgment for the amount of the check, with interest.
The answer admitted plaintiff’s corporate capacity and business; that defendant was engaged in the grain business; that the check in question was issued by him in payment of wheat which he had purchased from Isaac Young and W. H. Foster; that the check was made payable to “Young & Foster;” that he had funds in the Deer-field State Bank sufficient to pay the check at the time it was drawn and when presented, and that he requested the bank not to pay the check; denied that Isaac Young in due course negotiated the check to plaintiff and that plaintiff became the owner thereof; alleged the wheat sold to defendant by Isaac Young and W. EL Foster for which the check was issued in payment was owned jointly by Isaac Young and W. H. Foster, and that the check was their joint property; that Isaac Young and W. H. Foster are not and never have been partners; that the check has not been indorsed by W. H. Foster, and that he did not authorize anyone to indorse the check for him; that his right, title and interest in the check have not been legally transferred by indorsement or otherwise to plaintiff, and for this reason he caused the bank on which the check was drawn to refuse payment thereof. It is further alleged that at the time plaintiff received the check and paid for the same it knew that Isaac Young and W. H. Foster were not partners, and that Young had no authority to indorse the check for and on behalf of Foster. The reply was a general denial.
The facts as disclosed by the evidence are not seriously controverted and may be stated as follows: W. H. Foster was and had been for many years a resident of Garden City. He transacted his banking business at the plaintiff bank and was well acquainted with its active managing officers. In 1928 he sold land which he owned to Isaac Young on the crop-payment plan. He had never been in partnership with Young. In 1931 Young harvested wheat he had raised on this land and took the same to defendant’s elevator at Deerfield, twelve miles west of Garden City, where it was sold. Foster had an interest in this wheat — in fact, his interest amounted to almost all of it. On July 23, 1931, in payment for the wheat, the defendant Daniel issued his check, payable to the order of Young & Foster, and delivered the check to Young. At the time he made this check defendant was well acquainted both with W. H. Foster and with Isaac Young, and he issued the check in payment of “wheat grown by Mr. Young on Foster’s land, as I understood it.” On the next day Young took this check to the plaintiff bank at Garden City, where he had an account, indorsed it “Young & Foster, by Isaac Young,” and deposited it to his credit in his personal account at plaintiff bank. W. H. Foster did not know the check had been issued and never authorized Isaac Young to indorse any check for him. Plaintiff’s cashier, who received the deposit, assumed Isaac Young had authority so to indorse the check and he credited the amount of it to Isaac Young’s personal account. It seems the bank had no account under the name of Young & Foster, and that its cashier made no inquiries concerning the payees of the check or the right of Isaac Young to indorse it and to receive credit for it as he did. Plaintiff promptly sent the check through the usual channels for payment. When it reached the Deerfield State Bank, on which it was drawn, its cashier observed the indorsement, questioned whether that would be satisfactory to Mr. Daniel, the maker, inquired of him if the indorsement were satisfactory, was informed that it was not, and was instructed by Mr. Daniel not to pay the check, and he returned the same to the plaintiff, through the clearing house, without protest. Plaintiff mailed the check back with the request that it be paid or protested. It was protested on August 8. In the meantime, and within two days after he had deposited this check, Isaac Young drew all of his deposit from the plaintiff bank, except sixteen cents, and left the country.
A section of our statute (R. S. 52-412 [§ 41 N. I. L.]) pertinent to the matter reads as follows:
“Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others.”
In this case both the plaintiff and the defendant alleged that Young and Foster were not partners, and the only evidence touching that question is to the same effect. Here both Young and Foster were named as payees. The cases are uniform in holding in conformity to the plaih language of the statute. (Kaufman v. State Savings Bank, 151 Mich. 65, 114 N. W. 863, 123 Am. St. Rep. 259, 18 L. R. A., n. s. 630; Allen v. Corn Exch. Bank, 84 N. Y. Supp. 1001; First Nat. Bank v. Gridley, 98 N. Y. Supp. 445; Glens Falls Indemnity Co. v. Chase Nat. Bank, 249 N. Y. Supp. 686; Bank v. Bank, 197 N. C. 526, 150 S. E. 34; Fink v. Scott, 105 W. Va. 523, 143 S. E. 305, and, on second appeal, 152 S. E. 3; Crahe v. Mercantile Savings Bank, 295 Ill. 375, 129 N. E. 120; Bank v. Phillip, Admr., 172 Mo. App. 404, 158 S. W. 448; Johnson v. Watland, 208 Ia. 1370, 227 N. W. 410; Karsner v. Cooper, Sr., 195 Ky. 8, 241 S. W. 346, 25 A. L. R. 159, with cases collected on necessity of indorsement by all payees.)
In Paton’s Digest, § 2615, the question asked was:
“Should a bank accept for deposit in the personal account of A a check payable to ‘A and B,’ and indorsed ‘A and B, per A’? Opinion: Where a check payable to A and B, who are not partners, is indorsed ‘A and B, per A,’ and is offered for deposit to the credit of A’s personal account, the bank, before accepting the deposit, should be satisfied that B has authorized A to make such indorsement. Where A and B are partners the general rule is that in the case of a trading or commercial firm any member has implied authority to indorse and transfer paper by indorsement in the firm name, and such transfer may be made to himself. Such authority is not implied in the case of a nontrading firm. (See full text, 2615a.)”
An extended discussion of this is given under section 2615a, where the facts stated are'quite like those in the case before us.
Our own court, in the case of Voris v. Schoonover, 91 Kan. 530, 138 Pac. 607, had occasion to say:
“Construing this section with subdivision 4 of section 15 (R. S. 52-208 [§ 8 N. I. L.]), a note payable to ‘A and B’ must, if the payees are not partners, be indorsed by both, but if payable to ‘A or B,’ the order to pay is complete on the indorsement of either.” (p. 531.)
Appellant argues this statute is not applicable, because the Christian names of the payees were not used as well as the surnames, and contends that the use of the surnames only, with the conjunction “and,” indicates a partnership. The same contention was made in Fink v. Scott,- supra, where the note was payable to the order of Lyda & Ridinger and was indorsed'. “Lyda & Ridinger, by" C. F: Lyda,” and below, “C. F. Lyda.” In disposing of the contention that this indicated that the payees were partners the court said:
“The mere fact, however, that a note has been made to two or more parties jointly will not raise the presumption of a partnership existing between them.” (Fink v. Scott, 105 W. Ya. 523, 526.)
Citing Kaufman v. State Savings Bank, supra, in which case, however, Christian names or initials were used as well as surnames. But the statute above quoted makes the fact of partnership controlling rather than a presumption or inference with respect to partnership; and we can see how it must be so in order to be of any value. Partnership, being a relation between persons created by contract, the parties may choose any name in which to conduct the partnership business. (47 C. J. 736; 20 R. C. L. 803.) To attempt to outline by statute what words, or combination of words, would or would not indicate a partnership would be futile. Under the rule laid down by the statute, when there are two or more payees who are not in fact partners all must indorse unless the one indorsing has authority from the others to indorse for them. It is clear that the names of two persons were used as payees in' the check given by defendant; hence, it is essential that both of them should indorse it if they were not partners, and it is conceded they were not. It is not contended that anyone connected with this case was misled as to who was meant by the Young & Foster named as payees; hence, the payees were named, or indicated, with reasonable certainty, as required by R. S. 52-208.
Appellant contends: (1) That the names of the payees as used tend to indicate a partnership, and (2) if no partnership between the payees existed the instrument was payable to bearer under R. S. 52-209 and needed no indorsement, citing Ort v. Fowler, 31 Kan. 478, 2 Pac. 580. In that case the maker of a promissory note, payable to the order of Wilson, Parks & Co., was advised that the payee was a partnership. The evidence disclosed that there was no such partnership. The court held:
“Where a party executes a note to the order of a fictitious firm, and thereafter the holder indorses the note in the firm’s name, a bona fide indorsee may recover against the maker, and this notwithstanding the latter was ignorant of the fact that the firm name was fictitious.” (Syl. ¶ 3.)
There are several reasons why this theory is not applicable here. In the first place there was no representation to plaintiff, or its cashier, or to anyone else, that Young and Foster were partners, made by the defendant in this case, or by Isaac Young, or by anyone else, unless it can be said that the way the names were written in the check by defendant indicated or raised a presumption that they were partners, and for reasons above stated that position cannot be maintained. In the second place our statute has been materially changed since that decision was rendered in 1884. R. S. 52-209 [§ 9 N. I. L.], adopted in 1905, provides:
“The instrument is payable to bearer ... or (3) when it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable.”
• Under that statute is was held, in United Workmen v. Bank, 101 Kan. 369, 166 Pac. 490:
“Under the third subdivision of section 6536 of the General Statutes of 1915 (R. S. 52-209), a negotiable order for the payment of money must, to make it payable to bearer, be knowingly drawn payable to a nonexistent person.”
See, also, American Exp. Co. v. Peoples Sav. Bank, 192 Ia. 366, 181 N. E. 701; Boles v. Harding, 201 Mass. 103, 87 N. E. 481; American Hominy Co. v. Millikin Nat. Bank, 273 Fed. 550; Robertson Banking Co. v. Brassfield, 202 Ala. 167, 79 So. 651; and cases annotated on this point in 22 A. L. R. 1228 and 52 A. L. R. 1326.
Appellant suggests that, this being an action for the recovery of money, it was entitled to a trial by jury. There are no controverted facts in this case material to the decision. Defendant’s motion was for a judgment on the pleadings and all the evidence admitted, all facts well pleaded by plaintiff, and all fair inferences favorable to plaintiff to be drawn therefrom (Fielding v. Alkire, 124 Kan. 592, 597, 261 Pac. 597); and, like a demurrer to evidence, it admitted all inferences favorable to plaintiff to be reasonably drawn therefrom (49 C. J. 668). We have so construed the pleadings and the evidence in passing upon the case.
The judgment of the court below is affirmed. | [
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